Threats and Restrictions

The Initiative process has been used throughout its history as a tool for the people to utilize to reign in government when it has become too powerful and when government refuses to deal with the issues supported by the people. Since the end result of most initiatives, especially those that reign in government, has been to limit the government’s power, elected officials have taken offense.

Legislative attempts to “reform” the process aren’t new. Legislators since the first use of the process have been trying to restrict its use for they see it – rightfully so – as a means reserved to the people to limit their power. But as William Jennings Bryon said in 1920:

[W]e have the initiative and referendum in Nebraska; do not disturb them. If defects are discovered, correct them and perfect the machinery … make it possible for the people to have what they want … we are the world’s teacher in democracy; the world looks to us for an example. We cannot ask others to trust the people unless we are ourselves willing to trust them.

California is a perfect example. Since the voters first adopted the initiative process in 1912, the state legislature has consistently tried to make it more difficult. When California first adopted the process, the citizens had an unlimited amount of time to collect signatures. Then, as the population of the state ballooned - which meant that the signatures had to collect more signatures on petitions – the state legislature was busy shortening the circulation period. It went from unlimited to four years and then to the current requirement of 180 days to collect over 750,000 signatures. One could legitimately question the rationale of drastically decreasing the circulation period during a period of high population growth.

Modern day attempts to reform the process is even more prevalent. From 1998 to 2000, nine states—Arizona, Idaho, Mississippi, Missouri, Montana, Oklahoma, Utah and Wyoming—have tightened procedural restrictions on initiatives.

In November 2000, Nebraska voters rejected a law placed on the ballot by the state legislature that would require initiatives to pass twice before becoming law. Legislators in Alaska, Arizona and Washington are debating whether to impose new geographic distribution requirements for petition circulators, while California and Florida legislators are mulling whether to change the majorities required to pass initiatives. And on May 16th, 2000 Oregon voters went to the polls and defeated an increase in the number of signatures required to place a constitutional amendment on the ballot – an amendment placed on the ballot by the state legislature.

Despite the fact that the citizens adopted the initiative process to ensure citizen government, most of the states where the citizens provided that they retain initiative rights have seen the legislature enact legislation that restricts rather than facilitates the use of these powers by the people. The legislatures’ regulation of the initiative and referendum have often violated the citizenry’s First Amendment rights as articulated by U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1986). It can be argued that not a single example of truly facilitating legislation has ever been enacted by any state legislature. Furthermore, the restrictions imposed on the citizenry are typically not imposed on other individuals seeking to use a state’s electoral processes to invoke changes in state government, whether it be through lobbying, legislating, or running for political office.

A variety of legislative enactments in various states demonstrate how the legislatures have reacted to the use of the initiative process. Many argue that their response appears based on self-interest rather than an interest in protecting a system of government where the citizens are an independent branch of government. A review of the various legislatures’ responses, many argue, reveal that control of a distinct branch of government, the people, by legislative action is not about fraud but about raw political power.

Similar restrictions are not imposed on lobbyists or other campaign workers. It has been noted that legislators enacted restrictions for the apparent purpose of “maintaining the integrity of the initiative process.” Despite this asserted interest, however, the legislatures in the initiative states have failed to impose the same or similar restrictions on lobbyists hired to influence legislation and/or executive policy or individuals hired to work on a candidate’s campaign for political office, including the circulation of a candidate’s nominating petitions.

This disparate treatment can be seen in Mississippi’s Lobbying Reform Act of 1994. While the Act defines “lobbying” as including “(i) Influencing or attempting to influence legislative or executive action through oral or written communication;” the legislature has imposed no restrictions on who may come into the state seeking to influence the course of legislative and executive policymaking. Yet, it requires those utilizing the initiative to be residents of the state.

Similarly, despite having residency requirements for circulators of initiative and referendum petitions, Wyoming fails to impose similar restrictions on lobbyists. Furthermore, while Wyoming requires petitions for candidates who are nominated by petition as independent candidates to include a circulator’s verification, no statements indicate that the nomination petitions must be circulated by “qualified registered voters.” Nor does Wyoming prohibit paying these circulators based on the number of signatures they collect.

