Prop*50

Colorado: Lawsuit filed against TABOR

A bipartisan group of 34 people, many of them former state and local elected officials, is expected to file a challenge in federal court to Colorado's Taxpayers Bill of Rights (TABOR) today. Colorado's TABOR law was passed via the citizen initiative process in 1992. It requires voter approval of tax increases, caps how much revenue the state may collect and spend each year, and requires that any excess beyond the revenue cap be returned to taxpayers. In 2005, Colorado voters approved a temporary suspension of TABOR. The suspension expired in July 2010.

The lawsuit alleges that Colorado's initiative process violates Article 4, Section 4 of the U.S. Constitution, which guarantees the states a "Republican Form of Government," because it prevents the legislature from raising taxes without a popular vote. Attorneys in the case argue that "events have demonstrated that a legislature unable to raise and appropriate funds cannot meet its primary constitutional obligations or provide services that are essential for a state."

The outcome of the case could affect the many laws and constitutional provisions in Colorado that were passed via the citizen initiative process.

Read more in the Denver Post.

Washington's campaign finance limits stand, for now

Two courts weighed in on Washington's campaign finance rules for initiative campaigns last week.

The 9th U.S. Circuit Court of Appeals on October 12 upheld a lower court ruling that validated the state's disclosure rules for campaign spending.  A group called Human Life filed the suit, alleging that the state's requirements that the group register as a political action committee and report its fundraising and spending on issue ads opposing a 2008 assisted suicide initiative were unconstitutional.  A three-judge panel of the 9th Circuit disagreed, writing that, “Access to reliable information becomes even more important as more speakers, more speech and thus more spending enter the marketplace, which is precisely what has occurred in recent years...Like campaigns for elected office, ballot initiatives are the subject of intense debate and, accordingly, greater expenditures to ensure that messages reach voters.”

On the same day, the U.S. Supreme Court weighed in on a different campaign finance case from Washington.  Washington campaign finance law has a unique feature:  during the last 21 days before an election (that clock started ticking on Oct. 12 for the Nov. 2 election), no single source can donate more than $5,000 in the aggregate to any political committee.  This limit came under challenge by a group called Family PAC in 2009.  They were organized to oppose Referendum Measure 71 in 2009, which proposed to expand the rights of same-sex domestic partners.  A judge in 2009 refused to lift the ban in 2009 because the challenge came so late in the election that lifting the ban would be disruptive.  After the election, the judge struck down the $5,000 limit.  The state of Washington appealed to the 9th Circuit for a stay, and the court obliged.  Tuesday's SCOTUS ruling upholds the 9th Circuit's stay.  Look for a more protracted battle on this case after the election.

As always SCOTUSblog provides an excellent explanation as well as links to briefs.

Colorado 'blue book' challenge rejected

The Denver Post reports today that a Denver district judge has rejected a challenge by the proponents of Amendment 62, which would define human life as beginning at conception.  The proponents filed suit against the Colorado Legislative Council, which is responsible for producing Colorado's voter information pamphlet known as the "Blue Book." 

The plaintiffs claimed that the summary of arguments presented against the Amendment 62 in the Blue Book was biased and unfair.  The Blue Book contains the text of every measure on the statewide ballot, as well as an impartial summary of each proposal and a summary of the arguments for and against it.  Denver District Judge Robert Hyatt said that besides the fact that it is too late for the court to do anything about it (Blue Books have already arrived in Colorado households by mail), the court would not intervene in the drafting of the Blue Book because it is a legislative function.

Read Colorado's Blue Book

Decision in U.S. Postal Service petitioning case

U.S. District Judge Richard Roberts ruled on September 8 in a case filed by the Initiative and Referendum Institute against the U.S. Postal Service.  The Postal Service had banned petition circulators from the sidewalks surrounding its buildings, and in 2000, the I&R Institute sued.  In 2003, Judge Roberts upheld the Postal Service ban, but an appeals court intervened in 2005, saying that petitioning on perimeter sidewalks -- those paralleling the street -- could not be restricted, and sent the case back to Judge Roberts to determine the treatment of the sidewalks between the perimeter and Postal Service buildings.

Judge Roberts found last week that the Postal Service was justified in banning petition circulators on interior sidewalks.  It is unclear at this time whether the I&R Institute will appeal.  Read the opinion here.

ND pharmacy measure fails to qualify; challenge in the works

An initiative that would have eased restrictions on who may operate a pharmacy in North Dakota -- a move that would allow large retailers into the pharmacy business -- failed to qualify for the ballot last week.  While the petition gathered plenty of signatures, circulators failed to attach a copy of the initiative sponsors to the petition, a violation of North Dakota's petitioning laws according to Secretary of State Al Jaeger.  He announced last week that because of the violation, the measure would not be on the November ballot. 

