Ballot Law Update: Signer privacy and redistricting generate legal battles
| Initiative law|
Ballot access rulings
Recent court cases
Ballot title challenges
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. In 2011, CICF identified 61 laws that make getting a measure on the ballot more difficult. Of these 61, seven have passed. CICF also identified 44 laws that would make the process easier. Of these 44, four have passed.
On November 8, nine states held elections that included statewide ballot measures. In total, voters weighed in on 27 ballot measures, approving 18 and rejecting nine. Including elections held earlier in the year, 22 ballot measures have been approved and 12 have been rejected in 2011. These new ballot measures will likely generate new legal battles that will shape the initiative and referendum process.
- Ohio election law referendum signatures: On November 14, Ohio Secretary of State Jon Husted determined that proponents of a veto referendum against HB 194 (an election overhaul bill that limits early, absentee, and weekend voting) had failed to collect sufficient signatures. However, under Ohio law, petitioners may submit additional signatures within 10 days of the Secretary of State's determination. Only Ohio and Arkansas allow petitioners to submit additional signatures after an official count. According to the Ohio Democratic Party, part of a coalition opposing the law, 150,000 supplementary signatures had already been collected. Only 10,000 more are needed. On November 22, the coalition submitted 166,481 additional signatures--these signatures are currently under review.
- Minnesota disclosure rules: Under existing Minnesota disclosure rules, organizations are required to disclose donor information for dollars spent in favor of or in opposition to a ballot measure. Whether spending qualifies as such depends largely on the explicit intentions of the group. For example, ads that support traditional marriage but do not endorse the measure may not trigger disclosure requirements. The Minnesota Campaign Finance and Public Disclosure Board had considered tightening requirements, but decided to postpone its decision to allow the Board to research various ways of extending disclosure requirements to less explicit forms of speech. Opponents worry this will leave the door open to advocacy groups with a desire to hide their donors. The Board has already tangled with pro-marriage amendment groups over stronger disclosure requirements. These groups fear that publishing the names of supporters could open them up to harassment or intimidation.
- (Update) Washington traffic cam initiatives: Initiatives to block red-light cameras in Bellingham, Longview, and Monroe were all resoundingly affirmed by voters on November 8, passing with 65%, 59%, and 68%, respectively. However, each of the proposed laws was ultimately relegated to advisory status by the courts. Proponents will have to wait to see whether local leaders will take action on the measures.
- Guam decolonization election: With Guam's self-determination vote most likely headed to voters in 2014, legal wrangling over the process has already begun. Arnold Davis, a Guam resident represented by the Center for Individual Rights, has filed suit against the Guam Election Commission for racial discrimination. Under the existing law of Guam, only native inhabitants are eligible to participate in the plebiscite. Although the definition of "native inhabitant" includes all those naturalized by the Guam Organic Act of 1950 and their descendants regardless of race, CIR argues that provision was intended to exclude members of non-Chamorro racial groups. This, contends CIR, violates the Voting Rights Act and the U.S. Constitution. The lawsuit was filed in the District Court of Guam on November 21, 2011.
- Doe v. Reed injunction ruling: After receiving a temporary injunction in October, proponents of Washington Referendum 71 (2009) were denied a permanent injunction blocking the release of R-71 petition signatures. The plaintiffs, petition signers backed by Protect Marriage Washington, have been engaged in a protracted legal battle to keep the names on the petition private. After an earlier defeat, the state of Washington began releasing the signatures only to be stopped by the temporary injunction.
The plaintiffs argue that releasing the signatures would subject signers to harassment. Opponents challenge this conclusion and argue that a transparent process is critical. In its November 16 ruling, the 9th Circuit Court of Appeals maintained that the initial release of nearly 140,000 signatures renders the question moot, but is open to further arguments on the question of mootness. The plaintiffs appealed to the US Supreme Court for an injunction while the 9th Circuit prepares to rule on the merits. Their request was denied on November 21, 2011.
- The 9th Circuit's decision can be found here.
- Wisconsin recalls and redistricting: As Democrats attempt to recall four GOP members of the Wisconsin State Senate, a group of Republicans has filed suit over the process. In documents filed on November 21, the group is asking the State Supreme Court to require the recall elections to be held in the state's new legislative districts--a move that would benefit Republicans. According to the state's redistricting legislation, state lawmakers will represent their new districts until new elections are held. Therefore, the plaintiffs argue that if the recalls are held in the old districts, some constituents (those newly added to districts) will be ineligible to vote in their new legislator's recall.
