Ballot Law Update: Supreme Court delivers rulings on several high profile ballot measures

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June 26, 2013

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By Eric Veram

Since the beginning of the year, we have tracked 171 proposed laws in 35 states affecting the initiative and referendum process. Please note that some of these are constitutional amendments requiring voter approval before going into effect. The Ballot Law Update is released on the last Wednesday of each month. Stay tuned to the Tuesday Count for weekly ballot law news.

Recent news

Oregon lawmakers back tougher laws on petition gathering firms: On Tuesday, May 28, the Oregon Senate voted 16 to 14 in favor of Senate Bill 154. The legislation would require petitioning firms to register with the Oregon Secretary of State and sign a statement swearing to comply with election laws. The bill also subjects the firms to criminal penalties if they break election laws. Supporters argue that the measure merely requires that petitioner firms meet the same regulations that individual canvassers and the chief petitioners of ballot measures have to. Opponents argue that the bill is an attack on initiative and referendum rights and that it could have a chilling effect on ballot proposals.[1]

Fight brewing over new signature requirements in Arizona: According to reports, opponents of Arizona's recently passed House Bill 2305 are meeting to discuss plans for preventing the law from taking effect. The law effectively makes it more difficult for Democratic and third-party candidates to achieve ballot access, while making it easier on Republican candidates. The bill does this by calculating signature requirements as a percentage of the total number of voters registered in a given district, as opposed to the current method, which is based on the number of registered voters of a given party. The bill also includes increased restrictions on the initiative process, ballot collection and the early-voting list. Supporters claim that the bill makes the election process fairer because it requires all candidates, regardless of party affiliation, to meet the same signature threshold. Reports indicate that opponents are discussing a referendum on the law in 2014 as a potential strategy for stopping it.[2]

Court actions

Federal court relaxes Virginia's petition circulator restrictions: On Wednesday, May 29, a three-judge panel of the United States Court of Appeals for the Fourth Circuit upheld a previous court ruling that declared the state's current laws prohibiting out-of-state residents from circulating petitions unconstitutional. The lawsuit was filed by Darryl Bonner, a professional petitioner for the Libertarian Party of Virginia and Pennsylvania. The state Board of Elections argued that the ban was necessary to preserve the election process's integrity and that abolishing it would make it too difficult to prevent voter fraud. Though Bonner's lawyers did not dispute the state's interest in fighting voter fraud, they did argue that better solutions were available, including requiring that out-of-state circulators sign an agreement to comply with subpoenas. In the court's decision, Judge Robert King said, "Simply stated, the Board has produced no concrete evidence of persuasive force explaining why the plaintiffs’ proposed solution, manifestly less restrictive of their First Amendment rights, would be unworkable or impracticable."[3]

Another one of Montana's 2012 ballot measures comes under legal fire: On Thursday, May 30, Planned Parenthood of Montana filed a lawsuit with the state district court asking that LR-120 be overturned. The measure, also called the Montana Parental Notification Measure, requires parental notification before any abortion procedure may be performed on someone under 16 years old. Though the measure was passed by voters last year, the lawsuit was triggered by the passage of a newer, stricter law that requires parental consent before minors can have an abortion. Planned Parenthood argues that these new laws put the health of minors at risk because not everyone can safely go to parents with these types of issues. Supporters of the new laws say that parental consent is already required for a host of other medical procedures, and abortion should be no different.[4]

New Jersey court rules against municipal clerk who rejected referendum petitions: On Wednesday, May 29, the Superior Court of New Jersey ruled that a Hobokon municipal clerk who refused to file a referendum petition was in violation of the Faulkner Act. The law allows voters in municipalities to file a referendum petition against ordinances passed by the city council, provided the petition is filed within twenty days of the passage of the ordinance and contains the correct number of signatures. According to the plaintiffs, they attempted to file a referendum on the last day of the allotted period but were rejected outright by the municipal clerk because it did not contain the correct number of signatures. The clerk returned the referendum request as "unfiled." The court ruled that clerk could not reject the petition without further review. According to the court's opinion, "Nothing in the statute authorizes a municipal clerk to not file a petition." The opinion goes on to clarify that the petition may be rejected after filing if the clerk does not certify the required number of signatures, but it cannot be returned "unfiled."[5]

Arizona ballot measure requiring proof of citizenship to vote struck down: On Monday, June 17, the Supreme Court of the United States struck down Proposition 200, a law approved by voters in 2004 that required proof of citizenship from individuals who use a federal voter registration form to vote. Essentially, the court rejected the state's attempt to require more from voters than what is prescribed by the National Voter Registration Act. In addition, the court did not specifically say that the state couldn't request proof of citizenship when registering with state forms instead of federal ones. The court did, however, allow the state to retain it's requirement that voters show identification at polling places before casting their ballots.[6]

Recent court ruling sends signals about upcoming decision on Michigan's Proposal 2 from 2006: On June 24, 2013, the Supreme Court of the United States ruled 7 to 1 in the case of Fisher Vs. University of Texas that universities have to show compelling evidence to justify the use of affirmative action in their enrollment decision processes. Though this case does not directly affect Proposal 2, some legal experts believe it could show a willingness of the court to allow such voter initiatives. Kevin Saunders, a law professor at Michigan State University, said, "This ruling may indicate a reluctance by the majority of the court to allow the overturning of Prop 2 to stand."[7]

Supreme Court rules on California's Proposition 8: On June 26, 2013, the Supreme Court of the United States declined to rule on the constitutionality of the measure. The court instead dismissed the lawsuit saying the proposition's sponsors did not have legal standing to defend a state law in federal court if they could not show "concrete and particularized injury." Chief Justice Roberts said that the defendants had a political interest in reversing the district court's ruling on the measure rather than a legal one. He said, "Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California Law. We have repeatedly held that such a generalized grievance, no matter how sincere, is insufficient to confer standing." The court decided that not only did it not posses the authority to rule on the case's merits, but neither did the Ninth Circuit. Therefore, the only legitimate federal ruling was Judge Vaughn Walker's decision for the Northern District of California, the ruling that issued an injunction against the state's enforcement of the measure.[8]

Bills to watch

Missouri bill makes initiative campaigns more transparent: The Missouri General Assembly has sent a bill to the governor that would make more information about ballot measures public knowledge. The bill, House Bill 117, requires the ballot title to appear on petitions, increases penalties for persons who commit petition signature fraud, requires the secretary of state to post the ballot language online, and limits the amount of time parties have to file legal complaints with proposed initiatives. Sen. Scott Sifton (D-1) commented on the increasing penalties for fraud, saying, "We’re trying to make sure that the signature gatherer isn’t a forger. We would hope that nobody that would sign would be forging, but I don’t think it’s reasonable to make the signature gatherer the indemnitor against forgery by somebody signing, and I don’t think that’s what we’re doing by this language."</ref>News-Leader.com, "Changing the requirements for petitions," May 28, 2013</ref>

See also

References