Ballot Law Update: Several local ballot measures involved in litigation

June 7, 2011

By Tyler Millhouse

Since the beginning of the year, 229 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 non-profit 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 58 laws that make getting a measure on the ballot more difficult. Of these 58, 32 have died, 21 are still pending, and 5 have passed. CICF has also identified 41 laws that would make the process easier. Of these 41, 23 have died, 16 are still pending, and two have passed.[2]

While local ballot measures typically receive little media attention, they are much more numerous than their state-level counterparts. Moreover, they often involve more direct public input and more immediate effects. As such, local measures present a range of interesting issues within ballot measure law. This week we highlight several lawsuits concerning local ballot measures across the nation. These cases raise questions in constitutional, state, and local law, illustrating the complex system of laws governing local measures.

Court actions concerning I&R

  • Chula Vista sponsor restrictions: Chula Vista Citizens for Jobs and Fair Competition has filed a motion in a federal court, seeking to have two state I&R regulations overturned as unconstitutional. 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, lead attorney for the plaintiffs, argues that these laws run contrary to Supreme Court decisions supporting corporate and anonymous speech.[3] Details and court documents for Chula Vista Citizens, et al. v. Norris, et al. can be found here.
  • Washington state traffic cam initiatives: A lawsuit was filed in Washington state on May 31, challenging the decision of the Longview City Council to block a referendum on the city’s traffic cameras. On May 23, the petitioners submitted a number of signatures sufficient to get the camera-blocking measure on the ballot. Rather than placing the law on the ballot, the city council voted to make the referendum merely advisory rather than binding. The plaintiffs argue that the city had no such power under state law.[4]
    Across Washington state, several local traffic cam initiatives have faced opposition from city officials. On May 20, a Superior Court ruling rejected a local Wenatchee camera referendum, siding with plaintiffs, the City of Wenatchee and American Traffic Solutions Inc. The plaintiffs contended that the city’s contract with ATS Inc. could not be voided via referendum (See decision).[5]
    Prior to the November election, the City of Mukilteo also attempted to have a similar ban removed from the ballot. The State Supreme Court refused to intervene in the case, and the law remained on the ballot (See decision).[6] Following the court’s ruling and the overwhelming passage of the measure, city officials determined that traffic camera laws were not subject to referendum and decided to treat the vote as advisory. Currently, the Mukilteo case is again before the State Supreme Court. Initial reports suggest that the court is sympathetic to the initiative’s proponents.[7][8]
  • Wheeling, Illinois library referendum: A hearing was held last Thursday over a successful library funding referendum in Wheeling, IL, a Chicago suburb. Long-time activist Rob Sherman is suing the Indian Trails Public Library and several local officials in an effort to overturn the property tax increase. Sherman and the other four plaintiffs allege that the library spent thousands of public dollars promoting the measure, printing literature and hiring a consulting firm. The library contends that it only provided objective informational materials on the referendum.[9][10]

Bills to watch

  • South Carolina Senate Joint Resolution 67: S 67 would create a process for initiated constitutional amendments in South Carolina. The legislation would require the signatures of 10% of the qualified electors in the prior general election. The measure also institutes a distribution requirement requiring 2% of these signatures to come from each of 2/3 of the state’s counties.[11] House Joint Resolution 3008 has also proposed a process for initiated amendments, but also adds a process for initiated statutes.[12] Citizens in Charge rating: Protects/expands initiative rights.

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.

  • Oklahoma Senate Joint Resolution 37: Update: Dead, passed Senate but failed to pass House before adjournment.[13] SJR 37 would introduce a geographic distribution requirement for Oklahoma. Currently, petitioners must gather signatures equaling 8% of the vote cast for governor in the last election. Under SJR 37, petitioners would have to collect signatures equaling 8% of the vote cast for governor in each congressional district. Thus, while the total requirement would remain unchanged, petitioners would have to collect a portion of those of signature from each congressional district.[14] Citizens in Charge rating: Reduces initiative rights.

Approved legislation

  • (New) 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.[15] Citizens in Charge 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.[16] Citizens in Charge 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.[17] Citizens in Charge 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 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.[18][19] Citizens in Charge 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.[20] Citizens in Charge 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 rating: Protects/expands initiative rights.

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