Sponsors have challenged this move in court, saying state officials are empasizing "form over substance," and the requirement that sponsor names be circulated with the petition is not clearly stated. And the proponents' attorneys say that even if the inclusion of sponsor names with the petition is clearly required by law, the measure should go on the ballot anyway, "because its supporters mostly followed the initiative requirements set out by the constitution and North Dakota law."

Judge for yourself:  the relevant section of North Dakota's constitution follows.  Does it require that sponsors' names be included as part of the petition when it is circulated for signatures?

Article 3.  Section 2.  A petition to initiate or to refer a measure must be presented to the secretary
of state for approval as to form. A request for approval must be presented over the names and
signatures of twenty-five or more electors as sponsors, one of whom must be designated as
chairman of the sponsoring committee. The secretary of state shall approve the petition for
circulation if it is in proper form and contains the names and addresses of the sponsors and the
full text of the measure.

The state supreme court will hear arguments on September 1.  Read more about the case in the Bismarck Tribune.

Courts vs. the voters?

An article by Susan Ferriss of McClatchy Newspapers discusses the role of the courts in evaluating measures initiated and approved by voters -- in this case, the 2008 California vote on Proposition 8, banning same-sex marriage.  Voters are often frustrated when courts intervene and reject measures approved in an election.  This article makes the important point that initiatives must abide by the constitution just as measures passed by legislative bodies must.  Voter-approval does not always equate with constitutionality, and is not an immunization from judicial review.

Two more amendments knocked from the Florida ballot

The Leon County Circuit Court has blocked a total of three legislative referenda from the ballot, two in the past week.  The first to go was Amendment 7.  That was the Legislature's alternative to two redistricting initiatives on the ballot, Amendments 5 and 6.  The judge claimed that Amendment 7 was so confusing that it took him three days to fully understand it.

Last week, Amendment 3 met the same fate.  This one would have increased the homestead exemption for properties bought in 2010.  The judge thought voters would be misled into believing the increase applied to all homeowners, not just those who bought in 2010.

Just yesterday, a third amendment fell from the ballot.  This time it was Amendment 9, the state's attempt to block the new federal health insurance reform law.

In all three cases, judges found that ballot titles and summaries were misleading.

Read an excellent summary of the Florida situation in the Orlando Sentinel.

Florida Redistricting Amendment Blocked from the Ballot

A Leon County Circuit Judge has ruled Amendment 7 off the Florida ballot.  Amendment 7 was a redistricting measure proposed by the Florida Legislature as an alternative to Amendments 5 and 6, which are two redistricting initiatives.  The judge said that Amendment 7 was too vague, and that it could violate constitutional requirements that districts be contiguous.

An appeal to the state supreme court is almost certain.

Judge orders secret vote measure off Arizona ballot

A Maricopa County superior court judge order Proposition 108 off the ballot on July 2.  Referred to the ballot by the Legislature, Prop. 108 would have provided a constitutional guarantee to vote a secret ballot in state and local as well as union elections.  The judge found that the two provisions were not sufficiently related to meet Arizona's single-subject requirement for ballot measures.  Supporters of Prop. 8 say they will appeal to the state supreme court.  Read more about it in the Arizona Daily Star.

Supreme Court: Names on Petitions Are Public

The U.S. Supreme Court today ruled on Doe v. Reed, a case involving whether the names of people who sign petitions should be public or private.  The court said that the privacy of petition signers is not protected by the First Amendment, and that signatures should be public.

The case came out of Washington, where a conservative group wanted to block the release of the names of people who had signed petitions for Referendum 71.  Referendum 71 was an attempt to overturn a law giving domestic partnership rights to same-sex couples.

The sponsors of Referendum 71 argued that the names of people who signed their petitions should be kept private because they risked threats and harassment by gay rights advocates if their names were public.  They also argued that the First Amendment entitled people to sign petitions and remain anonymous.  The Court disagreed in an 8-1 ruling (Justice Thomas dissented), arguing that the state's interest in verifying signatures as valid and preventing fraud in the petition process justified making signers' names public.

An excerpt from the opinion:

The State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the [Public Records Act] is unconstitutional with respect to referendum petitions in general. That interest is particularly strong with respect to efforts to root out fraud. But the State’s interest is not limited to combating fraud; it extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. The State’s interest also extends more generally to promoting transparency and accountability in the electoral process.

Read the slip opinion here, and NCSL's brief in support of respondents here.