Amicus Curiae Brief — Buckley v. American Constitutional Law Foundation, Inc.

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MOTION FILED ,

JUN 1g 1998 \o

No. 97-930 2 3

In The

Supreme Court of the United States

October Term, 1997

VICTORIA BUCKLEY,

Colorado Secretary of State,

Petitioner,

vs.

AMERICAN CONSTITUTIONAL LAW FOUNDATION,

INC.; DAVID AITKEN; JON BARAGA; CRAIG ELEY;

JACK HAWKINS; LONNIE HAYNES; ALDEN KAUTZ;

and BILL ORR, individually and as guardian

of WILLIAM DAVID ORR,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

MOTION FOR LEAVE TO FILE AMICUS BRIEF

AND

BRIEF OF THE INITIATIVE & REFERENDUM

INSTITUTE AS AMICUS CURIAE IN SUPPORT

OF THE RESPONDENTS

STEPHEN J. SAFRANEK

Associate Professor of Law

University of Detroit Mercy

651 E. Jefferson

Detroit, Michigan 48226

(313) 596-0268

Legal Counsel of Record

for Amicus Curiae

The Initiative & Referendum Institute

-_—— ———--——- = ss

eee

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 442-2831 A

BEST AVAILABLE COPY |

_ Oe AOI EO IO

MOTION FOR LEAVE TO FILE AMICUS BRIEF

The Initiative & Referendum Institute seeks leave of

this Honorable Court to file an Amicus Brief in the above-

referenced ‘matter. The Initiative & Referendum Institute

is dedicated to educating the public about and helping

the citizenry protect its right to the initiative and refer-

enda process throughout the country. Consent of the par-

ties to this action was sought by Amicus Curiae. Consent

was granted by the State of Colorado and was withheld

collectively by the respondents.

Respectfully submitted,

STEPHEN J]. SAPRANEK

Associate Professor of Law

University of Detroit Mercy

651 E. Jefferson

Detroit, Michigan 48226

(313) 596-0268

Legal Counsel of Record

for Amicus Curtae

The Initiative & Referendum Institute

QUESTION PRESENTED FOR REVIEW

Whether the State of Colorado may constitutionally

regulate the process of circulating initiative petitions by

requiring that: (1) petition circulators who verify the sig-

natures 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 peti-

tion circulators.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE OF AUTHORITIES...... Laeddatiseennseknee iv

INTEREST OF AMICUS CURIAE .................-. 1

SUMMARY OF ARGUMENT................000005: 1

GEE dh cpa dsdedyéndideséennntadsbubatonieees 2

Sf, FR 5. caida dé ccaccndcunexdachanctadadssacte 2

Il. The History of the Initiative and Referendum

Process in the United States .................. 7

Ill. The Legislature has Unconstitutionally Imposed

Restrictions on the People’s Right to the Initia-

tive and Referendum ...............55eseeee0: 10

A. States have banned paying petition circula-

tors on a “per signature” basis ........... 10

b, - FRc bee cccavcsutogiscesiesverns 10

MB. DEROUNIIIIRE . co ccccccccccevessscones 12

Oh, VIENIOEE oo ce cnccascccsveeccsns 12

iv. North Dakota, Maine, and Wyoming es

UW TTI 2c wo ccectcccescccsasedss 13

B. “Notice” requirement for circulators who

OUD DUNNE DI soc oc cccscccsccoscdccsunces 14

he GI vin we vives cuvecavicssecesvens 15

ARMED oc vcesicccsvessiccececesess 16

Be GD cS ic cancuscedecceccctews 16

De BE cheb Ad dcudccdcnsvanecvousesns 17

ee geet Baie eee 18

TABLE OF CONTENTS - Continued

Page

C. Residency and voter registration require-

ments for petition circulators ............. 19

Bt CC be cryacedbsentubasesctsn 20

Pp RS abe cbvcehedadechescesses 21

ly PIO id coveccccceicscée reece 22

Db. Different voting schemes are used for legis-

lation versus initiatives................... 23

E. The Legislature naturally encroaches on leg-

SN ED oc btoddvcivesecucdnccckdcses 25

F. Similar restrictions are not imposed on

lobbyists or other campaign workers ...... 26

ET Sach bi 6 ndecsatdbacwonassuévituss onas 30

TABLE OF AUTHORITIES

Page

Cases:

American Constitutional Law Foundation, Inc. v.

