Ballot Law Update: 2011 Year in Review

December 28, 2011

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By Tyler Millhouse

In 2011, 254 laws were proposed in 41 states affecting the initiative and referendum process, according to the National Conference of State Legislatures. For comparison, a total of 258 law were proposed in 40 states during 2010.

The Citizens in Charge Foundation (CICF), a non-profit that promotes initiative and referendum rights, identifies proposed laws which either ease or tighten restrictions on ballot initiatives. In 2011, CICF identified 61 laws that make getting a measure on the ballot more difficult. Of these 61, seven passed. CICF also identified 44 laws that make the process easier. Of these 44, four passed.

Overall, 2011 proved to be an exciting year for ballot measure law with many significant legal developments and proposed laws. Notably, lawmakers proposed 37 laws in 16 states to institute processes for recalling government officials. In 2010, only 27 proposals in 11 states were forwarded. In addition, lawmakers proposed 35 laws in 13 states to establish an initiative and referendum process--almost equal to 2010 levels. Of this year's many proposals to expand I&R rights, some have been carried over to 2012, but none were approved. 24 states currently allow residents to place measures on the ballot via initiative petition. For specific details on major legal developments this year, see our 2011 Year in Review below.

The Ballot Law Update is released on the last Wednesday of each month. The first update for 2012 will be released on January 25, 2012. Stay tuned to the Tuesday Count for weekly ballot law news.

Recent news

• California Prop. 13 lawsuit: California Proposition 13 (1978) amended the state constitution to, among other things, require a 2/3 vote of the Legislature in order to increase revenues via a change in state taxes. This requirement has shaped California politics ever since, attracting both high praise and sharp criticism. Now, over 30 years after taking effect, a lawsuit challenging the lawsuit has been filed, arguing that the measure constitutes a revision to the state constitution rather than an amendment. The former only requires approval by a majority of voters, while the latter must first be referred to voters by a 2/3 vote of both legislative chambers. In Livermore v. Waite, the California Supreme Court defined a constitutional revision as a "change in the basic plan of California government." The lawsuit was filed by Charles Young, a former chancellor of UCLA represented by retired 9th Circuit Judge William A. Norris. The case will be heard by the California Supreme Court.

• Virginia residency requirement challenge: On December 27, Texas Governor and presidential candidate Rick Perry (R) filed suit, challenging the state's circulator residency requirements. Although Virginia does not permit voters to initiate statewide ballot measures, a ruling in a similar case  has already had broader implications in the legal battle over residency requirements. On December 23, it was determined that Perry's campaign had failed to collect enough candidate petition signatures to place him on the ballot.

• Perry's complaint in the case can be found here.

Ballot Law Update: 2011 Year in Review

Major legal decisions in 2011

See also: All legal news and court actions covered in 2011

Doe v. Reed injunction ruling

On November 21, 2011, after receiving a temporary injunction in October, proponents of Washington Referendum 71 (2009) were denied a permanent injunction blocking the release of R-71 petition signatures. The plaintiffs, petition signers backed by Protect Marriage Washington, have been engaged in a protracted legal battle to keep the names on the petition private. After an earlier defeat, the state of Washington began releasing the signatures only to be stopped by the temporary injunction. The plaintiffs argue that releasing the signatures would subject signers to harassment. Opponents challenge this conclusion and argue that a transparent process is critical. In its November 16 ruling, the 9th Circuit Court of Appeals maintained that the initial release of nearly 140,000 signatures renders the question moot, but is open to further arguments on the question of mootness. The plaintiffs appealed to the US Supreme Court for an injunction while the 9th Circuit prepares to rule on the merits. Their request was denied on November 21, 2011. The 9th Circuit's decision can be found here.

California Prop 8 intervenor ruling

On November 17, the California Supreme Court ruled that proponents of Proposition 8 can intervene in defense of the same-sex marriage ban. Proponents of the ban decided to intervene after state officials refused to defend the law. The court ultimately found that: "We conclude that when the public officials who ordinarily defend a challenged measure decline to do so, article II, section 8 of the California Constitution and the applicable provisions of the Elections Code authorize the official proponents of an initiative measure to intervene or to participate as real parties in interest in a judicial proceeding to assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure." The full decision in Perry v. Brown can be found here.

Washington traffic cam initiatives
Initiatives to block red-light cameras in Bellingham, Longview, and Monroe were all resoundingly affirmed by voters on November 8, passing with 65%, 59%, and 68%, respectively. However, each of the proposed laws was ultimately relegated to advisory status by the courts. Proponents will have to wait to see whether local leaders will take action on the measures.