In Colorado, while circulators of petitions for candidacy and recall must be eligible electors in the political subdivision where they are circulating petitions and they must affiliated with the political party of the candidate for at least two (2) months prior to filing the petition, no provisions exist regarding paying such circulators and having such payment information printed on nomination petitions as there exist for initiative petition circulators. Nor does it make provisions for such circulators to wear identification badges or to file monthly disclosure requirements for paid nominating petition circulators. Similarly, Colorado imposes no residency or voter registration requirements for lobbyists nor does it require lobbyists to wear identification badges.

Oddly, at the time the Colorado Legislature deemed it necessary to enact restrictions on those seeking to use the initiative process, it did not also impose the same limitations on lobbyists who are, like sponsors of initiatives, seeking to influence Colorado’s elected officials.

Maine does not impose the same restrictions regarding residency and voter registration on lobbyists as it does on initiative and referendum petition circulators. Nor does it impose the initiative restrictions on circulators of nominating petitions.

In Idaho, lobbyists are not required to wear display tags at the time of lobbying. More importantly, while the legislature requires persons seeking to evoke change through the initiative and referendum to be residents of the state, persons seeking to accomplish the same thing via lobbying are not required to be residents or registered voters of Idaho.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.

Bans on Productivity Pay

Eight states - Alaska, Colorado, Montana, Nebraska, North Dakota, South Dakota, Wyoming, and Oregon - ban or restrict paying people who collect signatures on a ballot initiative, referendum or recall petition based on their productivity, or the number of signatures they collect. Payment-per-signature allows citizens greater certainty in judging the cost of a petition effort. Moreover, in states that have passed such bans, the cost of successfully completing a petition drive has risen considerably, sometimes more than doubling. Federal courts have struck down these bans in five different states – Maine, Mississippi, Ohio, Washington and Idaho – for violating the First Amendment.

Currently, bans are being challenged in Nebraska, Oregon, and Colorado.

Paying Petition Circulators by the Signature and the Courts

Citizens for Tax Reform v. Deters – United States Sixth Circuit Court of Appeals in 2006 strikes down Ohio’s ban on paying petition circulators by the signature, noting that it “runs afoul of the First Amendment because it creates a significant burden on a core political speech right that is not narrowly tailored.”

Prete v. Bradbury – United States Ninth Circuit Court of Appeals in 2006 found that Oregon’s voter-approved ban on paying petition circulators by the signature did not violate the constitution.

Person v. New York State Board of Elections – United States Second Circuit Court of Appeals found in 2006 that New York’s prohibition on paying petition circulators by the signature did not violate the constitution.

Idaho Coalition United for Bears v. Cenarrusa – United States District Court in 2001 invalidated Idaho’s ban on paying petition circulators by the signature, noting that “payment on a per signature basis is [Constitutionally] protected speech.”

Initiative & Referendum Institute v. Jaeger – United States Eighth Circuit Court of Appeals in 2000 upholds North Dakota’s requirement that petition circulators be state residents, noting that plaintiffs did not present evidence that such requirements reduce free speech.

On Our Terms ’97 PAC v. SoS – United States District Court in 1999 invalidated Maine’s law making banning paying petition circulators by the signature because it violated the first amendment.

Term Limits Leadership Council v. Clark – United States District Court in 1997 found that Mississippi’s ban on paying petition circulators by the signature “clearly…burden plaintiffs’ political expression” and therefore violated the first amendment.

LIMIT v Maleng – United States District Court in 1994 ruled that Washington’s ban on paying petition circulators by the signature “unconstitutionally infringes on the freedom of political speech guaranteed by the First Amendment.”

Meyer v. Grant – United States Supreme Court in 1988 found that Colorado’s ban on paying petition circulators was unconstitutional.

 

Circulation Periods

Petition sponsors need ample time to collect the tens of thousands of signatures needed to qualify for the ballot. Short circulation periods hurt the ability of petition sponsors to make the ballot, and make it almost impossible for grassroots volunteer efforts to qualify. States should have ample circulation periods - at least nine months - to allow petition sponsors an opportunity to qualify for the ballot.

Different Voting Rules

Different voting schemes are used for legislation versus initiatives. In addition to placing additional qualifications on persons seeking to use the initiative process, several states have also imposed unique voting schemes on initiatives; thereby making it more difficult for the people to successfully enact their proposals.

