Ballot Law Update: Battles continue over TABOR and traffic cams

Jun 23 2011

By Tyler Millhouse

Since the beginning of the year, 229 laws have been proposed in 40 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1]

The Citizens in Charge Foundation (CICF), a non-profit that promotes initiative and referendum rights, identifies proposed laws which either ease or tighten restrictions on ballot initiatives. So far in 2011, CICF has identified 61 laws that make getting a measure on the ballot more difficult. Of these 61, 36 have died, 19 are still pending, and six have passed. CICF has also identified 45 laws that would make the process easier. Of these 45, 38 have died, four are still pending, and three have passed.[2]

This week we examine significant legal developments in Colorado and Washington State. While both involve local governments and the initiative process, the issues at stake are quite distinct. In Washington, cities and initiative proponents continue to battle over the legality of local measures banning traffic cameras. In Colorado, county commissioners are voicing their support for the state’s embattled Taxpayer Bill of Rights. In both cases, the results of these struggles could reshape their state’s initiative and referendum process.

Court actions concerning I&R

  • (Update) TABOR lawsuit: Last month, more than 30 Colorado officials from both political parties filed suit in federal court, challenging the state’s Taxpayer Bill of Rights (TABOR). In Kerr et al. v. State of Colorado, opponents charge that the measure is unconstitutionally restrictive since it prevents government from fulfilling its constitutional duties. Mesa and El Paso Counties, home to Grand Junction and Colorado Springs, respectively, have officially denounced the lawsuit. While the Mesa County Resolution urges the court to uphold the amendment, the El Paso County Resolution additionally authorizes the County Attorney to intervene in the case. Other Colorado counties are reportedly considering similar resolutions. The Colorado Attorney General has 60 days to respond to the May 23 lawsuit.
  • (Update) Washington state traffic cam initiatives: Late last month, proponents of a ban on traffic cameras in Longview, WA filed suit against the city for refusing to verify their signature filing. Arguing that the ban was outside the scope of the initiative and referendum process, the city refused to submit the signatures to the county auditor for verification. A few weeks later, the city reversed its decision, allowing the signatures to be tallied. However, initial reports reveal that over half the signatures checked so far are invalid. Although proponents initially filed 3,628 signatures, this figure could drop well below the 2,830 needed to place the referendum on the ballot. Once the final count is published, proponents have a 10-day window to collect additional signatures. Sponsors expressed surprise at the results and plan to collect more signatures. The city maintains that its decision to count the signatures concedes “absolutely nothing” on the legality of the initiative. A hearing will be held on June 27, 2011 in Superior Court to consider the city’s request for the measure to be declared invalid.[3][4][5]
    Meanwhile, proponents of a similar ban in Monroe, WA have had their signatures verified by the local county auditor. The ban now moves to the Monroe City Council which can either adopt the ban or place it on the ballot. It is unclear whether the city will attempt to challenge the validity of the measure. Residents of Bellingham, WA also submitted signatures on a similar measure this week, collecting almost double the required number.[6][7]

Bills to watch

Bill updates

The following is a list of recent updates for bills covered in past reports. For a complete list of updates, see the Ballot Law Bill Tracker.

  • California Assembly Bill 481: Update: Passed Assembly (5/12/11), passed Senate committee (6/8/11).[9] AB 481 would require petition circulators to wear a badge designating whether they are a paid or volunteer worker. The law, known to opponents as a “scarlet letter law,” specifies that the terms “paid circulator,” “paid signature gatherer,” “volunteer,” or “volunteer signature gatherer” must be printed in at least 30 pt. font on the badge. Similar language must also appear on the petition sheets.[10][11] Citizens in Charge Foundation rating: Reduces initiative rights.
  • New York Senate Concurrent Resolution 00709: Update: Passed Senate, sent to House committee (6/7/2011).[12] S00709 is a proposed constitutional amendment that would establish initiative and referendum in New York. The amendment would require petitioners to gather signatures equaling 5% of the vote in the last gubernatorial election. Petitioners would also have to collect a minimum of 5,000 signatures from 3/5 of New York’s congressional districts. The bill will ultimately require voter approval in two consecutive elections in order to amend the state constitution.[13] Citizens in Charge Foundation rating: Protects/expands initiative rights.

Approved legislation

  • (New) 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.[2] Citizens in Charge Foundation rating: Reduces initiative rights.
  • (New) 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.[14] Citizens in Charge Foundation rating: Reduces initiative rights.
  • (New) 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.[15][16] 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.[17] 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.[18] 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.[19] 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.[2] 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.[20][21] 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.[22] 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.
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