Ballot Law Update: Electronic signatures rejected in CA

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July 6, 2011

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By Tyler Millhouse

Since the beginning of the year, 229 laws have been proposed in 40 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1]

The Citizens in Charge Foundation (CICF), a non-profit that promotes initiative and referendum rights, identifies proposed laws which either ease or tighten restrictions on ballot initiatives. So far in 2011, CICF has identified 61 laws that make getting a measure on the ballot more difficult. Of these 61, 36 have died, 18 are still pending, and seven have passed. CICF has also identified 44 laws that would make the process easier. Of these 44, 37 have died, four are still pending, and three have passed.[2]

In the past weeks, California has seen significant movement on petition circulation rules. Most notably, a court has ruled that e-signatures are not permitted under California law. In addition a bill has moved closer to establishing a so-called "Scarlet Letter Law" in the state. Given California's large population and active initiative process, these events could have a profound impact on direct democracy.

Court actions concerning I&R

  • (Update) California e-signature lawsuit: After hearing arguments in May, the California First District Court of Appeals has issued a ruling in Ni v Slocum which prohibits electronic signature collection in California. Verafirma founder Michael Ni filed the suit, challenging San Mateo County's rejection of an electronic signature in favor of Proposition 19. However, in its June 30 decision, the court ruled that the term "affix," as used in California law, implies a physical signature.[3][4][5][6] The full opinion can be found here.
  • Texas traffic camera ruling: On June 17, the US District Court for the Southern District of Texas struck down a Houston referendum banning traffic cameras in the city. The case, City of Houston v American Traffic Solutions, Inc., featured the same camera company involved in Washington's camera referendum lawsuits. However, unlike the Washington lawsuits, the case did not hinge on the ability of voters, via referendum, to cancel the city's contract with ATS, Inc. Instead, the court found that although initiative proponents had crafted the measure as a charter amendment to sidestep the expired deadline for an ordinary referendum, the measure was in reality a referendum and thus was subject to the deadline. An appeal is expected.[7] The full opinion can be found here.

Bills to watch

  • California Senate Bill 448: SB 448, much like the recently shelved AB 481, would require petition circulators to wear a badge designating whether they are a paid or volunteer worker. Unlike AB 481, the bill also requires the badge to identify where in California the circulator is registered to vote. While the law does not require the circulator to be registered, unregistered circulators would be identified as "NOT REGISTERED TO VOTE." The bill's sponsor, Sen. Mark DeSaulnier (D), placed AB 481 in the "inactive file" after a house committee passed SB 448. SB 448 has already passed the California State Senate.[8][9] Citizens in Charge Foundation rating: Reduces initiative rights.

Bill updates

The following is a list of recent updates for bills covered in past reports. For a complete list of updates, see the Ballot Law Bill Tracker.

  • California Assembly Bill 481: Update: Passed Assembly (5/12/11), passed Senate committee (6/8/11), ordered to inactive file (6/27/11).[10] AB 481 would require petition circulators to wear a badge designating whether they are a paid or volunteer worker. The law, known to opponents as a "scarlet letter law," specifies that the terms “paid circulator,” “paid signature gatherer,” “volunteer,” or “volunteer signature gatherer” must be printed in at least 30 pt. font on the badge. Similar language must also appear on the petition sheets.[11][12] Citizens in Charge Foundation rating: Reduces initiative rights.

