Ballot Law Update: Washington and California See Several Legal Developments

### March 28, 2012

Ballot law

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By Tyler Millhouse

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

* Nebraska repeals residency requirement: On March 14, the Governor of Nebraska, Dave Heineman, signed Legislative Bill 759 into law. The bill repeals the state's residency requirement\--a law that prohibits out-of-state residents from gathering signatures for state ballot measures. The restriction was declared unconstitutional last year in Citizens in Charge v. Gale.[2][3]

Official bill information can be found here.

* Arizona moves to consolidate elections: On March 1, the Arizona House of Representatives passed House Bill 2826 by a 31-24 margin. HB 2826 would move all the state's elections to even-numbered years. This also applies to recall, initiative, and veto referendum elections. The Goldwater Institute, a limited-government advocacy group, has praised the bill saying it will save taxpayer dollars and increase voter turnout. Opponents, like Rep. Russ Jones (R), worry that the bill will hamper the initiative process by making citizens wait up to two years to vote on public questions. The bill still requires the approval of the Senate and Governor. The bill passed in the Senate Judiciary Committee on March 12.[4][5][6]

Official bill information can be found here.

### Court actions

* Hearing in lawsuit against ND officials: Last week, a state district judge in North Dakota set an April 3 hearing for a lawsuit against nine state officials and several state associations. The lawsuit was brought by advocates of a state measure to abolish property taxes. The plaintiffs argue that the state officials engaged in inappropriate public opposition to the bill and used public funds to combat the measure. The April 3 date puts the lawsuit on an expedited timetable intended to accommodate the election.[7]

* Chula Vista sponsor restrictions: On March 22, the US District Court for the Southern District of California ruled against the Chula Vista Citizens for Jobs and Fair Competition in a challenge of several California election statutes. The group primarily sought to overturn two statutes. The first, a natural person requirement, prohibits organizations from acting as initiative proponents. The second requires that individual proponents be identified on the petition forms. The group was forced to comply with these regulations when it promoted a measure allowing the city to contract with non-union construction firms. James Bopp Jr., lead attorney for the plaintiffs, argued that these laws run contrary to Supreme Court decisions supporting corporate and anonymous speech.[8]

However, the court ultimately held the statutes constitutional. While the court recognized the initiative process as an important expression of free speech, it was careful to distinguish the machinery of the initiative process from speech for or against an initiative. The decision states:

Plaintiffs then attempt to stretch the idea of advocation and circulation to include the mechanics of initiation. They argue that the act of proposing an initiative is also core political speech and that corporations and associations are banned from speaking in that way. But the acts of ballot initiation are qualitatively different from acts of engaging in the First Amendment dialog of circulation or advocation.

Effectively, the court held that power of initiative is reserved to the electors of the municipality as individuals. The court was quick to provide examples:

There are several legislation-related examples where the actors must be electors and thus natural persons. For example, only electors are allowed to vote. Only electors are allowed to run for office. Only electors may sign nominating papers necessary to qualify candidates for the ballot. Only electors (as elected legislators) are allowed to introduce bills to the legislature. Thus, it is entirely consistent that only a natural person elector may be an official ballot initiative proponent.

With respect to the question of anonymity, the court held that the burden of the disclosure requirement is light compared to the benefit of said disclosure to the people. The court acknowledged that circulators have a much stronger argument for anonymity than sponsors since they are more likely to face backlash for their speech.

The full decision can be found here.

* WA Court Upholds Liquor Measure: On March 19, Cowlitz County Superior Court Judge Stephen M. Warning reversed his decision invalidating Initiative 1183. The measure, passed in 2011, privatized liquor sales and also allocated $10 million dollars for public safety efforts. Warning initially held that these two provisions together violated the state's single-subject rule. However, he was ultimately persuaded to reverse the decision given the connection between liquor regulation and public safety. Opponents will likely appeal the decision.[9]

* Missouri ballot language ruling: On March 15, the US Court of Appeals for the Eighth Circuit rejected a pro-life organization's claims that prejudicial ballot language stymied their initiative efforts that began in March of 2008. The Missouri Roundtable for Life proposed a series of constitutional amendments aimed at curbing abortion in the state. In Missouri, the state prepares a summary and fiscal impact for citizen-initiated amendments. The Roundtable argues that these statements were unfair and biased against the group. However, since the organization had never circulated the affected petitions, the court held that the claim that the language frustrated their efforts could not be established.[10]

The full decision can be found here.

* CA Court upholds recall signatures: On March 12, a California Superior Court allowed a recall election to move forward against a Shasta Lake city council member. The target of the recall had sued to block the election, alleging that a resident of another district assisted in the signature collection. California has an in-district residency requirement on the books for local signature campaigns. However, the judge held that, independent of the circulator's residency, the election should go forward. The judge noted that the circulator, not the signer, is accountable under California law. The in-district requirement is currently being challenged, and the state maintains that the law is not enforced.[11]

The full decision can be found here.