- CA Supreme Court ruling on defense of Prop 8: On November 17, the California Supreme Court ruled that proponents of Proposition 8 can intervene in defense of the same-sex marriage ban. Proponents of the ban decided to intervene after state officials refused to defend the law. The court ultimately found that:
- "We conclude that when the public officials who ordinarily defend a challenged measure decline to do so, article II, section 8 of the California Constitution and the applicable provisions of the Elections Code authorize the official proponents of an initiative measure to intervene or to participate as real parties in interest in a judicial proceeding to assert the state‘s interest in the initiative‘s validity and to appeal a judgment invalidating the measure."--See full decision in Perry v. Brown. (dead link)
- Oral arguments in sidewalk case: On November 2, attorneys presented oral arguments in Initiative & Referendum Institute v. United States Postal Service. The US Court of Appeals in DC will decide whether the Postal Service may restrict signature gathering on the interior sidewalks of post office locations.
- Florida religious funding lawsuit: On October 27, a Florida circuit court heard arguments for the removal of Amendment 7 from the state's 2012 ballot. The proposed measure would prevent individuals from being barred from participating in public programs if they choose to use public funds at a religious provider. Essentially, the measure moves to repeal the state's ban of public dollars for religious funding, also known as the "Blaine Amendment." Opponents worry that the measure is designed to legalize school vouchers. They argue that the measure's title and summary conceal this fact and are misleading.
The lawsuit also challenges 2011 legislation that allows the Florida Attorney General's office to rewrite ballot summaries or titles when the Florida Supreme Court removes a certified measure from the statewide ballot. The lawsuit argues that authority for such a change lies only in the Florida State Legislature. Blocking this provision would prevent the title and summary from being revised in order to keep the measure on the ballot.
- Oregon House Bill 2634: HB 2634 creates a Citizens’ Initiative Review Commission to form and oversee impartial citizens panels tasked with reviewing ballot measures. These panels, in use in another form since 2009, review proposed measures for their fiscal impact and draft arguments for and against the measures. Citizens in Charge Foundation rating: Protects/expands initiative rights.
- 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. 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. Citizens in Charge Foundation rating: Reduces initiative rights.
- 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. 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. 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. 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. 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. 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. 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. 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.
- NCSLnet, "Initiative & Referendum Legislation," accessed November 30, 2011
- This information is based on the final edition (September 14, 2011) of the CICF "Afternoon I&R Legislation Update"
- NCSL, "Verifying Signatures," January 2002
- Cleveland.com, "Ohio Democrats need 10,000 more valid signatures for elections bill repeal vote," November 14, 2011
- Toledo Blade, "Ohio ballot in '12 likely to include election law," November 23, 2011
- Minnesota Independent, "Campaign finance board considers relaxing disclosure rules on ballot initiatives," October 31, 2011
- Landline Magazine, "Washington cities say ‘nay’ to ticket cameras," November 21, 2011
- KUAM, "Lawsuit filed against Guam Election Commission," November 22, 2011
- Seattle Post Intelligencer, "9th Circuit says R-71 petitions can be released," November 17, 2011
- Talking Points Memo, "Anti-Gay Marriage Groups Lose Another Battle To Keep Supporters Secret," November 29, 2011
- Milwaukee Journal Sentinel, "Republicans sue to place recalls in new districts," November 21, 2011
- Ballot Access News, "U.S. Court of Appeals Hears Oral Arguments in Postal Sidewalks Case," November 9, 2011
- Florida Capital Bureau, "FEA sues to block voucher amendment," July 20, 2011
- Associated Press, "Judge hearing challenge to Fla. religion amendment," October 27, 2011 (dead link)
- House Bill 2634, Staff Measure Summary
- Nevada Legislature, AB 81, as enrolled
- Nevada Legislature, SB 133, as enrolled
- 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
- Colorado House Bill 11-1072, enrolled bill
- Tampa Bay Online, "State law limits citizens' ability to get amendments on ballot," May 24, 2011
- Ballot Access News, "Arizona Bill, Improving Ballot Access and Making Other Changes, Passes House Judiciary Committee," February 10, 2011
- Bill History, HB 391
- Billings Gazette, "Missoula County attorney's attempt to override marijuana initiative creates uproar," January 20, 2011
- Utah Senate Bill 165, as enrolled