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Ballot Law Update: Residency requirements toppled in Nebraska

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Note: As legislative sessions wind to a close, the Ballot Law Update will switch to a monthly format. Starting in September, new updates will come out on the last Wednesday of each month. Recent ballot law news will still appear each week in the Tuesday Count.

August 31, 2011

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By Tyler Millhouse

Since the beginning of the year, 246 laws have been proposed in 40 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1]

The Citizens in Charge Foundation (CICF), a non-profit that promotes initiative and referendum rights, identifies proposed laws which either ease or tighten restrictions on ballot initiatives. So far in 2011, CICF has identified 61 laws that make getting a measure on the ballot more difficult. Of these 61, 43 have died, 11 are still pending, and seven have passed. CICF has also identified 44 laws that would make the process easier. Of these 44, 37 have died, three are still pending, and four have passed.[2]

On August 18, the California State Legislature passed Senate Bill 448. The bill would create a badge requirement for initiative petition circulators. Known as "scarlet letter laws" to opponents, these requirements mandate that paid petition circulators wear badges identifying themselves as paid workers. On August 15, the Assembly approved the bill, 50-27, with amendments. Three days later, the California State Senate gave its concurrence, 24-15. The bill now moves to Governor Jerry Brown (D). Brown recently vetoed a pay-per-signature ban. It remains to be seen whether he will veto SB 448 as well.[3]

Yesterday, the United States District Court for the District of Nebraska overturned the state's residency requirements. These cases, Citizens in Charge v. Gale and Bernbeck v. Gale, constitute a major victory for advocates of the initiative process. Besides overturning Nebraska's residency requirement, these cases promise to further weaken a 2001 ruling, Initiative & Referendum Institute v. Jaeger, which upheld bans on out-of-state circulators.[4]

Court actions concerning I&R

The plaintiffs and intervenors have... showed an infringement on their rights to associate. Plaintiffs’ and intervenors’ argument that this ban inhibits their right to associate is a valid one. The out-of-state ban imposes a heavy burden on the plaintiff-intervenors efforts to promote their political views in Nebraska. The defendant has not met its burden in this regard. As stated previously herein, the defendant offered very few instances of fraud. Further, there are less restrictive alternatives for bringing petition circulators into the subpoena jurisdiction of this court.[6]
Laws restricting the exercise of First Amendment rights must be "narrowly tailored to achieve a compelling state interest."[7] Ultimately, the court found that Nebraska's residency requirement did not meet this standard since that less restrictive alternatives are available to the state for fraud prevention/prosecution.[6]
This decision further weakens an earlier decision by the Eighth District Court of Appeals, Initiative & Referendum Institute v. Jaeger, which upheld a similar ban in North Dakota but noted that plaintiffs there had not sufficiently demonstrated that the ban was burdensome. Since Jaeger, three circuit courts have overturned residency requirements.[4]
Although the court overturned the residency requirement, it also upheld the state's "scarlet letter law." An appeal by one or both sides is expected.[4] The full decision can be found here.
The argument that justification is found in the State's interest in assuring that an initiative has sufficient grass roots support to be placed on the ballot is not persuasive, since that interest is adequately protected by the requirement that the specified number of signatures be obtained.[9]
Although Meyer dealt with the issue of paying petition circulators, the defendants in Bernbeck v. Gale made a similar argument for the sponsor residency requirement, arguing that it ensured local support for the measure.[8]
Like Citizens in Charge v. Gale, Bernbeck v. Gale also successfully challenged the state's circulator residency requirement, although the latter simply cited the decision in the former. Bernbeck also challenged Nebraska's pay-per-signature ban and age requirements for circulators (18 years of age). However, the court upheld both of these laws. Again, an appeal by one or both sides is expected.[4] The full decision can be found here.

Bill updates

The following is a list of recent updates for bills covered in past reports. For a complete list of updates, see the Ballot Law Bill Tracker.

  • California Senate Bill 448: Update: Passed Senate (5/9/11), amended in House (7/14/11), passed in House (8/15/11), Senate concurs and sends to Gov. (8/18/11). SB 448, much like the now-shelved AB 481, would require paid petition circulators to wear a badge indicating that they are a paid worker. (Volunteer workers are not required to wear a badge.) Prior to a House amendment, the bill also required volunteer petitioners to wear badges indicating their volunteer status. In addition, the earlier version required the badges to identify where in California the circulator is registered to vote. While the earlier version did not require the circulator to be registered, unregistered circulators would have been identified as "NOT REGISTERED TO VOTE." The bill's sponsor is Sen. Mark DeSaulnier (D).[10][11] Citizens in Charge Foundation rating: Reduces initiative rights.

