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The Tuesday Count: Prop 8 ruling and the future of ballot measures

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July 2, 2013

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Edited by Brittany Clingen

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20 measures for 2013

Prop 8(News)
Fireworks tax(Quick Hits)
Abortion(Ballot law)

California Proposition 8, the "Eliminates Right of Same-Sex Couples to Marry" Initiative (2008)
In wake of the Supreme Court's ruling on California's notoriously divisive Proposition 8, initiative and referendum supporters on both sides of the political aisle have expressed concern that the highest court's ruling has set a disturbing precedent and potentially weakened the vital process of direct democracy.[1]

Chief Justice John Roberts and four other Justices, by refusing to allow citizens of the Golden State to defend a measure approved by voters but dismissed by state officials, have rendered citizens powerless to defend measures in federal court when the state refuses to do so. Justice Anthony Kennedy, who penned the dissent, wrote, "The court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials — the same officials who would not defend the initiative, an injury the court now leaves unremedied."[1]

Some legal experts have proposed implementing some sort of system to defend ballot measures against legal action when state officials refuse to do so. Erwin Chemerinksy, dean of the law school at University of California, Irvine, said, "States need to consider adopting laws to defend ballot measures." Ultimately, only time will tell what the ramifications of the ruling are and what steps need to be taken to ensure that the people are heard.[2]

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2014 Count
Number: 36 measures
States: Alabama, Arkansas, California, Connecticut, Michigan, Montana Nevada, New York, Tennessee, and Wyoming

In spite of the Supreme Court's ruling, citizens are continuing to pursue direct democracy via the ballot. In Arizona, three veto referendums are currently in the signature gathering process, with supporters hoping to land them on the November 2014 ballot. The first is a referendum on the Medicaid Expansion law that Gov. Jan Brewer (R) supported and signed, thereby aligning herself with President Obama's health care overhaul law. If the supporters fail to gather enough signatures or if the referendum fails at the ballot, more than 300,000 people will be added to the state's Medicaid plan.[3]

As mentioned in last week's report, the second referendum seeks to repeal an election law that was passed in the legislature as HB 2305. The third referendum seeks to repeal a portion of the state's budget that doubles school districts' bonding capacity from five to ten percent. The group We the People AZ Against Common Core is sponsoring the measure. Supporters of the referendum fear the increased bond capacity will result in higher property taxes and that the bonds will be used to fund Common Core standards in state schools. Common Core is a set of federally-determined standards for math and English curriculum which has garnered national media attention. Common Core advocates believe that setting national benchmarks will improve student performance. Opponents are concerned that the standards give the federal government powers that once belonged to state and local governments. Opponents are also concerned that Common Core eliminates school choice and competitive advantages.[4][5][6][7]

All three referendums have until September 11, 2013, to collect the required 86,405 valid signatures.

Quick hits

Amendment on fireworks sales tax expected to go before Georgia voters in 2014: Though it died in the state House of Representatives before the end of this year's legislative session, reports indicate that it is highly likely SR 378 will come up again in 2014. If the state legislature passes the resolution then, voters will get a chance to decide in November 2014 whether or not to dedicate the fireworks sales tax to funding trauma care and firefighter training. It is estimated that the fireworks sales tax, set at six percent, could raise between $2.5 and $10 million annually.[8]

Florida medical marijuana initiative goes before state supreme court: On Friday, June 28, supporters of the Florida Right to Medical Marijuana Initiative announced that they had finalized the measure's language and were submitting to the Florida Supreme Court for review. According to John Morgan, the effort's primary mover, the measure is tightly crafted so as not to allow for misinterpretations that could lead to legalized recreational use of the drug. He said, "This will be regulated by the state. What we wanted to do with our language is for the state to understand this is not intended for recreational use in any sense." In order to qualify for the 2014 ballot supporters are required to collect a minimum of 683,149 valid signatures by the petition drive deadline on February 1, 2014.[9]



A lawsuit against two initiatives in Spokane spurs controversy over initiative and referendum rights:

Monroe Street Dam on Spokane River in City of Spokane

A debate that started over voters' rights, river protection, corporate rights and workers' rights has become a debate over respect for the initiative and referendum process, when the Spokane County Commission voted to file a lawsuit seeking to keep two valid initiative petitions from going on the November ballot.

Pending a lawsuit in the Washington State Superior Court, voters in the City of Spokane may see two initiatives on the ballot in November. Initiative 3, known by supporters as the "Community Bill of Rights" question, is an initiative measure filed by the group Envision Spokane.[10]. It seeks to grant voters more control over development projects and open the door to citizen lawsuits to stop pollution of the Spokane River. It also looks to increase union rights and challenge corporate rights.[11] The petition drive for Initiative 4, the ballot question referred to by supporters as the "Voter Bill of Rights," was run by a group called Spokane Moves to Amend the Constitution (SMAC), which focuses on denying first amendment rights to corporations and removing campaign spending from free speech protection.[12] Initiative 4, if it reaches the ballot and is approved, bans corporation representatives or employees from communicating to city officials about proposed legislation outside of a public forum. The initiative also seeks to prohibit corporations from monetary contributions to any city election campaign.[13][11][14]

