Ballot Law Update: 9th Circuit active in ballot measure law

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February 29, 2012

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By Tyler Millhouse

Since the beginning of the year, 49 laws have been proposed in 19 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1] February marks the start of our 2012 legislation tracking. We'll be working through March to build and develop our list of proposed laws. 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

  • Walker to let recall count stand: After unsuccessfully seeking a second extension to the signature review period, Wisconsin Governor Scott Walker (R) has announced that he will not challenge the recall signatures filed against him. Walker contends that the first, 20-day extension did not provide his team enough time to review the signatures. Wisconsin does not have a central voter registration database, and more than 1 million signatures were submitted.[2] Nevertheless, Walker's legal team won a victory in early January that forced the Wisconsin Government Accountability Board to examine recall signatures more thoroughly.[3] In a February 27 press release, Walker's campaign expressed confidence that this ruling would guide the GAB in verifying the signatures.
  • Georgia signer ID requirement: On February 22, a Georgia bill (SB 377 (timed out)) died in committee. The bill would have required citizens to show a state-issued ID upon signing a candidate petition. Georgia does not have statewide initiative and referendum.[4]
  • Attorney fees in dual NE challenges: After losing to plaintiffs on several key points in Bernbeck v. Gale and Citizens in Charge v. Gale, the state of Nebraska has agreed to pay ACLU litigators $275,000 in legal fees. The ACLU had sought $303,000, but ultimately accepted the lower negotiated amount.[5]
  • Measure to modify NE signature requirements: Kent Bernbeck, a ballot measure proponent in Nebraska, has started an initiative campaign to lower Nebraska's signature requirements. In 1994, the basis for calculating the number of required signatures was changed from voters in the previous gubernatorial election to total registered voters. The decision, Duggan v Beermann, was based on an ambiguity in the Nebraska Constitution. Since the requirement is based on the present number of registered voters, petition sponsors can't be sure of the total number of required signatures until the day they submit their signed petition. The proposed measure would restore the previous method of calculation and effectively lower the requirement. Bernbeck was involved in a successful lawsuit last year, Bernbeck v. Gale, that overturned Nebraska's residency requirement for local petition sponsors.[6]

Court actions

  • CA PERB triggers lawsuits: On February 13, the California Public Employee Relations Board ruled that a San Diego ballot measure constituted an unfair labor practice. The measure would provide new city employees with a 401k, bypassing the cash-strapped pension system. Although the measure was initiated by citizens, it was backed by the city attorney and mayor. The pair insist they acted as private citizens in their support of the measure, but the Board ruled that the measure was city-sponsored and, thus, was required to abide by the "meet and confer" process. The ruling has triggered two lawsuits intended to force the measure off the city ballot. The first challenged the law in regard to fair labor practices. The second argued that measure was a revision--not an amendment--of the city charter and, thus, could not be initiated by citizens. On February 21, Judge William Dato ruled that the question of the measure's validity (in regard to fair labor practices) should be addressed after the election. On February 24, Judge Steven Denton rejected the second lawsuit, arguing that it did not change the "framework or structure" of city government.[9][10][11]
  • Arguments heard in CA affirmative action ban lawsuit: On February 13, the 9th Circuit Court of Appeals heard arguments in a January 2010 complaint challenging the ban on affirmative action at state schools. Plaintiffs argue that the ban, passed in 1996 as Proposition 209, violates their civil rights and hamstrings California state schools attempting to enroll a diverse class. The ban was already upheld in 1997, but opponents argue that the ban should be reconsidered in light of Grutter v. Bollinger which upheld the University of Michigan Law School's consideration of race.[12]
  • Decision in Lux v. Judd: On February 8, a judge for the Fourth Circuit Court of Appeals overturned Virginia's in-district residency requirement. Under existing law, candidate petition circulators must be eligible to vote for the office for which they are collecting signatures. This limits the pool of potential circulators to residents of each congressional or legislative district. The judge ruled that requirement restricted first amendment rights without being narrowly tailored to the state's interest in electoral integrity.[13] Although Virginia does not permit voters to initiate statewide ballot measures, an earlier ruling in the case  has already had broader implications for ballot measure law. Prior the 4th Circuit ruling, a bill to repeal the requirement (HB1133) was proposed in the Virginia General Assembly. It has since been passed by both chambers.[14]
  • The full decision can be found here.
  • Proposition 8 ruling: On February 6, a 9th Circuit Court of Appeals panel issued its decision in Perry v. Brown. The panel upheld rulings by district court judges Vaughn Walker and James Ware overturning California's Proposition 8. The court ruled that the same-sex marriage ban violated the 14th Amendment's equal protection clause. The ruling states:
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted... Under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status...
In effect, the court concluded that, because California statutes had already established equal rights for same-sex couples, the measure only served to deny these relationships the designation of "marriage." This, according to the court, was not a legitimate purpose for treating these couples differently under the law. The panel, consisting of Judges Michael Hawkins, Stephen Reinhardt and Randy Smith, was split in its decision with Judge Randy Smith concurring in part and dissenting in part. The panel upheld the decisions of Judge Ware as well as Judge Walker, whose original decision has been challenged on the grounds that Walker had an undisclosed long-term relationship with another man at the time of the case. On February 21, defenders of Proposition 8 asked the full court to reconsider the decision.[15][16]
  • The full decision can be found here.
  • Proposition 8 trial video ruling: In a separate ruling, issued on February 3, the Ninth Circuit panel refused to release the videos from the original trial. The panel held that Judge Walker “promised the litigants that the conditions under which the recording was maintained would not change — that there was no possibility that the recording would be broadcast to the public in the future.” Because of this, the judges determined that, “The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments,” and that the video's should not be released.[17]
  • The full decision can be found here.