Meyer, 870 F.Supp. 995 (D.Colo. 1994), aff'd in

part, rev'd in part, 120 F.3d 1092 (10th Cir. 1997) .... 20

American Constitutional Law Foundation, Inc. v.

Meyer, 120 F.3d 1092 (10th Cir. 1997).... 6, 19, 20, 22

Baker v. Bosworth, 222 P.2d 416 (Colo. 1950) ......... 26

Bernbeck v. Moore, 936 F.Supp. 1543 (D.Neb. 1996),

aff'd, 126 F.3d 1114 (8th Cir. 1997).......... 6, 21, 29

Colorado Project-Common Cause v. Anderson, 495

Se Se GN DOPED oS bce denn wsdcusdeeuseseesce ne 26

Limit v. Maleng, 874 F.Supp. 1138 (W.D.Wash.

POEs co decdcakudesibsevovedeesbuseeeades copeeel 6, 13

fF 2% © fll errr 8

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

GUNG 42 bb eudswdenenckansscdnempasdsatensthancvedes 9

Meyer v. Grant, 486 U.S. 414 (1988)...... 1, 6, 11, 20, 22

Morrison v. Olson, 487 U.S. 654 (1988)................ 7

Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118

PER Sh avi anes kcdAssepuadababenes bbhendes ubeet coo 8

Reynolds v. Sims, 377 U.S. 533 (1964) ................. 3

Term Limits Leadership Council, Inc. v. Clark, 984

F.Supp. 470 (S.D.Miss. 1997) ......... 6, 11, 12, 22, 23

United States v. Brewster, 408 U.S. 501 (1972).......... 7

United States v. Johnson, 383 U.S. 169 (1966) .......... 7

Yenter v. Baker, 248 P.2d 311 (Colo. 1952)............ 26

TABLE OF AUTHORITIES - Continued

Page

STATUTES:

Speer HR. Bait, CA BOD oa aig icicinc ds ckdcevdstnc vee 20

eee TR, eh, SO is vid Sec dodicccbccccbsceccden 5

Ariz. Rev. St. Ann. §19-101(B)(C).................... 15

Ariz. Rev. St. Ann. §19-102(B)(C).................... 15

Aste. Rev. St. Amm. GIS-1GU(D) . 0.0... cc ccccccccnccss 16

Agee. Dav. Ge. Aa. GIO-BGRIDD . woe cccccccccccccvn 16

Ariz. Rev. St. Ann. §19-114(A) ............ccccccecse 20

4 ae poe ee ae ae aes 15

pny ME ee aig cals Co ns 20

eh ans od ve whccbece ences 20

Colo. Rev. St. Ann. §1-4-901 to §1-4-912............. 28

Colo. Rev. St. Ann. §1-40-111(2)..................... 20

Colo. Rev. St. Ann. §1-40-112 ................ 15, 18, 19

Colo. Rev. St. Ann. §24-6-302 ................ccceees 28

Cote. Mew. Gt. Amm. 636-6-303 . oo... once cccccccccess 28

te ES pa eked seek nats ghbddacucaucs 10

a Oe SE INI, cb wcéccvcosseceWecckpdodaes 10, 11

I nce a Bs sulda caus édaduasecasies 10

ey CD SU PPE ob vc ccccccoeveptvbevecoeta 17

Idaho Code Ann. §34-1807................... 17, 20, 29

Idaho Code Ann. §34-1809.....................0005e. 4

Idaho Code Ann. §34-1814A ..................... 15, 18

vi vii

TABLE OF AUTHORITIES - Continued TABLE OF AUTHORITIES - Continued

Page Page

Idaho Code Ann. §34-1815..... 20-6. 0c sce e eens eens 18 iis Cady Ra: GRIGG 6 os vinisivc caves vivcsssweeecs 12

Idaho Code Ann. §67-6603(a) ..... 0... -6. 0 eee e sees 29 Vernon’s Ann. Missouri Code St. §116.080........... 20

Idaho Code Ann. §67-6617............0c cece eee eeees 29 Mont. Code Ann. §13-27-101 to §13-27-504........... 5

