Ballot Law Update: Several Legal Developments in 8th Circuit

May 9, 2011

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By Tyler Millhouse

Since the beginning of the year, 215 laws have been proposed in 38 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.

The Citizens in Charge Foundation (CICF), a nonprofit that promotes initiative and referendum rights, identifies proposed laws which either ease or tighten restrictions on ballot initiatives. So far in 2011, CICF has identified 52 laws that make getting a measure on the ballot more difficult. Of these 52, 18 have died, 31 are still pending, and two have passed. CICF has also identified 40 laws that would make the process easier. Of these 40, 18 have died, 20 are still pending, and two have passed.

As we continue our section devoted to judicial actions concerning I&R, a number of important cases emerged under the jurisdiction of the 8th Circuit Court of Appeals. The outcome of the initial cases may have significant implications a pending case, Citizens in Charge v Gale.

Court actions concerning I&R

• Minnesota False Statement Ruling: On April 28, the 8th Circuit Court of Appeals ruled that Care Committee v Arneson can proceed. The lawsuit challenges a Minnesota law against recklessly or knowingly making false statements regarding ballot measures. The defendants, charged under the law, argue that it violates their First Amendment rights. The case was initially dismissed on procedural grounds by a US District Court. However, 8th Circuit's ruling sends the case back to the District Court to be decided on merits. The ruling also directs the court to ensure that "any regulation be narrowly tailored to meet a compelling government interest." The full text of the ruling can be found here.

• South Dakota Petitioner Residency Ruling: On May 4, the 8th Circuit Court of Appeals dismissed Constitution Party of South Dakota v Nelson which challenged the state's residency requirement. The court found that the Constitution Party did not have standing since the affected petitioner, Mark Pickens, never submitted a declaration to begin collecting signatures. Since the court ruled without prejudice, it leaves the door open for further legal challenges to the law. The court's ruling can be found here.

• Nebraska Residency Requirement Challenge Begins: A lawsuit challenging Nebraska's residency requirement got underway on April 20. In Citizens in Charge v Gale, the ACLU is representing the Citizens in Charge Foundation and Libertarian Party against Nebraska Secretary of State John Gale. The presiding judge is Joseph F. Bataillion of the United States District Court for the District of Nebraska. The lawsuit also challenges an increase in the signature requirements for placing an independent candidate on the ballot and a law requiring petitions to indicate whether the circulator is paid or volunteer.

• Fourth Circuit to Hear Virginia Residency Requirement Lawsuit: The US Court of Appeals for the Fourth Circuit will hear arguments this Thursday in a lawsuit, Lux v Judd, challenging Virginia's residency requirement for US House candidate petitions. A US district court has already upheld the ban.

Bills to watch

• California Assembly Bill 481: AB 481 would require petition circulators to wear a badge designating whether they are a paid or volunteer worker. The law, known to opponents as a "scarlet letter law," specifies that the terms “paid circulator,” “paid signature gatherer,” “volunteer,” or “volunteer signature gatherer” must be printed in at least 30 pt. font on the badge. Similar language must also appear on the petition sheets. The bill has been passed out of committee. Citizens in Charge Foundation rating: Reduces initiative rights.

• Massachusetts House Bill 529: H00529 proposes a constitutional amendment restricting the subject matter of future initiated constitutional amendments. The text of the measure is as follows: "No initiative petition shall propose a constitutional amendment that would restrict the rights set forth in this constitution to freedom and equality, or the right of each individual to be protected by society in the enjoyment of life, liberty and property, according to standing laws." The bill has been passed out of committee and called for consideration during the joint session. Citizens in Charge Foundation rating: Reduces initiative rights.

• Oregon House Bill 2776: (dead link) HB 2776 requires the state to return a list of rejected signatures to the chief petitioners. Persons whose signature is ruled invalid are permitted, under the law, to contact the Secretary of State or county clerk and verify their signature. On certain petitions, the law exempts the personal information of public safety officers from disclosure. Citizens in Charge Foundation rating: Protects/expands initiative rights.

Approved legislation

• Oklahoma House Bill 1664 (2011): HB 1664 provides for the notification of initiative proponents regarding the title status of a ballot initiative. Citizens in Charge Foundation rating: Protects/expands initiative rights.

• Montana House Bill 391 (2011): HB 391 was passed by the Montana Legislature on March 28, 2011 and has since become law. The law prohibits local ballot measure from setting the enforcement priority of state laws. The law is seen as targeting a local ballot measure which instructed local law enforcement to make marijuana laws their lowest priority. Citizens in Charge Foundation rating: Reduces initiative rights.

• Utah Senate Bill 165 (2011): SB 165 changes the basis of Utah's signature requirements from the number of votes cast in the last gubernatorial election to the number of votes cast in the last presidential election. This will raise the number of signatures required. In addition, the bill bans electronic signatures for ballot initiatives. Citizens in Charge Foundation rating: Reduces initiative rights.

• Virginia Senate Bill 889 (2011): SB 889 removes the requirement that voters include the last four digits of their social security number when signing a petition. Citizens in Charge Foundation rating: Protects/expands initiative rights.

See also

• 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