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Ballot Law Update: Michigan fast becoming a battleground for referendum rights

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April 24, 2013

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By Eric Veram

Since the beginning of the year, we have tracked 167 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

North Dakota Senator looks to restrict costly initiatives, pointing to California as an example of what not to do: In a 28-19 vote, the North Dakota State Senate rubber-stamped an amendment that would require 40% state legislature approval of any citizen-initiated measure costing more than $50 million. If this amendment is adopted, any measure initiated by citizens and approved in an election would then go to a three-member commission to determine the cost of the measure. If the cost is found to be greater than $50 million, the measure would go to the legislature, where anything less than 40% approval would overturn it. Senator David Hogue is the main supporter and sponsor of this bill and argued that, if strategies like this are not employed to protect the State from financial disaster caused by costly initiatives, North Dakota could see the same fate as California, which is currently more than $335 billion in the red. Hogue was motivated to push this bill by recent efforts to pass expensive initiatives, one of which would have reportedly cost the state $1.8 billion. Hogue blames expensive citizen-initiated measures for much of California's current debt problems and, concerning voters deciding important financial questions, Hogue said, "You cannot make good spending decisions at the ballot box... California was once the most prosperous state in the nation and they had the budget surpluses we enjoy today.”[1]

Kansas voters could see clearer ballot language in near future: The Kansas State Senate voted on Monday, March 25, in approval of a new law that would allow election officials to request a state official write an "explainer" when a ballot measure's language is deemed too confusing for voters to easily understand. The law, House Bill 2162, does not require that the explainer be placed directly on the ballot, but rather requires that it be posted at polling places. The drive for clearer ballot language was ignited following a vote in Wichita on whether the developer of a downtown hotel should be entitled to a tax break. Because of the measure's confusing wording, polling places were bombarded with phone calls, but officials were not allowed to say anything other than "Yes means yes. No means no."[2]

Legal battle heats up over same-sex marriage amendment in Oregon: On Friday, April 5, the Oregon attorney general's office published the official ballot title for the Oregon Same-Sex Marriage Amendment. In doing so, the attorney general rejected an argument from the Oregon Family Council that the official title should include the idea that the initiative would require all governmental agencies in the state to issue marriage licenses. Basic Rights Oregon, the initiative's sponsor, contended that the argument is false. According to them, county clerks would remain the only government agents capable of issuing marriage licenses if the measure is successful. Both sides now have until April 19 to appeal the attorney general's ruling to the Oregon Supreme Court.[3]

Effort to remove referendum protections from legislation kicks off in Michigan: After getting petition language certified in February, the group Voters for Fair Use of Ballot Referendum has kicked off its efforts at gathering signatures. The group was founded by Bill Lucas and seeks to amend the state constitution to allow for the popular referendum of bills containing appropriations. The attempt is more or less a direct response to the legislature's recent passing of controversial bills containing minor appropriations for the purpose of rendering them referendum-proof. The most public of these legislative actions is perhaps the passing of a follow-up emergency manager bill after voters rejected Proposal 1 at the polls in 2012. More recently, however, is the legislature's response to the Michigan Wolf Hunting Referendum. Supporters turned in a large number of signatures, likely sending the measure on to the 2014 ballot. Within weeks the legislature drafted new bills containing appropriations. Lucas's effort is being circulated as an initiated constitutional amendment and will require a minimum of 322,609 valid signatures by early July 2014 in order to qualify for the ballot.[4]

Vote delayed on Fair Ballot Commission bill: Senator Bobby Singleton (D-24) moved to delay a bill currently before the Alabama Senate that would create a so-called "Fair Ballot Commission." If enacted, the commission would be charged with crafting explanations of the ballot measures that go before voters. The bill would also require that the state post the explanations to the secretary of state's website. Sen. Singleton explained that he was not ready to vote on the bill because he was concerned that there was no provision ensuring that minorities would be represented on the commission. He also questioned whether such a commission was necessary and what accountability it would have when writing "fair" ballot statements.[5]

Court actions

Ban on pay-per-signature practice in Colorado overturned: On Monday, April 1, 2013, federal district judge Philip Brimmer overturned the portion of HB 1326 (2009) banning paying petitioners on a by-signature basis. Judge Brimmer ruled that those sections of the law violated First Amendment rights. The lawsuit was first filed in 2010 by the Independence Institute, headed by activist Jon Caldara. Caldera claimed that House Bill 1326 would violate the First Amendment to the U.S. Constitution on the basis of restricting freedom of speech. Caldara also argued that restricting pay-per-signature would make it more expensive to conduct initiative campaigns. Arguments were heard in the District of Colorado federal court on May 13, 2010 on the matter.[6]

At the time of writing, the Colorado Attorney General had not decided whether or not to file an appeal of the decision.[7]

Bills to watch

Michigan senator seeks to render wolf hunting referendum pointless: Following the submission 263,705 signatures in favor of putting a state law allowing wolf hunting up to a referendum, lawmakers are acting quickly in an attempt to prevent that effort from having any effect. Senator Tom Casperson (R) is leading the legislature's effort in the form of his newly proposed Senate Bill 288. This bill would give the Natural Resources Commission the authority to designate a species as a game species without needing the legislature to do so through a bill first. Since game species would be simply declared by the commission, there would be no legislation subject to referendum or veto. The Humane Society of the United States, one of the referendum's key proponents, says that the new proposal is a deliberate attempt to prevent the public form having its say on the issue. Sen. Casperson argues that the bill is broader than that, and that it is specifically about protecting the state's heritage form interest groups. Unsurprisingly, the bill contains a slight appropriation, rendering it invulnerable to referendum.[8]

Ohio legislature pushes for more transparency on bond issues: Ohio state representative Kristina Roegner (R) recently announced a new bill she is sponsoring that would require public institutions to disclose information about their outstanding debt on ballots containing bond issues. The bill would also require that figures on each taxpayer's debt obligations be presented. At a news conference held last week, Rep. Roegner said, "Information that we believe the voters need will be: How much current debt exists? How much outstanding debt is there? And what does that mean on a per-capita basis? That's what we do as individuals, as families. When we need to borrow some money, we consider how much debt... we already have." Damon Asbury, director of legislative services for the Ohio School Boards Association, said he is concerned that the legislation could further complicate already confusing ballots. He added that he did not believe the new requirements would have much effect on the success of bond issues on the ballot.[9]

Arkansas house votes to tighten initiative laws: On Wednesday, April 17, the Arkansas House of Representatives voted 78-9 in favor of enacting additional regulations on petition gathering for state ballot initiatives. The bill would require paid petitioners to register with the state, as well as provide a photo of themselves to the secretary of state. The bill also allows state canvassers to invalidate all signatures on a petition sheet if the signers do not all reside within the same county. The legislation under discussion is Senate Bill 821.

Approved legislation

Student IDs will not be recognized as valid voter ID in Tennessee elections: On Thursday, April 4, the Tennessee State Senate voted 23-7 in support of a new voter ID bill that excludes student IDs and library cards from being counted as valid photo ID at the polls. The bill comes as a case remains pending before the Tennessee Supreme Court over whether or not library cards can be used as voter ID. That case involves a lawsuit brought by two residents and the city of Memphis against the state when election officials refused to accept a city-issued library card with a photo as voter ID. The bill now goes before the governor for final approval before becoming law.[10]

See also