Idaho Code Ann. §67-6623 TRTUPTTTCITILULTerT TT ee 29 N_D. Century Code §16.01-12(11) ODP a a ph elena ee 14, 22

Ill. Comp. St. 5/28-3 ee ee ee ee ee ee 20 N._D. Century Code §54-05.1-03(1) 9S . Sa 1 ewe A 28

DRED TOR OE AM. GPUD w+ er eseseeersenrrocnnsrees ” Mow. Rev. 90. GISGABBED)........0sc0cccscvsccceccees 20

SE POE EE Ph A Pre eny, esses eshehananns ” Ohio Rev. Code Ann. §3513.07.........cc0cceeceuee. 15

21-A Me. Rev. St. Ann. §903-A................... 20, 29

wieseis saith Ohio Rev. Code Ann. §3513.261..................06. 15

Zi-A Me. Rev. St. Amm. GOOG-A, 22.6.0 ccccscccccccecs 13

Obie Rev. Code Amm. GOBI9.G5 .... oc cccccscvcscccees 15

Mich. Comp. Laws Ann. §168.482(5) ................ 20

Ss Gis i ES i TE. pecs baveccevovececesecces 20

Mich. Comp. Laws Ann. §168.544C(2)............... 20

; Ga Se Gs ED oo rece cedics cebecessvesdvcvces 16

Mich. Comp. Laws Ann. §168.544C(10).............. 20

Gs ny Wy EE 55 bc cctbceceCbarecededuevess 16

Miss. Code Ann. §5-8-1 to §5-8-23 .............000:. 26 eadassth 2)

i Wiss eM eg ee rs = i i I obs Sid cdcaccccdacvccccedaus. 16

Miles. Code Amn. GB-OG.0,.65.ccccsesesecesceccceses 27 Se Se Wh PerwNenneN eens vis ranesiehnssowesee stones iS

Mies. Codie Amn. G5-B-9........05ccccccscvecvecceces 27 Or. Rev. St. $250-045(5(DMBKC) ....-. +--+ -eeeeeeee. 1S

RSS, Se Bi nc os s sh0n x cukeavbansmrecates 27 S.D. Codified Laws, §2-1-1 to §2-1-14..............05. 5

Miss. Code Amn. §23-15-11...........c0cccccnesscces 22 S.D. Codified Laws, §2-1-10......-..+++.++sss0000e: 20

Miss. Code Ann. §23-17-17(2) .........0seceeeeess 20, 22 Utah Code Ann. §20A-7-201 ...... 6.6.0 c eee eee evens 5

Riise. Cote. Adie. GIP UFO Va dedesbecedsvesecccass 12 eats Codie Agim. BIBATeRES 2 occ ccc csv ccccsccccies 20

Sas. Cie Raa ns din bi dines innit dddeveceae 24 Utah Code Ann. §20A-7-205 ......... 0.00 cece eee eee 20

Miss. Code Ann. §23-17-49 to §23-17-59............. 12 Utah Code Aan. GIOA-T-B06 ........5cccccccccccces 20

vill

TABLE OF AUTHORITIES - Continued

Page

Wash. Rev. Code Ann. §29.79.490 ..............5. 13, 17

Wash. Rev. Code Ann. §29.79.500 ................05. 13

Wash. Rev. Code Ann. §42.17.090(1)(g) .............. 13

Wyo. St. Ann. §22-5-301 through §22-5-308.......... 27

Wore. TR AG, GOED 0 adecn ceded vascsccosesss 27, 28

Wyo. St. Ann. §22-24-107 to §22-24-112.............. 20

Os TE, A, BED wv been caciccectesvecesecens 24

Wyo. St. Ann. §22-24-125(a).... 2... 6 eee ee eee 13, 28

Were. GE. Aa, GP SGD vc ca vwcsccccesstoseceses 28

Wyo. St. Ann. §28-7-101 to §28-7-104................ 27

CONSTITUTIONAL PROVISIONS:

