Ballot Law Update: 2012 Year in Review

December 26, 2012

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By Eric Veram

In 2012, 68 laws were proposed in 21 states affecting the initiative and referendum process, according to the National Conference of State Legislatures. For comparison, a total of 254 law were proposed in 41 states during 2011.

Due to the fact that most state legislative sessions end in early 2012, there is not nearly as much time for significant legislative events to take place as there is earlier in the election cycle. This explains why only about one-fourth of the number of I & R related legislation observed in 2011 was proposed in 2012. Of the 68 bills proposed only 10 were approved, with most of the rest either being defeated or dying in committee as sessions ended. Notably, however, 8 bills before the New Jersey legislature are being carried over to 2013.

The Ballot Law Update is released on the last Wednesday of each month. The first update for 2013 will be released on January 30, 2013. Stay tuned to the Tuesday Count for weekly ballot law news.

Recent changes

Changes to Michigan's recall process approved: On Friday, December 14, 2012, the Republican controlled Michigan legislature approved changes to state laws making it more difficult to recall lawmakers, the governor, and local officials. On major change is that the time to collect recall signatures is shortened from 90 days to 60 days. Another is that officials subject to a recall election would have opponents run against them, rather than a simple 'yes' or 'no' vote. Democrats in the legislature have criticized the move saying that it is in response to public protests following the signing of "right-to-work" legislation in the state.

Ballot Law Update: 2012 Year in Review

Major legal decisions in 2012

Robert Davis v. Roy Roberts

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 will undergo several hearings, one of which was 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."

Doe v. Reed

On Tuesday, October 23, 2012, 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. 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. 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. The court's opinion may be found here.

ACLU v. Ruth Johnson

A hearing on the citizenship question set to appear on Michigan ballots this November was held by Detroit federal Judge Paul Borman on Friday, October 5, 2012. Michigan Secretary of State Ruth Johnson defended the question in court as a measure intending to fight voter fraud. The question was intended to appear at the top of the ballot and ask voters whether or not they are American citizens. The ACLU filed the suit over the question alleging that it will cause long lines at the ballot boxes and qualifies as voter intimidation. Following a preliminary injunction ordered by Judge Borman on the day of the hearing, Secretary Johnson dropped the controversial citizenship question from the state's ballots. The decision came after the ACLU successfully argued that voters are already required to confirm U.S. citizenship when they register to vote in the state of Michigan, thus rendering the question redundant.

League of Educational Voters v. State of Washington

On May 30, 2012, Judge Bruce Heller ruled Washington Initiative 1053 unconstitutional. The initiative was approved in 2010, by a 64% to 36% margin. It required the legislature to approve tax increases by a two-thirds supermajority vote. Under the initiative, tax increases could also be approved by a simple majority of voters, and spending in excess of the expenditure limit was automatically referred to the ballot. Heller found Initiative 1053, a statutory initiative, to be in conflict with Article II, Section 22 of the state constitution which requires only a simple majority for the passage of bills. In addition, Heller found the automatic referral process to be in conflict with Article II, Section 1(b) which requires a petition drive for referendums. The state plans to appeal the decision. The lawsuit against Initiative 1053 was filed by the state teacher's union (WEA) and the League of Education Voters along with several taxpayers and Democratic legislators.

Brown v. Missouri Secretary of State

Legal challenges involving Missouri's Proposition B lead to bigger implications surrounding the state's initiative process. On February 28, Cole County Circuit Court Judge Jon Beetum struck down a law that directs the state auditor to prepare fiscal analysis for proposed ballot initiatives. According to reports, Beetem stated that the law was in violation of the Missouri Constitution. Specifically, the ruling stated that the 1997 statute conflicts with a constitutional provision that prohibits laws mandating the state auditor to perform duties unrelated to overseeing the spending and receiving of public money. What was originally a challenge to the tobacco tax initiative grew into a statewide confusion of the initiative process. Events in the state took another twist leading up to the week of April 23, 2012 when Missouri Auditor Tom Schweich told his staff via e-mail to cease preparation of financial estimates of initiatives, directly because of the court ruling. Ballot initiatives needed official financial summary included with submitted petition signatures. Then, on July 31, after multiple appeals, a Missouri Supreme Court ruling stated that the Missouri Secretary of State had correctly written the language of the proposal. Also included in that ruling, was that the state auditor has the constitutional right to prepare the financial summaries of the measures.

