By Tyler Millhouse
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 61 laws that make getting a measure on the ballot more difficult. Of these 61, 36 have died, 18 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.
This week saw significant developments in ballot law legislation and litigation. A recent Washington State ruling could set the stage for a loosening of campaign finance restrictions on recall across the country. A case in Florida, one of the most active states for ballot measures, could either increase or restrict the ability of legislators to effectively initiate legislation. Lastly, one, possibly two, California bills could be headed to the Governor’s desk, each tightening restrictions on petition circulators.
Court actions concerning I&R
- Washington Recall Ruling: A US District Court in Washington overturned the state’s cap on contributions to recall campaigns. The case began after two lawyers donated $20,000 in legal work to the campaign to recall the Pierce County Assessor-Treasurer, Dale Washam. In Farris v Seabrook, opponents of the $800 cap argue that contributions to recall campaigns have more in common with contributions to initiatives than contributions to candidates.
Under Washington law, contributions to ballot measure campaigns are not capped since ballot measures cannot become corrupt or trade special favors for contributions. Similarly, argued opponents, recall campaigns cannot corrupt an officeholder because they can only remove an existing official from office. Proponents of the cap argue that wealthy individuals could employ the threat of recall to improperly influence elected officials. Given a high signature requirement and mandatory judicial review of proposed recall campaigns, the judge sided with opponents, arguing that the restriction on political speech was not “closely drawn to match” a compelling state interest. Walsham appealed the case to the State Supreme Court, but the ruling was upheld. The District Court decision can be found here.
- Florida “Blaine Amendment” lawsuit: Many state consitutions feature so-called “Blaine Amendments,” which ban any transfer of public funds to religious institutions. In April 2011, the Florida Legislature placed a legislatively-referred amendment on the ballot replacing the clause in the Florida Constitution with a clause that only prohibits discrimination in funding based on religious/secular status. The amendment was given the title “Religious Freedom” and a ballot summary explaining the changes to the constitution. However, the Florida Education Association and an inter-faith clergy group have filed suit challenging the ballot title and summary on the grounds that they are misleading. The groups contend that the measure is a thinly veiled attempt to legalize school vouchers in Florida.
As to its implications for ballot law, the suit is also challenging part of a recent Florida statute, HB1355, lines 2042-2059, which allows the Attorney General to revise titles and summaries rejected by the courts. (Does not apply to initiated amendments.) In the past, the successful challenge of a legislatively-referred constitutional amendment based on its title or summary meant the amendment’s removal from the ballot. The new law allows the AG to revise the title and summary to comply with the court’s ruling. If this second component of the FEA lawsuit fails, its challenge of the title and summary, successful or otherwise, may not remove the amendment from the ballot.
Bills to watch
As legislative sessions wind down, the Ballot Law Update will place greater emphasis on bill updates and litigation. Of the bills tracked by the Citizens in Charge Foundation, all of the bills still pending come from three states–California, Massachusetts, and New York.
- California Senate Bill 168: Update: Passed Senate (5/9/11), passed House (7/14/11), to Governor. SB 168 would ban pay-per-signature in the State of California. Violation of the law would constitute a misdemeanor offense. Current law does not prohibit the practice, but it does require that petition forms include a notice indicating that the circulator may or may not be a volunteer. The bill has passed the Senate and has been referred to committee in the State House.Citizens in Charge Foundation rating: Reduces initiative rights.
- California Senate Bill 448: Update: Amended ordered to third reading. SB 448, much like the recently shelved AB 481, would require petition circulators to wear a badge designating whether they are a paid or volunteer worker. Unlike AB 481, the bill also requires the badge to identify where in California the circulator is registered to vote. While the law does not require the circulator to be registered, unregistered circulators would be identified as “NOT REGISTERED TO VOTE.” The bill’s sponsor, Sen. Mark DeSaulnier (D), placed AB 481 in the “inactive file” after a house committee passed SB 448. SB 448 has already passed the California State Senate.  Citizens in Charge Foundation rating: Reduces initiative rights.
- (New) 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.
- 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.