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Important
Court Cases Relating to the Initiative and Referendum Process
If you know of a court case that
you believe should be included in this section please send an email to mdanewaters@iandrinstitute.org
click
on the subject or scroll down to read all the cases
Click Here for Super Majority Definition.
CIRCULATOR REQUIREMENTS
Buckley v. American
Constitutional Law Foundation
The Buckley case is the latest in a
number of Supreme Court decisions asking how far States may go in
regulating the conduct of ballot initiative campaigns. Since the success
of term limit and tax limit initiatives, elected officials across the
country have been restricting initiative campaigns. In 1988, the Supreme
Court struck down Colorado's restriction on paid initiative signature
collection, saying that initiative petitions were protected political
speech. Meyer v. Grant, 486 U.S. 414 (1988). In Buckley, Colorado was
asking that other restrictions on petitions be upheld.
The question before the Court in Buckley was: Whether the State of
Colorado may constitutionally regulate the process of circulating
initiative petitions by requiring that: (1) petition circulators who
verify the signatures of petition signers must be registered electors;
(2) petition circulators must wear identification badges; and (3)
proponents of an initiative must file reports disclosing the amounts paid
to circulators and the identity of petition circulators.
In other words, Colorado attempted to regulate the collection of
signatures on initiative petitions by requiring signature collectors
("circulators") to be registered to vote in Colorado and to
wear badges with their names and addresses, whether they are paid or
volunteer, and, if paid, the name of the person or entity who is paying
them, and requiring initiative proponents to file reports disclosing the
names of and compensation paid to circulators. The U.S. Court of Appeals
for the Tenth Circuit 120 F.3d 1092 (1997) struck down these requirements
as unconstitutional infringements on political speech.
Petitioner Colorado claimed that it needed the restrictions to prevent
fraud and preserve the integrity of the electoral process, and that the
restrictions are permissible under the "flexible standard"
applicable to regulation of the ballot. Burdick v. Takushi, 504 US. 428,
434 (1992). Colorado was supported by amici briefs from a group of State
Attorneys General and by the Council of State Governments and a number of
other governmental associations.
The respondents were a conservative legal organization and several
individuals who have been involved in initiative campaigns (including
Paul Grant, of Meyer v. Grant). Respondents contended that the fraud
claims were a "facade," that the restrictions violated Meyer v.
Grant and that the various restrictions violated petition circulators'
and signers' free speech rights. Respondents were supported by a variety
of organizations from across the philosophical spectrum, including the
ACLU (click here to view amicus), the Initiative & Referendum
Institute (click here to view amicus), and National Voter Outreach, a
professional petition circulation firm. One of the amici's points was
that Colorado law explicitly placed signature collection outside the electoral
process (Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988), cert. denied,
492 U.S. 921 (1989); accord, Delgado v. Smith, 861 F.2d 1489 (11th Cir.
1988), cert. denied, 492 U.S. 981 (1989)), making the proper standard for
review the strict scrutiny applicable to private speech.
The U.S. Supreme Court ruled on January 12, 1999 (click
here for IRI Press Release) striking down Colorado’s regulation and
restrictions on their initiative process as “undue hindrances to
political conversations and the exchange of ideas,” according to Justice
Ruth Bader Ginsburg who wrote for the court.
The decision by the court had two major points: 1) initiative petition
circulation is pure political speech and restrictions on circulation,
especially at the time of discussions with voters who might potentially
sign the petitions, is highly protected and 2) any restrictions on
petition circulation must be justified by strong showings that the
regulated practices hurt the integrity of the ballot process – in other
words, that the restrictions help prevent actual fraud. This will be
extremely difficult to do considering that no state has ever been able to
show convincingly that rampant fraud exists during the petition process.
Read Initiative & Referendum's
Amicus Brief
Read
State Regulation of the Initiative Process:
Background and Analysis of Issues in Buckley v. American
Constitutional Law Foundation, Inc., et al.
Bernbeck v. Moore 96-3503 (1997)
On October 9, 1997, in Bernbeck v.
Moore, the 8th U.S. Court of Appeals struck down a Nebraska law that
required petitioners to be registered voters in Nebraska for at least 30
days before circulating an initiative petition. The court ruled the voter
registration requirement violated the First Amendment. The court based
its decision on the U.S. Supreme Court decision, Meyer v. Grant, which
ruled that a ban on paid petitioners violated freedom of expression
guaranteed by First Amendment.
The court further stated that nothing in Nebraska law makes it illegal
for anyone to hire out- of state campaign consultants, out-of-state
printers, out-of-state canvassers, or out-of-state lobbyists. The state
may still require petition circulators to provide, under penalty of
perjury, their temporary and permanent addresses, so if they may be
located later if necessary. Therefore, Nebraska has no compelling need to
require petitioners to be registered voters.
CANVASSER SERVICES, INC. Petitioner, v.
EMPLOYMENT DEPARTMENT, Respondent.
(Oregon Appeals Court Decision - Filed:
October 13, 1999)
In this case, the courts ruled that
signature gatherers can not be independent contractors and must be paid
as employees.
McIntyre v. Ohio
Elections Commission, 115 S. Ct. 1511 (1995)
Freedom of speech case regarding whether the government may
constitutionally prohibit the distribution of campaign literature that
does not contain the name and address of the person issuing it.