CD Ge Gs BE is 6.60 had cicn te eendornssvacents 3

TTT ee ee 4

Rate. GRE. GHG BE GR Gy Bib sc eck ts vee cteccanss 3, 4, 5

ee, Ce, ens vo euis' Shs bndteceneateca » 4&5

Se I, SB OD onc te fe iavvntanesvenin 3, 4, 5

ee GE, A, WE a cnc acdusceseesd wadeen 3, 4, 5, 21

ee: SG ts 0h kh cle codecs dctoendoss dhandet 10

es Se A Cea cede cde sevevisarendeusues 3, 10

eee GAGA. GR: GH Gis vive ccc donstete detadac¥acaes 3, 5

TABLE OF AUTHORITIES - Continued

Page

ee a CUE EP nacbabenunsca dee daebactwedaness 3

es ae I Me as eh when oenn been ae eke 5

Mass. Const. am. art. 48, Pt. 4, §1 to §5........ 4,5, 24

Mass. Const. am. art. 48, Pt. 5, §1 & §2........... 5, 24

ee Ge FD Peer Ter eer Torre 5

te Te Gs Ue WS bbc tdudce'dn ddecbueseeess 3

Me. Const. art. IV, Pt. 3, §§17-20............ 3, 5, 20, 29

ey I Ms Ae tind cea beaded beak Mwoe 3, 5

ons cack teens cchee ketenes 3

ee Ee eS ere 3, 4, 5, 22, 24

eh I a kk nhs owan Cvodsecee toenccacs 3

hr er er Sch ccwsswusevouehbekeus's’s 4

ee SR, GOR. TE, See GE Danes cirecsteciewccivestscs 3

ee, GU. GE PUM ME OP We vino cevccccscvesessesns 3

ee eo ani sk kyla dene 3

Se es Gs A Oe OP as ccc ceecdsnesstscsacesas 5

ee ou usa cone sens cavatnecsosenca 5

Cre a cad eadoodendieeséuuusouns 3

ee es I I Es Cnig du nwe tesaccdesnnskabes 20

ey I, SO I, Es ook oc ccansens Copeneeseed 20

Fe Ec ces cvecuesacsvcstvsdies 5, 20

Rew. Comet. at. MEK, GilG)......ccccccsccceccccsccees 5

ee Ss Sy SE ED ae eccdscbecttctensssncresevas 5

TABLE OF AUTHORITIES - Continued

Page

ee, GE, OD TE on vcd avdcunscabasedseceesshaeas s4 3

ee ep ep eer ae ee 5

ge eS Eg RE Perret ee pe ae 5

Sep Mees GUL, Sa ee s ah sccvnddcedtnusoutciuceigeecr 3

og SG RR ere ep eee 5

ee a Se WR os cn uae us Gibene seecdec bens 5

ee NN Me MI cb ka vivbebncsceceurnoncuscnas 5

Ses Gee SOG Wr I os cas Wa duwedees dba habadcehuanees 3

ee Se, CER. He Se I scat > ck ewicodubwedoon 5

ee Sets I WR Tas onic ee bakuin 445K eine Rolmchwals 5

Rei NN GR a eb di ivan Fence tess 6 See Feuldniteel 3

See MOUs We PURI ee dcncaxecdecnancdéc cies cdinciees 5

ee A WE AE boca vieceehsdohecedtceckuunds oe

es ee Hs Sy TE a v.xcnvcpiecdbsncetdaceneceks 3

ee OR TS TD civ va bse ncnsbews dcdescekscdusk 3

ee. MN ME Oe PE Saws danwebdddccacveessns > >a

Se Gait Cth MEME wound dsccdscstccednceeueee 3, 24

Pe SOE: GU, Ty CD wine ddin du wnwieséccavecekes 5

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES:

