Distribution requirement

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A distribution requirement is a statutory or constitutional mandate requiring that petitions for a ballot measure or a candidate must be signed by voters from different political subdivisions in order for the ballot measure or candidate to qualify for the ballot.

Where there are distribution requirements for initiative petitions, the political jurisdiction varies. In some states, the distribution requirement is spread out over a state's counties (Arkansas, Massachusetts, Nebraska, Ohio, Wyoming). In other states, it is calculated based on state legislative districts (Alaska, Montana, Utah) or U.S. Congressional districts (Florida, Mississippi, Missouri, Nevada).

Arguments

For

Supporters of distribution requirements have argued:[1]

  • Distribution requirements are a way of demonstrating widespread support for a ballot measure or candidate because registered voters from a variety of political subdivisions signed petitions for the ballot measure.

Against

Those who argue against distribution requirements have mentioned these considerations:[1]

  • Distribution requirements can significantly drive up the cost of petition drives by forcing signatures to be collected in sparsely populated areas.
  • Federal courts have ruled that these requirements are so onerous on the free speech rights of petition proponents that they violate the constitution.
  • Courts have ruled that distribution requirements violate the equal protection clause – one person, one vote – because they require distribution over subdivisions that aren’t equal in population.
  • Distribution requirements diminish the voice of voters in certain districts while unfairly amplifying the voice of voters in others.
  • Voters have rejected efforts to impose distribution requirements or to make distribution requirements tougher. Examples include Wyoming Amendment B in 2008 and Colorado Referendum O in 2008.

Requirements by state

These charts show distribution requirements for initiative signatures. In some states, candidate qualification petitions and recall petitions also have a distribution requirement. Those requirements are not displayed below.

States with

State Requirement for initiated statute Requirement for initiated amendment
Alaska Signatures from 7% of those who voted in the previous general election in at least 75% of the state’s 40 state house districts. NA
Arkansas 4% of votes cast for governor in each of at least 15 of 75 counties 5% of votes cast for governor in each of at least 15 of 75 counties
Florida 8% of the district-wide vote in the most recent presidential election from at least half - 14 - of the state's 27 congressional districts. 8% of the district-wide vote in the most recent presidential election from at least half - 14 - of the state's 27 congressional districts.
Massachusetts No more than 25% of signatures may be from one county No more than 25% of signatures may be from one county
Mississippi NA No more than 1/5 of all signatures can be from one congressional district. Any excess signatures beyond 1/5 of the total from one district will be disregarded.[2]
Missouri 5% of votes cast in last gubernatorial election from 6 of 9 congressional districts 8% of votes cast in last gubernatorial election from 6 of 9 congressional districts
Montana 5% of qualified voters in each of 1/3 of state legislative districts, which amounted to 34 different districts as of August 2014. 10% of qualified voters in each of 2/5 of state legislative districts, which amounted to 40 different districts as of August 2014.
Nebraska 5% of registered voters in 2/5 counties - 38 out of 93 as of August 2014[3] 5% of registered voters in 2/5 counties - 38 out of 93 as of August 2014[3]
Nevada 10% of total votes cast in most recent general election in each of Nevada's congressional districts, plus at least 18 signatures from Clark County[4] 10% of total votes cast in most recent general election in each of Nevada's congressional districts, plus at least 18 signatures from Clark County[4]
Ohio 1.5% of votes cast for most recent gubernatorial election in each of 44 of Ohio's 88 counties[5] 5% of votes cast in most recent gubernatorial election in each of 44 of Ohio's 88 counties
Utah Direct: 10% of votes cast in most recent gubernatorial election in at least 26 of 29 state senate districts.
Indirect: 5% of votes cast in most recent gubernatorial election in at least 26 of 29 state senate districts.[6]
NA
Wyoming 15% of residents in at least 2/3 of Utah's 33 counties NA

States without

Lawsuits

  • In 1969, in the case of Moore v. Ogilvie, the U.S. Supreme Court struck down an Illinois county-based distribution requirement saying that it "applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, and thus discriminates against the residents of the populous counties in the exercise of their political rights in violation of the Equal Protection Clause of the Fourteenth Amendment."
  • In 2002, in the case of Gallivan v. Walker, the Utah Supreme Court struck down Utah's county-based distribution requirement, declaring that the initiative right is a "fundamental right implicit in a free society" and that the distribution requirement impinged on it. The Utah State Legislature then replaced the county-based distribution requirement with a state senate district-based requirement, which is currently in effect.
  • In the 2005 federal court case Montana PIRG v. Johnson, a county-based distribution requirement in Montana was declared unconstitutional.
  • In December 2006, Nevada's county-based distribution requirement was declared unconstitutional by the Ninth Circuit in the case of ACLU v. Lomax. In 2007, the Nevada State Legislature passed a new distribution requirement in Nevada Senate Bill 549, which according to the ACLU is "virtually identical" to the law struck down in ACLU v. Lomax. On September 28, 2008, U.S. District Court Judge Philip Pro invalidated Nevada Senate Bill 549 (2007), saying it is unconstitutional, and ordering Secretary of State Ross Miller not to enforce it.[7][8] Later, the Nevada State Legislature enacted a distribution requirement based on U.S. Congressional districts, rather than counties.
  • Citizens in Charge v. Gale. This lawsuit in federal court is pending. It challenges the state's county-based distribution requirement for candidate petitions in Nebraska, among other challenge to Nebraska petition law.

Petition sponsors in states with distribution requirements face the difficult decision of whether to comply with a requirement that may be unconstitutional, or filing a federal lawsuit. Since the costs of such litigation can easily exceed $100,000, and since the litigation might take years, as a practical matter, most petition sponsors elect to comply with a law that may be unconstitutional.

See also

References

  1. 1.0 1.1 Wyoming Tribune Eagle, "Confused about the amendments?" October 30, 2008
  2. Since 2001 redistricting, Mississippi only has four US House Districts, seemingly capping signatures at 4/5 of the required amount. A 2009 Attorney General's opinion, however, argued that signatures should be distributed among the five districts in existence when initiative and referendum processes were established in 1992.
  3. 3.0 3.1 The number of registered voters for the purposes of making this calculation is the number of registered voters in the county as of the filing deadline for signatures
  4. 4.0 4.1 Nevada signature requirements
  5. Signatures equaling 3% of votes cast from each of 44 out of 88 counties is required for referendums.
  6. Utah signature requirements
  7. Mercury News, "Federal judge strikes down Nev. ballot measure law," September 29, 2008
  8. Las Vegas Review Journal, "EDITORIAL: Petition requirements," October 2, 2008