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The Tuesday Count: From Citizens United v. FEC to parental custody battles, diverse issues certified for November ballot

Edited by Ryan Byrne

3 certifications
121 measures for 2014

Certifications (News)
Natural resources (Quick hits)
Minimum wage (Spotlight)

2014 ballot measures
Governor Jerry Brown (D) begrudgingly approved his party's desire to place an advisory question on the ballot related to Citizens United v. Federal Election Commission. Gov. Brown did not sign the Amendment to Overturn Citizens United Ruling Question saying the legislature should not "clutter our ballots," but permitted the measure nonetheless due to the legislature's "commitment on this issue."[1] Republicans, who universally voted against the measure in the legislature, argued that the measure "will waste taxpayer dollars but won’t change anything."[2]

Following California, as well as neighboring Washington, Oregonians may establish a top-two primary system in November. The Open Primary Initiative, coming six years after the failed Measure 65, would institute a primary system where all candidates are listed together, regardless of party affiliation, and the top two finishers advance to the general election.[3]

Like top-two primary supporters in Oregon, North Dakota advocates of child custody reform are following the proverb "If at first you don't succeed, try, try again." Certified on July 21, the Parental Rights Initiative is expected to face a heated battle with proponents saying the issue is about equality between mothers and fathers and opponents arguing that the initiative is emphasizing parental rights over children's rights.[4]

The nation's highest minimum wage is safe, at least until 2015. Seattle's $15 an hour minimum wage was being challenged by a veto referendum. However, the measure's supporters failed to submit enough valid signatures.[5] In Oakland, the city council placed an initiative on the ballot designed to raise the hourly minimum wage to $12.25.[6]

San Jose City lawmakers are concerned about the unintended consequences of 2012’s Measure B. Police officers are leaving the city’s police department because they have, according to San Jose Police Officers Association President Jim Unland, “the worst pension plan in the state.” City officials are looking to craft a ballot measure to soften some aspects of the pension reform ushered in under Measure B in an attempt to keep police officers from leaving.[7]

Excepting California's advisory question, this week's measures all strike a sense of direct democracy nostalgia, and for good reason. Oregon and North Dakota's measures are both retries of previously defeated measures from 2008 and 2006, respectively. While not yet on the ballot, San Jose City may likewise be seeing some not-too-distant past on the ballot as its lawmakers deal with the aftermath of Measure B.

North Dakota

California, a state that has seen 1,216 ballot propositions since 1910, almost had a record low number of six propositions on the November ballot. On July 16, 2014, however, the number was boosted to seven, tying the ballot for the record low with 1916 and 2002.[8] The ballot measure shattering the chances of a new record low is an equally rare advisory question with this being only the third one in the state's history.[9] Known as Proposition 49 or the Overturn Citizens United Act, the legislatively-referred advisory referendum was pushed heavily by Democrats in the California Legislature. Gov. Jerry Brown (D) approved the question for the ballot, but withheld his signature as a symbolic gesture. He said, "[W]e should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect... Nevertheless, given the Legislature’s commitment on this issue, even to the point of calling for an unprecedented Article V constitutional convention, I am willing to allow this question to be placed before the voters."[1]

The Sacramento Bee editorial board criticized the governor for not vetoing the bill, saying, "Gov. Jerry Brown had it exactly right – an advisory measure on overturning the Citizens United decision, which opened the floodgates of corporate cash into politics, will have no legal effect whatsoever and will only clutter the November ballot. But he should have taken the next logical step and vetoed Senate Bill 1272. Instead, he let it become law without his signature. That’s called trying to have it both ways – and that’s very disappointing."[10] Loren Kaye of the California Foundation for Commerce and Education offered a more expansive critique on the legality of the referendum, noting, "Nowhere by the Constitution or laws of the state is the Legislature granted the authority to place an advisory measure on the statewide ballot."[11] Citing American Federation of Labor v. Eu, a case invalidating citizen-initiated advisory referenda, Dan Walters likewise said that legislatively-referred advisory questions may be unconstitutional.[12] However, there is no sign of an impeding lawsuit, at least not yet. Proposition 49, which is designed to garner congressional support for overturning Citizens United v. FEC, may be the largest vote on the controversial ruling since Colorado's Amendment 65 in 2012.[13]