Meyer
v. Grant, 486 U.S. 414 (1988)
A handful of states sought to protect the integrity of the initiative
process by prohibiting the payment of petition circulators. Colorado,
Idaho and Nebraska each made it illegal to accept financial reward for
signatures raised. The United States Supreme Court overturned these laws in
the 1988 decision, Meyer v. Grant. Such a law, the Court ruled
unanimously, restricts freedom of expression guaranteed by the First
Amendment: it restricts access to the most effective fundamental and
perhaps economical avenue of political discourse, direct one-on-one
communication.
The case arose out of an initiative proposal sponsored by a group known
as Coloradans for Free Enterprise, which wanted to remove motor carriers
from the jurisdiction of the Public Utility Commission. Proponents had to
raise 46,737 signatures to qualify the initiative. Because they lacked
the necessary resources for a volunteer circulation effort, they filed
suit seeking an injunction against enforcement of the state's criminal
statute prohibiting paid signature gathering. A federal district court
upheld the Colorado statute but its decision was reversed by the U.S.
Supreme Court. In a unanimous decision, the Court concluded that the
circulation of petitions is political expression of either dissent with
existing public policy or a desire to create new policy. Justice Stevens
buttressed the point with a description of the petition process that
assumes extensive political discussion between solicitors and the public.
The prohibition against paid circulators, Stevens wrote, is a violation
of free speech because it curtails the number of [circulators'] voices
that will convey appellees' message and the hours they can speak and,
therefore, limits the size of the audience they can reach.
HCHH
Associates v. Citizens for Representative Government, 193 Cal. App. 3d
1193 (1987)
The California Appellate Court finds that an indoor shopping mall can not
ban petition gatherers but can impose reasonable rules on circulators.
Pruneyard
Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035 (1980)
The U.S. Supreme Court rules that state constitutional provisions that
permit political activity at a privately- owned shopping center does not
violate federal constitutional private property rights of owner.
Initiative & Referendum Institute v. Alvin
Jaeger, Secretary of State U.S. Court of Appeals for the Eighth Circuit
99-3434 (2001)
The case was filed in 1998 seeking to
overturn North Dakota’s prohibition on paying circulators on a
per-signature-basis and the requirement that circulators be eligible to
vote in North Dakota. A lower Federal District upheld the state laws and
an appeal was filed with the U.S. 8th Circuit. The 8th Circuit ruled on
February 15, 2001 that the lower court’s decision should stand. The
plaintiffs will be filing a request for a full rehearing enbanc and if
denied may apply for cert to the U.S. Supreme Court.
CAMPAIGN FINANCE ISSUES
Buckley v. American Constitutional Law Foundation
The Buckley case is the latest in a number of Supreme Court decisions
asking how far States may go in regulating the conduct of ballot
initiative campaigns. Since the success of term limit and tax limit
initiatives, elected officials across the country have been restricting
initiative campaigns. In 1988, the Supreme Court struck down Colorado's
restriction on paid initiative signature collection, saying that
initiative petitions were protected political speech. Meyer v. Grant, 486
U.S. 414 (1988). In Buckley, Colorado was asking that other restrictions
on petitions be upheld.
The question before the Court in Buckley was: Whether the State of
Colorado may constitutionally regulate the process of circulating
initiative petitions by requiring that: (1) petition circulators who
verify the signatures of petition signers must be registered electors;
(2) petition circulators must wear identification badges; and (3)
proponents of an initiative must file reports disclosing the amounts paid
to circulators and the identity of petition circulators.
In other words, Colorado attempted to regulate the collection of
signatures on initiative petitions by requiring signature collectors
("circulators") to be registered to vote in Colorado and to
wear badges with their names and addresses, whether they are paid or
volunteer, and, if paid, the name of the person or entity who is paying
them, and requiring initiative proponents to file reports disclosing the
names of and compensation paid to circulators. The U.S. Court of Appeals
for the Tenth Circuit 120 F.3d 1092 (1997) struck down these requirements
as unconstitutional infringements on political speech.
Petitioner Colorado claimed that it needed the restrictions to prevent
fraud and preserve the integrity of the electoral process, and that the
restrictions are permissible under the "flexible standard"
applicable to regulation of the ballot. Burdick v. Takushi, 504 US. 428,
434 (1992). Colorado was supported by amici briefs from a group of State
Attorneys General and by the Council of State Governments and a number of
other governmental associations.
The respondents were a conservative legal organization and several
individuals who have been involved in initiative campaigns (including
Paul Grant, of Meyer v. Grant). Respondents contended that the fraud
claims were a "facade," that the restrictions violated Meyer v.
Grant and that the various restrictions violated petition circulators'
and signers' free speech rights. Respondents were supported by a variety
of organizations from across the philosophical spectrum, including the
ACLU (click here to view amicus), the Initiative & Referendum
Institute (click here to view amicus), and National Voter Outreach, a
professional petition circulation firm. One of the amici's points was
that Colorado law explicitly placed signature collection outside the
electoral process (Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988), cert.
denied, 492 U.S. 921 (1989); accord, Delgado v. Smith, 861 F.2d 1489
(11th Cir. 1988), cert. denied, 492 U.S. 981 (1989)), making the proper
standard for review the strict scrutiny applicable to private speech.
