Ballot Law Update: Election review and judge rules Nebraska's distribution requirements unconstitutional
November 13, 2014
By Josh Altic
This edition of the Ballot Law Update explores the results of the November election with regard to ballot measure law, as well as covering a court ruling that overturned Nebraska's century-old distribution requirements for initiatives.
How did the election affect ballot law?
Arkansas Ballot Measure Signature Requirements Amendment, Issue 2 (2014):
On election day last week, Arkansans voted to approve Issue 2, thereby amending the state's signature requirements. The measure was designed to demand ballot issue groups to initially collect at least 75 percent of the valid signatures required in order to receive additional time to gather extra signatures once the petition has been turned in to the Secretary of State. Before this measure was approved, petitioners had 30 days to collect additional signatures or demonstrate that rejected signatures were valid regardless of how far the original petition fell short of the required signature threshold.[1]
The victorious supporters of Issue 2 said that it would prevent petitioners from intentionally turning in large numbers of invalid signatures in their original signature submissions just to buy time.
Opponents claimed, "The proposed amendment does nothing to address fraud but severely hampers the ability of the people to place an initiated measure on the ballot." They also pointed out that Issue 2, if it had been in effect in years past, would have prevented the state's initiatives concerning medical marijuana, minimum wage and alcohol because the petitioners of all of these initiatives fell below the 75 percent mark on their first tries.
| Arkansas Issue 2 | ||||
|---|---|---|---|---|
| Result | Votes | Percentage | ||
 Yes | 423,559 | 53.30% | ||
| No | 371,070 | 46.70% | ||
North Dakota Referral and Initiative Reform Amendment, Measure 4 (2014):
Voters in North Dakota rejected a proposal, Measure 4, which sought to add restrictions to the initiative process. Measure 4 would have required initiated measures estimated to have a significant fiscal impact to be placed on a general election ballot and prohibited initiated constitutional amendments that would make a direct appropriation of public funds for a specific purpose.[2]
| North Dakota Measure 4 | ||||
|---|---|---|---|---|
| Result | Votes | Percentage | ||
 No | 135,408 | 56.59% | ||
| Yes | 103,888 | 43.41% | ||
On election day hundreds of state legislator positions changed hands, leaving many states with new leadership--leadership with potentially new views on the importance and proper place of direct democracy through the initiative and referendum powers.
For example, Rep. Mark Batinick (R-97), who had sworn to drastically alter the initiative process if granted a place in the legislature, won election in the Illinois House. He came up with a proposal that would make it easier to qualify an initiated constitutional amendment for the ballot, but it would require a super-majority for approval on election day, thus making it difficult to approve initiatives once they did qualify. Specifically, Batnick proposes the following three changes:[3]
1.) He hopes to remove the phrase in the state constitution limiting initiated amendments to "structural and procedural subjects," allowing citizens to legislate through direct democracy on any issue. Batinick noted that the "structural and procedural" criterion has been used to keep citizen initiatives off the ballot in the past.
2.) He proposes to drop the signature requirement for an initiative from 8 percent of votes in the previous gubernatorial election to 5 percent.
3.) He proposes strict super-majority requirements to pass an amendment on election day.
Before the election, Batinick said, “I have already presented my proposal to many elected officials and leaders and have found overwhelming support for this proposal. If elected, I intend to work hard to get this common-sense idea passed into law."[3]
If his proposal is enacted, look to see more initiatives qualify for the Illinois ballot, but fewer approved on election day.
Watch this page closely next year to see what changes to laws governing the initiative and referendum powers are proposed by the new leadership in your state.
Court actions
Judge makes initiative petitions more accessible in Nebraska by ruling the state's century-old distribution requirements unconstitutional:
Since 1912 - the year initiative and referendum powers were added to the Nebraska Constitution - citizens hoping to initiate a ballot measure were required to collect signatures from 5 percent of registered voters in each of two fifths of the state's counties - which amounts to 38 separate counties. This distribution requirement made it more difficult to qualify an initiative for the ballot in Nebraska.[4]
On November 10, 2014, Judge Joseph Bataillon of the United States District Court for the District of Nebraska ruled in the case Bernbeck v. Gale (2014) that this distribution requirement violated the 14th amendment of the U.S. Constitution by granting more power to voters in rural counties than in densely populated urban counties. The argument against the overturned requirement claims that by requiring signatures of a percentage of registered voters in 38 different counties, the signatures of, for example, 17 voters in the sparsely populated Arthur County filled the same requirement with regard to the distribution restrictions as 16,082 voter signatures in Douglas County. Thus, the judge ruled that the requirement diluted the direct democracy power of voters in counties with large populations and violated the one-person-one-vote principle.[5][4]
In his decision, Judge Bataillon concluded:[5]
| “ |
The court finds that the facts presented in this case show clearly that urban votes are diluted under the Nebraska Constitution. Plaintiff’s evidence as discussed herein is compelling in that regard. This is a violation of both the Equal Protection and Due Process clauses of the United States Constitution. The Nebraska Constitution does not yield equality among citizens, but instead it gives more weight to the power of rural votes. This cannot withstand scrutiny under the Equal Protection and Due Process clauses of the United States Constitution.[6] |
” |
| —Judge Joseph Bataillon[5] | ||
Kent Bernbeck, who has been fighting against restrictions on the initiative process for about 20 years, was the plaintiff in the case and filed suit in January of 2010. He said, “This is part of a bigger campaign I’ve been on for quite some time. I’m just trying to remove many of the threshold requirements that make (circulating petitions) more difficult.”[7][4]
Nebraska Secretary of State John Gale, the state's officer charged with defending the state's laws in this case, said he did not know if the state would be appealing the decision. He said of the judge's ruling, “It’s a well-written opinion, but I haven’t had the chance to fully digest it."[4]
This ruling had no effect on the overall number of signatures required to qualify an initiative for the ballot.[5]
See also
Additional reading
Footnotes
- ↑ Arkansas Secretary of State, "2010 Initiatives and Referenda: Facts and Information for the 2010 General Election," accessed November 13, 2014
- ↑ North Dakota Legislature, "House Concurrent Resolution No. 3011," accessed January 22, 2014
- ↑ 3.0 3.1 Illinois Review, "BATINICK PROPOSES MAKING CITIZEN INITIATIVES EASIER TO GET ON THE BALLOT," May 21, 2014
- ↑ 4.0 4.1 4.2 4.3 Omaha World‑Herald, "New ruling means potentially easier qualifying measures for Nebraska petitions," November 10, 2014
- ↑ 5.0 5.1 5.2 5.3 Justia.com, "Bernbeck v. Gale," accessed November 13, 2014
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ WOWT NBM Omaha, "Suit Filed To Preserve Power To The People," January 5, 2014
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