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Ballot Law Update: Changes proposed to California I&R

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April 25, 2012

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By Tyler Millhouse

Since the beginning of the year, 49 laws have been proposed in 19 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1] The Ballot Law Update is released on the last Wednesday of each month. Stay tuned to the Tuesday Count for weekly ballot law news.

Recent news

California Senate Leader pushes I&R changes: Senate President Pro Tem Darrell Steinberg (D) is backing a series of changes to the California Constitution, modifying the ballot measure process in California. In total, Steinberg has endorsed three changes to the current process. The first would allow the legislature to submit statutes to voters with a simple majority vote of each chamber--the current requirement is a two-thirds majority vote. The change would allow lawmakers to submit tax increases to voters rather than trying to secure the supermajority needed to approve budgets through the ordinary legislative process.

The second would establish an indirect initiative process, and the third would permit lawmakers to repeal initiatives after 10 years. Steinberg implied that the current initiative process constitutes a "shadow government" where outdated initiatives linger for years after their approval, restricting the state's ability to address changing priorities.[2]

For Steinberg's proposals to take effect, they must be referred to voters by a two-thirds majority in each chamber, and then approved by a majority at the polls.

WI recall candidates challenged: On April 12, a group of Democratic voters filed a complaint with the Wisconsin Government Accountability Board, asking the Board to remove several "phony" Democratic legislative candidates from the recall ballot. The candidates were, admittedly, recruited by the Wisconsin GOP to run in the Democratic recall primaries. The voters charge that in order to run in the Democratic primary, the candidates had to make a series of false statements on official election documents. [3]

On April 17, the GAB unanimously denied the request. The board held that Wisconsin law neither requires a primary candidate to be a member of a particular party, nor permits the GAB to evaluate the candidate's motives in running.[4]

In Wisconsin, recall elections are conducted as special elections where the targeted incumbent must campaign to keep his or her seat. Running the "phony" candidates forces the state to hold a Democratic primary, delaying the recall election. If no primaries were required, the legislative recall elections would be held concurrent with the May 8 Democratic gubernatorial recall primary. The gubernatorial primary is expected to draw large numbers of Democratic voters, disadvantaging the Republican legislative incumbents targeted for recall.[5]

  • The original Democratic complaint can be found here.
  • The GAB press release on the decision can be found here.

Virginia replaces residency requirement: On February 8, Virginia's in-district residency requirement was overturned in Lux v. Judd. On April 4, Gov. Bob McDonnell signed HB 1133, officially repealing the statute and replacing it with a state residency requirement. A lawsuit has been filed relating to the new requirement, but it remains unclear whether the case will go forward or whether it will directly address the constitutionality of the requirement.[6]

Court actions

Lawsuit against ND officials dismissed, appealed: On April 13, a North Dakota district judge dismissed a lawsuit against the state tax commissioner and various state lawmakers. The lawsuit was brought by advocates of a state measure to abolish property taxes. The plaintiffs argue that the state officials engaged in inappropriate public opposition to the bill and used public funds to combat the measure. The defendents argue that the lawsuit is an attempt to "chill" free speech.[7][8][9]

The lawsuit was appealed to the North Dakota Supreme Court, but the court has declined to expedite the case. As such, it may not be heard until after May.[10][11]

  • The District Court ruling can be found here.

Judicial districts ruling appealed: Legislative Referendum 119 would have established judicial districts from which each of Montana's Supreme Court judges would be elected. However, last month, a state district court struck the measure from the ballot, saying that the statutory initiative effectively amended the constitution by imposing a new residency requirement on judges. The state has now appealed that ruling to the Montana Supreme Court.[12]

Lawsuit filed against OK personhood amendment: The Center for Reproductive Rights has filed a lawsuit against an Oklahoma initiative that would define personhood as beginning at the moment of conception. The group argues that the law is in violation of the US Constitution.[13]


See also


  1. NCSLnet, "Initiative & Referendum Legislation," accessed April 25, 2012
  2. OC Register, "Senate leader: Change initiative process," April 19, 2012
  3. Ballot Access News, "Six Wisconsin Democratic Voters Ask Elections Officials to Remove “Insincere” Democratic Candidates from May 8 Recall Primary," April 12, 2012
  4. Wisconsin GAB, "G.A.B. Denies Challenges to ‘Fake Democrat’ Recall Candidates," April 17, 2012
  5. Ballot Access News, "Six Wisconsin Democratic Voters Ask Elections Officials to Remove “Insincere” Democratic Candidates from May 8 Recall Primary," April 12, 2012
  6. Ballot Access News, "Democratic Congressional Candidate Files Federal Lawsuit Against Virginia’s Ban on Out-of-State Circulators," April 12, 2012
  7. Businessweek, "Hearing planned on ND property tax lawsuit," March 23, 2012
  8. The Bismark Tribune, "Judge to rule later in Measure 2 case," April 3, 2012
  9., "Judge tosses lawsuit on ND property tax measure," April 13, 2012
  10. The Jamestown Sun, "Lawsuit on N.D. property tax measure to be appealed," April 14, 2012
  11. The Republic, "ND Supreme Court won't expedite lawsuit over ballot measure to abolish property taxes," April 21, 2012
  12. Billings Gazette, "State argues for Supreme Court measure on ballot," April 6, 2012
  13. Think Progress, "Center For Reproductive Rights Files A Lawsuit Against Oklahoma Personhood Initiative," April 2, 2012
  14., "Voters deserve impartial ballot information," April 15, 2012