Supporters of distribution requirements argue that they are a way of demonstrating “widespread support” for a ballot measure because registered voters from a variety of political subdivisions signed petitions for the ballot measure. In reality, these requirements diminish the voice of voters in certain districts while unfairly amplifying the voice of voters in others.
Distribution requirements can significantly drive up the cost of petition drives by forcing signatures to be collected in sparsely populated areas. Federal courts have ruled that these requirements are so onerous on the free speech rights of petition proponents that they violate the constitution. In addition, courts have ruled that distribution requirements violate the equal protection clause – one person, one vote – because they require distribution over subdivisions that aren’t equal in population. Distribution requirements have been struck down in Illinois, Idaho, Utah, Montana, and twice in Nevada.
The following states currently have distribution requirements: Alaska, Arkansas, Florida, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, Ohio, Utah, and Wyoming.
Currently, distribution requirements are under legal challenge in Nebraska, Nevada, and Ohio.
States with distribution requirements
- Alaska. Signatures from each of 30 districts to be at least equal to seven percent of the voters who voted in each of these districts in the last general election. An older requirement, changed with the passage in 2004 of the Distribution Requirement for Initiatives Act in 2004, was that at least one voter needed to sign from each of at least 27 districts.
- Arkansas. 5% in 15 of 75 counties.
- Florida. 8% in 12 of 23 congressional districts.
- Maryland. No more than half of required signatures may be from any one county or Baltimore City.
- Massachusetts. No more than one-quarter of the certified signatures may come from any one county.
- Mississippi. 20% from each congressional district.
- Missouri. Sponsors must collect a minimum threshold of signatures in 6 out of Missouri's 9 U.S. congressional districts.
- Montana. For a statute, 5% in 34 of 50 legislative districts. For an amendment, 10% in 40 out of the 50 state legislative districts.
- Nebraska. In Nebraska, signatures over a threshold determined by whether the petition is for a statute or a constitutional amendment must be collected in a minimum of 40% (or 38) of Nebraska's 93 counties.
- Nevada. In 2009, the legislature passed a requirement that circulators must collect the signatures of 10 percent of the turnout in the most recent election in each of the state's Congressional districts. This makes the overall number of signatures required to qualify an initiative for the ballot 60% higher.
- Ohio. In Ohio, signatures for both amendments and statutes must be obtained from at least 44 of the 88 counties of the state.
- Utah. For direct initiatives, proponents must gather 10% of the vote cast in at least 20 of Utah's 29 counties. For indirect initiatives, proponents must gather 5% in at least 20 of 29 counties.
- Wyoming. 15% of total votes cast in the last election from at least 2/3 of the counties. If Wyoming Constitutional Amendment B (2008) passed, the new requirement would have been 15% of votes cast in the last election from 2/3rds of the state's thirty state senate districts.
States without distribution requirements
- Arizona, California, Colorado, Idaho, Maine, Michigan, North Dakota, Oklahoma, Oregon, South Dakota and Washington.
- In 1969, in the case of Moore v. Ogilvie, the U.S. Supreme Court struck down an Illinois distribution requirement saying that it "applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, and thus discriminates against the residents of the populous counties in the exercise of their political rights in violation of the Equal Protection Clause of the Fourteenth Amendment."
- In 2001, in the case of Idaho Coalition United for Bears v. Cenarrusa, a federal judge declared that Idaho's distribution requirement for initiatives was unconstitutional on the grounds that the restrictions violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. In 2003, the decision was appealed by the state of Idaho to United States Court of Appeals for the Ninth Circuit. The higher court affirmed the lower court's ruling.
- In 2002, in the case of Gallivan v. Walker, the Utah Supreme Court struck down Utah's distribution requirement, declaring that the initiative right is a "fundamental right implicit in a free society" and that the distribution requirement impinged on it.
- In the 2005 federal court case Montana PIRG v. Johnson, a distribution requirement in Montana was declared unconstitutional.
- In December 2006, Nevada's distribution requirement was declared unconstitutional by the Ninth Circuit in the case of ACLU v. Lomax. In 2007, the Nevada State Legislature passed a new distribution requirement in Nevada Senate Bill 549, which according to the ACLU is "virtually identical" to the law struck down in ACLU v. Lomax. On September 28, 2008, U.S. District Court Judge Philip Pro invalidated Nevada Senate Bill 549 (2007), saying it is unconstitutional, and ordering Secretary of State Ross Miller not to enforce it.,
Petition sponsors in states with distribution requirements face the difficult decision of whether to comply with a requirement that may be unconstitutional, or filing a federal lawsuit. Since the costs of such litigation can easily exceed $100,000, and since the litigation might take years, as a practical matter, most petition sponsors elect to comply with a law that may be unconstitutional.
- Idaho Coalition United for Bears v. Cenarrusa
- Laws governing petition circulators
- Changes in 2007 to laws governing the initiative process
- Changes in 2008 to laws governing the initiative process
- Blockbuster Democracy, "Harder to Access the Ballot in Nevada", September 2, 2009
- Mercury News, "Federal judge strikes down Nev. ballot measure law", September 29, 2008
- Las Vegas Review Journal, "EDITORIAL: Petition requirements", October 2, 2008