CALIFORNIA COMMISSION ON CAMPAIGN FINANCING,

Democracy BY INITIATIVE — SHAPING CALIFORNIA’S

FourtH BRANCH OF GOVERNMENT (1992) .......... 14, 23

Arizona Legis. 3SS1 (1991) (S.B. 1001) (Westlaw) .... 16

California Legislation 1026 (1990) (Westlaw)......... 16

Richard B. Collins and Dale Oesterle, Structuring

the Ballot Initiative: Procedures That Do and Don't

Work, 66 U. Coro. L. Rev. 47 (1995)............... 25

Jeffrey T. Even, Direct Democracy in Washington: A

Discourse on the People’s Powers of Initiative and

Referendum, 32 Gonz. L. Rev. 247 (1996-1997) ..8, 17, 25

P.K. Jameson and Marsha Hosack, Citizen Initia-

tives in Florida: An Analysis of Florida's Constitu-

tional Initiative Process, Issues, and Alternatives,

ae Pad. Be. We Be Be GRP CROWD ce cve vccwcccces 7, 11

Davip B. Mactesy, Direct LecisLaTION VOTING ON

BaLLtot PROPOSITIONS IN THE UNITED STATES

SN 152 oaGaehhenus eerste entbedecress eu 4,7, 9, 25

Davip D. Scumipt, Citizen Lawmakers: THe BALLot

IniTIATIVE REVOLUTION (1989) ...............2-2005- 8, 9

Oregon Legislation, 1SS 1 (1992), ch. 1, H.B. 2465

PT Jc. dic ccbeaeebbiesstatsseuasbetaes sense 16

BRIEF OF THE INITIATIVE & REFERENDUM

INSTITUTE AS AMICUS CURIAE IN

SUPPORT OF THE RESPONDENTS

INTEREST OF AMICUS CURIAE

The Initiative & Referendum Institute is a national non-

profit organization dedicated to educating and helping the

citizenry protect the right to enact laws.' The Colorado statutes

under review are similar to other states’ statutes. If these

statutes are constitutional, similar statutes will be constitu-

tional and will be enacted by other states.

Every word written by this Court on the power of the

legislature will be parsed by the legislatures in the initiative

States to see what measures they may enact to eviscerate the

initiative process. State legislatures are institutions of perma-

nent government. Consequently, they exercise power regularly

to limit the initiative power of the citizenry which exercises its

power sporadically. Legislative control of the initiative is the

ability to control whether or not the initiative is used.

The power of the citizenry to organize state government

through the initiative should not be circumscribed by that very

body whose actions necessitate an initiative or referendum. It

is the power of the citizens, acting as the supreme branch of

state government, that the Initiative & Referendum Institute

seeks to protect herein.

SUMMARY OF ARGUMENT

The States are not obligated to provide their citizens with

the powers of the initiative and referendum, but once a state

allows its citizens these powers, it must do so in a manner that

does not violate the United States Constitution.? In addition,

' Pursuant to Supreme Court Rule 37.6, no counsel for any party to

these proceedings authored, in part or in whole, this Amicus Curiae Brief.

Furthermore, no other entity or person, aside from Amicus Curiae, made

any monetary contribution for the preparation or submission of this brief to

this Honorable Court.

2 See Meyer v. Grant, 486 U.S. 414, 420 (1986).

this Court has never determined the respective role of the

separate branches of governmental power within a state,

including the supreme state power held by the citizenry in the

initiative states.

This Brief provides a review of provisions that have been

enacted in initiative and referenda states. It will show that the

Statutes struck down by the Tenth Circuit Court of Appeals in

the case before this Court, and similar statutes in effect in other

States, unnecessarily inhibit the people's right to utilize their

initiative powers, thereby restricting the independent legisla-

tive power reserved to the citizenry in the states.

State legislatures have enacted and continue to enact lim-

itations on the initiative. These limitations appear under the

guise of protecting the lawmaking process of the citizenry.

However, these self-serving laws serve to protect the legisla-

tive monopoly. This true purpose is evident because the restric-

tions imposed on the people’s powers of the initiative are not

similarly imposed on legislators or lobbyists seeking to bring

about changes in state laws.

The initiative and referendum provide a means by which

the people can ensure that they can enact law irrespective of

the legislature. The statutes involved in this case and others

similarly enacted in other initiative states are an attempt by

legislators to circumscribe the people’s initiative power. The

people's supreme right to enact laws and constitutions in initia-

tive states should not be subject to legislative amputation.

ARGUMENT

CITIZENS ARE AT LEAST A CO-EQUAL BRANCH OF

THE LEGISLATURE IN INITIATIVE STATES AND

THEIR POWER TO INITIATE IS PROTECTED BY THE

FIRST AMENDMENT.

I. INTRODUCTION

Many states recognize the citizenry’s right to adopt laws

or to amend the state constitution. The organization of political

power in these states has no analogue in federal government.

The citizenry mm such states constitutes a separate branch of

government which may act as a legislative body when the

legislature fails to act or acts incorrectly. This extraordinary

action by the citizenry has one simple and sure protection from

abuse by anyone — one person, one vote.’ A variety of means

are used to enact extraordinary legislation.