The U.S. Supreme Court ruled on January 12, 1999 (click here for IRI
Press Release) striking down Colorado’s regulation and restrictions on
their initiative process as “undue hindrances to political conversations
and the exchange of ideas,” according to Justice Ruth Bader Ginsburg who
wrote for the court.
The decision by the court had two major points: 1) initiative petition
circulation is pure political speech and restrictions on circulation,
especially at the time of discussions with voters who might potentially
sign the petitions, is highly protected and 2) any restrictions on
petition circulation must be justified by strong showings that the
regulated practices hurt the integrity of the ballot process – in other
words, that the restrictions help prevent actual fraud. This will be
extremely difficult to do considering that no state has ever been able to
show convincingly that rampant fraud exists during the petition process.
Meyer
v. Grant, 486 U.S. 414 (1988)
A handful of states sought to protect the integrity of the initiative
process by prohibiting the payment of petition circulators. Colorado,
Idaho and Nebraska each made it illegal to accept financial reward for
signatures raised. The United States Supreme Court overturned these laws
in the 1988 decision, Meyer v. Grant, 486 U.S. 414 (1988). Such a law,
the Court ruled unanimously, restricts freedom of expression guaranteed
by the First Amendment: it restricts access to the most effective
fundamental and perhaps economical avenue of political discourse, direct
one-on-one communication.
The case arose out of an initiative proposal sponsored by a group known
as Coloradans for Free Enterprise, which wanted to remove motor carriers
from the jurisdiction of the Public Utility Commission. Proponents had to
raise 46,737 signatures to qualify the initiative. Because they lacked
the necessary resources for a volunteer circulation effort, they filed
suit seeking an injunction against enforcement of the state's criminal
statute prohibiting paid signature gathering. A federal district court upheld
the Colorado statute but its decision was reversed by the U.S. Supreme
Court. In a unanimous decision, the Court concluded that the circulation
of petitions is political expression of either dissent with existing
public policy or a desire to create new policy. Justice Stevens
buttressed the point with a description of the petition process that
assumes extensive political discussion between solicitors and the public.
The prohibition against paid circulators, Stevens wrote, is a violation
of free speech because it curtails the number of [circulators'] voices
that will convey appellees' message and the hours they can speak and,
therefore, limits the size of the audience they can reach.
Michigan Chamber of Commerce v. Austin, 832 F. 2d 947 (1987)
The federal appellate court rules that Michigan's provisions limiting
corporate contributions to ballot measure campaigns violates the right of
association and free speech guarantees of the First Amendment. Another
portion of the Michigan statute, prohibiting corporations from making
independent expenditures on behalf of political candidates from general
treasury funds, was upheld by the U.S. Supreme Court in Austin
v. Michigan State Chamber of Commerce, U.S., ll0 S. Ct. 1391
(1990)
Citizens Against Rent Control v. Berkeley, 454
U.S. 290 (1981)
In Citizens Against Rent Control v. Berkeley, the U.S. Supreme Court held
that a California city's ordinance to impose a limit on contributions to
committees formed to support or oppose ballot measures violated the First
Amendment. The Court determined that the Berkeley ordinance imposed
"...a significant restraint on the freedom of expression of groups
and those individuals who wish to express their views though commit
tees," and that "The tradition of volunteer committees for
collective action has manifested itself in myriad community and public
activities; in the political process it can focus on a candidate or on a
ballot measure." In a forceful passage the Court said,
"Whatever may be the state interest or degree of that interest in
regulating and limiting contributions to or expenditures of a candidate
or a candidate's committee there is no significant state or public
interest in curtailing debate and discussion of a ballot measure. Placing
limits on contributions that in turn limit expenditures plainly impairs
freedom of expression. The integrity of the political system will be adequately
protected if contributions are identified in a public filing revealing
the amounts contributed..." Again, the Court based its decision on
the right of individuals to bear and obtain information. In doing so, it
equated free political spending with free speech.
First
National Bank of Boston v. Bellotti, 435 U.S. 765 (1977)
The Supreme Court has supported the notion that one-sided spending is not
a crucial factor in ballot issue elections. Before 1976, 18 states had
laws prohibiting or limiting corporate contributions or spending in
initiative campaigns. But the Court found most of these laws to violate
the First and Fourteenth Amendments.
In First National Bank of Boston v. Bellotti, the U.S. Supreme Court
invalidated a Massachusetts statute prohibiting business corporations
from making contributions or expenditures "... for the purpose of
... influencing or affecting the vote on any question submitted to the
voters, other than one materially affecting any of the property, business
or assets of the corporation." In reviewing the Massachusetts law,
the Court said, "If the speakers here were not corporations, no one
would suggest that the state could silence their proposed speech. It is
the type of speech indispensable to decision-making in a democracy, and
this is no less true because the speech comes from a corporation rather
than an individual. The inherent worth of the speech in terms of its
capacity for informing the public does not depend on the identity of its
source..?' The Court rejected Massachusetts' claim that the statute
preserved the integrity of the electoral process and public confidence in
democratic government with this often quoted passage: 'The risk of
corruption perceived in cases involving candidate elections ... simply is
not present in a popular Vote on a public issue. To be sure, corporate
advertising may influence the outcome of the vote; this would be its
purpose. But the fact that advocacy may persuade the electorate is hardly
a reason to suppress it ... Moreover, the people in our democracy are
entrusted with the responsibility for judging and evaluating the relative
merits of conflicting arguments. They may consider in making their
judgment, the source and credibility of the advocate.
