Ballot Law Update: Semi-annual summary
| Initiative law|
Ballot access rulings
Recent court cases
Ballot title challenges
By Josh Altic
The first half of 2014 has seen a wide range of changes and attempted changes to ballot law across the nation, with some proposed laws seeking to expand the initiative and referendum process and others attempting to restrict it. For example, legislators in Georgia and eight other states proposed laws that sought to establish the power and process of initiative and referendum in state constitutions. Meanwhile, in Arizona, a controversial law proposed mandating that voters periodically reapprove any initiative or referendum that directs public expenditures or appropriations.
So far this year, state lawmakers have seen at least 113 laws concerning ballot measures during 2014's legislative sessions, of which 67 were carried over from 2013.
This edition of the Ballot Law Update features a half-year roundup of laws, resolutions and bills concerning ballot measure and recall law. It highlights the laws that have been approved and defeated, as well as laws that could entirely change the dynamic of direct democracy on a statewide level.
The Ballot Law Update is released at the end of each month.
As of June 27, 2014, eight bills concerning ballot measure law have been approved across five states.
Arizona legislators may have regretted election reform passed in 2013, at least according to their actions on a recent bill. This year they approved Arizona House Bill 2196, which repealed HB 2305, containing multiple election and ballot law reform provisions. The ill-fated HB 2305 required a political committee that files petitions with the secretary of state to organize and group the signature sheets in a certain fashion. It also demanded a heightened evidentiary standard for any challenger to petition circulators, provided the political committee in question conducted an arm’s length background check on its petitioners.
Prior to the approval of 2014 Arizona House Bill 2107, any petition signature that was dated after the whole petition sheet was dated by the circulator would be thrown out during the validation process. HB 2107 removed this requirement, leaving the other requirements for a valid signature in place. The bill also reaffirmed the necessity for the circulators of any type of petition to signify on each petition sheet whether they are paid or volunteer signature gatherers. The bill was approved unanimously in the house and had only two dissenters in the senate.
Maryland Senate Bill 930 changed the dates of required campaign finance reports for ballot issue campaign entities. Prior to the approval of SB 930, ballot measure campaign committees were required to submit campaign finance reports on the second Friday before the general election and on the third Tuesday after the election. SB 930 added two additional pre-election reports due on the last Tuesday in August preceding the general election and the fourth Friday immediately before the general election respectively. It also changed the post-election report due date to the second Tuesday after the election. The bill was approved without a single dissenter in both branches of the legislature.
South Dakota House Bill 1096 provided for a process by which any person could challenge the validity or sufficiency of an initiative or referendum petition. This measure was approved in the House in a vote of 41 against 28, with one absent representative. The senate approved it more easily with 34 in favor and four against.
- See also: Laws governing ballot measures in Utah
Utah House Bill 192, which was sponsored by Rep. Jon Stanard (R-62) and Sen. Margaret Dayton (R-15) and decisively approved in both branches of the legislature, added a required statement to any statewide or local initiative petition signature sheet stating that the signer has read, understands and agrees to the law proposed by the petition. It also added a statement to any statewide or local referendum petition signature sheet stating that the signer has read and understands the law the petition seeks to overturn. Moreover, it made technical corrections to election law.
Bob Bernick, writing for Utah Policy, said that this bill would make it harder to put an initiative or referendum on the ballot. He presented the possibility that a signer could support putting a question on the ballot without necessarily supporting approval of the question. Opponents of the bill propose that, perhaps, a signer would simply want voters to make the decision, without supporting approval themselves. Some opponents, including the group Count My Vote, see HB 192 as yet another effort to make it more difficult to qualify an initiative for the ballot. Sen. Stanard, sponsor of the bill, said it was designed to prevent voters from signing a petition without reading, understanding and supporting it. Stanard said, “I’m really looking for transparency."
Utah House Bill 379 passed unanimously in the senate and provoked only one "no" vote in the house. The bill was designed to allow and provide a process for the submission of arguments in support of and against ballot measures. It also requires a public meeting prior to a ballot measure election at which written and oral arguments can be presented.
Thirty-three bills seeking to change ballot law in either a big or small way have failed so far in the 2014 legislative year. Most simply died in committee or were abandoned, left to expire when the legislative session adjourned. Some were voted down or vetoed by the governor.
