The Tuesday Count: From Citizens United v. FEC to parental custody battles, diverse issues certified for November ballot

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July 22, 2014

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Edited by Ryan Byrne

3 certifications
121 measures for 2014

Certifications (News)
Natural resources (Quick hits)
Minimum wage (Spotlight)

2014 ballot measures
Governor Jerry Brown (D) begrudgingly approved his party's desire to place an advisory question on the ballot related to Citizens United v. Federal Election Commission. Gov. Brown did not sign the Amendment to Overturn Citizens United Ruling Question saying the legislature should not "clutter our ballots," but permitted the measure nonetheless due to the legislature's "commitment on this issue."[1] Republicans, who universally voted against the measure in the legislature, argued that the measure "will waste taxpayer dollars but won’t change anything."[2]

Following California, as well as neighboring Washington, Oregonians may establish a top-two primary system in November. The Open Primary Initiative, coming six years after the failed Measure 65, would institute a primary system where all candidates are listed together, regardless of party affiliation, and the top two finishers advance to the general election.[3]

Like top-two primary supporters in Oregon, North Dakota advocates of child custody reform are following the proverb "If at first you don't succeed, try, try again." Certified on July 21, the Parental Rights Initiative is expected to face a heated battle with proponents saying the issue is about equality between mothers and fathers and opponents arguing that the initiative is emphasizing parental rights over children's rights.[4]

The nation's highest minimum wage is safe, at least until 2015. Seattle's $15 an hour minimum wage was being challenged by a veto referendum. However, the measure's supporters failed to submit enough valid signatures.[5] In Oakland, the city council placed an initiative on the ballot designed to raise the hourly minimum wage to $12.25.[6]

San Jose City lawmakers are concerned about the unintended consequences of 2012’s Measure B. Police officers are leaving the city’s police department because they have, according to San Jose Police Officers Association President Jim Unland, “the worst pension plan in the state.” City officials are looking to craft a ballot measure to soften some aspects of the pension reform ushered in under Measure B in an attempt to keep police officers from leaving.[7]

Excepting California's advisory question, this week's measures all strike a sense of direct democracy nostalgia, and for good reason. Oregon and North Dakota's measures are both retries of previously defeated measures from 2008 and 2006, respectively. While not yet on the ballot, San Jose City may likewise be seeing some not-too-distant past on the ballot as its lawmakers deal with the aftermath of Measure B.

North Dakota

California, a state that has seen 1,216 ballot propositions since 1910, almost had a record low number of six propositions on the November ballot. On July 16, 2014, however, the number was boosted to seven, tying the ballot for the record low with 1916 and 2002.[8] The ballot measure shattering the chances of a new record low is an equally rare advisory question with this being only the third one in the state's history.[9] Known as Proposition 49 or the Overturn Citizens United Act, the legislatively-referred advisory referendum was pushed heavily by Democrats in the California Legislature. Gov. Jerry Brown (D) approved the question for the ballot, but withheld his signature as a symbolic gesture. He said, "[W]e should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect... Nevertheless, given the Legislature’s commitment on this issue, even to the point of calling for an unprecedented Article V constitutional convention, I am willing to allow this question to be placed before the voters."[1]

The Sacramento Bee editorial board criticized the governor for not vetoing the bill, saying, "Gov. Jerry Brown had it exactly right – an advisory measure on overturning the Citizens United decision, which opened the floodgates of corporate cash into politics, will have no legal effect whatsoever and will only clutter the November ballot. But he should have taken the next logical step and vetoed Senate Bill 1272. Instead, he let it become law without his signature. That’s called trying to have it both ways – and that’s very disappointing."[10] Loren Kaye of the California Foundation for Commerce and Education offered a more expansive critique on the legality of the referendum, noting, "Nowhere by the Constitution or laws of the state is the Legislature granted the authority to place an advisory measure on the statewide ballot."[11] Citing American Federation of Labor v. Eu, a case invalidating citizen-initiated advisory referendums, Dan Walters likewise said that legislatively-referred advisory questions may be unconstitutional.[12] However, there is no sign of an impeding lawsuit, at least not yet. Proposition 49, which is designed to garner congressional support for overturning Citizens United v. FEC, may be the largest vote on the controversial ruling since Colorado's Amendment 65 in 2012.[13]