Lux v. Judd

On February 8, a judge for the Fourth Circuit Court of Appeals overturned Virginia's in-district residency requirement. Under existing law, candidate petition circulators must be eligible to vote for the office for which they are collecting signatures. This limits the pool of potential circulators to residents of each congressional or legislative district. The judge ruled that requirement restricted first amendment rights without being narrowly tailored to the state's interest in electoral integrity. Although Virginia does not permit voters to initiate statewide ballot measures, an earlier ruling in the case  has already had broader implications for ballot measure law. Prior the 4th Circuit ruling, a bill to repeal the requirement (HB1133) was proposed in the Virginia General Assembly. It has since been passed by both chambers. The full decision can be found here.

Perry v. Brown

On February 6, a 9th Circuit Court of Appeals panel issued its decision in Perry v. Brown. The panel upheld rulings by district court judges Vaughn Walker and James Ware overturning California's Proposition 8. The court ruled that the same-sex marriage ban violated the 14th Amendment's equal protection clause. The ruling states: Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted... Under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status... In effect, the court concluded that, because California statutes had already established equal rights for same-sex couples, the measure only served to deny these relationships the designation of "marriage." This, according to the court, was not a legitimate purpose for treating these couples differently under the law. The panel, consisting of Judges Michael Hawkins, Stephen Reinhardt and Randy Smith, was split in its decision with Judge Randy Smith concurring in part and dissenting in part. The panel upheld the decisions of Judge Ware as well as Judge Walker, whose original decision has been challenged on the grounds that Walker had an undisclosed long-term relationship with another man at the time of the case. On February 21, defenders of Proposition 8 asked the full court to reconsider the decision. The full decision can be found here.

Major legal changes in 2012

See also: All approved and defeated bills in 2012

New laws

• Michigan House Bill 6060: Tightens the requirements for initating recalls of elected officials and overall making it more difficult to bring a recall election.
• South Dakota House Bill 1186 (2012): Prohibits registered sex offenders from circulating petitions in any place frequented by the public or door to door on private property.
• California AB 1499: Alters the appearance of ballot items so that all proposed constitutional amendments and bond measures, whether proposed by the legislative referrals or by citizen initiatives, would now appear near the top of statewide ballots. The bill was signed into law by Governor Jerry Brown on June 27, 2012 and a lawsuit against it was filed shortly after. The bill is similar to SB 1039

See also

• Ballot Law News Tracker, 2012
• Ballot Law Bill Tracker, 2012
• Ballot measure law
• Previous Ballot Law Updates

Footnotes

Laws governing ballot measures in the United States

Laws governing ballot measures

Alabama • Alaska • Arizona • Arkansas • California • Colorado • Connecticut • Delaware • Florida • Georgia • Hawaii • Idaho • Illinois • Indiana • Iowa • Kansas • Kentucky • Louisiana • Maine • Maryland • Massachusetts • Michigan • Minnesota • Mississippi • Missouri • Montana • Nebraska • Nevada • New Hampshire • New Jersey • New Mexico • New York • North Carolina • North Dakota • Ohio • Oklahoma • Oregon • Pennsylvania • Rhode Island • South Carolina • South Dakota • Tennessee • Texas • Utah • Vermont • Virginia • Washington • West Virginia • Wisconsin • Wyoming

Changes to laws governing ballot measures

Types of ballot measures

Citizen-initiated ballot measures • Legislatively referred ballot measures • Automatically referred ballot measures • Commission-referred ballot measures • Convention-referred constitutional amendments

Ballot measure policy terms

Glossary of ballot measure policy terms