In Mississippi, constitutional amendments proposed by the legislature become part of the constitution “if it shall appear that a majority of the qualified electors voting directly for or against the same shall have voted for the proposed change, alteration or amendment”. However, for constitutional amendments proposed by the people through the initiative, the initiative or legislative alternative “must receive a majority of the votes thereon and not less than forty percent (40%) of the total votes cast at the election at which the measure was submitted to be approved.”

Wyoming allows passage of an initiative only when “an amount in excess of fifty percent (50%) of those voting in the general election” cast a vote in favor of the proposed measure, not just a majority of those voting on the proposed measure. Thus, if voters choose not to vote on a measure, their non-vote is counted against it.

Massachusetts provides that legislative constitutional amendments, “if approved by a majority of the voters voting thereon,” become part of the constitution. On the other hand, amendments proposed through the initiative or legislative substitutes become part of the constitution if approved “by voters equal in number to at least thirty percent of the total number of ballots cast at such state election and also by a majority of the voters voting on such amendment.”

Utah amended their constitution in 1998 to require a two-thirds vote of the people in order to adopt by initiative a state law allowing, limiting, or prohibiting the taking of wildlife or the season for or method of taking wildlife.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.

Registration Requirements for Petition Circulators

Registration requirements have been suggested in the legislatures of many states in recent years, making registration an up-and-coming threat to petitioning rights.

Forcing petition circulators to register means petition supporters must obtain permission from the state to engage in free speech activity. Both Federal and state courts have been very clear that petitioning is highly protected political speech under the First and Fourteenth Amendments to the Constitution. The protections on free speech activity outlined in the United States Constitution are there specifically to protect against the restriction of speech by the state. No one should have to get permission from the state to exercise their rights under the First Amendment.

 

Residency Requirements

Residency requirements are one of the most frequently imposed restrictions on the initiative process. These laws require that someone circulating a petition for an initiative, referendum, or recall effort be a resident of the state, county, or locality that the petition is aimed at. Supporters of such requirements claim that they are needed to reduce fraud and insure that circulators can be found if signatures are challenged.

Residency requirements are almost impossible to enforce while a petition is being circulated. As a result, voters are often disenfranchised when their signature on a petition is thrown out by election officials because a circulator did not meet the residency requirement. This is compounded when qualifications for residency are unclear or are arbitrarily enforced by officials. Critics of residency requirements claim they also prevent petition proponents from using professional signature collectors, which are often necessary to collect the number of signatures needed in the amount of time allowed.

Residency requirements in three states—Ohio, Arizona, and Oklahoma—were struck down by federal courts in 2008 for violating the First Amendment. In all three cases the courts determined that residency requirements necessarily reduce free speech by reducing the number of people who are able to carry a political message; i.e. a petition. The courts have also noted that non-resident circulators are no more likely to commit fraud than resident circulators.

Currently, residency requirements are being challenged in Colorado and Nebraska. In the Colorado case a federal judge has suspended the state’s residency requirement, finding it likely to be struck down.

14 States  Have Residency Requirements

Alaska, Arizona, California, Colorado, Idaho, Maine, Michigan, Mississippi, Montana, Nebraska, North Dakota, South Dakota, Wyoming and Utah.

Residency Requirements for Petition Circulators and the Courts

Green Party of Arizona v. Bennett – United States District Court in 2010 ruled that Arizona cannot ban out of state petition circulators for political party ballot access petitions because such ban violates petitioners First and Fourteenth Amendment rights to freedom of speech and association.

Bogaert v. Land – United States District Court in 2009 finds that Michigan’s requirement that people circulating petitions for a recall election be residents of the political subdivision they are circulating in violates petitioners First and Fourteenth Amendment rights to freedom of speech and association.

Yes on Term Limits v. Savage – United States Tenth Circuit Court of Appeals in 2008 strikes down Oklahoma’s ban on non-resident petition circulators, finding that it violates petitioners’ First and Fourteenth Amendment rights to freedom of speech and association.

Nader v Blackwell – United States Sixth Circuit Court of Appeals in 2008 strikes down Ohio’s ban on non-resident petition circulators for political candidates, finding that it violates the first amendment rights of petitioners.

Nader v. Brewer – United States Ninth Circuit Court of Appeals in 2008 finds that Arizona’s ban on non-resident petition circulators for presidential candidates violates petitioners’ constitutional rights. In their decision the Court notes that the2000 Jaeger decision by the Eighth Circuit was poorly decided and failed to take relevant precedent into account.