Across the 42nd parallel north, Oregonians will have the opportunity to follow in California's footsteps and adopt a top two-primary system or reject such system as they did in 2008.[14] Backed by both Gov. John Kitzhaber (D) and his opponent in the gubernatorial race, Rep. Dennis Richardson (R-4), the Open Primary Initiative would replace Republican and Democratic primaries with a single primary in which the first and second place winners, regardless of their political party affiliation, advance to the general election.[15][16] The measure's certification was announced on July 15, 2014, after the secretary of state's office verified about 4,500 more signatures than required for a total of 91,716.[17]

One additional initiative was certified for the ballot over the previous week. In North Dakota, the Parental Rights Initiative was approved for the November 4, 2014 ballot on July 21, 2014. The measure acquired 14,452 valid signatures.[18] Returning for another fight after a defeated measure in 2006, proponents think they can win after a local victory in Walsh County. The 2014 initiative would create a legal presumption that each parent in a child custody case is fit to parent, unless “clear and convincing evidence” demonstrates otherwise.[19] Jill Bjerke, the initiative's sponsoring committee chairperson, said that contemporary social norms disproportionately favor the mother over the father in child custody battles. She stated, "It's just the norm, right now, for Mom to get custody. And when that happens, Dad is cut out of the children's lives. Fathers are both extremely important to both girls and boys. And we want to have our children grow up with parts of both parents."[4] Attorney Erica Shively said the law shouldn't be changed. She noted that the current statute places a stronger emphasis on children's rights relative to parental rights. She claimed, "[The initiative] puts the focus in the wrong place. Currently, the focus is on children in North Dakota. And, it basically says we need to look at what's best for them, not for the parents. And it changes that focus to whether or not a parent is fit or unfit. There's many wonderful parents out there where there's not equal residential responsibility because it's not something that works for the child in that scenario."[4]

Tuesday Count-Checkmark.png

2014 Count
Number: 121 measures
States: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Washington, Wisconsin, West Virginia and Wyoming

Conflicting rulings on federal exchange tax credits

By Phil Heidenreich

The E. Barrett Prettyman Federal Courthouse

Washington, D.C.: Federal tax credits through the Internal Revenue Service were both struck down and upheld in the latest rulings regarding the Patient Protection and Affordable Care Act (Obamacare). The D.C. Circuit of the U.S. Court of Appeals ruled in favor of Halbig in Halbig v. Burwell. The court determined that the law's written language, allowing tax credits to those using exchanges "established by the State," meant that only those using the state exchanges were eligible for tax credits but not those using the federal exchange. Judge Thomas Griffith, who wrote the opinion of the court, explained the discrepancy, writing, "On its face, this provision authorizes tax credits for insurance purchased on an Exchange established by one of the fifty states or the District of Columbia. See 42 U.S.C. § 18024(d). But the Internal Revenue Service has interpreted section 36B broadly to authorize the subsidy also for insurance purchased on an Exchange established by the federal government under section 1321 of the Act." The decision came in at 2-1.[20] Meanwhile, the U.S. Court of Appeals for the Fourth Circuit ruled unanimously in favor of Burwell in King v. Burwell, claiming the language was ambiguous, upholding the legality of the tax credits.[21]

Halbig argued that the Congress passed the law with the intention of motivating the states to create their own exchanges by offering them tax credits, with the federal exchange intended as a fallback option. Thirty-six states run through the federal exchange and if the ruling were to withstand review and likely appeals, an estimated 7.3 million people would lose their tax credits, totaling about $36.1 billion.[22]

A U.S. Department of Justice quickly stated that the department would seek an en banc review of the Halbig decision, claiming, "We believe that this decision is incorrect, inconsistent with congressional intent, different from previous rulings, and at odds with the goal of the law: to make health care affordable no matter where people live."[23] Two other similar cases are pending in district courts.[20]

What's on the ballot today? - July 22, 2014

By Ballotpedia staff

Vote button.jpg
July 22, 2014 elections

The Republican nominee for a United States Senate seat, where more than $9 million in campaign funds were raised, and control of the troubled DeKalb County School District, which will see an incumbent versus incumbent battle, are at stake in today's Georgia primary runoff election.

In the north east, Connecticut is holding a special election for the District 122 seat in the Connecticut House of Representatives.