In the view of some, the Court was naive in its understanding of ballot
measure campaign finance matters. As of 1985, Michigan was the only state
still attempting to implement a statute limiting corporate contributions
to ballot measure campaigns. The limitation was $40,000 in volunteer
services and/or financial support ".. to each ballot question
committee for the qualification, passage, or defeat of a particular
ballot question?' A corporation could make an independent expenditure for
the qualification, passage, or defeat of a ballot question, but, if it
did so, the corporation would be considered "a ballot question
committee" for the purposes of the act. "Corporations formed
for political purposes" were not subject to the provision. The limit
on corporate financial participation in ballot questions was a provision
of a broader statute regulating campaign finance in Michigan.
In view of some critics, such as Western Illinois University political
science Professor John S. Shockley writing in the May 1985 issue of the
University of Miami Law Review, the Court was naive in its understanding
of ballot measure campaign finance matters. At the time be published his
article, Michigan was the only state still attempting to implement a
statute limiting corporate contributions to ballot measure campaigns. The
limitation was $40,000 in volunteer services and/or financial support
"...to each ballot question committee for the qualification,
passage, or defeat of a particular ballot questions' A corporation could
make an independent expenditure for the qualification, passage, or defeat
of a ballot question, but, if it did so, the corporation would be
considered "a ballot question committee" for the purposes of
the act. "Corporations formed for political purposes" were not
subject to the provision. The limit on corporate financial participation
in ballot questions was a provision of a broader statute regulating
campaign finance in Michigan. In his article, Professor Shockley thought
that the Michigan statute might withstand judicial scrutiny, as the state
government, in a test case, attempted to justify the limitation on
corporate funding of ballot question committees with a sophisticated body
of evidence on the pattern of corporate financial influence on Wolverine
State ballot question campaigns. The ballot contribution limit was
invalidated by the U.S. District Court decisions Michigan State Chamber
of Commerce v. Austin, 637 F. Supp. 1192 (E.D. Mich. 1986) and Michigan
State Chamber of Commerce v. Austin, 642 F. Supp. 1078 (Efl. Mich. 1986).
However, another portion of the Michigan statute, prohibiting
corporations from making independent expenditures on behalf of political
candidates from general treasury funds, was upheld by the U.S. Supreme
Court in Austin
v. Michigan State Chamber of Commerce, U.S., ll0 S. Ct. 1391 (1990).
In the Austin case, the Supreme Court eroded the high level of First
Amendment protection accorded campaign spending in the landmark Buckley
v.Valeo. 424 U.S. 1 (1976). The distinction in the litigation on the
Michigan statute is important; the federal judiciary has given a greater
measure of First Amendment protection to expenditures for ballot questions
than for campaigns for office. With the invalidation of the portion of
the Michigan campaign finance law limiting corporate contributions to
ballot measure campaigns, the last significant state government effort to
restrict special interest initiative and referendum related expenditures
failed.
Hardie
v. Eu, 18 Cal. 3d 371 (1977)
The California Supreme Court finds unconstitutional the Political Reform Act's
cap on expenditures for qualifying ballot measures since it violates
First Amendment rights.
Buckley v. Valeo, 424 U.S. 1 (1976)
Landmark First Amendment protection case pertaining to campaign spending.
Citizens
for Jobs and Energy v. Fair Political Practices Commission, 16 Cal. 3d
671 (1976)
The California Supreme Court declares that the Political Reform Act may
not limit expenditures by ballot measure committees.
Stanson
v. Mott, 17 Cal. 3d 206 (1976)
The California Supreme Court rules that the use of public funds for
election campaigning to promote or oppose a ballot measure is illegal.
Planning and Conservation League, Inc., et al.,
Plaintiffs and respondents, vs. Daniel E. Lingren, as Attorney General,
etc., Defendant and Appellant.
No. C016761. COURT OF APPEAL OF
CALIFORNIA, THIRD APPELLATE DISTRICT 38 Cal. App. 4th 497, 95 Cal. Daily
Op. Service 7477, 45 Cal. Rptr. 2d 183, 95 Daily Journal DAR 12761, 1995
Cal. App. LEXIS 918 (September 22, 1995, Decided) Superior Court of
Sacramento County, No. CV373836, James Timothy Ford, Judge.
This case invalidates a legislative
attempt to regulate the fashion in which initiatives can qualify for the
ballot.
Montana Chamber of Commerce v Argenbright (U.S.
9th Circuit of Appeals 98-36256, Opinion issued September 26, 2000)
The court of appeals affirmed judgments
of the district court. The court held that the First Amendment does not
permit restricting corporate expenditures as a means of expression on
public issues presented through a state's ballot initiative process.
PETITION REGULATIONS AND
REQUIREMENTS
Thomas J. Walsh & others vs. Secretary of
the Commonwealth (Massachusetts), SJC-07986
This litigation pertained to the validity of a petition and petition
signatures if the petition had been altered in any way.
Bilofsky
v. Deukmejian, 124 Cal. App. 3d 825 (1981)
California statute upheld as
constitutional that prevents the use of names gathered on initiative
petitions.
