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Ballot Law Update Mid-Year Report: 19 laws approved in 15 states
June 26, 2015
By Josh Altic
As of June 26, 2015, Ballotpedia was covering 139 bills concerning ballot measure law that were proposed or reconsidered during the 2015 legislative sessions of 38 states. Of the total, 48 were pending, 19 were approved, 45 had been defeated or abandoned, and 27 were carried over to 2016. Most of the bills—133—were introduced this year, and the other six were carried over from the 2014 legislative session in New Jersey.
By the third week of June 2015, the legislative sessions of 32 states had ended. This mid-year report looks at the notable changes to laws governing ballot measures that have been enacted in the first half of 2015, as well as the notable bills that have been abandoned or defeated. It will also look at an interesting legal argument over the constitutionality of judicial recalls in Nevada. For a list of all the bills Ballotpedia is tracking in 2015 and to see which bills might still pass, read this page.
Notable approved legislation
Throughout the first half of 2015, 19 different bills altering the laws governing direct democracy have been approved across 15 states. Many of these bills were discussed in detail in previous ballot law updates as they were introduced and moved through legislative processes. Below is a brief summary of some notable changes that were enacted in the first half of 2015. For a full list of all 19 approved bills, see this page.
Bills that lifted restrictions
Two out of the 19 bills approved in the first half of 2015—one in Nebraska and one in Wyoming—lifted significant restrictions on the initiative process. An honorable mention belongs in this section of the mid-year report for a bill passed in Louisiana—Louisiana House Concurrent Resolution 39. HCR 39 requested "the House and Governmental Affairs and Senate and Governmental Affairs committees to meet and function as a joint committee to study the advisability of reducing the number of signatures required to have a recall election."
Nebraska
The April edition of the Ballot Law Update covered Nebraska Legislative Bill 367 in detail. The bill eliminated the state's seven-year-old ban on paying signature petition circulators based on the number of signatures collected. Allowing pay-per-signature made the initiative process easier and less expensive, according to supporters. Critics of the method say it could motivate circulators to manipulate or mislead potential signers in order to get more signatures.[1][2]
Sen. Mike Groene (R-42), who authored the bill, said that it marked an end to a "civil war" between voters and the legislature, saying the ban on pay-per-signature had “really broken the back of people trying to take part in their government through the petition process.” Groene, who made this bill one of his priorities in his first term in the state Senate, said, “It’s time for this body to call a truce.” Sen. Paul Schumacher (R-22), who also supported LB 367, condemned the bill that first imposed the circulator pay restrictions in 2008 as “reflective of a government that was afraid of its people.”[2]
Wyoming
Wyoming Senate File 49, which was signed into law on February 25, 2015, completely rewrote the state's laws governing the powers of initiative and referendum. The new version broke into separate sections the rules for the initiative process and the referendum process, where previously the laws governing each were combined. Notably, the bill removed state residency requirements and a prohibition against paying initiative signature gatherers based on the number of signatures collected. The prohibition against pay-per-signature circulators remained for referendum petitions. These actions followed court cases that cast doubt on the legality of the previously enacted restrictions.[3]
Bills that increased restrictions
Three notable bills in three different states—Colorado, Texas and Maine—were enacted in 2015 that added noteworthy restrictions to the initiative or recall process.
