Supporters of distribution requirements have argued:
- Distribution requirements are a way of demonstrating widespread support for a ballot measure or candidate because registered voters from a variety of political subdivisions signed petitions for the ballot measure.
- Voters have approved of distribution requirements, or tougher distribution requirements. Examples include Alaska Distribution Requirement for Initiatives (2004), Wyoming Amendment B (1998), Montana C-37 (2002) and Montana C-38 (2002). (A federal court later said that Montana's C-37 and C-38 were unconstitutional.)
Those who argue against distribution requirements have mentioned these considerations:
- 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.
- 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 diminish the voice of voters in certain districts while unfairly amplifying the voice of voters in others.
- Voters have rejected efforts to impose distribution requirements or to make distribution requirements tougher. Examples include Wyoming Amendment B (2008) and Colorado Referendum O (2008).
Distribution requirements for initiatives
|State||Requirement for initiated statute||Requirement for initiated amendment|
|Alaska||Signatures from 7% of those who voted in the previous general election in at least 75% of the state’s 40 state house districts.||NA|
|Arkansas||4% of votes cast for governor in each of at least 15 of 75 counties||5% of votes cast for governor in each of at least 15 of 75 counties|
|Florida||NA||8% in at least 13 of Florida's 25 congressional districts|
|Massachusetts||No more than 25% of signatures may be from one county||No more than 25% of signatures may be from one county|
|Mississippi||NA||Signatures must be equally divided among state's congressional districts as they existed immediately prior to the adoption of Mississippi's current four congressional districts|
|Missouri||5% of votes cast in last gubernatorial election from 6 of 9 congressional districts||8% of votes cast in last gubernatorial election from 6 of 9 congressional districts|
|Montana||5% of qualified voters in each of 34 state legislative districts||10% of qualified voters in each of 40 state legislative districts|
|Nebraska||5% of registered voters in 38 of 93 counties||5% of registered voters in 38 of 93 counties|
|Nevada||10% of total votes cast in most recent general election in each of Nevada's congressional districts, plus at least 18 signatures from Clark County||10% of total votes cast in most recent general election in each of Nevada's congressional districts, plus at least 18 signatures from Clark County|
|Ohio||1.5% of votes cast for most recent gubernatorial election in each of 44 of Ohio's 88 counties||5% of votes cast in most recent gubernatorial election in each of 44 of Ohio's 88 counties|
|Utah|| Direct: 10% of votes cast in most recent gubernatorial election in at least 26 of 29 state senate districts.
Indirect: 5% of votes cast in most recent gubernatorial election in at least 26 of 29 state senate districts.
|Wyoming||15% of residents in at least 2/3 of Utah's 33 counties||NA|
- North Dakota
- South Dakota
- 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.,
- Citizens in Charge v. Gale. This lawsuit in federal court is pending. It challenges the distribution requirement for candidate petitions in Nebraska, among other challenge to Nebraska petition law.
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.
SCR 3: This law would have added a distribution requirement to the petition process for initiated constitutional amendments in Colorado, which currently does not have one. Specifically, it would have:
- Required that 5% of the minimum total number of signatures on petitions must be gathered from residents in each of Colorado's U.S. Congressional districts.
- Required a 60% supermajority vote to pass an initiated constitutional amendment, with the exception that it would only take a simple majority vote to repeal provisions of the Colorado Constitution in existence prior to the 2011 odd-year election or to certain amendments related to Amendment 61 (2010). The resolution was defeated by the Colorado Senate on May 11, 2010 on a 20-13 vote with 2 Senators not voting.
- 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
- Changes in 2009 to laws governing the initiative process
- Changes in 2010 to laws governing the initiative process
- The number of registered voters for the purposes of making this calculation is the number of registered voters in the county as of the filing deadline for signatures
- Nevada signature requirements
- Utah signature requirements
- Mercury News, "Federal judge strikes down Nev. ballot measure law", September 29, 2008
- Las Vegas Review Journal, "EDITORIAL: Petition requirements", October 2, 2008
- Colorado General Assembly "Senate Session Journal", May 11, 2010(See Page 1390, Lines 44 and 66)