SINGLE SUBJECT REQUIREMENTS
Roberts, on behalf of Arkansans to Protect
Police, Libraries, Education & Services v. Priest, Secretary of the State
of Arkansas (State Supreme Court / Case Number 00-485)
The Arkansas Supreme Court prohibited
the Secretary of State from placing an initiative on the ballot that
sought to abolish ad valorem property taxes, increase sales tax, and
require that all future tax hikes be approved by three-fourths of the
legislature. The Court ruled that the language of the proposal was
misleading in that the ballot language and title mentioned only sales tax
while the actual act applied to all taxes in the future. The act, as
worded, would have a far more drastic effect that the title and summary
would depict, and voters may be mislead. The Court said that the wording
must be specific and the effects clear before a proposal can be submitted
to the voters.
Chemical Specialties Manufacturers v.
Deukinejian, 227 Cal. App. 3d 663 (199l)
The California Appellate Court finds Proposition 105, which requires
disclosure in a wide variety of areas (campaigns, hospitals, South
African contracts, etc.) Violates the single subject rule of the state
constitution.
Missourians to Protect Initiative Process v. Blunt, 799 S.W. 824
(1990)
The Missouri Supreme Court rules an initiative off the ballot because it
is a violation of the single subject rule of a ballot measure to
establish an ethics committee that regulates both the executive and the
legislative branches.
Insurance
Industry Initiative Campaign Committee v. Eu, 203 Cal. App. 3d 961 (1988)
An initiative measure can be prevented from being circulated if it
violates the single subject rule.
Senate of the State of California et al.,
petitioners v. Bill Jones,Respondents (California State Supreme Court
S083194)
This 1999 decision struck an initiative
off the California Primary Ballot because it violated the state's single
subject provision for initiatives.
Amalgamated Transit Union Local 587 vs. The
State of Washington (99-2-27054-1 SEA Superior Court of the State of
Washington in and for the County of King - 2000)
This case struck down initiative I-695,
after being adopted by the voters, as violating the state's single
subject requirement for initiatives. The ruling was appealed to the
Washington State Supreme Court and as of 3/1/00 no ruling had been
reached. The Initiative and Referendum Institute submitted an amicus
brief to the Supreme Court regarding the single subject requirement for
the initiative.
California Trial Lawyers Association v. Eu, 200
Cal.App.3d 351 (1988)
This case was the first successful
pre-ballot challenge to a California initiative under the single subject
rule.
Finn v. McCuen, 303 Ark. 418,
798 S.W. 2d 34 (1990)
Since the title of a lottery measure is
misleading, the Supreme Court finds that the measure should be allowed on
the ballot.
ACCESS REGULATIONS
Initiative & Referendum
Institute v. United States Postal Service (U.S. District Court for the
District of Columbia 1:00CV01246)
The Initiative & Referendum
Institute filed this case on June 1, 2000 to challenge the
constitutionality of recently-promulgated U.S. Postal Service
("USPS") regulations that prohibit individuals from gathering
signatures on petitions on Postal Service property, including sidewalks
and other outdoor areas generally open to the public. Plaintiffs are
groups and individuals who sponsor and/or collect signatures for ballot
measures around the country.
Click here for IRI press release
Click here for statement by IRI President M.
Dane Waters
Click here for copy of complaint
Click here for copy of TRO request
Stranahan v. Meyer (CC 9110-06504: CA A88372: SC
S45547)
In this case the Oregon State Supreme
Court reversed one of its earlier decisions and ruled that the collection
of signatures is banned on all private property.
IRI v. Costco (State Court
– BC 18052) (1998)
This case was filed in 1998 and seeks
to require Costco stores to adhere to existing California law and
establish standard and reasonable time, place and manner restrictions for
petitioners. Costco is currently violating the constitutional rights of
Californians wishing to engage in non-commercial expressive activity. The
case is pending and waiting a decision.
IRI v. Ralph’s (State Court – BC
187162) (1998)
This case was filed in 1998 and seeks
to require Ralph’s stores to adhere to existing California law and
establish standard and reasonable time, place and manner restrictions for
petitioners. Ralphs is currently violating the constitutional rights of
Californians wishing to engage in non-commercial expressive activity. The
case is pending and waiting a decision.
HCHH Associates v. Citizens for Representative
Government, 193 Cal. App. 3d 1193 (1987)
The California Appellate Court finds that an indoor shopping mall can not
ban petition gatherers but can impose reasonable rules on circulators.
Pruneyard Shopping Center v. Robins, 447 U.S. 74,
100 S. Ct. 2035 (1980)
The U.S. Supreme Court rules that state constitutional provisions that
permit political activity at a privately- owned shopping center does not
violate federal constitutional private property rights of owner.
Waremart Inc. v. Progressive Campaigns Inc.
(Washington State Supreme Court - 67029-3)
The State Supreme court ruled that
grocery stores do not have to allow initiative petitioning on their
property.
CONFLICTING INITIATIVES ON
THE BALLOT
Taxpayers to Limit Campaign Spending v. FPPC, 51
Cal. 3d 744 (1990)
The California Supreme Court finds that where two initiatives covering
the same topic (campaign financing) appear on the same ballot, the one
initiative receiving the most votes supersedes the other measure in all
respects, even though some of the provisions of the one initiative with
fewer voters do not conflict with the provisions of the other measure
receiving the higher number of votes.