The initiative and referendum may be used by the citi-

zens in twenty-four states to directly legislate by enacting

laws and/or constitutional amendments or to reject laws pro-

posed by the state legislature.* There are four types of direct

legislation: |) direct initiative whereby constitutional

amendments or statutes proposed by the people are directly

placed on the election ballot and then submitted to the people

for their approval or rejection (the state legislature has no role

’ Reynolds v. Sims, 377 U.S. 533 (1964).

* Florida, Illinois, and Mississippi use the initiative to propose

constitutional amendments only. See Fla. Const. art. XI, §3; Il. Const. art.

XIV, §3; and Miss. Const. art. 15, §273(3). Illinois’ initiative power is very

limited. The people may exercise the initiative power to propose

constitutional amendments only to “structural and procedural subjects

contained in Article IV" which is Illinois’ legislative article. In the

Constitutional Commentary following Article XIV, section 3, it states that

Section 3 “recognizes that the General Assembly is unlikely to propose any

changes in its basic structure, but that some changes may appear to be

necessary.” (Ill. Const. of 1970, Art. XTV, §3, at 858 (West 1993)). Alaska,

Idaho, Maine, Utah, Washington, and Wyoming allow the initiative to be

used to propose only statutes. See Alaska Const. art. XI, §1; Idaho Const.

art. III, §1; Me. Const. art. IV, Pt. 1, $1, and art. IV, Pt. 3, §§17-20; Utah

Const. art. VI, §1; Wash. Const. art. II, §1; and Wyo. Const. art. III, §52.

The remaining fifteen states allow the people to use the initiative to

propose both constitutional amendments and statutes. See Ariz. Const. art.

IV, Pt. 1, $1; Ark. Const. amend. 7; Cal. Const. art. Il, §§8-10; Colo. Const.

art. V, §1; Mass. Const. am. art. 48; Mich. Const. art. II, §9, and art. XI,

§2; Mo. Const. art. Ill, §49; Mont. Const. art. II], §4 and §5, and art. XIV.

§2 and §9; Neb. Const. art. II], §1; Nev. Const. art. XIX; N.D. Const. art.

Ill; Ohio Const. art. Il, §1; Okla. Const. art. V, §1; Or. Const. art. IV, §1;

and S.D. Const. art. II, §1 and art. XXIII, §1.

The District of Columbia also provides some form cf the initiative and

referendum. Kentucky, Maryland, and New Mexico provide their citizens

with the power of popular referendum, only. They are not considered in this

bref.

in this process);° 2) indirect initiative whereby statutes pro-

posed by the people through a petition must first be submitted

to the state legislature during a regular legislative session;® 3)

popular referendum whereby the people have the power to

refer, through a petition, specific legislation that was enacted

by their legislature for the people to either accept or reject;’

and 4) legislative referendum whereby the legislature sub-

mits propositions to the people for their approval or rejec-

tion.®

5 See Davin B. Maccesy, Direct Lecistarion Vorinc on BALLot

PRopostTions IN THE Unrrep States 35 (1984).

amends the proposed statute in a manner that is not acceptable to the

proponents of the proposed statute, the proponents may proceed to collect

the signatures necessary to have the original proposed statute submitted to

the voters. Some states allow their legislature to submit an alternative

proposal on the same subject as the initiated proposal for the people to

choose between. /d.

? Id. at 36. Those seeking to refer a law must submit a proper petition

within a specified time after the legislative session has adjourned. /d.

* This is either constitutionally required, as in proposing

constituuional amendments, or because the legislature voluntarily chooses

to submit legislation to the people. Delaware is the only state that does not

require constitutional amendments proposed by the legislature to be

submitted to the people for their approval or rejection. /d. at 36.

Of the eighteen (18) states that provide the initiative to propose

constitutional amendments - Arizona, Arkansas, California, Colorado,

Florida, Illinois, Massachusetts, Michigan, Mississippi, Missouri,

Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, and

South Dakota — every state, except Massachusetts and Mississippi, uses the

direct initiative. Massachusetts and Mississippi require initiatives

proposing constitutional amendments to first be submitted to the legislature

before being placed on the ballot. See Mass. Const. am. art. 48, Pt. 4,

§$$1-5, Miss. Const. art. 15, §273(6).