Approved legislation

  • Oregon House Bill 2634: HB 2634 creates a Citizens’ Initiative Review Commission to form and oversee impartial citizens panels tasked with reviewing ballot measures. These panels, in use in another form since 2009, review proposed measures for their fiscal impact and draft arguments for and against the measures.[12] Citizens in Charge Foundation rating: Protects/expands initiative rights.
  • Nevada Assembly Bill 81: AB 81 is an omnibus election overhaul, affecting many aspects of Nevada election law. With respect to initiatives, the bill requires any person or committee to identify themselves on any campaign communication on which they spent more than $100. In addition, the bill requires petitions to include the contact information of the circulator and a statement that the circulator is 18 years of age.[2] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Nevada Assembly Bill 82: AB 82 is also an omnibus election overhaul bill. It requires that organizations advocating for or against a ballot measure abide by the campaign finance reporting requirements of political action committees. This change has the effect of lowering the reporting threshold from $10,000 to $1,000.[13] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Nevada Senate Bill 133: SB 133 makes Congressional districts the basis for the state's distribution requirement. Petitioners must now collect 10% of the required signatures in each of the state's three Congressional districts. Two previous requirements using counties as the basis of the requirement were struck down by the courts.[14][15] Citizens in Charge Foundation rating: Protects/expands initiative rights.
  • Colorado House Bill 11-1072: HB 11-1072 creates several new requirements for initiative proponents. In particular, the bill requires proponents, within ten days of filing, to produce a report detailing all the expenditures relating to the circulation of the initiative. The report must include the dates of circulation, total hours worked, and gross wages earned by each circulator. After the report is filed, any registered voter may challenge the report within ten days. Initiative proponents then have ten days to correct the error or a judicial hearing is scheduled. If the judge determines that an intentional violation did occur, the proponents are subject to a fine equal to three times the omission. In addition, proponents may be subject to civil action by the voter who brought the challenge for the recovery of legal fees.[16] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Florida House Bill 1355: HB 1355 contains extensive modifications to Florida's election law. With respect to initiative and referendum, the bill cuts the signature gathering period from 4 to 2 years. It also shortens the window for challenging legislatively-referred ballot questions.[17] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Arizona House Bill 2304: HB 2304 alters the state's requirements for petition circulators, eases third-party primary access, and clarifies laws regarding wearing political apparel at polling places. With respect to initiatives, the law repeals the state's unconstitutional circulator residency requirement. However, it replaces this requirement with a requirement that out-of-state circulators register with the state.[18] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Oklahoma House Bill 1664 (2011): HB 1664 provides for the notification of initiative proponents regarding the title status of a ballot initiative.[2] Citizens in Charge Foundation rating: Protects/expands initiative rights.
  • Montana House Bill 391 (2011): HB 391 was passed by the Montana Legislature on March 28, 2011 and has since become law. The law prohibits local ballot measure from setting the enforcement priority of state laws. The law is seen as targeting a local ballot measure which instructed local law enforcement to make marijuana laws their lowest priority.[19][20] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Utah Senate Bill 165 (2011): SB 165 changes the basis of Utah's signature requirements from the number of votes cast in the last gubernatorial election to the number of votes cast in the last presidential election. This will raise the number of signatures required. In addition, the bill bans electronic signatures for ballot initiatives.[21] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Virginia Senate Bill 889 (2011): SB 889 removes the requirement that voters include the last four digits of their social security number when signing a petition. Citizens in Charge Foundation rating: Protects/expands initiative rights.

See also


  1. NCSLnet, "Initiative & Referendum Legislation," accessed August 31, 2011
  2. 2.0 2.1 2.2 This information is based on the most recent edition (August 23, 2011) of the CICF "Afternoon I&R Legislation Update"
  3. The Sacramento Bee, "Bill requiring badges for paid initiative circulators goes to Brown," August 18, 2011
  4. 4.0 4.1 4.2 4.3 Citizens in Charge, "Federal Court Strikes Down Nebraska Petition Law," August 31, 2011
  5. ACLU Nebraska, Verified Complaint in Intervention, Citizens in Charge v. Gale, December 16, 2009
  6. 6.0 6.1 United States District Court for the District of Nebraska, Citizens in Charge v. Gale, Memorandum and Order, August 30, 2011
  7. United States Court of Appeals, Sixth Circuit, Nader v. Blackwell
  8. 8.0 8.1 United States District Court for the District of Nebraska, Bernbeck v. Gale, Memorandum and Order, August 30, 2011
  9. U.S. Supreme Court, Meyer v. Grant, June 6, 1988
  10. California Assembly Bill 448, Bill History (dead link)
  11. California Assembly Bill 481, Bill History (dead link)
  12. House Bill 2634, Staff Measure Summary
  13. Nevada Legislature, AB 81, as enrolled
  14. Nevada Legislature, SB 133, as enrolled
  15. Citizens in Charge, "Nevada Distribution Requirement: Will Three Be A Charm in Carson City, Or Will It Be Back to the Courts?," June 13, 2011
  16. Colorado House Bill 11-1072, enrolled bill
  17. Tampa Bay Online, "State law limits citizens' ability to get amendments on ballot," May 24, 2011
  18. Ballot Access News, "Arizona Bill, Improving Ballot Access and Making Other Changes, Passes House Judiciary Committee," February 10, 2011
  19. Bill History, HB 391
  20. Billings Gazette, "Missoula County attorney's attempt to override marijuana initiative creates uproar," January 20, 2011
  21. Utah Senate Bill 165, as enrolled