State ex. Rel. Nelson v, Jordan, 104 Ariz. 193 (1969)
The Arizona Supreme Court finds that where two initiatives conflict, it
is the duty of the court to harmonize both.
MISCELLANEOUS DECISIONS
Michigan United Conservation Coalition v.
Secretary of State, No. 119274(2001).
In this case the Michigan State Supreme
Court ruled that a concealed weapons law could not be referred because it
included a clause for financial appropriations, which are not subject to
referral. The dissent argued that the legislature had included the
appropriations clause only to prevent the law from being referred.
Initiative & Referendum Institute v. Alvin
Jaeger, Secretary of State U.S. Court of Appeals for the Eighth Circuit
99-3434 (2001)
The case was filed in 1998 seeking to
overturn North Dakota’s prohibition on paying circulators on a
per-signature-basis and the requirement that circulators be eligible to
vote in North Dakota. A lower Federal District upheld the state laws and
an appeal was filed with the U.S. 8th Circuit. The 8th Circuit ruled on
February 15, 2001 that the lower court’s decision should stand. The
plaintiffs will be filing a request for a full rehearing enbanc and if
denied may apply for cert to the U.S. Supreme Court.
Idaho
Coalition United for Bears et al v. Cenarussa, D.C. No. 00-0668-S-BLW
(2001)
The U.S District Court struck down
state laws requiring signatures from 6% of each of Idaho's 22 counties, prohibiting
the payment of circulators on a per-signature basis, and prohibiting
circulators from willfully making a false statement to obtain signatures,
and upheld the law requiring circulators to be residents of the state.
Click
here for the judgement
Initiative & Referendum Institute vs. State
of Utah (2-00-cv-837)
This case, filed in the United States
District Court for the District of Utah on October 23, 2000, seeks the
court to review, declare unconstitutional and enjoin enforcement of
Proposition 5, the 1998 legislatively sponsored amendment to the Utah
Constitution, Article VI, Section 1. The amendment to the Utah
Constitution requires any citizen ballot initiative involving wildlife to
pass with a two-thirds supermajority vote of the Utah electorate.
Click here for Plaintiffs' Opposition I
Memorandum to Defendants' Motion to Dismiss
Click here for Plaintiffs' Opposition II
Memorandum to Defendants' Motion in RE: Asserted First Amendment Rights
WIN v Warheit (U.S. Court of Appeals for the
Ninth Circuit 98-35412)
In this 2000 case, the court struck down
the Washington State requirement that requires the names, addresses and
salaries of people hired to gather signatures for ballot initiatives is
unconstitutional.
Dale
v. Keisling (Court of Appeals of the State of Oregon 98-18552;CA A105873)
and Sager
v. Keisling (Court of Appeals of the State of Oregon 98C-19306; CA
A105913)
In these cases, the Oregon Court of
Appeals ruled that “a constitutional initiative or referral is invalid
(and none of its provisions take effect, regardless of the vote), unless
the court determines that voters would necessarily have approved every
single element of the measure, if those elements were stated separately.”
Campbell, Hamilton, IRI et. al.
v. Buckley (Federal District Court–98B 1022) (1998)
This case was filed in 1998 and
challenges Colorado’s constitutional, statutory, and administrative
procedures for review of initiative measures before they are placed on
the ballot. The current regulations violate the First Amendment rights of
petition proponents and voters. The lower court ruled against the
complaint and has been appealed to the U.S. Supreme Court.
Click here for 10th circuit decision
Click
here for Cert petition to U.S. Supreme Court
SAN FRANCISCO FORTY-NINERS, Plaintiff and
Respondent, v.NAOMI NISHIOKA, as Acting Director, etc., et al.,
Defendants and Respondents; DOUGLAS COMSTOCK et al., Real Parties in
Interest and Appellants.A083687 (San Francisco County Super. Ct. No.
995661- 1999)
In this case the San Francisco Superior
Court issued a writ of mandate prohibiting respondent San Francisco
Director of Elections from qualifying an initiative measure for the
ballot. The writ issued on the ground that the circulating initiative
petition contained false statements intended to mislead voters and induce
them to sign the petition.
Joytime Distributors and Amusement Co., Inc.,
Plaintiff, v. The State of South Carolina, Defendant. (In the original
jurisdiction in the South Carolina Supreme Court - Opinion No. 25007
heard October 12, 1999 - filed October 14, 1999)
In this case, the South Carolina
Supreme Court ruled that the state legislature did not have the authority
to place statutes on the ballot for a general vote of the people.
State of Nebraska ex rel. Don Stenberg, Attorney
General of the State of Nebraska, appellant, v. Scott Moore, Secretary of
State of the State of Nebraska, appellee. (State ex rel. Stenberg v.
Moore, 258 Neb. 199 Filed November 19, 1999. No. S-98-983.)
In Stenberg v. Moore, the Nebraska
Supreme Court dealt with the constitutionality of a Nebraskan statute
that required that the information a voter puts on an initiative petition
(signature, address, etc.) be an exact match of what is in the voter
registration records in order for the signature to be counted as a valid
signature. The Nebraska Supreme Court ruled that this law was facially
unconstitutional.