Ohio redistricting referendum ruling

On October 14, The Ohio Supreme Court issued a unanimous decision allowing the referendum against Ohio's congressional redistricting maps to proceed. Despite the GOP's 6-1 advantage on the court, defenders of the Republican-drawn congressional map could not sway the justices. The Ohio Constitution prohibits referendums against "appropriations for the current expenses of the state government." However, the court found that the redistricting legislation's $2.75 million appropriation, designated for local election officials to implement the new map, does not fund current expenses and, thus, does not exempt the bill from referendum. If the referendum gathers enough signatures, the new redistricting plan will be suspended until voters weigh in. This would create significant confusion as courts and lawmakers struggle to choose a new plan as the elections approach. The court's opinion in State ex rel Ohioans for Fair Districts v Husted can be found here.

Florida Amendment 6 ruling

On September 9, U.S. District Judge Ursula Ungaro rejected a lawsuit filed by U.S. Reps. Corrine Brown and Mario Diaz-Balart against Amendment 6. Publically, Brown and Diaz-Balart have argued that it would hinder the ability of minority voters to elect candidates of their choice. During oral arguments last week, their attornies argued that the fair redistricting amendment unconstitutionally curtails the Legislature's authority under the Elections Clause and attempts to dictate election outcomes. However, in her 22-page opinion, Judge Ungaro ultimately found that the amendment was a "valid regulation of the legislative process under the Elections Clause." An appeal has been promised. Amendment 6 has been tied up in legal challenges since voters approved it on November 3, 2010. The Amendment established new guidelines for congressional redistricting in order to ensure fair districts that are "as equal in population as feasible" and use "city, county and geographical boundaries. The full decision can be found here.

California solicitation ruling

On September 16, the Ninth Circuit Court of Appeals has ruled that solicitation for "employment, business, or contributions" on public sidewalks and directed at motorists may not be the subject of a blanket ban. In Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, the court ruled that the city’s ban was grounded in a legitimate interest in preventing traffic disruptions (e.g., motorists pulling over to transact business on a busy street), but technically prohibited many other forms of non-disruptive speech (e.g., fundraising car washes). The ruling could enhance protections for petitioners and others involved in political speech. See also: Initiative & Referendum Institute v. United States Postal Service The full decision can be found here.

Citizens in Charge v. Gale

On August 31, the US District Court for the District of Nebraska overturned Nebraska's residency requirement. Like several other states, Nebraska requires petition circulators to be registered voters and, thus, residents of the state. The law was passed in 2008 as Nebraska Legislative Bill 39. Plaintiffs argued that the rule, "reduces the pool of circulators" and places a severe burden on "new parties, candidates and issue campaigns." In its decision, the court found: The plaintiffs and intervenors have... showed an infringement on their rights to associate. Plaintiffs’ and intervenors’ argument that this ban inhibits their right to associate is a valid one. The out-of-state ban imposes a heavy burden on the plaintiff-intervenors efforts to promote their political views in Nebraska. The defendant has not met its burden in this regard. As stated previously herein, the defendant offered very few instances of fraud. Further, there are less restrictive alternatives for bringing petition circulators into the subpoena jurisdiction of this court. Laws restricting the exercise of First Amendment rights must be "narrowly tailored to achieve a compelling state interest." Ultimately, the court found that Nebraska's residency requirement did not meet this standard since that less restrictive alternatives are available to the state for fraud prevention/prosecution. This decision further weakens an earlier decision by the Eighth District Court of Appeals, Initiative & Referendum Institute v. Jaeger, which upheld a similar ban in North Dakota but noted that plaintiffs there had not sufficiently demonstrated that the ban was burdensome. Since Jaeger, three circuit courts have overturned residency requirements. Although the court overturned the residency requirement, it also upheld the state's "scarlet letter law." The full decision can be found here.

Bernbeck v. Gale

On August 31, the US District Court for the District of Nebraska also overturned Nebraska's residency requirement for local initiative sponsors, which requires that the cheif sponsors of any local measure reside in the municipality where the law is being proposed. In explaining its decision, the court cited Lux v. Judd, which in turn cites the Meyer v. Grant. In Meyer, the US Supreme Court found that: The argument that justification is found in the State's interest in assuring that an initiative has sufficient grass roots support to be placed on the ballot is not persuasive, since that interest is adequately protected by the requirement that the specified number of signatures be obtained. Although Meyer dealt with the issue of paying petition circulators, the defendants in Bernbeck v. Gale made a similar argument for the sponsor residency requirement, arguing that it ensured local support for the measure. Like Citizens in Charge v. Gale, Bernbeck v. Gale also successfully challenged the state's circulator residency requirement, although the latter simply cited the decision in the former. Bernbeck also challenged Nebraska's pay-per-signature ban and age requirements for circulators (18 years of age). However, the court upheld both of these laws. The full decision can be found here.