Although he led the field in the Republican primary to replace retiring Sen. Saxby Chambliss, former Dollar General CEO and political neophyte David Perdue may struggle to win the runoff. Rep. Jack Kingston led Perdue in all eight polls conducted since the primary, although Perdue did pull within the margin of error in two of the more recent polls. Kingston also holds the financial advantage after raising $6,180,841 through the most recent reporting period. This nearly doubled Perdue's $3,378,195, despite the former businessman's significant personal wealth.[24][25] Several key endorsements have fallen Kingston's way, as well, including support from defeated primary candidates Karen Handel and Reps. Phil Gingrey and Tom Price.[26][27][28]

Whomever triumphs in the runoff election will face Democratic nominee Michelle Nunn, who won an overwhelming victory in the primary with 75 percent of the vote. Nunn enjoys high name recognition as the daughter of former Georgia Sen. Sam Nunn (D).[29] Nunn has polled competitively against both Kingston and Perdue. Neither of the Republican hopefuls have led Nunn in a poll since May 2014, although several of the more recent polls have fallen within the margin of error.

Other Georgia congressional elections include runoffs for three U.S. House seats. Both the Democratic and the Republican nominees for the GA-01 seat will be determined by runoff elections. The seat was vacated as a result of Rep. Jack Kingston running for the U.S. Senate seat. Rep. Paul C. Broun's unsuccessful bid for the same seat opened up his GA-10 seat, as well. The winner of the Republican primary runoff will compete with Democratic nominee Ken Dious in the November general election. No Democrats filed for the GA-11 seat opened by Rep. Phil Gingrey's Senate campaign, which means that the winner of the Republican primary runoff will win the seat uncontested in November.

At the opposite end of the ballot, eight Georgia school districts are holding runoff elections for a total of 12 seats. Seven of the races for those seats include incumbents campaigning for re-election, but one race in particular features two incumbents battling for the same seat.

In the DeKalb County School District, District 4 incumbent Jim McMahan and District 8 incumbent Karen Carter are competing for the District 4 seat. The school board is shrinking from nine to seven seats as part of the election, which eliminates Carter's existing seat and places her in the redrawn District 4. Carter was one of the six school board members appointed by Governor Nathan Deal (R) in March 2013. Governor Deal previously dismissed six elected board members in February 2013 after the Southern Association of Colleges and Schools placed the district under "accredited probation" status. This probation stemmed from an audit that revealed issues with board governance, unethical practices and fiscal mismanagement.[30][31] On January 21, 2014, the Southern Association of Colleges and Schools announced that the district was no longer under probation and had been moved up to "accreditation warned" status.[32]

In Connecticut, Arlene Liscinsky (D) is facing Ben McGorty (R) for the District 122 seat vacated by former Rep. Lawrence Miller (R), who died in office after serving since 1991. Both candidates were nominated by their political party instead of through a primary election. The Connecticut House of Representatives is solidly Democratic with a ratio of 97 representatives compared to just 53 Republican officeholders, so the result of this special election will not shift the balance of power in that governing body.[33]

Primary runoff preview: Georgia state executive official elections, 2014


By Maresa Strano

July 21, 2014 Election Preview

Jump to the section for:
*Georgia State Superintendent of Schools

ATLANTA, Georgia: Georgia voters faced six contested state executive primary races on May 20, two of which, the Democratic and Republican primaries for Georgia State Superintendent of Schools, prompted runoffs.[34] Since neither field managed to produce a definitive victor—that is, no one received at least 50 percent of the primary vote—the top two vote-getters from each race must face off on July 22 to decide who will advance to the general election: state Rep. Alisha Thomas Morgan and former Decatur School Board Chairwoman Valarie Wilson for the Democrats; chief academic officer for the state Department of Education Mike Buck and veteran Irwin County educator Richard Woods for the Republicans.[35][36] [37][38]

The superintendent seat is the only open seat out of the ten state executive offices up for election in the 2014 electoral cycle. Rather than seek a second term as superintendent in 2014, first term Republican incumbent John Barge chose to run for governor. He was defeated by incumbent Gov. Nathan Deal in the Republican primary on May 20, 2014. Barge's term expires on January 12, 2015, at which time he will have to cede the superintendent's office to his elected successor.