Across the 42nd parallel north, Oregonians will have the opportunity to follow in California's footsteps and adopt a top-two primary system or reject such system as they did in 2008.[14] Backed by both Gov. John Kitzhaber (D) and his opponent in the gubernatorial race, Rep. Dennis Richardson (R-4), the Open Primary Initiative would replace Republican and Democratic primaries with a single primary in which the first and second place winners, regardless of their political party affiliation, advance to the general election.[15][16] The measure's certification was announced on July 15, 2014, after the secretary of state's office verified about 4,500 more signatures than required for a total of 91,716.[17]

One additional initiative was certified for the ballot over the previous week. In North Dakota, the Parental Rights Initiative was approved for the November 4, 2014 ballot on July 21, 2014. The measure acquired 14,452 valid signatures.[18] Returning for another fight after a defeated measure in 2006, proponents think they can win after a local victory in Walsh County. The 2014 initiative would create a legal presumption that each parent in a child custody case is fit to parent, unless “clear and convincing evidence” demonstrates otherwise.[19] Jill Bjerke, the initiative's sponsoring committee chairperson, said that contemporary social norms disproportionately favor the mother over the father in child custody battles. She stated, "It's just the norm, right now, for Mom to get custody. And when that happens, Dad is cut out of the children's lives. Fathers are both extremely important to both girls and boys. And we want to have our children grow up with parts of both parents."[4] Attorney Erica Shively said the law shouldn't be changed. She noted that the current statute places a stronger emphasis on children's rights relative to parental rights. She claimed, "[The initiative] puts the focus in the wrong place. Currently, the focus is on children in North Dakota. And, it basically says we need to look at what's best for them, not for the parents. And it changes that focus to whether or not a parent is fit or unfit. There's many wonderful parents out there where there's not equal residential responsibility because it's not something that works for the child in that scenario."[4]

Tuesday Count-Checkmark.png

2014 Count
Number: 121 measures
States: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Washington, Wisconsin, West Virginia and Wyoming

Quick hits

  • Local oil and gas control measures will not be circumvented by Colorado legislature: Voters in Colorado will likely be deciding on at least one initiative regarding the regulation of oil and gas following the failure of a legislative compromise. Governor John Hickenlooper (D) announced on July 16, 2014, that a special legislative session would not be called in an attempt to give communities greater control of oil and gas industries in that state. Hickenlooper's statement marked the end of hopes that the divide between environmentalists and energy industry could be bridged without the matter going to the ballot.[20][21][22][23]

Instead, three potential initiatives will continue signature gathering efforts to meet the August 4, 2014 deadline. Initiatives 88 and 89, both of which are sponsored by Coloradans for Safe and Clean Energy, must gather 86,105 valid signatures to be placed on the ballot. Initiative 88 would require oil and gas well setbacks of at least 2,000 feet from the nearest occupied structure. Initiative 89 would declare Colorado’s environment the common property of all residents, as well as specify the environment includes clean air, pure water, and natural and scenic values. The latter measure's broad language makes it unclear exactly how it could be used by local governments to affect oil and gas regulation.[24][25] On the other side of the issue, Initiative 121 could punish localities that limit oil and gas production by prohibiting them from receiving any oil or gas revenues administered by the state.[26]

  • Pharmacy ownership likely to appear on North Dakota ballot: Chain retailer pharmacies' chances of operating in North Dakota are closer than ever to being in the hands of voters following the July 18, 2014 submission of signatures for the Pharmacy Ownership Initiative.[27] Current North Dakota law requires pharmacies to be majority-owned by licensed pharmacists. This makes it impossible for large retail chains, like Walmart, Target or Walgreens, to operate pharmacies in the state. Supporters of the change see it as a way to encourage competition in the market, and believe that this would lead to decreases in prices. Opponents, however, argue that the exact opposite will occur. They argue that large chains will dominate the market and push out small pharmacies effectively reducing competition in the long run.[28] Supporters submitted 23,961 signatures, which is significantly more than the 13,452 required to place the measure on the ballot. The secretary of state's office will announce whether the initiative made the ballot by August 22, 2014, at the latest.[27]
  • Lawsuit to amend Missouri gun rights amendment ballot language dismissed: A lawsuit calling for the ballot language of Missouri Amendment 5 to be amended by the court was dismissed by the Missouri Supreme Court on July 18, 2014. Opponents of the measure argued the wording was insufficient and unfair. They originally asked Missouri 19th Judicial Circuit Court Judge Jon Beetem to rewrite the ballot language. The defense argued that for the judge to do so would be a violation of the separation of powers.[29] On July 1, 2014, Beetem dismissed the lawsuit by ruling the ballot summary of this measure and another regarding a temporary tax increase to fund transportation sufficient and fair.[30] He based his decision, in part, on a state law that provides courts no authority to order issues to be placed on the ballot less than six weeks before an election. Opponents appealed the ruling saying that the law did not apply in this case because the measure is already on the ballot.[31] The Missouri Supreme Court dismissed the case citing the same state law.[32] If approved by voters, Amendment 5 will establish the unalienable right of citizens to keep and bear arms, ammunition and accessories associated with the normal functioning of such arms, for the purpose of defense of one’s person, family, home and property.[33]


