Ballot Law Update: Flurry of legal decisions as bills await action

### September 28, 2011

Ballot law

State laws
Initiative law
Recall law
Statutory changes
Court cases
Lawsuit news
Ballot access rulings
Recent court cases
Petitioner access
Ballot title challenges
Superseding initiatives
Signature challenges

By Tyler Millhouse

Since the beginning of the year, 246 laws have been proposed in 40 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1]

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 61 laws that make getting a measure on the ballot more difficult. Of these 61, 47 have died, seven are still pending, and seven have passed. CICF has also identified 44 laws that would make the process easier. Of these 44, 37 have died, three are still pending, and four have passed.[2]

This month has seen movement on several important judicial decisions and bills in California. On August 18, the California State Legislature passed Senate Bill 448. The bill would create a badge requirement for initiative petition circulators. Known as "scarlet letter laws" to opponents, these requirements mandate that paid petition circulators wear badges identifying themselves as paid workers. On September 6, Gov. Jerry Brown vetoed SB 448. In a statement released with the veto, Brown called the bill "provocative, but ultimately unpersuasive." He added that the bill was a "slippery slope" towards greater state intrusion. A few weeks ago, Brown vetoed Senate Bill 168 which would have banned pay-per-signature. Brown's action is still anticipated on two bills, SB 202 and SB 334, that would, respectively, place all initiatives on the November ballot and require the listing of top initiative contributors in the ballot pamphlet. Also in California, two important rulings were handed handed down, one on sidewalk solicitation and another on the release of court videos from hearings on Proposition 8.

In other news, Florida's congressional redistricting amendment was upheld, a Virginia residency requirement case received a date, a Washington traffic camera initiative is headed to the State Supreme Court, and Wisconsin may allow online recall petition dowloads.

As announced in the last edition, the Ballot Law Update has switched to a monthly format. New updates will come out on the last Wednesday of each month. Stay tuned to the Tuesday Count for weekly ballot law news.

### Court actions concerning I&R

* (Update) Washington state traffic cam initiatives: On September 7, traffic camera opponents in the city of Bellingham, WA were dealt a legal blow. A three-judge panel from the Washington Court of Appeals ruled that while their ballot measure can proceed, it will be non-binding. In addition, the panel reversed an earlier ruling which held that American Traffic Solutions had no standing in the case. The overturned ruling also held that ATS must pay the petitioners' legal fees as well as a $10,000 fine for filing a "strategic lawsuit against public participation" (SLAPP). While petitioners were satisfied that voters would get to weigh in on the issue, they plan to appeal the ruling to the State Supreme Court. In addition, another traffic camera initiative in Monroe, WA is awaiting a ruling in the Snohomish County Superior Court.[3][4][5]

* The full decision can be found here.

* Florida Amendment 6 challenge: 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. Publicly, 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 theElections Clause and attempts to dictate election outcomes.[6] 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.[7] 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[8]

* The full decision can be found here.

* Proposition 8 video release: On September 19, a federal judge, James Ware, has ruled that footage of court hearings on California Proposition 8 may be made public. The footage was taken during the legal battle over the measure in the US District Court for the Northern District of California. Prior to trial, Walker had ruled that the proceedings could be recorded and broadcast live, amending the court's ordinary rules.[9] The plaintiffs challenged this decision in the US Supreme Court, arguing that it could open witnesses to harassment or intimidation. The Supreme Court ultimately sided with the plaintiffs and prohibited the broadcasts. Although no broadcasts were made, Walker decided to allow the video to be taken for court use.[10] In ordering the video released, Ware argued that the Supreme Court had only objected on procedural grounds to the court's rule change on live broadcasts. Once the video has entered the record, he argued, there is a "strong presumption in favor of granting the public access to the recording."[11]

* Ware's ruling can be found here.
* The Supreme Court's ruling can be found here.

* Arguments to be heard in Lux v. Judd: Last week, the Fourth Circuit Court of Appeals decided to hear arguments in Lux v. Judd on January 17, 2012. Although Virginia does not permit voters to initiate statewide ballot measures, a ruling in the case has already had broader implications in the legal battle over residency requirements. Under existing state law, only the residents of a congressional district may circulate petitions to place an independent candidate on the ballot for that district. In July, the court ruled that the state cannot defend the law based on its interest in demonstrating local support. This preliminary decision was cited in Bernbeck v. Gale , which recently overturned a sponsor residency requirement for local measures in Nebraska. The Fourth Circuit’s rejection of this strategy is based on the landmark case Meyer v. Grant, which, among other things, held that signatures alone are sufficient to establish local support.[12]

* The July ruling can be found here.