* Ruling in Mukilteo Traffic Cam Case: On March 8, 2012, the Washington Supreme Court ruled against a Mukilteo initiative aimed at blocking traffic enforcement cameras. The Mukilteo initiative qualified for the ballot and was approved by a large margin (70.7%). However, a citizen's group (Mukilteo Citizens for Simple Government) challenged the initiative, arguing that the traffic camera program was not subject to the local initiative process. A lower court held that the case must wait until after the 2010 election--that decision was appealed to the Supreme Court. The High Court ultimately agreed with the plaintiffs, arguing that the state statute authorizing the cameras gave local officials sole discretion over their use. The Court cited City of Sequim v. Malkasian which held that:

A grant of power to a city's governing body... means exclusively the mayor and city council and not the electorate.

Prior to the ruling, the Mukilteo City Council chose to treat the question as advisory and remove the cameras voluntarily. The ruling is expected to apply to similar cases around the state.[12]

The majority opinion can be found here.
The dissenting opinion can be found here.

On a related note, another red light camera local measure in Bellingham City, Washington was also approved by voters by 68% on November 2011. The non-binding red light camera question, however, also will not be going effect. This week, on March 26 the city council voted to terminate their contract with American Traffic Solutions and remove the red light and speeding cameras in the city.[13]

* Missouri fiscal impact ruling: On March 1, Missouri Circuit Judge Jon Beetem ruled that the state's fiscal review process for ballot measures violates the Missouri Constitution. In Missouri, the state auditor is responsible for preparing a statement of each proposed measure's impact on state finances. However, the state constitution requires that:

No duty shall be imposed on [the state auditor] by law which is not related to the supervising and auditing of the receipt and expenditure of public funds.

Since evaluating proposed measures concerns potential impacts, Beetem ruled that the task falls outside the auditor's supervisory role. In addition, he ordered the statement to be removed from the ballot title in question.

Since the official ballot title must be included on statewide petitions, the legality of petitions with the offending statement is now in question. Some worry that the ruling could force the Secretary of State to exclude numerous signatures already collected for several statewide ballot measures. State Auditor Tom Schweich plans to appeal the decision to the Missouri Supreme Court. A similar ruling in 1996 found that the Joint Committee on Legislative Research could not evaluate proposed initiatives.[14][15]

The relevant state statute can be found here.

The relevant constitutional provision can be found here.

* Ninth Circuit upholds distribution requirement: On March 14, the Ninth Circuit Court of Appeals upheld Nevada's distribution requirement. The decision in Angle v Miller comes after two successful challenges, each resulting in changes to the state's requirement. For more on the history of Nevada's distribution requirement, click here.[16]

The full decision in the case can be found here.

### Legislation

* Maryland House Bill 43: SB 43 would expand the scope of the Maryland referendum process to laws making specified appropriations. On February 13, the bill was given an unfavorable report by the House appropriations committee.

* South Dakota House Bill 1186: HB 1186 would prohibit registered sex offenders from circulating petitions under most circumstances. The bill was signed by South Dakota Governor Dennis Daugaard on March 19.

## See also

* Ballot measure law
* Previous Ballot Law Updates

## Footnotes

1. ↑ NCSLnet, "Initiative & Referendum Legislation," accessed February 29, 2011
2. ↑ Ballot Access News, "Nebraska Governor Signs Bill that Repeals Ban on Out-of-State Circulators," March 15, 2012
3. ↑ Ballot Access News, "Nebraska Legislature Repeals In-State Residency Requirement for Circulators," March 8, 2012
4. ↑ The Recall Elections Blog, "Arizona: House passes bill limiting elections to even numbered years," March 18, 2012
5. ↑ Goldwater Institute, "Save money, double turnout with consolidated local elections," February 15, 2012
6. ↑ Yuma Sun, "Bill would limit cities', citizens' rights to initiative, referendum, recall," March 17, 2012
7. ↑ Businessweek, "Hearing planned on ND property tax lawsuit," March 23, 2012
8. ↑ Bopp, Coleson & Bostrom, "California Group Asks Court to Declare California Ballot Initiative Laws Unconstitutional," Press Release, June 3, 2011
9. ↑ Seattle Times, "Judge rules liquor initiative is constitutional; foes plan appeal," March 19, 2012
10. ↑ Courthouse News, "Abortion Fighters Lose Challenge in Missouri," March 20, 2012
11. ↑ Ballot Access News, "California Superior Court Says Signatures are Valid Even if Circulator Isn’t a Resident of that Jurisdiction," March 14, 2012
12. ↑ The Seattle Times, "State Supreme Court: Local voters can’t ban red-light cameras," March 8, 2012
13. ↑ The Newspaper, "Bellingham, Washington Ends Photo Ticketing Contract," March 28, 2012
14. ↑ KMBC, "Court Strikes Mo. Auditor's Power On Initiatives," March 1, 2012
15. ↑ Ballot Access News, "Missouri Statewide Initiative Process in Disarray, Following State Court Opinion," March 2, 2012
16. ↑ Ballot Access News, "Ninth Circuit Upholds Distribution Requirement for Initiatives," March 14, 2012

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