In this case, Attorney General Don
Stenberg argued that the law was facially unconstitutional because it
required an 'exact match' between the information a signer places on a
petition and the voter registration records. As a result, some signatures
do not get counted even though the signers are registered voters. The
Attorney General also contended that the law was unconstitutional because
it created a hardship for voters, created situations in which signatures
were improperly presumed to be invalid, and because the Legislature can
only legislate the initiative process in order to facilitate the process
and prevent fraud. The Secretary of State Scott Moore contended that the
law did not require an 'exact match' and that the provision did act to
prevent fraud. The Secretary of State further argued that although
signatures that do not match the voter registration records are not
presumed to be valid, it does not mean the signatures are presumed to be
invalid. Rather, the Secretary of State contended that signatures that do
not match simply require additional inquiry before they can be counted.
The Nebraska Supreme Court ruled that
even though the Secretary of State did issue guidelines allowing
signatures to be declared valid even if they were not entirely an exact
match (if the signer used a known nickname --Bill instead of William,
etc-- or if the address was misspelled), that the legislative intention
of the law was to mandate that the information be an exact match. The
Court then went on to rule that because the Nebraska Constitution
mandates that the Legislature can only enact statutes that 'facilitate
the operation' of the initiative process, and because this law worked to
hamper the initiative process, that law was unconstitutional.
In short, the court ruled that:
"A requirement that the voters be
responsible for independently proving the validity of signatures that
were invalidated because they did not exactly match the registration
records is contrary to the high value we place on the right of the people
to engage in the initiative and referendum process. Any presumption must
be in favor of the legality of the signer's act. Further, it is clear
from State ex rel. Morris v. Marsh, supra, that signatures cannot be
discounted due to technical errors. The exact match requirement of
32-1409(1) has the potential to cause some signatures not to be counted
on the basis of technical errors.
Section 32-1409(1) also cannot be
considered as a necessary provision for the prevention of fraud. Less
onerous provisions are already in place to prevent fraud in the
initiative and referendum process. For example, it is a crime to falsify
information on a petition or for an unregistered voter to sign a
petition. See, e.g., Neb. Rev. Stat. 32-1546 (Reissue 1998). A provision
enacted to prevent fraud that also has the effect of causing the
signatures of some registered voters not to be counted cannot be deemed to
facilitate the initiative process. Finally, the legislative history
indicates that 32-1409(1) was enacted in part as a way to ease the
counting process for county officials by placing decisions regarding
signatures with the Secretary of State. However, the convenience of the
public must take precedence over convenience to public officials in
legislation affecting the initiative process. Section 32-1409(1)
improperly hampers the public by making it more difficult for valid
signatures to be counted."
ON OUR TERMS '97 PAC, et al., Plaintiffs v.
SECRETARY OF STATE OF STATE OF MAINE, (UNITED STATES DISTRICT COURT
DISTRICT OF MAINE Civil No. 98-104-B-DMC)
In early 1999, the Initiative & Referendum
Institute brought a lawsuit in he U.S. District Court of Maine
challenging Maine's prohibition on the payment of signature-gatherers on
a per-signature basis (instead of by salary.) Although the Court ruled
that the Institute did not have standing to bring the case (because the
Institute was not engaged in any initiative campaigns in that state), the
Court did allow two other plaintiffs to remain.
Even though the Initiative &
Referendum Institute did not have standing in the case, the Institute was
the organization that controlled the legal strategy, coordinated the
lawsuit and funded the legal challenge. On December 10, 1999 the U.S.
District Court ruled ( in On Our Terms '97 PAC, et al., v. Secretary of
State of State of Maine) that the prohibition was unconstitutional. The
remaining plaintiffs, U.S. Term Limits (a group trying to get an
initiative on Maine's ballot) and On Our Terms (a group contracted to
collect the signatures and run the ballot campaign) argued that the
regulation was so restrictive (in that it made it very difficult to
collect signatures) that it caused them to stop collecting signatures and
cancel their campaign, and was thus an unconstitutional burden on core
political speech. Furthermore, they argued that due to the burden of the
regulation they would never do an initiative in Maine until the law was
changed. The State of Maine argued that the regulation was necessary to
prevent fraud because paying petitioners by the number of signatures they
gather encourages them to forge signatures. They also argued that while
U.S. Term Limits and On Our Terms stopped their campaigns, other groups
went on to qualify issues for the ballot and therefore the regulation was
not burdensome.
The U.S. District Court ruled, citing Meyer v.
Grant, that the circulation of an initiative or referendum
petition "involves the type of interactive communication concerning
change that is appropriately described as core political speech" and
citing Buckley v. ACLF, that a state may not, consistent with the First
Amendment, severely burden such speech unless the regulation at issue is
"narrowly tailored to serve a compelling state interest." The
Court ruled that although the regulation didn't have the effect of
halting all initiative and referendum activity in Maine (and that the
proponents probably could have put their initiative on the ballot if they
had worked harder and spent more), that the Statute nevertheless severely
burdened the plaintiffs' attempt to mount their drive.
Furthermore, because the State of Maine
could not provide any proof of rampant fraud in the Maine initiative
process through out its history or provide proof that petitioners paid by
the signature, instead of salary, were more likely to commit fraud, the
State fell short of demonstrating that the Statute was narrowly tailored
to meet a compelling state interest. The Court added that Meyer v. Grant
"makes clear that, in the context of strict scrutiny, a state's assumptions
cannot be accepted at face value."