Approved legislation

  • Nevada Assembly Bill 81: AB 81 is an omnibus election overhaul, affecting many aspects of Nevada election law. With respect to initiatives, the bill requires any person or committee to identify themselves on any campaign communication on which they spent more than $100. In addition, the bill requires petitions to include the contact information of the circulator and a statement that the circulator is 18 years of age.[2] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Nevada Assembly Bill 82: AB 82 is also an omnibus election overhaul bill. It requires that organizations advocating for or against a ballot measure abide by the campaign finance reporting requirements of political action committees. This change has the effect of lowering the reporting threshold from $10,000 to $1,000.[13] Citizens in Charge Foundation rating: Reduces initiative rights.
  • (New) Nevada Senate Bill 133: SB 133 makes Congressional districts the basis for the state's distribution requirement. Petitioners must now collect 10% of the required signatures in each of the state's three Congressional districts. Two previous requirements using counties as the basis of the requirement were struck down by the courts.[14][15] Citizens in Charge Foundation rating: Protects/expands initiative rights.
  • Colorado House Bill 11-1072: HB 11-1072 creates several new requirements for initiative proponents. In particular, the bill requires proponents, within ten days of filing, to produce a report detailing all the expenditures relating to the circulation of the initiative. The report must include the dates of circulation, total hours worked, and gross wages earned by each circulator. After the report is filed, any registered voter may challenge the report within ten days. Initiative proponents then have ten days to correct the error or a judicial hearing is scheduled. If the judge determines that an intentional violation did occur, the proponents are subject to a fine equal to three times the omission. In addition, proponents may be subject to civil action by the voter who brought the challenge for the recovery of legal fees.[16] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Florida House Bill 1355: HB 1355 contains extensive modifications to Florida's election law. With respect to initiative and referendum, the bill cuts the signature gathering period from 4 to 2 years. It also shortens the window for challenging legislatively-referred ballot questions.[17] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Arizona House Bill 2304: HB 2304 alters the state's requirements for petition circulators, eases third-party primary access, and clarifies laws regarding wearing political apparel at polling places. With respect to initiatives, the law repeals the state's unconstitutional circulator residency requirement. However, it replaces this requirement with a requirement that out-of-state circulators register with the state.[18] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Oklahoma House Bill 1664 (2011): HB 1664 provides for the notification of initiative proponents regarding the title status of a ballot initiative.[2] Citizens in Charge Foundation rating: Protects/expands initiative rights.
  • Montana House Bill 391 (2011): HB 391 was passed by the Montana Legislature on March 28, 2011 and has since become law. The law prohibits local ballot measure from setting the enforcement priority of state laws. The law is seen as targeting a local ballot measure which instructed local law enforcement to make marijuana laws their lowest priority.[19][20] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Utah Senate Bill 165 (2011): SB 165 changes the basis of Utah's signature requirements from the number of votes cast in the last gubernatorial election to the number of votes cast in the last presidential election. This will raise the number of signatures required. In addition, the bill bans electronic signatures for ballot initiatives.[21] Citizens in Charge Foundation rating: Reduces initiative rights.
  • Virginia Senate Bill 889 (2011): SB 889 removes the requirement that voters include the last four digits of their social security number when signing a petition. Citizens in Charge Foundation rating: Protects/expands initiative rights.

See also

References

  1. NCSLnet, "Initiative & Referendum Legislation," accessed July, 2011
  2. 2.0 2.1 2.2 This information is based on the June 24, 2011 edition of a weekly email sent out by CICF called the "Afternoon I&R Legislation Update"
  3. Metropolitan News-Enterprise, "C.A. Rejects Bid to Count Online Signature on Initiative Petition," July 5, 2011
  4. Ballot Access News, "California State Court of Appeals Construes Election Code to Bar Electronic Signatures on Petitions," July 1, 2011
  5. Ballot Access News, "Electronic Signatures on Petitions Case Argued in California State Court of Appeals," May 10, 2011
  6. Mercury News, "Attention, voters. You better start practicing your e-signature," May 7, 2010
  7. Ballot Access News, "Federal Judge in Texas Invalidates Houston’s Popular Vote to Eliminate Red-Light Cameras," June 23rd, 2011
  8. California Assembly Bill 448, Bill History
  9. California Assembly Bill 481, Bill History
  10. California Assembly Bill 481, bill history
  11. California Assembly Bill 481, as amended
  12. California Assembly Bill 481, Bill History
  13. Nevada Legislature, AB 81, as enrolled
  14. Nevada Legislature, SB 133, as enrolled
  15. Citizens in Charge, "Nevada Distribution Requirement: Will Three Be A Charm in Carson City, Or Will It Be Back to the Courts?," June 13, 2011
  16. Colorado House Bill 11-1072, enrolled bill
  17. Tampa Bay Online, "State law limits citizens' ability to get amendments on ballot," May 24, 2011
  18. Ballot Access News, "Arizona Bill, Improving Ballot Access and Making Other Changes, Passes House Judiciary Committee," February 10, 2011
  19. Bill History, HB 391
  20. Billings Gazette, "Missoula County attorney's attempt to override marijuana initiative creates uproar," January 20, 2011
  21. Utah Senate Bill 165, as enrolled