On June 21, the Spokane County Commission voted to join nearly a dozen other plaintiffs, including two Spokane City Council members and several corporations, in suing Envision Spokane, SMAC, the County Auditor and the City of Spokane to keep the initiatives from going before voters. Several commissioners said that these measures could hamper economic development. Now controversy is brewing over whether this lawsuit is impeding direct democracy and the Washington citizens' right to the initiative and referendum process. Concerning the lawsuit, President of Envision Spokane, Brad Read, stated, “This lawsuit is a clear attempt by business interests to interfere with the ability of the initiative sponsors to mount campaigns in support of the measures. Rather than educating voters, proponents are forced to spend resources fighting simply to maintain the right of citizens to the initiative process and the right to vote, rights that we thought we’d won generations ago.”[15]

Many who do not support the content of the initiatives have come forward in opposition to the lawsuit because they believe the signatures gathered by Envision Spokane and SMAC earned them a fair chance at the polls. Tim Eyman, who has written 19 initiatives and referendums and has stated that he would not vote for either Initiative 3 or Initiative 4, said, “The vote itself has a lobbying effect. It has political free speech value associated with it. ...  Let ’em vote, and if there are legal issues with the initiatives, just like at the state level, they have the pleasure of our wonderful court system.”[16] In a letter to the Mayor and City Council of Spokane, initiative supporters wrote, "Regardless of what position one takes on the Community Bill of Rights, threatening to stop it from going to the voters for their decision is undemocratic in the extreme."[17]

Those who support the lawsuit and hope to see the initiatives kept from the November ballot argue that if the initiatives are illegal, they should be stopped before an expensive election.[11] The initiatives challenge supreme court decisions regarding corporate rights and money as free speech. They also potentially give voters power to decide zoning issues, which, according to city code, are under the authority of the city council, not voters. Because of these legal problems, many, including some who agree with the content of the measures, believe the initiatives are a dead end.[18] In 2011, while considering the nearly identical "Community Bill of Rights" initiative of that year, former Mayor Mary Verner said, “It would be a waste of the paper it’s printed on."[19]

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Ballot Law Update

Alaska files brief in lawsuit challenging residency requirement for petitioners: On Friday, June 21, the state filed its brief in a case brought by Robert Raymond challenging the state's requirement that petition circulators be legal residents of Alaska. The state argues that Raymond lacks standing because he lives in Wisconsin and has never expressed any intention to circulate petitions for any initiative in Alaska. The case is being heard in the United States Court of Appeals for the Ninth Circuit.[20]

Fight not over regarding new North Dakota abortion laws: According to reports, the committee sponsoring referendums on three of the state's new abortion laws filed a request with Secretary of State Al Jaeger to extend the length of time they have to circulate petitions. Though Jaeger says such an extension would be unconstitutional, committee chairman Gary Hangsleben says he won't stop there. In a comment made to Forum News Service, Hangsleben said, "If we’re denied (the extension), we’ll fight it and bring it to the North Dakota Supreme Court. It could be dragged out for years. Our vote could be resolved in six months, one year." According to him, referendum supporters faced sizable resistance even from women's rights groups within the state. Red River Women’s Clinic, which has filed a lawsuit challenging the recently passed abortion restrictions, is one such group, and Tammi Kromenaker, the clinic's director, says that they believe a ballot measure is the wrong way to fight the laws.[21]

A new update will be released at the end of the month. Click here for past Ballot Law Update reports!

See also

2013 ballot measures
Tuesday Count2013 Scorecard


  1. 1.0 1.1 The Washington Times, "Critics say Supreme Court's Prop 8 ruling takes power from voters, gives it to state officials," June 30, 2013
  2., "Marriage ruling raises ballot measure questions," June 26, 2013
  3. Arizona Daily Star, "Group files referendum to block Medicaid expansion," accessed June 19, 2013 (dead link)
  4., "Group seeks to halt Ariz. lawmakers' plan to double school bonding capacity," July 1, 2013
  5. Arizona's Politics, "READ, IN CONTEXT: New Referendum Filed Targeting Common Core Education Standards," June 28, 2013
  6., "Stop the rush to the Common Core," July 1, 2013
  7. Orlando Sentinel, "Common Core standards spark concerns among some Lake conservatives," July 1, 2013
  8., "New bill could OK fireworks, but not yet," June 30, 2013
  9. Orlando Sentinel, "Medical marijuana referendum takes first step toward ballot," June 28, 2013
  10. Envision Spokane website
  11. 11.0 11.1 11.2 The Spokesman Review, "Spokane County to challenge city voter initiatives," June 21, 2013
  12. Spokane Moves to Amend the Constitution website
  13. SMAC website, Initiative Petition To The People Of The City Of Spokane Initiative No. 4
  14. Spokesman-review, "Groups hope to place initiatives on city ballot," April 12, 2013
  15. Envision Spokane website, statement to Legal Action to Block the Community Bill of Rights from the Ballot
  16. Spokesman-review, "We’ll learn more if we let folks vote," May 18, 2013
  17. Envision Spokane website, Open Letter to Mayor and Council
  18. Citizens United v. Federal Election Commission court case decision
  19. Spokesman-review, "‘Community Bill of Rights’ group launches new proposal," March 17, 2011
  20. Ballot Access News, "Alaska Files Brief in Ninth Circuit in Case Over Residency Requirement for Petitioners," June 27, 2013
  21. Forum News Service, "Organizers of abortion petition seek extension," June 21, 2013 (dead link)