* WI GAB ruling on online petitions: Wisconsin's Government Accountability Board, which oversees the state's elections laws, has ruled that recall proponents can offer petition forms online. The forms would be downloaded, printed, signed, and then mailed back to petitioners. The GAB approved the decision by a 5-1 vote. Opponents worry that the plan will make recall too easy and create electoral chaos. Nevertheless, the board held that practice is not in conflict with existing state law. Wisconsin does not allow initiated statutes or amendments.[13]

* The board's press release can be found here.

### Bill updates

The following is a list of recent updates for bills covered in past reports. For a complete list of updates, see the Ballot Law Bill Tracker.

* California Senate Bill 448: Update: Passed Senate (5/9/11), amended in Assembly (7/14/11), passed in Assembly (8/15/11), Senate concurs and sends to Gov. (8/18/11), vetoed (9/6/2011) SB 448, much like the now-shelved AB 481, would require paid petition circulators to wear a badge indicating that they are a paid worker. (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 is Sen. Mark DeSaulnier (D).[14][15] Citizens in Charge Foundation rating:  Reduces initiative rights.

* California Senate Bill 202: Update: Passed Senate (5/31/11), amended in Assembly (9/2/11), passed in Assembly (9/9/11), Senate concurs and sends to Gov. (9/10/11) SB 202 would keep statewide initiatives off the June primary ballot. All initiatives would be placed on the November ballot. Citizens in Charge Foundation rating:  Reduces initiative rights.

* California Senate Bill 334: Update: Passed Senate (6/1/11), amended in Assembly (8/18/11), passed in Assembly (8/25/11,8/31/11), Senate concurs and sends to Gov. (9/9/11) SB 334 would require "the state ballot pamphlet to include, immediately below the analysis of a state ballot measure prepared by the Legislative Analyst, a list of the five highest contributors of $50,000 or more to each primarily formed committee supporting the measure and the total amount of each of their contributions." Since pamphlets are printed in advance of the election, only the top donors as of 110 days prior to an election would be listed.[16] Citizens in Charge Foundation rating:  Reduces initiative rights.

### Approved legislation

* Oregon House Bill 2634: HB 2634 creates a Citizens’ Initiative Review Commission to form and oversee impartial citizens panels tasked with reviewing ballot measures. These panels, in use in another form since 2009, review proposed measures for their fiscal impact and draft arguments for and against the measures.[17] Citizens in Charge Foundation rating:  Protects/expands initiative rights.

* Nevada Assembly Bill 81: AB 81 is an omnibus election overhaul, affecting many aspects of Nevada election law. With respect to initiatives, the bill requires any person or committee to identify themselves on any campaign communication on which they spent more than $100. In addition, the bill requires petitions to include the contact information of the circulator and a statement that the circulator is 18 years of age.[2] Citizens in Charge Foundation rating:  Reduces initiative rights.

* Nevada Assembly Bill 82: AB 82 is also an omnibus election overhaul bill. It requires that organizations advocating for or against a ballot measure abide by the campaign finance reporting requirements of political action committees. This change has the effect of lowering the reporting threshold from $10,000 to $1,000.[18] Citizens in Charge Foundation rating:  Reduces initiative rights.

* Nevada Senate Bill 133: SB 133 makes Congressional districts the basis for the state's distribution requirement. Petitioners must now collect 10% of the required signatures in each of the state's three Congressional districts. Two previous requirements using counties as the basis of the requirement were struck down by the courts.[19][20] Citizens in Charge Foundation rating:  Protects/expands initiative rights.