Minimum wage increase supporters see ballots shaping up to their advantage in both Oakland and Seattle:


Members of 15 Now and other advocates for Seattle's low-wage workers were hesitant to celebrate the $15 per hour minimum wage ordinance signed into law by Mayor Ed Murray on June 2, 2014. Their concern centered around a veto referendum petition drive immediately begun by a group of business owners called Forward Seattle. The opposing group had 30 days to collect 16,510 valid signatures in order to allow voters a chance to overturn the ordinance at November ballot boxes. Armed with enough funding to hire 80 paid signature gatherers, the group seemed poised for success, submitting 18,928 signatures before the deadline. As minimum wage supporters geared up for a ballot measure campaign battle, the King County elections department began the process of verifying the submitted signatures. On July 15, 2014, however, elections officials announced that 15,004 signatures had been investigated, yielding only 11,412 valid signatures. This left 3,924 signatures left to verify, which would not be enough to qualify the measure for the ballot even if every single one was valid. Thus, the referendum petition died, leaving Seattle's historic minimum wage ordinance intact.[5]


On the same day King County announced the failure of the veto referendum petition against Seattle's minimum wage law, Oakland city council members convened to vote on a $12.25 per hour minimum wage, among other issues. During the meeting, the council rubber stamped an initiative sponsored by the group Lift Up Oakland, officially putting it on the November 4, 2014 election ballot. The initiative, if approved, would establish a citywide minimum wage of $12.25 per hour by March 1, 2015, dictate between five and nine days of paid sick leave for all employees and enact provisions designed to protect hospitality workers against tip and wage theft.[34][35]

After 1,000 hours of work by more than 253 volunteers and support from 45 labor and community organizations, Lift Up Oakland turned in 33,682 signatures in February of 2014, and the Alameda County registrar certified that there were more than enough valid signatures among those submitted to qualify the measure for the ballot. This left the city council little choice but to put the measure before voters. Now that their initiative is on the ballot, Lift Up Oakland supporters eagerly await the November election, with confidence enhanced by a poll showing 70 percent voter-approval for the measure.[36][6]

Seeking to keep public safety officers from leaving San Jose in droves, the city council floated a ballot measure to soften 2012 pension reform:

With crime rising and the quantity of arrests decreasing, San Jose City lawmakers are regretting some of the pension reform approved by voters through Measure B and have discussed putting a charter amendment before voters in November that would relax the 2012 reform. The bundle of reform provisions sparked a harsh battle between the city, desperate to keep its head above water by cutting down huge pension costs, and labor unions representing the firefighters and police officers of the city. Some of the most contentious provisions of the measure that decreased pension benefits and increased employee contributions were already invalidated in court. According to the San Jose Police Officers Association, other provisions of Measure B that decrease disability protections in part by requiring all injured workers to prove they are unable to perform desk work before qualifying for disability retirement, have pushed dozens of officers away from the city. San Jose Police Officers Association President Jim Unland said the officers are leaving "because they have the worst pension plan in the state, it provides no disability protections for them if they're seriously hurt." Unland pointed out that the city hired 50 police officers in September of 2014 and that most of them had left before a year had passed. Unland said, “We have thirteen remaining. We can't continue to do this."[7]

Early in July, city officials announced a potential ballot measure that would soften Measure B reforms. The proposal would allow all public safety workers injured for more than a year to qualify for disability retirement. The plan, which was endorsed by Mayor Chuck Reed, would also allow any city officers that have left the city to enroll under the better, pre-Measure B pension benefits if they return by the end of 2016. Although city leaders hope to appease police officers with this measure, many union representatives say it does not do enough. Ben Field, head of the South Bay Labor Council, said, "They want to look like they're doing something about the problem that they've created," but he insisted that the plan "does not solve the public safety crisis -- it will not help the city recruit and maintain police officers."[37][7]

