Ballot Law Update: Brown vetoes California pay-per-signature ban

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August 3, 2011

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By Tyler Millhouse

Since the beginning of the year, 246 laws have been proposed in 40 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1]

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. So far in 2011, CICF has identified 61 laws that make getting a measure on the ballot more difficult. Of these 61, 37 have died, 17 are still pending, and seven have passed. CICF has also identified 44 laws that would make the process easier. Of these 44, 37 have died, three are still pending, and four have passed.[2]

In the most significant bill update of the week, Governor Jerry Brown (D) vetoed the controversial SB 168. The bill was intended to curtail fraud by banning pay-per-signature. As evidence of the scale of initiative fraud, Secretary of State Debra Bowen testified that there were 33 convictions for petition fraud between 1994 and 2010. However, opponents of the bill have challenged these findings. The Citizens in Charge Foundation published a report which found that of the 19 records extant, five were not related to initiative petition fraud/forgery. In addition, CICF found that most of the convictions occurred in the 90s. Since 2001, there have only been 5 convictions for initiative petition fraud (not counting the 5 cases excluded by CICF).[3]

In a statement released with the veto on Monday, Brown argued that driving up the cost of petitioning would favor the "wealthiest interests" and make "productivity goals a crime."

Regardless of the debate on the merits of the bill, Gov. Brown may have had more practical motives for his veto. Some have speculated that Brown will back an initiated measure to increase taxes, a measure that could have become more expensive under Senate Bill 168.[4] The veto may also spell trouble for California Senate Bill 448 which would also impose restrictions on petitions circulators.

Court actions concerning I&R

  • Park petitioning ruling: The Michigan ACLU has prevailed in a case challenging a local policy which restricted petitioning in a public park. The rule required a permit to petition in the Linden County Park and limited the areas in which signatures could be gathered. On July 22, four days after the suit was filed, the county parks department relented and reversed the policy.[5] The ACLU complaint in Miller v McMillan can be found here.
  • USPS case, briefs filed: Currently, US Postal Service regulations prohibit signature gathering on interior sidewalks (sidewalks leading from the main sidewalk to the doors). The case, Initiative & Referendum Institute v. United States Postal Service, is now more than a decade old. After a long delay on the initial ruling (in favor of the USPS), the case has been appealed to a US Court of Appeals. As of July 19, all briefs in that appeal have now been filed.[6] See Ballotpedia's article on the case's history here.

Bill updates

The following is a list of recent updates for bills covered in past reports. For a complete list of updates, see the Ballot Law Bill Tracker.

  • California Senate Bill 168 (2011): Update: Passed Senate (5/9/11), passed House (7/14/11), Vetoed (8/1/11).[7] SB 168 would ban pay-per-signature in the State of California. Violation of the law would constitute a misdemeanor offense. Current law does not prohibit the practice, but it does require that petition forms include a notice indicating that the circulator may or may not be a volunteer.[8]Citizens in Charge Foundation rating: Reduces initiative rights.

Approved legislation

  • 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.[9] 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.[2] 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.[10] 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.[11][12] 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.[13] 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.[14] 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.[15] 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.[2] 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.[16][17] 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.[18] 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.

See also