Ohio Health Care Amd. signature ruling

On August 12, proponents of Ohio Issue 3 won a significant legal battle in the Ohio Supreme Court. The lawsuit, Rothenberg v Husted, challenged the validity of signatures for the measure based on disclosure requirements for paid petition circulators. The complaint argued that certain signatures gathered in favor of Issue 3 should not be counted since some paid circulators misidentified their employer (listing the initiative campaign rather than contracting company for which they work). In addition, opponents argued other signatures were invalid since some of the circulators failed to file a compensation statement. Ultimately, the court rejected these arguments, contending that circulator oversight did not invalidate the signatures and that only supervisors were required to file compensation statements. In addition, the court argued that the plaintiffs had failed to produce sufficient evidence that an insufficient number of signatures had been collected. In its ruling on the case, the court noted, "this result is consistent with our duty to liberally construe the citizens’ right of initiative in favor of their exercise of this important right."

Washington recall ruling

On July 15, a US District Court in Washington overturned the state's cap on contributions to recall campaigns. The case began after two lawyers donated $20,000 in legal work to the campaign to recall the Pierce County Assessor-Treasurer, Dale Washam. In Farris v Seabrook, opponents of the $800 cap argue that contributions to recall campaigns have more in common with contributions to initiatives than contributions to candidates. Under Washington law, contributions to ballot measure campaigns are not capped since ballot measures cannot become corrupt or trade special favors for contributions. Similarly, argued opponents, recall campaigns cannot corrupt an officeholder because they can only remove an existing official from office. Proponents of the cap argue that wealthy individuals could employ the threat of recall to improperly influence elected officials. Given a high signature requirement and mandatory judicial review of proposed recall campaigns, the judge sided with opponents, arguing that the restriction on political speech was not "closely drawn to match" a compelling state interest. Walsham appealed the case to the State Supreme Court, but the ruling was upheld. The District Court decision can be found here.

California e-signature ruling

California residency requirement ruling

On February 4, a federal judge for the US District Court for the Central District of California declined to strike down California's petition circulator residency requirement. While both parties agree that the law is unconstitutional, the court found that the plaintiffs did not have standing since the Secretary of State assured the court that the law will not be enforced. The ruling can be found here.

Washington public disclosure ruling
On February 22, 2011, the US Supreme Court declined to review the case, upholding Washington State's requirement that organizations disclose donations of $25 or more given for or against a ballot proposition. The lawsuit against the state was brought by a pro-life organization seeking to overturn the state's assisted suicide initiative.

Maryland signature ruling
The Maryland Court of Appeals, the state's supreme court, ruled 5-2 on March 22 that illegible signatures can be valid. If the voter's printed name and address match his or her voter registration, then only the appearance of the voter's signature must match voter registration records. The decision can be found here.

Major legal changes in 2011

See also: All approved and defeated bills in 2011

New laws

• Utah Senate Bill 165 (2011): SB 165 changed 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.

• Arizona House Bill 2304: HB 2304 altered the state's requirements for petition circulators, eased third-party primary access, and clarified laws regarding wearing political apparel at polling places. With respect to initiatives, the law repealed the state's unconstitutional circulator residency requirement. However, it replaced this requirement with a requirement that out-of-state circulators register with the state. Citizens in Charge Foundation rating: Reduces initiative rights.

• Florida House Bill 1355: HB 1355 contained extensive modifications to Florida's election laws. With respect to initiative and referendum, the bill cut the signature gathering period from 4 to 2 years. It also shortened the window for challenging legislatively-referred ballot questions. Citizens in Charge Foundation rating: Reduces initiative rights.

Notable vetoes

• California Senate Bill 168 (2011): Vetoed (8/1/11) SB 168 would have banned pay-per-signature in the State of California. Violation of the law would have constituted a misdemeanor offense. Current law does not prohibit the practice, but it does require that petition forms include a notice indicating that the circulator may or may not be a volunteer.Citizens in Charge Foundation rating: Reduces initiative rights.

• California Senate Bill 448: Vetoed (9/6/2011) SB 448 would have required paid petition circulators to wear a badge indicating that they are a paid employee. (Volunteer workers are not required to wear a badge.) Prior to an Assembly amendment, the bill also required volunteer petitioners to wear badges indicating their volunteer status. In addition, the earlier version required the badges to identify where in California the circulator is registered to vote. While the earlier version did not require the circulator to be registered, unregistered circulators would have been identified as "NOT REGISTERED TO VOTE." The bill's sponsor was Sen. Mark DeSaulnier (D). Citizens in Charge Foundation rating: Reduces initiative rights.

See also

• Ballot Law News Tracker, 2011
• Ballot Law Bill Tracker, 2011
• Ballot measure law
• Previous Ballot Law Updates

References

Laws governing ballot measures in the United States

Laws governing ballot measures

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Changes to laws governing ballot measures

Types of ballot measures

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Glossary of ballot measure policy terms