Preserve Shorecliff Homeowners v. City of San Clemente – California Court of Appeals in 2007 strikes down portions of the state election code requiring people who circulate petitions for a veto referendum be residents of the city they are circulating in because those sections violate petitioners’ First and Fourteenth Amendment rights to freedom of speech and association.

Frami v. Ponto – United States Seventh Circuit Court of Appeals in 2003 ruled that a statute requiring that petition circulators be residents of the state and of the political subdivision in which they were circulating petitions, was an unconstitutional abridgement of the first amendment.

Chandler v. City of Arvada - United States Tenth Circuit Court of Appeals in 2002 invalidated a requirement that petition circulators in Arvada, CO be residents of the city.

Krislov v. Rednour – United States Seventh Circuit Court of Appeals in 2000 invalidated Illinois’s law requiring that petition circulators be residents of the state because the requirement violates petitioners’ First and Fourteenth Amendment rights to freedom of speech and association.

Initiative & Referendum Institute v. Jaeger – United States Eighth Circuit Court of Appeals in 2000 upholds North Dakota’s requirement that petition circulators be state residents, noting that plaintiffs did not present evidence that such requirements reduce free speech.

Lerman v. Board of Elections – United States Second Circuit Court of Appeals in 2000 holds that New York’s requirement that witnesses to ballot access petitions be residents of the subdivision the election is held is “unconstitutional on its face.”

Term Limits Leadership Council v. Clark – United States District Court in 1997 found that Mississippi’s requirement that petition circulators be state residents “clearly…burden plaintiffs’ political expression” and therefore violated the first amendment. 

 

Distribution Requirements

A distribution requirement is a legislative or state constitutional mandate requiring that petitions for a ballot measure must be signed by voters from different political subdivisions – such as counties – in order for the ballot measure to qualify for the ballot. Distribution requirements have been struck down in five states, and are currently under legal challenge in three.

Supporters of distribution requirements argue that they are a way of demonstrating “widespread support” for a ballot measure because registered voters from a variety of political subdivisions signed petitions for the ballot measure. In reality, these requirements diminish the voice of voters in certain districts while unfairly amplifying the voice of voters in others.

Distribution requirements can significantly drive up the cost of petition drives by forcing signatures to be collected in sparsely populated areas. Federal courts have ruled that these requirements are so onerous on the free speech rights of petition proponents that they violate the constitution. In addition, courts have ruled that distribution requirements violate the equal protection clause – one person, one vote – because they require distribution over subdivisions that aren’t equal in population.  Distribution requirements have been struck down in Illinois, Idaho, Utah, Montana, and twice in Nevada.

The following states currently have distribution requirements: Alaska, Arkansas, Florida, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, Ohio, Utah, and Wyoming.

Currently, distribution requirements are under legal challenge in Nebraska, Nevada, and Ohio.

Distribution Requirements and the Courts

 

Marijuana Policy Project v. Miller ­– United States District Court in 2007 found that Nevada’s requirement that signatures be gathered in each county in the state was virtually identical to another Nevada distribution requirement ruled unconstitutional by the Ninth Circuit Court of Appeals.

ACLU v. Lomax – United States Ninth Circuit Court of Appeals in 2003 struck down Nevada’s requirement that petition signatures come from 13 of the state’s 17 counties, noting that the requirement was identical to the one struck down in Cenarrusa.

Montana PIRG v. Johnson – United states District Court in 2003 ruled that Montana’s county-based distribution requirement was unconstitutional.

Gallivan v. Walker - Utah Supreme Court in 2001 struck down that state’s county-based distribution requirement, declaring that the initiative right is a “fundamental right implicit in a free society” and that the distribution requirement impinged on it.

Idaho Coalition United for Bears v. Cenarrusa – United States District Court in 2001 Idaho’s distribution requirement for initiatives was unconstitutional on the grounds that the restrictions violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. In 2003, the decision was appealed by the state of Idaho to United States Court of Appeals for the Ninth Circuit, which affirmed the lower court’s ruling.

Moore v. Ogilvie – United States Supreme Court in 1969 struck down an Illinois’s county-based distribution requirement saying that it “applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, and thus discriminates against the residents of the populous counties in the exercise of their political rights in violation of the Equal Protection Clause of the Fourteenth Amendment.”