See also

2014 ballot measures
Tuesday Count2014 Scorecard


  1. 1.0 1.1 Los Angeles Times, "Gov. Brown allows advisory ballot measure on Citizens United decision," July 16, 2014
  2. The Sacramento Bee, "Jerry Brown puts advisory question on ballot without his signature," July 16, 2014
  3. The Oregonian, "Top two primary initiative qualifies for November ballot," July 15, 2014
  4. 4.0 4.1 4.2 KFYR 5, "Group Proposes Parental Rights Initiative," June 16, 2014
  5. 5.0 5.1 The Stranger, "Referendum on the $15 Minimum Wage Will Not Go to the Ballot This Year," July 15, 2014
  6. 6.0 6.1 San Francisco Chronicle, "Oakland voters to weigh in on anti-crime tax measure, minimum wage," July 16, 2014
  7. 7.0 7.1 7.2 Mercury News, "Pension reform: San Jose ballot initiative would water down Measure B -- is it enough?," July 2, 2014
  8. KQED, "California’s November Ballot Could Be Shortest Ever," June 13, 2014
  9. Fox & Hounds, "A Vote Too Far: Voters Should Not “Advise” The Legislature," July 9, 2014
  10. The Sacramento Bee, "Editorial: Brown should have vetoed advisory vote," July 18, 2014 (dead link)
  11. Cite error: Invalid <ref> tag; no text was provided for refs named foxhonds
  12. Sacramento Bee, "Dan Walters: Democrats place pointless advisory measure on ballot, but why?," July 17, 2014
  13. California Legislature, "Senate Bill 1272," accessed July 10, 2014
  14. IVN, "Initiative to Adopt Top-Two Open Primary in Oregon Qualifies for Ballot," July 16, 2014
  15. Portland Business Journal, "Open primary supporters get their wish as non-party election measure hits Oregon ballot," July 16, 2014
  16. KGW, "Kitzhaber, Richardson share stage in first debate," July 18, 2014
  17. Statesmen Journal, "Open primary initiative qualifies for November ballot," July 16, 2014
  18. The Jamestown Sun, "Parenting initiative will appear on November ballot," July 21, 2014
  19. North Dakota Secretary of State, "Initiative Petition to the Secretary of State," accessed July 16, 2014
  20. Associated Press, "Hickenlooper: No special session on fracking," July 16, 2014
  21. Bloomberg, "Colorado Governor Doesn’t Have Support for Fracking Bill," July 17, 2014
  22. The Denver Post, "Battle over local control of drilling leaves statehouse for ballot box," July 17, 2014
  23. KDVR 31, "Hickenlooper pulls plug on special session; Polis pushing ahead with ballot measures," July 15, 2014
  24. Colorado Public Radio, "Explained: The Colo. ballot initiatives that would limit oil and gas development," July 21, 2014
  25. Denver Westword, "Inside fracking initiatives 88 and 89, which Hick had hoped to keep off the ballot," July 16, 2014
  26. Denver Westword, "Inside Initiative 121, an industry-friendly measure to punish fracking-free zones," July 15, 2014
  27. 27.0 27.1 The Jamestown Sun, "Pharmacy measure sponsors submit 10,000 extra signatures," July 19, 2014
  28. The Jamestown Sun, "Pharmacy law again target of proposed ballot measure," May 31, 2014
  29. Associated Press, "Lawsuit: Missouri lawmakers would redo gun measure," June 24, 2014
  30. Associated Press, "Missouri judge rejects challenges to ballot items," July 1, 2014
  31. KSPR 33, "Missouri Supreme Court will hear challenge to gun measure," July 3, 2014
  32. Associated Press, "Missouri gun amendment wording will not be changed," July 18, 2014
  33. Missouri Senate, "Senate Joint Resolution No. 36," accessed May 7, 2014
  34. Lift Up Oakland website, "Minimum Wage Proposal Qualifies for 2014 Ballot in Oakland, Offering Hope in Fight Against Economic Inequality," June 27, 2014
  35. Lift Up Oakland website, "About," accessed July 21, 2014
  36. Oakland Local, "Oakland minimum wage ballot measure forges ahead," June 10, 2014
  37., "San Jose City Council creates ballot initiative on pension plan changes," July 2, 2014 (dead link)