One controversial resolution failed in a tied vote of 14 against 14 - with two abstaining or absent - in the Arizona State Senate. Senate Concurrent Resolution 1003 sought to require periodic re-approval from voters every eight years for any initiative or referendum that directs public expenditures or appropriations. If approved, the resolution would have called for a constitutional amendment that would take effect on voter approval. A similar resolution was introduced in the Arizona House, but it died in committee.
Oklahoma Governor Mary Fallin (R) vetoed Senate Bill 1315, which sought to clarify the timeline required for the submission of signatures for petitions. According to Gov. Fallin, the bill, while clarifying the petition process for initiatives, deleted the word "referendum," thereby "creating ambiguity and uncertainty around the referendum petition procedure." Whether SB 1315 was a mistake on the side of the author or a deliberate attempt to introduce ambiguity with regard to referendum petitions, there was no effort to overturn the governor's veto.
Legislation introduced throughout many of the fifty states in 2013 and 2014 legislative sessions proposed drastic changes in the state's laws concerning direct democracy. Some bills or resolutions called for the creation of initiative, referendum or recall powers, others sought to restrict or expand the availability of the petition process and still others could provide ammunition for any attorney, critic or politician seeking to disqualify a proposed initiative.
Legislation seeking to create a process for initiative and referendum petitions:
Twenty-four separate pieces of legislation were introduced across nine states seeking to establish a procedure for initiative and referendum petitions. Below is a list of states in which such legislation was introduced:
- New Jersey
- New York
- Rhode Island
- South Carolina
- West Virginia
In Georgia, Senator Joshua McKoon (R-29) sponsored Senate Resolution 692, seeking to present to voters a constitutional amendment that would establish the power and process of initiative and referendum. The procedure proposed a signature requirement of ten percent of votes cast in the last gubernatorial election, as well as other restrictions and procedural provisions.
The 2013-2014 Hawaii legislative sessions featured at least six separate bills seeking to grant the direct democracy powers of initiative or referendum or both. One introduced in 2013, Senate Bill 771, sought to provide the power of recall, as well as initiative and referendum powers. The three proposals introduced in 2014, Senate Bill 2360, Senate Bill 2361 and House Bill 1816, sought only the powers of initiative and referendum. Sen. Russell E. Ruderman (D-20) and Sen. Mike Gabbard (D-2) each co-sponsored the bills in the Hawaii Senate. Better Hawaii put these efforts, along with efforts to establish the power of recall, at the top of its list of bills "that would empower Hawaii citizens."
Joint resolutions seeking to put constitutional amendments before voters that would give citizens the power of initiative, referendum and recall were introduced in both the West Virginia Senate and House. Both Senate Joint Resolution 1 and House Joint Resolution 27 died in Judiciary Committee.
Sen. Christopher Connors (R-9) spearheaded the effort in the New Jersey Senate to put a ballot measure before voters through SCR 54 that, if approved, would grant the powers of initiative and referendum for the specific purpose of directing fiscal policy and repealing bills that prescribe state spending. A similar resolution was proposed by a group of Republican law makers in the state assembly as ACR 36. The more expansive and drastic ACR 67 was supported by some of the same assembly members and also seeks to grant the power of initiative and referendum, but ACR 67 would not be restricted to only fiscal matters.
Seven separate initiative and referendum proposals have been introduced in New York. All were pending as of June 27, 2014.
Sen. Lisa M. Boscola (D-18) led the charge for initiative and referendum powers in Pennsylvania by sponsoring SB 365, the lone proposal to include direct democracy in the Pennsylvania Constitution.
The effort in Rhode Island consists of Senate Resolution 2039, which calls for voters to be given a chance to reserve for themselves the powers of initiative and referendum, and Senate Bill 2042, which would provide legal and technical details concerning the petition process, provided SR 2039 is approved by lawmakers and voters.
House Bill 320 in Vermont seeks to establish a process for indirect initiative by which citizens could put forward a proposition through a petition with 30,000 signatures. Once approved by the voters, however, the initiated measure would require approval from the legislature before enactment. This would provide an only equivocal power of initiative referendum, as a successful petition could only propose a law for the legislature's consideration and could not directly enact a law.
