Ballot Law Update: Legislators in several Midwestern states look to make it harder to place measures on ballots

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November 28, 2012

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By Eric Veram

Since the beginning of the year, we have tracked 54 proposed laws in 20 states affecting the initiative and referendum process. 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

Passage of marijuana legalization measures causes uncertainty: Even though marijuana was legalized for adult recreational use in both Washington and Colorado, the substance remains illegal at the federal level. This discrepancy, combined with the current administration's relatively lax enforcement of marijuana laws, is causing a great deal of anxiety for, lawmakers in those states. Reportedly, Colorado’s governor and attorney general held a meeting over the phone with U.S. Attorney General Eric Holder during which they asked him if the U.S. Justice Department had plans on moving against the measures. They received no clear response, however, and are holding off on making any plans to regulate and tax the substance until they receive such a answer.

Nanda Chitre, a Justice Department spokesperson, said that federal enforcement remains unchanged. In a statement made before the meeting with Attorney General Holder, she said, "In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiative and have no additional comment at this time."[1]

Defeat of Michigan's Public Act 4 triggers lawsuit: After voters in Michigan turned down Proposal 1, and thereby striking down the law enabling emergency managers, the question remains of what will become of the emergency managers already appointed by the governor. Robert Davis, an opponent of the law, believes that all existing managers should be removed from their positions, and has filed a lawsuit pushing the courts for an answer. The Michigan Court of Appeals quickly reviewed the case and determined that the managers will stay in place under Public Act 72, the predecessor to PA 4. However, the case now goes to the Michigan Supreme Court and is set to be heard on December 5. Though Michigan Attorney General Bill Schuette believes that the citizens essentially repealed PA 4's repeal of PA 72, thereby restoring the original law, early signs indicate that the supreme court may not agree. During a lawsuit over the referendum's placement on the ballot, Chief Justice Robert Young, Jr. said, "Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute."[2]

Supporters of the Oklahoma Affirmative Action Ban Amendment believe the measure can survive legal challenges: Though voters in the state passed State Question 759, supporters of similar amendments in other states have faced intense lawsuits often ending in federal court. On November 15, the 6th U.S. Circuit Court of Appeals struck down a 2006 ballot measure banning the use of affirmative action in Michigan. The court's 8-7 decision stated that the measure was illegal because banning the practice through referendum it presents an extraordinary burden to opponents. The court suggested that a fairer method for supporters and opponents to debate affirmative action would be through the governing boards of each public university.

Supporters of the measure in Oklahoma, however, point to the fact that the 9th U.S. Circuit Court of Appeals upheld an initiative in California banning affirmative action. They say that the amendment in Oklahoma was modeled on the California measure and should pass any legal challenges. Such a legal challenge has not come to the 10th Circuit, the circuit in which Oklahoma is located, but if it does, it could raise chances that the U.S. Supreme Court gets involved in the matter.[3]

Medical marijuana case from Montana could reach federal appeals court: Montana medical marijuana provider Chris Williams faces a possible 80-year prison sentence after being found guilty of eight criminal charges in September. The case comes as the result of a series of raids in 2011 by federal law enforcement officers on medical marijuana dispensaries in Montana. Following the raids, Williams was the only provider indicted who refused a number of plea deals in favor of a jury trial. In court, however, the jury never got to hear about Montana's medical marijuana laws U.S. District Judge Donald Molloy said that the federal Controlled Substances Act supersedes contradictory state laws because of the Constitution's Supremacy Clause. Williams's attorneys have appealed the case to the 9th U.S. Circuit Court of Appeals and a petition has been started online asking President Barack Obama to intervene.[4]

Court actions

Federal circuit court rules on Doe v. Reed: On Tuesday, October 23, the 9th Circuit Court of Appeals issued a ruling rejecting an appeal made by Protect Marriage Washington in a case involving the state of Washington's release of signed petitions for Referendum 71. That case, Doe v. Reed, involves a lawsuit filed by Protect Marriage Washington in an attempt to protect the identities of individuals who signed petitions in an attempt to overturn SB 5688, a law which grants grants state registered domestic partners in the state all rights, responsibilities, and obligations granted by or imposed by state law on married couples.[5]

The original case, which argued that the public release of names, in general, was unconstitutional, had already been ruled on by the U.S. Supreme Court in 2010. In that ruling, however, the high court did say that Protect Marriage Washington could file an "as-applied" challenge on a particular measure, meaning that they could argue that the release of names in this instance was a violation of constitutional rights, as opposed to any releasing of names. The group did just that, and filed a new challenge one month after the Supreme Court's ruling.[5]

It is this new lawsuit which the 9th Circuit ruled on. The court's ruling essentially rejects the suit on two levels: First, that the point is moot because the names of petition signers have already been released, and second, that challengers failed to make their case because they could not bring into evidence actual cases where signers were unlawfully harassed once their names were made public.[5]

The court's opinion may be found here.

Law limiting political speech of clergy struck down: On Tuesday, October 6, U.S. District Judge Richard Cebull approved a settlement in a case involving a minister arrested for trespassing while gathering signatures for the Montana Definition of Person Amendment. Though the minister, Calvin Zastrow, faced only trespassing charges, he sued in an attempt to prevent the state frpm enforcing a 1913 law that limits the speech of ministers, clergy and churches regarding candidates and ballot issues.[6]

Assistant Attorney General Michael Black said he had no knowledge of any time the law had ever been enforced, but decided to allow the court to enter a ruling declaring the law unconstitutional. The court granted an injunction that prevents the state and county from enforcing the statute or displaying its text on "warning posters" displayed at polling places. On a side note: the trespassing charges were also dropped.[6]

Bills to watch

See also: Ballot Law Bill Tracker, 2012

Michigan lawmakers propose overhaul of citizen initiative process: After a series of contentious ballot proposals led to an expensive campaign season loaded with lawsuits, legislators in Michigan are considering alternatives to their citizen initiative process. On Thursday, November 8, Representative Kenneth Horn proposed legislation banning the paying of petition gatherers for each signature they acquire. Reportedly, Governor Rick Snyder supports the proposal but adds that it may prove difficult to implement because some federal courts have ruled that the practice is a constitutionally protected form of political free speech. Former secretary of state Terri Lynn Land has suggested that the petition signing process be made completely digital so as to remove the issue of paid petitioners altogether.

Some though, such as Mark Fisk, a Democratic political consultant, say that any effort to restrict the initiative process amounts to a political power grab. Another voice in the debate, Julie Matuzak, chairwoman of the Board of State Canvassers, says there needs to be more time between the signature submission deadline and the deadline to print ballots so that there is sufficient space for legal challenges. Five measures made it to the ballot this year in Michigan, and all were defeated.[7]

The legislation is House Bill 6020 and the introduced text can be found here.

Minnesota legislator gets to work on 2014 constitutional amendment: Representative Kim Norton has begun work on an amendment to Minnesota's constitution that would, in fact, make it more difficult to send proposed amendments to the ballot. Currently, a simple majority vote is required Minnesota house and senate to place an amendment on the ballot but Norton's proposal would require a two-thirds approval from the legislature. Commenting on the proposal, Norton said, "I think just based on principle that the bar should be much higher for a constitutional amendment than a regular bill." Reportedly, a similar bill was proposed by Norton in the last legislative session, but failed to receive a hearing. Should the bill clear both houses of the legislature it will be put before voters in 2014.[8]

See also