Colorado
The May edition of the Ballot Law Update contained a section on Colorado House Bill 15-1057, which was one of the most interesting and contentious changes approved to the laws governing a state's initiative process in 2015. The bill was designed to require that an initial fiscal impact statement be created for any proposed initiative before the signature gathering process. Moreover, it requires the fiscal impact statement to be displayed on the first page of every section of every petition form, with a two-sentence summary displayed on every subsequent page. Another provision of the bill requires both designated initiative representatives to attend a public comment and review meeting on a proposed initiative before circulation. If both representatives are not in attendance, HB 1057 dictates that the initiative be automatically withdrawn. Prior to HB 1057, a fiscal impact summary was included on the state's voter pamphlet once the measure was already on the ballot. Moreover, only one representative was required to attend the comment and review meeting.[4][5][6]
Opponents, who rallied from multiple areas of the political spectrum to critique the bipartisan bill, argued that the mandatory fiscal impact statement could be used to make it harder for initiatives that displeased those with political power to reach the ballot, which many argued would inhibit the purpose of the citizen initiative power. Many opponents were set on edge by the large number of lobbying efforts made surrounding this bill—about 700 according to mandatory reports. The Colorado Oil and Gas Association recorded nine separate lobbying efforts, and the Colorado Petroleum Association reported four. Critics from the left thought the bill was a subtle maneuver by the oil and gas industry to keep anti-fracking measures off the ballot. These critics envisioned a fiscal impact statement for any such initiative that would hammer home all the tax revenue that would be lost by restrictions on the oil and gas industry, while avoiding any discussion of possible benefits to the environment, tourism, health, property values and quality of life. Sen. Matt Jones (D-17), who stated that the approval of House Bill 15-1057 was definitely influenced by the action of lobbyists, said, “People should have access to petitions without a bunch of extra language added just to confuse them. And why are you just looking at fiscal impacts?” Dennis Polhill, who espouses a libertarian perspective as a senior fellow at the Independence Institute, argued that HB 1057 was another effort by the legislature to keep initiatives in general off the ballot, saying, “They’re disenfranchising people."[5]
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Supporters claimed the law would give more transparency to voters about initiatives before they supported them through providing their signatures. Proponents also argued that it is important for voters to know the exact financial impact a proposed initiative might have before they sign it. Tamra Ward, President and CEO Colorado Concern, said, “Our organization was one of 38 that were in support of the measure. And we have two contract lobbyists that were at the capitol on a daily basis. We just believe that additional transparency for Colorado voters makes good sense.” Colorado Concern is a coalition of private sector CEOs whose purpose is to promote "an environment that maximizes business profitability and certainty," according to its website.[5][7]
Texas
Texas House Bill 40 was approved, in part, as a reaction to a local ban on fracking approved by voters in Denton in 2014. The law put the regulation of the oil and gas industry entirely under the authority of the state government, precluding local laws seeking to restrict the industry, with a few exceptions. In response to the enactment of HB 40, the Denton City Council voted seven against one to repeal the citizen-initiated ban on fracking that was approved by nearly 59 percent of city voters.
Details can be found in the May edition of the Ballot Law Update and on this page.[8]
Maine
A bill called Legislative Document 176 was approved by Maine legislators. It was designed to establish state residency requirements for circulators and require paid circulators to register with the state's commission on governmental ethics and election practices, which involves a $2,000 bond for each circulator receiving over $2,500 in compensation.
A partial gubernatorial veto
Washington House Bill 2055 would have established a process by which anyone could challenge the fiscal impact statement provided by the state for any proposed initiative, requiring any complaints to be decided in court. Gov. Jay Inslee (D) partially vetoed this bill, preventing the provision that would have established the complaint process. He said that it would cause unnecessary delays and that "[it] would also place the court in the untenable position of having to make advisory rulings on the initiative at issue in the fiscal impact statement."
For details about this bill and the partial veto, click here.
Notable defeated legislation
In order to get an idea of what kinds of changes to ballot measure laws were proposed by legislators in various states in 2015, it is worth taking notice of a couple of bills that were introduced but did not make it out of 2015 legislative sessions. Many of these ideas will be introduced again in future legislative sessions.
Non-I&R states that featured bills proposing to establish the powers of initiative and referendum at the statewide level included Alabama, Louisiana, New Jersey, New York, Pennsylvania, South Carolina, West Virginia and Virginia. The legislative sessions of New Jersey, New York and Pennsylvania are ongoing. The proposals in South Carolina were carried over to next year's session. In the other states, the bills were either voted down or abandoned in committees or legislative files.