South Carolina Sen. Lawrence Grooms (R-37) sponsored SJR 16 as his bid to introduce initiative and referendum powers to South Carolina. The proposal would require signatures equal to ten percent of voters from the last statewide general election and could not be used to alter the judicial branch of government or designate a person to public office.
Legislation establishing the procedure for recall:
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Twelve bills across five states sought to introduce some form of the power to recall a state legislator or executive official or elected public servant through a petition process.
Hawaii had three bills seeking the power of recall: one was combined with a bid for the powers of initiative and referendum, while the other two simply sought the power to pull an elected public official out of office through an election triggered by a petition drive.
Illinois residents already had the power to recall the governor. HJRCA 12, sponsored by Rep. Joe Sosnowski (R-69), would expand the power of recall to all executive state officials and members of the Illinois General Assembly. It would also decrease the number of signatures required to recall the governor from 15 to 10 percent of the total number of votes cast for governor in the last gubernatorial election.
In New York, many efforts to provide the power of recall overlapped with resolutions designed to bring initiative and referendum to the table. Two bills, S 5512 and S 329, seek recall alone.
Two efforts to provide the power of recall were put forward by Oklahoma lawmakers in 2013 and carried over to the 2014 legislative session. The bills have not yet received a hearing in 2014.
Utah Representative Gage Froerer (R-8) sponsored HJR 4, seeking to allow the recall of state executive officials through a petition process. The bid for the ability to remove state executive officials was proposed during the reverberations from scandal surrounding Utah Attorney General John Swallow (R). The proposal would, if approved by a 2/3rds supermajority vote in both branches of the state legislature and by the voters, amend the Utah Constitution to reserve the power of recall as a right of the people. The bill would not apply to lawmakers, only extending the right of recall to executive officials such as the governor, attorney general and secretary of state. It would leave the details of the petition process to be hammered out later.
Legislation that restricts the petition process:
Colorado House Concurrent Resolution 1002 died in the Colorado State Senate, Veterans & Military Affairs Committee. If approved by the legislature and the voters, it would have doubled the number of signatures required to qualify an initiated constitutional amendment from five to ten percent of the votes last cast for the secretary of state. It would have also implemented a distribution requirement, dictating a minimum number of signatures that would have to be collected from each congressional district in the state. The proposal would have made an exception for any proposed initiated amendment seeking to simply alter a previous voter-approved amendment. Such an initiative would still only require the five percent signature minimum. The resolution was sponsored by Rep. Lois Court (D-6) and Rep. Don Coram (R-58) in the house and Sen. Larry Crowder (R-35) and Sen. Gail Schwartz (D-5) in the senate.
A bill introduced in the Michigan House by Rep. Eileen Kowall (R-44) was designed to prohibit the practice of paying circulators on a per-signature basis. HB 4046, which is still pending, also sought to require circulators to wear a specific badge identifying them as a petitioner for a ballot measure.
Legislation, sponsored by Sen. Wayne Wallingford (R-27), was moving through the Missouri House under the name SB 631 and would have required an initial five thousand sponsoring signatures before any proposed initiative could be cleared for circulation or receive a ballot title and summary. SB 631 was approved in the senate with 31 in favor and none opposed. Two senators were either absent or abstained from voting. The bill was last referred to the House Rules Committee on May 12, 2014, but did not receive a final hearing before the session adjourned on May 30, 2014.
Other legislation with interesting or dynamic effects on direct democracy:
Two bills in Massachusetts, HB 67 and SB 13, seek to add the following somewhat vague restriction to the power of initiative in the state: "No initiative petition shall propose a constitutional amendment that would restrict the rights set forth in this constitution to freedom and equality, or the right of each individual to be protected by society in the enjoyment of life, liberty and property, according to standing laws." These bills, set in the backdrop of heated debates over ballot measures concerning gay marriage, marijuana, fracking, abortion, GMO labeling and others, provides vast and unpredictable possibilities for litigation over ballot measure content.
In a move that sought to drastically change the direct democracy arena in the state, Nebraska Sen. Paul Schumacher (NP-22) proposed a law that would allow electronic signatures to be used to qualify an initiative, referendum or recall petition. Schumacher's 2014 attempt, LB 160, died without a hearing.