* Colorado House Bill 11-1072: HB 11-1072 creates several new requirements for initiative proponents. In particular, the bill requires proponents, within ten days of filing, to produce a report detailing all the expenditures relating to the circulation of the initiative. The report must include the dates of circulation, total hours worked, and gross wages earned by each circulator. After the report is filed, any registered voter may challenge the report within ten days. Initiative proponents then have ten days to correct the error or a judicial hearing is scheduled. If the judge determines that an intentional violation did occur, the proponents are subject to a fine equal to three times the omission. In addition, proponents may be subject to civil action by the voter who brought the challenge for the recovery of legal fees.[21] Citizens in Charge Foundation rating:  Reduces initiative rights.

* Florida House Bill 1355: HB 1355 contains extensive modifications to Florida's election law. With respect to initiative and referendum, the bill cuts the signature gathering period from 4 to 2 years. It also shortens the window for challenging legislatively referred ballot questions.[22] Citizens in Charge Foundation rating:  Reduces initiative rights.

* Arizona House Bill 2304: HB 2304 alters the state's requirements for petition circulators, eases third-party primary access, and clarifies laws regarding wearing political apparel at polling places. With respect to initiatives, the law repeals the state's unconstitutional circulator residency requirement. However, it replaces this requirement with a requirement that out-of-state circulators register with the state.[23] Citizens in Charge Foundation rating:  Reduces initiative rights.

* Oklahoma House Bill 1664 (2011): HB 1664 provides for the notification of initiative proponents regarding the title status of a ballot initiative.[2] 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.[24][25] 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.[26] 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

1. ↑ NCSLnet, "Initiative & Referendum Legislation," accessed September 28, 2011
2. ↑ 2.0 2.1 2.2 This information is based on the most recent edition (September 14, 2011) of the CICF "Afternoon I&R Legislation Update" Cite error: Invalid `<ref>` tag; name "CICF" defined multiple times with different content Cite error: Invalid `<ref>` tag; name "CICF" defined multiple times with different content
3. ↑ Sky Valley Chronicle, "No Ruling From Judge But Monroe’s Anti Red Light Camera Foes Upbeat," September 22, 2011
4. ↑ Snohomish Tribune, "Judge indicates key provisions invalid, but vote OK," September 28, 2011 (dead link)
5. ↑ Bellingham Herald, "Bellingham traffic-camera initiative to stay on ballot, judge rules," September 7, 2011
6. ↑ Florida Courier, "Path not taken for redistricting suits, voting rights," September 12, 2011
7. ↑ Ballot Access News, "U.S. District Court Upholds Florida Initiative Telling Legislature that Redistricting Must be Non-Partisan," September 9, 2011
8. ↑ Ballot Access News, "Ninth Circuit Upholds Solicitation on Public Sidewalks," September 17, 2011
9. ↑ New York Times, "Proposition 8 Hearing Video Is Ordered Released by Judge," September 19, 2011
10. ↑ San Francisco Chronicle, "Judge decides to unseal video of Prop. 8 trial," September 20, 2011
11. ↑ US District Court for the Northern District of California, Perry v. Schwarzenegger, September 19, 2011
12. ↑ Ballot Access News, "Virginia Petitioner Residency Lawsuit Moves Ahead," September 23rd, 2011
13. ↑ Milwaukee Journal-Sentinel, "GOP lawmakers consider changes to recall petition process," September 27, 2011
14. ↑ California Assembly Bill 448, Bill History (dead link)
15. ↑ California Assembly Bill 481, Bill History (dead link)
16. ↑ California State Senate, Senate Floor Bill Analysis, August 31, 2011
17. ↑ House Bill 2634, Staff Measure Summary
18. ↑ Nevada Legislature, AB 81, as enrolled
19. ↑ Nevada Legislature, SB 133, as enrolled
20. ↑ Citizens in Charge, "Nevada Distribution Requirement: Will Three Be A Charm in Carson City, Or Will It Be Back to the Courts?" June 13, 2011
21. ↑ Colorado House Bill 11-1072, enrolled bill
22. ↑ Tampa Bay Online, "State law limits citizens' ability to get amendments on ballot," May 24, 2011
23. ↑ Ballot Access News, "Arizona Bill, Improving Ballot Access and Making Other Changes, Passes House Judiciary Committee," February 10, 2011
24. ↑ Bill History, HB 391
25. ↑ Billings Gazette, "Missoula County attorney's attempt to override marijuana initiative creates uproar," January 20, 2011
26. ↑ Utah Senate Bill 165, as enrolled

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