The superintendent is charged by state law to "carry out and enforce all the rules and regulations of the State Board of Education and the laws governing the schools receiving state aid." Additionally, he is directed to make recommendations to the board on matters related to the "welfare and efficiency" of the public school system.[39]

Georgia election law requires a candidate to earn a majority (at least 50 percent) of the primary election vote in order to automatically move on with the party's nomination.[40] If no candidate reaches that threshold, the two candidates with the highest number of votes compete in a runoff, which, effective in 2014, will take place "on the Tuesday of the ninth week" following the primary. The timetable was revised under House Bill 310 and signed into law by Gov. Nathan Deal in January 2014; Prior to 2014, runoffs were regularly held three weeks after the preceding primary.[41]

Georgia is one of 14 states that uses an open primary system, in which registered voters do not have to be members of a party to vote in that party's primary.[42][43][44] Below, Ballotpedia has put together a recap of the May 20 Democratic and Republican primaries for Georgia State Superintendent of Schools and a brief preview of the upcoming runoffs.

In Georgia, polls are open from 7:00 a.m. until 7:00 p.m. Eastern Time. Any voter who is waiting in line to vote at 7:00 p.m. will be allowed to vote.[45]

Pharmacy ownership battle may soon begin in North Dakota

By Ryan Byrne

North Dakota
While “third time’s the charm” is a common phrase of encouragement in the United States, proponents of pharmacy ownership reform in North Dakota may be soon saying “fourth time’s the charm.” After failing to get an initiative on the ballot twice and having their cause trounced in the state legislature, approximately 23,961 signatures were submitted on July 18, 2014 to get a Pharmacy Ownership Initiative on the ballot.[46] Initiative supporters have been trying since 2009 to change ND Century Code 43-15-35, a unique law requiring pharmacies to be majority-owned by a licensed pharmacist or pharmacists.[47] The law effectively bans chain retailers, such as Walmart, Target and Walgreens, from operating pharmacies in North Dakota.[48]

Issues brought up by both sides include rural access to pharmacies, drug prices and consumer choice. Supporters of the initiative say the current law results in higher drug prices and unrightfully limits ownership.[46] Opponents, including the North Dakota Pharmacists Association, argue that repealing the law would actually decrease competition, increase drug prices and limit rural access. Steve Boehning, president of the association, stated, "The exact opposite happens [without the law]. The market becomes dominated by the three large chains [Walmart, Walgreens and CVS]."[48]

In May 2014, Secretary of State Al Jaeger (R) was skeptical initiative proponents had enough time to get the measure on the ballot, saying, "I got the impression they (supporters) want to get it on the November ballot. They don’t have much time."[49] Jaeger approved the initiative for signature collection on June 3, just 45 days before supporters submitted signatures to his office. The required due date for signatures is August 6, 2014.[50] The required valid signature total is 13,452 versus the 23,961 unvalidated signatures turned in. The secretary of state's office will announce whether the initiative made the ballot by August 22, 2014 at the latest.[46]