A proposed legislatively referred constitutional amendment in Illinois was designed to remove a severe subject restriction on state initiatives, changing the process from a largely unused power with a narrow scope to a potentially important and influential facet of Illinois politics. This resolution was not approved but could possibly resurface next year.
In Colorado, although HB 1057 was approved, another bill called Senate Concurrent Resolution 15-002 did not make it through the legislative session. This bill was designed to require two separate elections to enact initiated constitutional amendments: one to "authorize" the proposed amendment and one to "ratify" it. An exception would have been made for any initiated amendment that proposed to repeal previously adopted constitutional provisions.
In Texas this year, it was clear that the state legislature wanted to respond to Denton's initiative banning fracking. Although they settled on House Bill 40, a bill called House Bill 540 was also proposed. HB 540 would have required local initiatives or referendums to be initially submitted to the state's attorney general, who would decide if the proposed law was in violation of state or federal law or if it would cause the taking of private property. The attorney general would block the measure from going on the ballot if he thought either condition applied. This bill was left pending in committee.[9]
In Arizona, two bills seeking to increase the percentage of "yes" votes necessary for voters to approve initiatives or referendums were introduced. House Concurrent Resolution 2027 would have required a 75 percent supermajority vote of the people to approve any citizen-initiated ballot measure that conflicted with federal law. This proposed constitutional amendment was introduced by Rep. Bob Thorpe (R-6) and was designed, in part, to specifically target imminent initiative efforts to legalize marijuana. House Concurrent Resolution 2030 would have required a two-thirds (66.67%) vote for any initiative designed to increase taxes. Neither law was approved.[10][11]
Although Legislative Document 176 was approved, several bills that would have added other restrictions to the state's initiative and referendum process were not enacted during Maine's 2015 legislative session. Several laws were proposed to remove hunting and fishing from the legal scope of the initiative and referendum power. Another bill was designed to enact stricter residence requirements than LD 176 did, not only requiring petition circulators to be state residents but also requiring them to have been residents for at least a year.
Missouri legislators introduced House Joint Resolution 19—which proposed a two-thirds (66.67%) vote for the approval of any initiative relating to "bird, fish, game, wildlife, or forestry resources"—and House Joint Resolution 13—which proposed increasing the signature requirements for an initiated constitutional amendment from 8 percent to 15 percent of votes last cast for governor.[12][13]
The last bill examined in this report was introduced as Senate Bill 434 in the Nevada Legislature and moved a fair way through the legislative process before failing. It was designed to overhaul many aspects of the state's initiative laws. Among some of the notable changes, SB 434 was designed to:[14][15]
- require an initial 2,000 signatures to be submitted to successfully file an initiative with the secretary of state;
- set guidelines for the title and summary of an initiative and require approval by the attorney general;
- require the initiative to explain a source for any additional revenue if the initiative would require additional public expenditures;
- allow anyone to challenge an initiative's title and summary, requiring a compromise or a court case;
- prioritize any legal challenge of an initiative based on the single-subject rule;
- require that a judge who finds an initiative in violation of the single-subject rule must kill the initiative entirely rather than change it to remove the violation; and
- require initiative proponents to file and keep current a list of paid circulators.