  • Arizona Senate Concurrent Resolution 1031: SCR 1031 would impose sunsets on state ballot measures that make appropriations. Each measure would be automatically resubmitted to voters after five complete fiscal years.

See also


  1. NCSLnet, "Initiative & Referendum Legislation," accessed February 29, 2011
  2. Talking Points Memo, "Citing ‘Impossible Timeline,’ Walker Campaign Won’t File Challenge Against Recall Signatures," February 27, 2012
  3. Journal-Sentinel, "Judge rules for Walker campaign in case against state election officials," Jan. 5, 2012
  4. Ballot Access News, "Georgia Bill Defeated; Bill Would have Required Petition Signers to Show Photo-ID," February 22, 2012
  5. Journal Star, "State to pay ACLU legal fees for petition lawsuit," February 11, 2012
  6. Ballot Access News, "Nebraska Petition Drive Launched to Reduce Number of Signatures Needed for Statewide Initiatives," January 29, 2012
  7. Daily Camera, "State seeking to squash TABOR using lawsuit," February 15, 2012
  8. Denver Post, "Carroll: So is democracy unconstitutional now?," February 18, 2012
  9. Fox 5 San Diego, "State board: Pension initiative is unfair to city unions," February 13, 2012
  10. CBS 8, "Judge makes move to keep pension reform initiative on ballot," February 21, 2012
  11. Rancho Bernardo Patch, "Second Pension Reform Lawsuit Struck Down," February 22, 2012
  12. Huffington Post, "California Affirmative Action Ban, Proposition 209, Challenged In Court," February 13, 2012
  13. Ballot Access News, "U.S. District Court Strikes Down Virginia In-District Residency Requirement for Circulators," February 8, 2012
  14. Ballot Access News, "Virginia House Passes Bill Repealing In-District Residency Requirement for Petitioners," February 7, 2012
  15. LA Times Blog, "Prop. 8: Gay-marriage ban unconstitutional, court rules" 2/7/2012
  16. KQED, "Analysis of Prop 8 En Banc Filing: Proponents Looking For Stronger Dissent to Take to SCOTUS," February 21, 2012
  17. Dallas Voice, "Court won’t release videos from Prop 8 trial," 2/3/2012