Battle Over Ballot Initiatives Arrives at High Court's Door
Groups that campaign to get issues on state ballots say Colorado's regulations violate residents' rights.
To most Americans, the idea of citizens signing a petition to place an issue on a statewide ballot is the epitome of government "of the people, by the people, and for the people."
Ballot initiatives played a key role in establishing women's right to vote. That accomplishment is among roughly 700 reforms brought about through grass-roots ballot campaigns. But now, referendum proponents say such direct democracy is under attack in America.
They say the threat comes from state regulations that make it more difficult to launch successful ballot initiatives.
State officials counter that they are merely seeking to promote accountability and prevent fraud and corruption from undermining the election process.
Exactly how far states can go in regulating ballot initiatives is the question the US Supreme Court is considering in oral arguments Oct. 14. The justices are examining regulations in Colorado that require anyone collecting signatures for a ballot petition to be a registered voter in Colorado, wear a name tag, and file monthly finance reports.
Similar restrictions are under consideration in many of the 23 states that permit ballot-initiative campaigns. The high court's ruling will have an immediate nationwide impact, analysts say.
If the court finds the restrictions unconstitutional, the decision likely will spark a resurgence of ballot initiatives. If all or some of the restrictions are upheld, a new crop of regulations would cut back on initiative campaigns.
The Colorado restrictions were struck down last year by a federal appeals court in Denver that found they violated the First Amendment rights of ballot-petition workers. The requirement that only registered voters in Colorado could circulate ballot petitions, for instance, discriminated against some 400,000 unregistered state residents, some of whom want to participate in ballot petitions but not vote in them. The court said Colorado could achieve the same goal by requiring that all ballot workers be state residents.
Colorado appealed to the Supreme Court, asking it to adopt a more flexible standard for reviewing state regulations. Thirteen states have filed a joint brief supporting Colorado's position.
Most of the justices are already familiar with the issue. In 1988, the high court struck down a Colorado regulation that outlawed the use of paid signature gatherers in ballot initiatives. The court ruled that paid workers had as much right as volunteers to engage in political activities
The challenge for states, legal experts say, is to craft ballot-initiative laws that protect the integrity of the process but don't infringe on the free-speech rights of organizers and participants.
"The states are not asking for a free hand to regulate the initiative process out of existence," says Colorado Attorney General Gale Norton, who is arguing the Supreme Court case. But, she says, the state wants to ensure that citizens know the process is fair and open.
Some state regulators say wealthy special interests - such as proponents of legalized gambling - may attempt to use the referendum process as a cost-effective means of bypassing the state legislature, accomplishing through a glitzy campaign what they couldn't in careful deliberations with elected lawmakers.
State officials want to impose the same kinds of financial-disclosure and accountability standards on ballot-initiative workers as apply to candidates seeking access to the ballot.
Referendum proponents see a veiled effort to make ballot campaigns as difficult as possible. "The initiative process is under siege," says Barnaby Zall of National Voter Outreach Inc., a Maryland-based political consulting firm specializing in petition campaigns.
THE most recent wave of ballot-initiative regulations came after 1992, following citizen referendums that established term limits for legislators in 18 states. Some analysts see the ballot restrictions as payback by legislators who didn't appreciate having their careers as lawmakers cut short.
Regardless of the motives behind them, the laws have sharply reduced the number of ballot questions presented to voters. Ballot issues totalled 107 in 1994 and 91 in 1996. This year there are 64 issues on state ballots.
State officials emphasize that one of their chief motives is to prevent election fraud. But initiative proponents counter that the amount of fraud is negligible. Ballot workers, they say, have a vested interest in keeping the process clean.
Denver lawyer Bill Orr, who has been arguing petition cases for decades, says the initiative process is a "noble and sacred right" that should be protected from meddling by state regulators.
Several government associations view the process in a different light. "Signature solicitation is often more akin to hucksterism than political discourse," says a friend-of-the-court brief submitted by The Council of State Governments in Washington. Governments must be allowed to make "good-faith efforts to regulate the petition process if its democratic essence is to be restored."