Breakdown: An early look at lawsuits targeting 2012 ballot measures

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This article is a special report prepared to cover and discuss lawsuits affecting ballot measures appearing or intending to appear on 2012 state ballots. This is the first of a series of forthcoming quarterly reports intended on tracking and analyzing such lawsuits.

March 30, 2012

By Eric J. Veram

Scalesofjustice.jpg

With the advent of an election year come large amounts of political activity, including ballot measure proposals. As a result, an increase in lawsuits seeking to suppress those measures may occur. This year is a prime example.

Keeping track of legal challenges to ballot proposals across the country, Ballotpedia broke down each ballot measure lawsuit, by state and type, to give a comprehensive and in-depth look at litigation across the nation.

Below you will find an overview of any lawsuits pertaining to 2012 ballot measures that have been newly filed since our last report in 2011, as well as any documented updates to suits found in that report.

Overview

The table below gives a brief overview and snapshot of basic statistical data pertaining to lawsuits involving statewide ballot measures. The table displays each state in which a lawsuit that targets one if its 2012 measures or proposed measures has been filed. In each row is then listed the number of lawsuits in the state, the number of measures in that state being subject to lawsuits, and, finally the number of lawsuits against measures currently on the ballot (as of March 28, 2012, 79 statewide measures are certified in 28 states).

2012 ballot measures

State Number of lawsuits Number of measures under lawsuits Lawsuits against measures on the ballot
Colorado 1 1 0
Florida 1 1 1
Maryland 1 1 1
Massachusetts 1 1 0
Minnesota 1 1 1
Missouri 3 2 0
Montana 2 2 2
Ohio 1 1 0
Oregon 1 1 0
North Dakota 2 2 2
Rhode Island 1 1 1
Totals: 15 14 8


Types of cases

2012 measure lawsuits
Lawsuits.png
By state
ArizonaArkansasColoradoFloridaMaryland
MichiganMassachusettsMinnesota
MissouriMontanaNevada
North DakotaOhioOklahoma
OregonRhode Island
By lawsuit type
Ballot text
Campaign contributions
Constitutionality
Motivation of sponsors
Petitioner residency
Post-certification removal
Single-subject rule
Signature challenges
Initiative process

The lawsuits filed against proposed and certified 2012 ballot measures are organized by the type of challenge below:

Ballot text

Six lawsuits challenging the text of the measures have been filed since our last report.

One lawsuit was successfully brought against a proposed constitutional amendment in Florida that moves to repeal the state's ban of public dollars for religious funding. The measure was formally to appear on the ballot as Amendment 7, but since the lawsuit was successful it has since been revised and will appear as Amendment 8.

Three of the lawsuits newly filed were in Missouri, bringing the state's total such lawsuits filed over 2012 measures to seven. One suit targeted the fiscal note of a measure raising minimum wage, alleging that cost estimates were insufficient and unfair. The other measure being challenged proposes limits on payday loans and is the actually the target of two lawsuits, both take issue with the measure's fiscal note.

The first was filed by, John Prentzler, director of auto operations at AutoStart USA, who claims the fiscal note attached to the measure does not match the on presented in the ballot language. The second suit aimed at this measure was, unusually, filed by supporters of the initiative you allege that it would have no impact on state and local budgets, and, therefore, the fiscal note should be changed to reflect that. Supporters were successful and the ballot language was updated on February 23, 2012.

One lawsuit also appeared in Ohio targeting a "personhood" initiative and sought to split the initiative into two separate measures. The case was heard by the Ohio Supreme Court and was thrown out the week of March 23, 2012.

The last such suit we saw filed against a 2012 measure was in Oregon. The suit was brought by opponents of a measure seeking to ban studded tires. The ballot language has since been modified and approved by the Oregon Supreme Court.

Number of cases: 6
Number of measures: 5
Number of states: 4

Campaign contributions

Two lawsuits focusing on contributions to ballot measure campaigns were filed this year.

One suit was filed against supporters of an amendment banning same-sex marriage in Minnesota alleging that they failed to properly disclose campaign donations. The complaint has resulted in an investigation being opened by Minnesota Campaign Finance and Public Disclosure Board.

Another such lawsuit was brought against several public officials claiming they were using their offices, and by extension public money, to campaign against North Dakota Measure 2. The court denied plaintiffs' original request for a court order telling public officials to stop speaking against the measure and scheduled a hearing for April 3, 2012.

Number of cases: 2
Number of measures: 2
Number of states: 2

Constitutionality

A total of six new lawsuits have filed challenging the constitutionality of various 2012 measures.

One case was brought before the Colorado Supreme Court as an appeal against supporters of a state "personhood" amendment.

Another case was filed by the Massachusetts Teachers Association with the state Supreme Court against the teacher evaluation proposal complaining that the proposal was in violation of the state constitution because it dealt with too many components that are unrelated.

Montana saw two of its measures challenged on a constitutional basis, resulting in one being struck from the ballot. The first suit was filed by several labor groups seeking to remove the taxpayer dividend measure from the ballot, claiming it is unconstitutional because it is an inappropriate appropriation of money by legislative referendum.

The other lawsuit was brought against a measure restructuring state Supreme Court elections. In his ruling on the case, Judge James Reynolds declared the measure unconstitutional and removed the measure form the ballot. An appeal is expected from all parties involved in the suit.

Though it is set to appear on the North Dakota ballot in June, the referendum seeking to protect the "Fighting Sioux" nickname is currently the subject of a lawsuit before the North Dakota Supreme Court aiming to keep it off the ballot.

The final lawsuit recorded in this category was filed in Rhode Island Superior Court on September 28, 2011 by the Narragansett Indian Tribe of Rhode Island. The tribe seeks to remove a measure from the ballot that would create a state-operated casino. The lawsuit is in reference to the tribe's own such measures having been declared unconstitutional in the past.

Number of cases: 6
Number of measures: 6
Number of states: 5

Signature challenges

One new suit has been filed challenging a measure's petition signatures, this one targeting a referendum of a law granting in-state tuition to illegal immigrants. The lawsuit alleges that more than half of the collected petition signatures were gathered illegally because a website, MDPetitions.com, was used to collect them.

On December 8, 2011 it was announced that the challenge against the petition signatures collected by MDPetitions.com was dropped.

Number of cases: 1
Number of measures: 1
Number of states: 1

Conclusions

In light of this data, a number of interesting observations can be made. More than half of these lawsuits are filed against measures already certified to appear on the ballot. This could indicate that opponents tend to see some strategy in removing a question from the ballot rather than preventing certification.

According to our data, lawsuits focusing on the ballot text of the measure and the constitutionality of the measure are tied for being the most common types of litigation filed. The legality of these areas are the most open to speculation and interpretation, specifically in states where a fiscal note must be included as part of the ballot question. Missouri is one such state and all lawsuits about the measures have targeted the fiscal note of the question.

Of the 14 measures subjected to lawsuits, five were referred to the ballot by the state legislatures and another two are against referendums on existing laws. The remaining seven are either citizen initiated statutes or constitutional amendments. This interesting statistic indicates that public initiated action is more controversial and contentious.

Keep in mind, since this report includes legal action taken against measures proposed for 2012 ballots it is still early to draw any conclusions from lawsuit outcomes. Not only is there still plenty of time for suits to be filed on this year's measure, but there is still plenty of time for additional measures to be proposed and certified. In addition, many suits continue to work their way through the appeals process which means that many of the recorded outcomes may not be final as of writing.

See also

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References