The Initiative & Referendum
Institute is currently engaged in litigation in North Dakota concerning
the same issue litigated in this case.
Boyette v. Galvin (No.
98-CV-10377-GAO filed in the Federal District Court for the District of
Massachusetts)
On March 3, 1998, The Becket Fund filed a lawsuit on
behalf of a group of Massachusetts citizens challenging provisions of the
Massachusetts Constitution which forbid citizens from petitioning the
legislature for private school funding. Several provisions in the
Massachusetts constitution stood in the way: the Anti-Aid Amendment,
which barred any portion of the common school fund from going to
"sectarian" schools, adopted at the height of anti-immigrant
and anti-Catholic fervor during the 1850s; and a 1917 amendment that
expanded the earlier amendment to include higher education and non-profit
groups, and also created initiative and referendum procedures for the
state while explicitly forbidding the use of them to amend the Anti-Aid
Amendment. A separate background sheet prepared by the Beckett Fund
provides more detail and is available by going to http://www.becketfund.org.
In September, 1998, a federal judge
signed an order permitting a petition to be circulated for signatures
while the court challenge was pending. Nearly 59,000 signatures were
gathered, but several thousand were disqualified, leaving the effort just
short of the 57,100 needed. Another petition drive was launched in 1999,
and this time more than 78,000 were certified, easily surpassing the
minimum requirement. But in order for the petition to come before the
legislature, and henceforth the voters, the Attorney General must certify
that it is proper for the legislators to take it up. In a letter of
September 1, 1999, he declared that one of the very constitutional
provisions being challenged prohibits him from doing so. And thus, on
April 6, 2000, The Becket Fund asked the federal district court in Boston
to order the Attorney General to certify the petition so that it can be
taken up by legislators before the May 10, 2000 deadline. (See the full
text of the memorandum in support of a motion for a preliminary
injunction by going to http://www.becketfund.org)
This description provided courtesy of
The Beckett Fund.
Pacific States Tel. & Tel.
Co. v. Oregon (223 U.S. 118) (1912)
This case addressed whether Oregon's
I&R system violated the Guarantee Clause of the U.S. Constitution.
The court sidestepped the issue by holding that whether a state had a
republican form of government is a political question, and therefore
non-justiciable. The court was motivated in part by a reluctance to
conclude that adoption of the initiative and referendum destroyed all
government republican in form in Oregon. The Court stated "[t]his
being so, the contention, if held to be sound, would necessarily affect
the validity, not only of the particular statute which is before us, but
of every other statute passed in Oregon since the adoption of the
initiative and referendum." Any such determination should, the court
concluded, be made by Congress. This seemed to settle the issue at the federal
level.
Kadderly v. City of Portland, 44
Or. 118, 74 P. 710 (1903)
In this case, the Oregon Supreme Court
sustained I&R against a Guarantee Clause attack. The court stated,
"The purpose of this provision of the Constitution is to protect the
people of the several states against aristocratic and monarchical
invasions, and against insurrections and domestic violence, and to
prevent them from abolishing a republican form of government. Cooley,
Const. Lim. (7th Ed.) 45; 2 Story, Const. (5th Ed.) 1815. But it does not
forbid them from amending or changing their Constitution in any way they
may see fit, so long as none of these results is accomplished. No
particular style of government is designated in the Constitution as
republican, nor is its exact form in any way prescribed."
The court acknowledged that James
Madison had described republican government as representative, but
stated, "Now, the initiative and referendum amendment does not
abolish or destroy the republican form of government, or substitute
another in its place. The representative character of the government
still remains. The people have simply reserved to themselves a larger
share of legislative power, but they have not overthrown the republican
form of the government, or substituted another in its place. The
government is still divided into the legislative, executive, and
judicial departments, the duties of which are discharged by
representatives selected by the people. Under this amendment, it is true,
the people may exercise a legislative power, and may, in effect, veto or
defeat bills passed and approved by the Legislature and the Governor; but
the legislative and executive departments are not destroyed, nor are
their powers or authority materially curtailed.
In re Pfahler, 150 Cal. 71, 88 P.
270 (1906)
In this case, the California Supreme
Court upheld a local initiative law against a Guarantee Clause challenge
while implying that similar measures on the state level would be
constitutional as well. The court stated: "In saying this, we do not
wish to be understood as intimating that the people of a state may not
reserve the supervisory control as to general state legislation afforded
by the initiative and referendum, without violating this provision of the
federal Constitution."
Hartig v. City of Seattle, 53
Wash. 432, 102 P. 408 (1909)
In 1909, the Washington Supreme Court
considered whether I&R violated the Guarantee Clause of the Federal
Constitution. The Washington court did not think the question of
representative government was relevant at all to the question of whether
a form of government was republican. They stated:
"[I]t can scarcely be contended
that this plan is inconsistent with a republican form of government, the
central idea of which is a government by the people. Whether the
expression of the will of the people be made directly by their own acts
or through representatives chosen by them is not material. The important
consideration is a full expression."
Bernzen v. Boulder, 186 Colo. 81,
525 P.2d 416 (1974)
In this case, the court ruled that
recall, as well as initiative and referendum, were fundamental rights of
a republican form of government which the people have reserved unto
themselves.
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