As Ballotpedia reported in the May edition of the Ballot Law Update, this bill was approved in the Nevada Senate on May 15, 2015. In the Assembly, it was rejected by the Legislative Operations and Elections Committee. The Nevada branch of the American Civil Liberties Union and lobbyists for various parties argued against it.[15]
Proponents of the bill, which was sponsored by the Senate Legislative Operations and Elections Committee, argued that it would have provided additional clarity to the initiative process and further winnowed ideas for initiatives before requiring a costly campaign and election, thereby preventing “frivolous, spurious, vexatious, or harassing petitions that unnecessarily consume public and private resources and cause disorder, inefficiency, unfairness and waste.”[16]
Opponents of SB 434 claimed the bill was an attempt by lawmakers to make citizen initiatives more difficult and avoid direct input from citizens. Critics argued the new period for public commentary and complaints added by the bill to the process for creating the title and summary of initiatives would have essentially given opponents the ability to indefinitely delay the measure or add bias to the petition and ballot language.[14]
Legality of judicial recall questioned in Nevada
An effort to recall Catherine Ramsey in North Las Vegas, Nevada, from her position as Municipal Court Judge was launched in March 2015.[17]
According to Ramsey, no judge in Nevada has ever been removed from office through a recall.[18]
In a court petition that could result in important implications to the legality of judicial recall in all of Nevada, Ramsey contended that the recall attempt against her is illegal and that recall efforts against judges are not allowed by the Nevada Constitution. The constitution says that any "public officer" can be recalled. Referring to this, Ramsey cited a section of the state’s Ethics in Government law, which says, "'Public officer’ does not include any justice, judge or other officer of the court system." She also insisted that other sections of state law show that the term "public officer" does not include judges.[18]
Ramsey's lawyer explained that the reason the law does not allow recall of judges is to protect their independence. He said that judges must be separated from political battles for two reasons: (1) They are expected to make legal rulings in spite of and, often, in the face of public opinion and (2) they are forbidden from speaking out publicly about many of the details of cases and rulings, which hampers their ability to defend against political attacks.[18]
Arguing that the context of the Ethics in Government law and the other laws cited by Ramsey do not encompass the constitution's recall provision, recall supporters said that Ramsey's argument will not hold up in court and that the recall effort will move forward against Ramsey.[18]
The fate of the recall effort now relies on a ruling from Clark County District Court. Moreover, since it is based on state law, this case could have important results for the entire state, answering the question of whether or not judges can be recalled.
See also
Footnotes
- ↑ Open States, "Nebraska Legislative Bill 367 (2015)," accessed April 23, 2015
- ↑ 2.0 2.1 Citizens in Charge, "Nebraska Repeals Pay Ban, Not a Dissenting Vote," April 7, 2015
- ↑ LegiScan, "Wyoming Senate File 49," accessed April 7, 2015
- ↑ Colorado State Legislature, "House Bill 15-1057," accessed January 23, 2015
- ↑ 5.0 5.1 5.2 Boulder Weekly, "With the passage of HB 1057, have Democrats once again killed your right to vote on fracking, this time in 2016?" May 21, 2015
- ↑ Open States, "Colorado House Bill 15-1057," accessed June 23, 2015
- ↑ Colorado Concern, "Home," accessed June 25, 2015
- ↑ Open States, "Texas House Bill 40 (2015)," accessed June 16, 2015
- ↑ Austin Monitor, "House bill could restrict local voter initiatives," March 12, 2015
- ↑ Your West Valley, "Lawmaker's bill targets initiative on legalized marijuana," January 27, 2015
- ↑ Arizona Capitol Times, "Lawmaker wants voter initiatives conflicting with federal law to get 75% approval," January 27, 2015
- ↑ Missouri Legislature, "House Joint Resolution 13," accessed January 23, 2015
- ↑ Missouri Legislature, "House Joint Resolution 19," accessed January 23, 2015
- ↑ 14.0 14.1 Las Vegas Review-Journal, "Free the petitions!" May 17, 2015
- ↑ 15.0 15.1 NBC News 3, "Measure that would raise bar on voter initiatives fails," May 27, 2015
- ↑ Gov Track, "Summary of Nevada Senate Bill 434 (2015)," accessed May 26, 2015
- ↑ Las Vegas Review-Journal, "Recall launched against NLV Municipal Judge Ramsey," March 11, 2015
- ↑ 18.0 18.1 18.2 18.3 Las Vegas Review-Journal, "Judge Ramsey petitions to halt recall, cites state law," June 4, 2015
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