January 2014

February 2014

March 2014

April 2014

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  1. 1.0 1.1 Los Angeles Times, "Gov. Brown allows advisory ballot measure on Citizens United decision," July 16, 2014
  2. The Sacramento Bee, "Jerry Brown puts advisory question on ballot without his signature," July 16, 2014
  3. The Oregonian, "Top two primary initiative qualifies for November ballot," July 15, 2014
  4. 4.0 4.1 4.2 KFYR 5, "Group Proposes Parental Rights Initiative," June 16, 2014
  5. The Stranger, "Referendum on the $15 Minimum Wage Will Not Go to the Ballot This Year," July 15, 2014
  6. San Francisco Chronicle, "Oakland voters to weigh in on anti-crime tax measure, minimum wage," July 16, 2014
  7. Cite error: Invalid <ref> tag; no text was provided for refs named SanJose
  8. KQED, "California’s November Ballot Could Be Shortest Ever," June 13, 2014
  9. Fox & Hounds, "A Vote Too Far: Voters Should Not “Advise” The Legislature," July 9, 2014
  10. The Sacramento Bee, "Editorial: Brown should have vetoed advisory vote," July 18, 2014
  11. Cite error: Invalid <ref> tag; no text was provided for refs named foxhonds
  12. Sacramento Bee, "Dan Walters: Democrats place pointless advisory measure on ballot, but why?," July 17, 2014
  13. California Legislature, "Senate Bill 1272," accessed July 10, 2014
  14. IVN, "Initiative to Adopt Top-Two Open Primary in Oregon Qualifies for Ballot," July 16, 2014
  15. Portland Business Journal, "Open primary supporters get their wish as non-party election measure hits Oregon ballot," July 16, 2014
  16. KGW, "Kitzhaber, Richardson share stage in first debate," July 18, 2014
  17. Statesmen Journal, "Open primary initiative qualifies for November ballot," July 16, 2014
  18. The Jamestown Sun, "Parenting initiative will appear on November ballot," July 21, 2014
  19. North Dakota Secretary of State, "Initiative Petition to the Secretary of State," accessed July 16, 2014
  20. 20.0 20.1 The Washington Post, "BREAKING — D.C. Circuit strikes down tax credits in federal exchanges," July 22, 2014
  21. Reuters, "Separate U.S. appeals court upholds subsidies under Obama health law," July 22, 2014
  22. Politico, "D.C. Appeals court strikes Obamacare subsidies," July 22, 2014
  23. Politico, "DOJ to appeal ‘incorrect’ Halbig ruling," July 22, 2014
  24. Federal Election Commission, "Jack Kingston 2014 Summary reports," accessed November 12, 2013
  25. Federal Election Commission, "David Perdue 2014 Summary reports," accessed November 12, 2013
  26. Online Athens, "Phil Gingrey endorses Jack Kingston for Senate," June 5, 2014
  27. The Hill, "Tom Price endorses Kingston in Georgia," May 30, 2014
  28. The Atlanta Journal-Constitution, "Karen Handel to endorse Jack Kingston in Georgia Senate race," May 27, 2014
  29. POLITICO, "Likely Ga. hopeful Michelle Nunn to meet with Obama," July 11, 2013
  30. CBS Atlanta, "Governor Deal Suspends DeKalb School Board Members," February 25, 2013
  31. Governor Nathan Deal - Office of the Governor, "Deal names new members of DeKalb County school board," March 13, 2013
  32. The Augusta Chronicle, "Deal praises DeKalb County schools, no longer on probation," January 21, 2014
  33. Connecticut Post, "Slate set for special state House election," June 15, 2014
  34. Georgia Election Results, Secretary of State, "Primary Statewide Election Results," accessed July 21, 2014
  35. Cite error: Invalid <ref> tag; no text was provided for refs named morgan
  36. Cite error: Invalid <ref> tag; no text was provided for refs named wilson
  37. Cite error: Invalid <ref> tag; no text was provided for refs named buck
  38. Cite error: Invalid <ref> tag; no text was provided for refs named woods
  39. Georgia Code, "20-2-34," accessed September 15, 2011
  40. National Conference of State Legislatures, "Primary Runoffs," accessed July 21, 2014
  41. Georgia General Assembly, "Legislation: 2013-2014 Regular Session - HB 310 Elections; ethics in government; revise definitions; provisions," accessed July 21, 2014
  42. National Conference of State Legislatures Website, "State Primary Election Types," accessed January 6, 2014
  43. Fair Vote, "Congressional and Presidential Primaries: Open, Closed, Semi-Closed, and 'Top Two,'" accessed January 6, 2014
  44. Ballotpedia research conducted December 26, 2013 through January 3, 2014 researching and analyzing various state websites and codes.
  45. Official Code of Georgia, "Title 21, Chapter 2, Section 403," accessed January 3, 2014
  46. 46.0 46.1 46.2 The Jamestown Sun, "Pharmacy measure sponsors submit 10,000 extra signatures," July 19, 2014
  47. North Dakota Legislature, "North Dakota Century Code Chapter 43-14: Pharmacists," accessed May 23, 2014
  48. 48.0 48.1 The Jamestown Sun, "Pharmacy law again target of proposed ballot measure," May 31, 2014
  49. The Bismarck Tribune, "Pharmacy petition under review," May 22, 2014
  50. North Dakota Secretary of State, "Time Line for Statutory Initiative Relating to the Operation of a Pharmacy," accessed July 21, 2014