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Ballot Law Update: Courts declare larger scope for initiative and recall
July 30, 2015
By Josh Altic
As of July 29, 2015, Ballotpedia was covering 151 bills concerning ballot measure law that were proposed or reconsidered during the 2015 legislative sessions of 41 states. Of the total, 22 were pending, 23 were approved, 49 had been defeated or abandoned, and 57 were carried over to 2016. Most of the bills—145—were introduced this year, and the other six were carried over from the 2014 legislative session in New Jersey.
Fighting against a marijuana legalization initiative, legislators in Ohio put a constitutional amendment on the state's November 2015 ballot that would make it more difficult to get voter approval for an initiative that could establish a monopoly.
The U.S. Supreme Court provided a decision affirming the power of initiative in Arizona, specifically concerning congressional redistricting. The ruling has significant repercussions for other states. Moreover, a district court in Nevada ruled that judges can be recalled just like other public officers within the state. The case will ultimately be decided by the Nevada Supreme Court.
Ohio lawmakers target marijuana proposal with extra requirement for initiatives
The battle between ResponsibleOhio—which is behind an initiative proposing legalized marijuana—and the Ohio legislature, which fired back with Issue 2, could have a significant effect on Ohio's initiative process. Issue 2, named HJR 4 in the legislature, was approved for the ballot by state lawmakers on June 30, 2015. Issue 2 was designed to retroactively invalidate the ResponsibleOhio initiative and would require voter approval of two separate ballot questions to enact any citizen initiative deemed by the Ohio Ballot Board to create an economic monopoly or a special commercial privilege. Moreover, the first question voters would have to approve to enact such an initiative contains language likely to deter some voters:[1][2]
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Shall the petitioner, in violation of division (B)(1) of Section 1e of Article II of the Ohio Constitution, be authorized to initiate a constitutional amendment that grants or creates a monopoly, oligopoly, or cartel, specifies or determines a tax rate, or confers a commercial interest, commercial right, or commercial license that is not available to other similarly situated persons?[3] |
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Although Issue 2 was apparently designed to directly target the ResponsibleOhio initiative, it would grant the Ohio Ballot Board the discretion to throw up a serious roadblock to any future initiative it decides might create an economic benefit for a certain individual, group, business or set of businesses. If voters approve this measure in November 2015, its use by the Ohio Ballot Board will be interesting to observe; the degree to which Issue 2 could restrict the initiative power in Ohio is still unknown.[2]
ResponsibleOhio supporter Christopher D. Stock said, "HJR4 [Issue 2] – whether the drafters intended it or not – dramatically shifts the power of the ballot initiative away from the people, and gives the General Assembly unprecedented control over the Constitution. This is not what our founders intended. The Ohio Constitution was designed to provide its citizens with a direct avenue to bypass the Ohio General Assembly should it refuse to act on an issue of great general or public importance."[4]
A group called Citizens Against ResponsibleOhio insisted Issue 2 is necessary to protect the state's economy and guard against harmful monopolies. The group argued, "Regardless of your position on Cannabis, the premise of blocking a monopoly is indisputable in relation to our Free Market principles."[5]
U.S. Supreme Court rules redistricting within scope of initiative power
On June 29, 2015, the U.S. Supreme Court voted 5-4 to uphold the power of citizen initiatives in Arizona to establish congressional redistricting commissions. This ruling affected every state that features the initiative power and reached beyond redistricting to many other election process-related laws that have been or might be instituted through citizen initiatives. The decision was the result of a lawsuit brought by the Arizona Legislature against the state's independent redistricting commission, which was approved by voters in 2000 under the name Proposition 106 in order to prevent gerrymandering. The state legislature contended that Article I of the U.S. Constitution, which gives redistricting power to the "legislature" of each state, precludes the alteration or establishment of a redistricting process by citizen initiative. The U.S. Supreme Court, however, declared that initiatives could be used to govern redistricting and other election-related processes.[6]
Justice Ruth Bader Ginsburg, giving the court's majority opinion, wrote, “lawmaking power in Arizona includes the initiative process... the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. We see no constitutional barrier to a state’s empowerment of its people by embracing that form of lawmaking.”[6]
During the case, 13 other states joined in a "friend-of-the-court brief" arguing that if the Supreme Court overthrew Arizona's Proposition 106, it would “throw a cloud of uncertainty over initiative-adopted election laws going back to 1904.” Among these states was California, whose voters established an independent redistricting commission similar to Arizona's in 2010.[6]
In the majority opinion, Justice Ginsburg also wrote:
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Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would do more than stymie attempts to curb partisan gerrymandering, by which the majority in the legislature draws district lines to their party’s advantage. It would also cast doubt on numerous other election laws adopted by the initiative method of legislating.[3] |
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| —Justice Ruth Bader Ginsburg[7] | ||
Justices Ruth Ginsburg, Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan were the majority, while justices Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts dissented.[7]
District court rules on recall of judges in Nevada: state supreme court ruling to follow
The June edition of the Ballot Law Update covered the beginning of a legal battle in Nevada over whether or not judges could be recalled. North Las Vegas Judge Catherine Ramsey, facing a recall effort, argued in Clark County District Court that the state's laws do not allow recall of judges. Judge Eric Johnson rejected her argument, however, and ruled on June 29, 2015, that the recall effort against Ramsey could proceed. This did not mark the end of the argument, however, as Ramsey appealed her case to the Nevada Supreme Court. If the state supreme court upholds the district court ruling, Ramsey will likely face a special recall election before the end of the year. If Ramsey wins her case in the state's highest court, Nevada judges will be safe from the threat of recall. Ramsey, if she is recalled, would be the first judge in the history of the state to be removed from office through recall.[8][9]
See also
Footnotes
- ↑ The Plain Dealer, "Lawmakers propose constitutional amendment that could block marijuana legalization effort," June 16, 2015
- ↑ 2.0 2.1 Ohio Legislature, "House Joint Resolution 4," accessed June 24, 2015
- ↑ 3.0 3.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ ResponsibleOhio, "ResponsibleOhio Testimony on Proposed House Joint Resolution 4," June 23, 2015
- ↑ Citizens Against ResponsibleOhio, "House Joint Resolution 4 to Block Monopolies On Way to Ballot," July 1, 2015
- ↑ 6.0 6.1 6.2 San Francisco Appeal, "High Court Upholds Voter Initiative Power To Establish Redistricting Commission," June 29, 2015
- ↑ 7.0 7.1 U.S. Supreme Court, "Arizona State Legislature v. Arizona Independent Redistricting Commission et al," June 29, 2015
- ↑ Las Vegas Review-Journal, "Ruling: NLV judge can be recalled," June 29, 2015
- ↑ Las Vegas Review-Journal, "Judge Ramsey recall case destined for Nevada Supreme Court," July 2, 2015
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