Ballot Law Update: California sees increase in initiative related litigation

### June 27, 2012

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By Eric Veram

Since the beginning of the year, 49 laws have been proposed in 19 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1] The Ballot Law Update is released on the last Wednesday of each month. Stay tuned to the Tuesday Count for weekly ballot law news.

## Recent news

California considering bill requiring ballot initiatives to be translated: A new bill, SB 1233, is being considered by the state Assembly Appropriations Committee. If approved, the bill would require that all ballot initiatives and petitions be issued for circulation in all languages covered by the Federal Voting Rights Act by the Attorney General. The bill is sponsored by Senator Alex Padilla.[2]

CA bill to impose distribution requirements on amendments: On June 19 the California Assembly Elections Committee will hear Assembly Constitutional Amendment 10. ACA 10 was sponsored by assembly member Mike Gatto (D). If passed and approved by voters, the amendment would impose a distribution requirement on initiated constitutional amendments. At present, amendment sponsors must collect signatures equal to 8% of the last gubernatorial vote in order to qualify for the ballot. Under the new law, some of these signatures would have to be collected from around the state. Sponsors would be required to collect signatures equal to 8% of the last gubernatorial vote in each of at least 27 State Senate districts.[3]

## Court actions

State appeals decertification of Montana Taxpayer Dividend Measure: On Friday, June 22, the state appealed the case to the Montana Supreme Court. Attorney General Steve Bullock, representing the state in the case, argued that voters should be allowed to vote on the ballot measure before a court decides on whether it is legal or not.[4] The measure was previously stricken from the ballot by District Judge Jeffrey Sherlock who ruled that the measure is an unconstitutional delegation of power by the Legislature to an employee.[5]

Disqualification of Michigan referendum overturned: On June 8 the Michigan Court of Appeals overturned the Board of State Canvassers' decision to keep the Michigan Emergency Manager Referendum off the ballot. The court said it reached its decision based on a precedent set by an earlier case which said technical violations such as the wrong font size shouldn't keep a question off the ballot. The court's ruling effectively places the measure back on this year's ballot, though the emergency manager law will not be suspended until State Board of Canvassers meets and certifies the measure in compliance with the decision.[6]

Lawsuit filed against CA red-light cam ban: Steve Flynn, a Murrieta resident instrumental in establishing the city's red-light camera program, has filed suit against a local ballot measure that seeks to eliminate the cameras. Flynn contends that regulating traffic is a "statewide concern" and, thus, outside the purview of the local initiative process. In 2011, a number of Washington measures were rejected on similar grounds.[7] During a court hearing on June 20 the trial date was set for August 1.[8]

ND tax opponents lose case: On June 7 a lawsuit against several public officials was unanimously rejected by the North Dakota Supreme Court. The plaintiffs argued that the public officials mislead voters about Measure 2, the property tax elimination amendment. In addition, the plaintiffs argued that the officials used taxpayer dollars to advocate against the measure. North Dakota has criminal statutes prohibiting such actions. However, for this reason, the state Supreme Court held that prosecutors, rather than the plaintiffs, are responsible for enforcing the restriction.[9]

En banc re-hearing denied for Prop 8: On June 5 the 9th Circuit refused to re-hear the case against California Proposition 8 (2008). In May, a panel of the 9th Circuit ruled the law unconstitutional. Given the court's refusal, the case will now be appealed to the U.S. Supreme Court. For the time being, the law will remain in effect as the case continues.[10]

Washington 2/3 requirement ruling: On May 30 Judge Bruce Heller ruled Washington Initiative 1053 unconstitutional. The initiative was approved in 2010, by a 64% to 36% margin. It required the legislature to approve tax increases by a two-thirds supermajority vote. Under the initiative, tax increases could also be approved by a simple majority of voters, and spending in excess of the expenditure limit was automatically referred to the ballot.

Heller found Initiative 1053, a statutory initiative, to be in conflict with Article II, Section 22 of the state constitution which requires only a simple majority for the passage of bills. In addition, Heller found the automatic referral process to be in conflict with Article II, Section 1(b) which requires a petition drive for referendums.

The state plans to appeal the decision. The lawsuit against Initiative 1053 was filed by the state teacher's union (WEA) and the League of Education Voters along with several taxpayers and Democratic legislators.[11]

## Bills to watch

* California Senate Bill 1039: SB 1039 would alter the appearance of ballot items so that all proposed constitutional amendments, whether proposed by the legislative referrals or by citizen initiatives, would now appear near the top of statewide ballots. The bill was introduced to the California State Senate on February 6, 2012, and is currently moving through the state assembly.[12]

## See also

* ballot measure law

* Previous Ballot Law Updates

* SCOTUS issues ruling overturning AZ immigration law and affirming Citizens United for MT state officials

## Footnotes

1. ↑ NCSLnet, "Initiative & Referendum Legislation," accessed June 27, 2012
2. ↑ California Newswire, "Padilla Bill to Require Translation of Ballot Initiatives and Petitions Approved by Calif. Assembly Elections Committee," June 19, 2012
3. ↑ Ballot Access News, "California Bill to Make it More Difficult for Constitutional Amendment Initiatives to Qualify for Ballot," June 15, 2012
4. ↑ Independent record, "State appeals tax rebate referendum ruling," June 23, 2012
5. ↑ Associated Press, "Judge strikes tax rebate initiative from November ballot, declares it unconstitutional," June 7, 2012
6. ↑ Ballot Access News, "Michigan State Appeals Court Says Ballot Measure Should be on Ballot, Despite Dispute Over Font Size," June 14, 2012
7. ↑ The Californian, "MURRIETA: Suit challenges red-light camera ballot initiative," June 12, 2012
8. ↑ Press-Enterprise, "MURRIETA: August court date for red light suit," June 20, 2012
9. ↑ NECN.com, "ND Supreme Court rejects property tax lawsuit," June 7, 2012 (dead link)
10. ↑ Election Law Blog, "Breaking News: 9th Circuit Denies Rehearing En Banc: Dissenters Quote President Obama," June 5, 2012
11. ↑ The Seattle Times, "Judge rules two-thirds vote requirement to raise taxes is unconstitutional," May 30, 2012
12. ↑ News10.net, "Reshuffling the fall ballot, courtesy of Prop 25," June 26, 2012

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