Ballot Law Update: California badge requirement advances
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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, 43 have died, 11 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.
On Monday, lawmakers in the California State Assembly passed Senate Bill 448. The bill would create a badge requirement for initiative petition circulators. Known as "scarlet letter laws" to opponents, such requirements mandate that paid petition circulators wear badges identifying themselves as paid workers. Prior to final passage, the Assembly amended the bill, removing a clause that also required the badges to indicate whether or not the circulator is registered to vote. The amendment also removed the requirement that volunteer circulators wear identifying badges.
The Assembly approved the amended version 50-27. The bill now moves to the California State Senate for concurrence. Last week, Governor Jerry Brown (D) vetoed SB 168, which would have banned paying petitioners by the signature. It remains to be seen whether Brown will veto SB 448 as well.
Court actions concerning I&R
- Ohio Health Care Amendment: On August 12, proponents of Ohio Issue 3 won a significant legal battle in the Ohio Supreme Court. The lawsuit, Rothenberg v Husted, challenged the validity of signatures for the measure based on disclosure requirements for paid petition circulators. The complaint argued that certain signatures gathered in favor of Issue 3 should not be counted since some paid circulators misidentified their employer (listing the initiative campaign rather than contracting company for which they work). In addition, opponents argued other signatures were invalid since some of the circulators failed to file a compensation statement. Ultimately, the court rejected these arguments, contending that circulator oversight did not invalidate the signatures and that only supervisors were required to file compensation statements. In addition, the court argued that the plaintiffs had failed to produce sufficient evidence that an insufficient number of signatures had been collected. In its ruling on the case, the court noted, "this result is consistent with our duty to liberally construe the citizens’ right of initiative in favor of their exercise of this important right."
- USPS case, date set: Last month, briefs were filed in Initiative & Referendum Institute v. United States Postal Service. The lawsuit challenges US Postal Service regulations that prohibit signature gathering on interior sidewalks (sidewalks leading from the main sidewalk to the doors). This week, oral arguments for the decade-old case were scheduled for November 9, 2011 in the US Court of Appeals, DC Circuit. See Ballotpedia's article on the case's history here.
- California Senate Bill 448: Update: Passed Senate (5/9/11), amended in House (7/14/11), passed and ordered to Senate (8/15/11). SB 448, much like the now-shelved AB 481, would require paid petition circulators to wear a badge indicating that they are a paid worker. Prior to a House amendment, the bill also required volunteer petitioners to wear badges indicating their volunteer status. In addition, the earlier version required the badges to identify where in California the circulator is registered to vote. While the earlier version did not require the circulator to be registered, unregistered circulators would have been identified as "NOT REGISTERED TO VOTE." The bill's sponsor is Sen. Mark DeSaulnier (D).  Citizens in Charge Foundation rating: Reduces initiative rights.
- 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 August 17, 2011
- This information is based on the most recent edition (August 5, 2011) of the CICF "Afternoon I&R Legislation Update"
- The Sacramento Bee, "Assembly OKs badge rule for paid petition workers," August 15, 2011
- Ballot Access News, "Ohio Supreme Court Rejects Challenge to Statewide Initiative Petition," August 12th, 2011
- Ballot Access News, "All Briefs Filed in Postal Petitioning Case," July 25, 2011
- Ballot Access News, "U.S. Court of Appeals Sets Hearing Date in Postal Sidewalks Petitioning Case," August 17, 2011
- California Assembly Bill 448, Bill History
- California Assembly Bill 481, Bill History
- 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