- See also: Chula Vista Citizens for Jobs v. Norris
The plaintiffs in the case, Chula Vista Citizens for Jobs v. Norris, which was originally brought to court as the result of a local ballot initiative sponsored by a union, contended that parts of the California Elections Code addressing initiatives and referenda, as incorporated into the Chula Vista, California Charter, were in violation of the First Amendment.
The code, in part, "required official proponents of local ballot measures be electors, which excludes non-natural persons and thereby excludes associations; [...] and that official initiative proponents identify themselves on the face of the initiative petitions."
The court affirmed a portion of the district court's ruling, determining "that associations do not have a First Amendment right to serve as official proponents of local ballot initiatives." However, it reversed the district court's ruling regarding the identity of initiative sponsors on petitions, invalidating §§ 9202 and 9207 of the California Elections Code as a violation of the important right to "anonymity at the point of contact with voters."
- LegiScan, "Arizona House Bill 2196," accessed June 27, 2014
- Payson Roundup, "Election Reform Brouhaha: Lawmakers repeal law to thwart initiative," February 18, 2014
- Arizona Legislature website, "Arizona House Bill 2107," accessed June 27, 2014
- Maryland Legislature website, "Maryland Senate Bill 930," accessed June 27, 2014
- Open States, "South Dakota House Bill 1096," June 27, 2014
- Utah Legislature website, "Utah House Bill 192," accessed June 27, 2014
- UtahPolicy.com, "Proposed Legislation Would Make it Harder to Get Citizen Initiatives on the Ballot," February 24, 2014
- Utah Legislature website, "Utah House Bill 379," accessed June 27, 2014
- Utah Legislature website, "Utah House Bill 422," accessed June 27, 2014
- Arizona Legislature website, "Senate Concurrent Resolution 114," accessed June 26, 2014
- Arizona Legislature website, "House Concurrent Resolution 2018," accessed June 26, 2014
- Oklahoma Government website, "Senate Bill 1415," accessed June 26, 2014
- Oklahoma Government website, "Notice of Veto," accessed June 26, 2014
- Georgia Government website, "Senate Resolution 692," accessed June 26, 2014
- Hawaii Government website
- Better Hawaii, "Hawaii Legislative Watch: People vs. Government," March 25, 2014
- Open States, "Senate Joint Resolution 1," accessed June 26, 2014
- Open States, "House Joint Resolution 27," accessed June 26, 2014
- New Jersey government website, "Assembly Concurrent Resolution 67," accessed June 26, 2014
- Open States, "New Jersey ACR 36," accessed June 26, 2014
- New Jersey government website, "Senate Concurrent Resolution 54," accessed June 26, 2014
- Pennsylvania Legislature website, "Senate Bill 365"
- Open States, "Rhode Island Senate Resolution 2039," accessed June 26, 2014
- Open States, "Rhode Island Senate Bill 2042," accessed June 26, 2014
- LegiScan, "House Bill 320," accessed June 26, 2014
- LegiScan, "South Carolina Senate Joint Resolution 16," accessed June 26, 2014
- LegiScan, "Hawaii Senate Bill 2141," accessed June 26, 2014
- LegiScan, "Hawaii Senate Bill 2359," accessed June 26, 2014
- Illinois Legislature website, "HJRCA 12," accessed June 26, 2014
- New York Legislature website, "S 329," accessed June 26, 2014
- New York Legislature website, "Assembly Bill 6161," accessed June 26, 2014
- Oklahoma Legislature website, "HB 1008," accessed June 27, 2014
- Utah Political Capitol, "Flagged Bill: HJR 4 – Joint Resolution on Recall Elections, Rep. Froerer," January 8, 2014
- Open States, "Utah House Joint Resolution 4 information," accessed March 23, 2014
- Colorado Legislature website, "House Concurrent Resolution 1002," accessed June 27, 2014
- LegiScan, "Michigan House Bill 4046," accessed June 27, 2014
- Open States, "Missouri House Bill 631," accessed June 27, 2014
- Massachusetts Legislature website, "House Bill 67," accessed June 27, 2014
- LegiScan, "Nebraska LB 160," accessed June 27, 2014
- Election Law Blog, "Breaking: Divided 9th Circuit Strikes Down CA Law Requiring Identity of Ballot Measure Proponents on Face of Petition," June 16, 2014
- UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, "Chula Vista Citizens for Jobs v. Norris," accessed June 16, 2014