Ballotpedia dissects lawsuits challenging 2011 and 2012 ballot measures

July 14, 2011

By Al Ortiz

Since the beginning of the year, legal challenges have been an underlying theme in ballot measure news. In some states, multiple lawsuits have been filed over a single ballot measure. In our pages concerning 2011 and 2012 ballot measure litigation, one can see that lawsuits have challenged, and still are challenging, different aspects of targeted ballot measure proposals, ranging from ballot language to subject matter to the signature gathering process.

With complex developments entangled in most filed lawsuits, and even one lawsuit being affected by a recent U.S. Supreme Court ruling, Ballotpedia takes a closer look to dissect the past seven months (and in some cases, beyond that); months that have had no shortage of legal filings, rulings and appeals.

Statistics

The following tables show breakdowns of lawsuits pertaining to statewide ballot questions that have been proposed for or are already on the 2011 and 2012 statewide ballots.

A grand total of 11 lawsuits have been filed against nine statewide questions for both election years. Of those 11 lawsuits, eight are against measures that are certified for ballot access. In addition, all eight of the nine proposals are state constitutional amendments. Only one measure is not; the Nevada sports arena initiative is an indirect initiated state statute.

Furthermore, of those eight constitutional amendments, five are citizen initiatives, while the remaining three are legislative referrals.

2011 ballot measures

2012 ballot measures

Types of cases

Ballot language cases

2011 measure lawsuits
By state
California • Colorado• Illinois Mississippi • Missouri Nebraska • Ohio • Texas Washington
By lawsuit type
Ballot text Campaign contributions Constitutionality Motivation of sponsors Petitioner residency Post-certification removal Single-subject rule Signature challenges Initiative process

In the case of ballot language, lawsuits that have been filed under this category have challenged the fiscal estimate of the proposal, or have argued that the summary of the measure is misleading.

No ballot language cases have been filed so far in 2011. All four cases relating to ballot text are not only against 2012 ballot measures, but were filed against Missouri questions.

Two of those measures under litigation are already on the ballot.

Those proposals are the voter identification amendment, which would require voters to show photo identification prior to casting a ballot, and the public prayer amendment that asks voters guarantee the right to pray and worship on public property. In both cases, plaintiffs have argued that the ballot summaries are misleading.

The other two cases in the state are against the income tax replacement initiative and the municipal police amendment. Those cases, in addition to arguments that the ballot summary could mislead voters, have seen plaintiffs argue that the fiscal impact of those proposals are inaccurate and biased.

Single-subject rule cases

Cases in Arizona and Nevada have seen this specific challenge this year. Both filings have been against measures that have been highly scrutinized.

In Arizona, a lawsuit was filed against the 2012 ballot-certified public funding ban amendent. The measure would disallow the use of public money to fund political campaigns. More notably it would repeal the Clean Elections Act that was approved by voters in 1998.

The attorney for the plaintiffs, Paul Eckstein, stated that the language of the measure constitutionally bars government agencies from spending public funds for "campaign support." This is a term that is ambiguously referred to, according to Eckstein.

Eckstein argued that this could lead to that phrase being interpreted as disallowing direct contributions to political races, and also banning daily operations of the Citizens Clean Elections Commission. The attorney pointed out that this could mean that the measure violates the state's single-subject rule.

In an even bigger twist, the U.S. Supreme Court, in a separate lawsuit that hoped to strike down the Clean Elections Act, ruled on June 27, 2011 that the act violated the First Amendment rights of candidates who raise private money for their campaigns. The law was struck down by the court, in a 5 to 4 decision.

It remains unclear what is to happen to the 2012 ballot measure that would strike the act down as well, or the previously mentioned pending lawsuit.

In Nevada, on September 21, 2010, District Judge James Todd Russell upheld the proposed initiative petition for the sports arena initiative. Taxpayers for Protection of Nevada Jobs argued that the proposed initiative violated the "single-subject rule" and thus the petition should be declared invalid. However, the judge ruled that the organization's lawyer Scott Scherer did not prove a violation of the "single-subject rule."

However, this is not the only lawsuit to be filed against this measure.

Signature gathering and initiative process accusations

Mississippi has seen a lot of action in ballot measure litigation, and one of those lawsuits came against the personhood amendment that is already on the ballot for 2011.

On February 2, 2010, Personhood Mississippi filed a lawsuit against Attorney General Jim Hood and Secretary of State Delbert Hosemann regarding the group's effort to place the Life Begins at the Moment of Fertilization Initiative on the ballot. The lawsuit was filed as an attempt to clarify the state laws governing the initiative process.

2012 measure lawsuits
By state
Arizona • Arkansas • Colorado • Florida • Maryland Michigan • Massachusetts • Minnesota Missouri • Montana • Nevada North Dakota • Ohio • Oklahoma Oregon • Rhode Island
By lawsuit type
Ballot text Campaign contributions Constitutionality Motivation of sponsors Petitioner residency Post-certification removal Single-subject rule Signature challenges Initiative process

However, the measure remains on the ballot for voters to decide.

The much-debated Nevada sports arena initiative has also come under fire of a challenge relating to signature collection. On December 15, 2010, the Taxpayers for the Protection of Nevada Jobs filed a lawsuit in the First Judicial District Court alleging that there had been fraud and misconduct in the gathering of petition signatures.

Judge Todd Russell then ruled on May 9, 2011 that the initiative did indeed gather enough signatures to advance to the ballot. The plaintiffs then filed an appeal with the Nevada Supreme Court, which is currently under review.

Questions of constitutionality

Two Mississippi ballot measures have been challenged under allegations that they are unconstitutional.

On July 15, 2010 Jackson Attorney Robert McDuff filed a lawsuit against the state of Mississippi, questioning the personhood amendment slated for the 2011 ballot. However, Hinds County Judge Malcolm Harrison ruled that the initiative should appear on the ballot because supporters collected the required signatures and the constitution recognizes the right of citizens to change the state constitution.

Another initiative in the state was challenged, when on June 5, 2011, litigation arose in Hinds County Circuit Court challenging the eminent domain initiative. That lawsuit is currently ongoing.

Questions of sponsor motivation

Colorado is the lone state in this lawsuit category, as a challenge was filed on July 11, 2011 against the proposed marijuana legalization ballot measure. The lawsuit alleges that the proposal does not make it clear that taxes would be raised if the law was passed.

Douglas Bruce, of Colorado Springs, filed the lawsuit with the state Supreme Court. However, Brian Vicente of Sensible Colorado stated that the five-business day allowance to challenge the measure has already passed. A spokesman for the Colorado Secretary of State claimed that since the ballot measure language was revised, the legal challenge could move forward.

See also

• 2011 ballot measure litigation
• List of ballot measure lawsuits in 2011
• 2012 ballot measure litigation
• List of ballot measure lawsuits in 2012

Footnotes