Ballot Law Update: October sees variety of legal developments

### October 26, 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. In 2011, CICF identified 61 laws that make getting a measure on the ballot more difficult. Of these 61, seven have passed. CICF also identified 44 laws that would make the process easier. Of these 44, four have passed.[2]

On October 7, California Governor Jerry Brown (D) took action on another round of election law bills, signing two and vetoing three. The following is a breakdown of his actions:[3]

a Senate Bill 202: 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.

d Senate Bill 205: SB 205 would ban per-registration card pay for voter registration workers.

d Senate Bill 334: 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.[4] Citizens in Charge Foundation rating:  Reduces initiative rights.

a Senate Bill 397: SB 397 would permit eligible voters to register online.

d Assembly Bill 651: AB 651 would require petition gathering companies to register with the state and make regular reports.

The full impact of these actions is yet to be seen, but the most obvious for voters will likely be the approval of Senate Bill 202. Opponents argue that the bill will needlessly multiply the number of questions before voters and make it harder for voters to stay informed. However, proponents argue that as many as 2 million more voters could weigh in on each measure in the November general election. Policy arguments aside, some opponents worry that the labor union backed bill is designed to force every measure to appear before November's more left-leaning voters.[5][6]

The Ballot Law Update is released on the last Wednesday of each month. Stay tuned to the Tuesday Count for weekly ballot law news.

### Court actions concerning I&R

* Nebraska will not appeal residency ruling: Last month, two cases, Citizens in Charge v. Gale & Bernbeck v. Gale, found Nebraska's residency requirement unconstitutional. The cases also upheld several other petition restrictions. The deadline for the state to appeal has expired and no appeal was filed.[7]

* 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.[8][9]

* The court's opinion in State ex rel Ohioans for Fair Districts v Husted can be found here.

* Washington signature privacy ruling and injunction: On October 17, a federal district court ruled that signatures for a 2009 domestic-partnership referendum must be made public. The plaintiffs in Doe v. Reed argue that publishing the signatures will open up signers to harassment or intimidation. However, the court found that the claim was unfounded in light of the fact that the proponents of secrecy were willing to testify publicly and that donors to the measure, whose names have already been published, have not been harassed. Plaintiffs quickly appealed the decision to the 9th Circuit Court of Appeals despite the fact that some signatures have now been released. On October 24, plaintiffs were granted a temporary injunction, blocking any additional release of signatures for Washington Referendum 71.[10][11]

* The district court opinion can be found here.

* The 9th Circuit's injunction can be found here.

* Michigan Recall Ruling: On October 20, the Michigan Supreme Court reversed a State Court of Appeals ruling which blocked a recall election against State Rep. Paul Scott (R). In the case, Scott v. Michigan Director of Elections, Scott argued that the petition statement explaining the recall was inaccurate and that petitioners had begun collecting signatures too early. The Ingham Circuit Court originally ruled against Scott before seeing its ruling overturned by the State Court of Appeals. The recent Supreme Court ruling reinstates the Circuit Court's ruling, overturning the Court of Appeals ruling on procedural grounds. The Circuit Court originally ruled that the court's role was not to determine the accuracy of recall petition statements.[12][13][14][15]

* The Michigan Supreme Court's ruling 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 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), Gov. signs (10/7/2011) SB 202 would keep statewide initiatives off the June primary ballot. All initiatives would be placed on the November ballot.[16] 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), Gov. vetoes (10/7/11) 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.[17][18] 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.[19] 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.[20] 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.[21][22] 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.[23] 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.[24] 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.[25] 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.[26][27] 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.[28] 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 October 26, 2011
2. ↑ 2.0 2.1 2.2 This information is based on the final 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. ↑ Ballot Access News, "Governor Jerry Brown Vetoes Bill to Outlaw Paying Registration Workers on a Per-Card Basis," October 7, 2011
4. ↑ California State Senate, Senate Floor Bill Analysis, August 31, 2011
5. ↑ California Legislature, Senate Floor Bill Analysis, SB 202, September 8, 2011
6. ↑ Townhall.com, "An attack on good government," September 11, 2011
7. ↑ Ballot Access, "Nebraska Won’t Appeal Decision on Out-of-State Circulators," October 3, 2011
8. ↑ Cincinnati.com, "Court ruling throws 2012 elections into chaos," October 16, 2011
9. ↑ Ballot Access News, "Ohio Faces Another Referendum on Election Law," October 16, 2011
10. ↑ Ballot Access News, "Appeal Filed in Doe v Reed, the Lawsuit on Privacy for Petition Signers," October 18, 2011
11. ↑ Ballot Access News, "U.S. District Court Orders Washington State to Release Names and Addresses of Referendum Signers," October 17, 2011
12. ↑ Ballot Access News, "Michigan Legislator’s Recall Blocked by State Appeals Court," October 7, 2011
13. ↑ Ballot Access News, "Michigan Supreme Court Allows Legislative Recall to go Ahead," October 20, 2011
14. ↑ The Detroit News, "Mich. Supreme Court rules Scott recall vote can proceed," October 20, 2011
15. ↑ Associated Press, "State releases Referendum 71 petition names," October 17, 2011
16. ↑ Ballot Access News, "Governor Jerry Brown Vetoes Bill to Outlaw Paying Registration Workers on a Per-Card Basis," October 7, 2011
17. ↑ Ballot Access News, "Governor Jerry Brown Vetoes Bill to Outlaw Paying Registration Workers on a Per-Card Basis," October 7, 2011
18. ↑ California State Senate, Senate Floor Bill Analysis, August 31, 2011
19. ↑ House Bill 2634, Staff Measure Summary
20. ↑ Nevada Legislature, AB 81, as enrolled
21. ↑ Nevada Legislature, SB 133, as enrolled
22. ↑ 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
23. ↑ Colorado House Bill 11-1072, enrolled bill
24. ↑ Tampa Bay Online, "State law limits citizens' ability to get amendments on ballot," May 24, 2011
25. ↑ Ballot Access News, "Arizona Bill, Improving Ballot Access and Making Other Changes, Passes House Judiciary Committee," February 10, 2011
26. ↑ Bill History, HB 391
27. ↑ Billings Gazette, "Missoula County attorney's attempt to override marijuana initiative creates uproar," January 20, 2011
28. ↑ Utah Senate Bill 165, as enrolled

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