Of the twenty-one states that allow the initiative to propose statutes,

twelve use only a direct method, see Alaska Const. art. XI, §$1-6; Ariz.

Const. art. IV, Pt. 1, §1; Ark. Const. amend. 7; Cal. Const. art. I], §8 and §9:

Colo. Const. art. V. §1; Idaho Code Ann. §34-1809; Mo. Const. art. III.

Many initiative states provide that these reserved powers

in the people are “self-executing.” In other initiative states,

the legislature is entrusted with creating procedures by which

the people may exercise the initiative and/or referendum.”

Citizen concern about the legislature's efforts to limit initia-

tive rights has ensured that even in some of these latter states,

the legislature is specifically instructed to enact laws

designed to only facilitate, not hinder, the initiative and

referendum processes.!°

§§49-S51; Mont. Code Ann. §§13- 27-101 to 13-27-504; Neb. Const. art. III,

§2 and §3; N.D. Const. art. III, §§4-9; Okla. Const. art. V, §§2-3; Or. Const.

art. IV, §2; $.D. Const. art. Ill, §1 and S.D. Codified Laws, §§2-1-1 to

2-1-14; two allow initiatives to be proposed directly or indirectly, see Utah

Code Ann. §20A-7-102(1)(a) and §20A-7-201; and Wash. Const. art. Il,

§1; two states provide an indirect initiative for statutes but a direct initiative

for constitutional amendments, see Mich. Const. art. Il, §9, and Mich.

Const. art. XII, §2; and Nev. Const. XIX, §2(3) and §2(4): and three allow

Statutes to be proposed only indirectly, see Me. Const. art. IV, Pt. 3, §18:

Mass. Const. am. art. 48, Pt. 5, §§1-2 (Massachusetts also uses the indirect

method to propose constitutional amendments. See Mass. Const. am. art.

48, Init., Pt. 4, §§1-5); Ohio Const. art. I, §1b (Ohio allows direct initiative

to propose constitutional amendments. See Ohio Const. art. II, § 1a).

Alaska and Wyoming allow the initiative to propose only statutes. A

variation of the indirect method is used. See Wyo. Const. art. Il, §52(d)

and Alaska St. Ann. §15.45.190.

* See Ariz. Const. art. 4, Pt. 1, §1(15); Ark. Const. amend. 7: Cal.

Const. art. II, §10; Colo. Const. art. V, §1(10); Idaho Const. art. Ill, §1;

Mass. Const. Am. 48, Gen., Pt. 7; Mich. Const. art. 2, §9; Mont. Code Ann.

§13-27-101; Neb. Const. art. II], §4; Nev. Const. art. XIX, §5; N_D. Const.

art. IIL, §1; Ohio Const. art. Il, §1g; Okla. Const. art. V, §3; S.D. Const. art.

Ill, §1; Wash. Const. art. I, §1(d).

'© See Ark. Const. amend. 7 (“No legislation shall be enacted to

restrict, hamper, or impair the exercise of the nghts herein reserved to the

people”); Mass. Const. Am. 48, Gen., Pt. 7; Miss. Const. art. 15, §273(13):

Neb. Const. art. Ill, §4; Nev. Const. art. XIX, §5; N._D. Const. art. III, §1:

Ohio Const. art. Il, §1g; and Wash. Const. art. Il, §1(d). See also Ark.

Const. amend. 7, “Unwarranted Restrictions Prohibited.” Under this

section of Amendment 7 to the Arkansas Constitution, the state legislature

is prohibited from passing any law that would preclude persons from

Despite the fact that the citizenry adopted the initiative

and referendum 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

often violate the citizenry’s First Amendment rights as articu-

lated by this Court in Meyer v. Grant, 486 U.S. 414 (1986).!2

Not a single example of truly facilitating legislation has ever

been enacted by any state legislature. Furthermore, the restric-

tions 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.

Although the states have a compelling interest in ensur-

ing that all elections, including those on the initiative and

referendum, are conducted in a non-fraudulent manner, lobby-

ists who seek to have the legislature enact new laws or

propose amendments to the state constitution, for example,

typically have no voter registration or residency requirements

imposed on them. The purported purpose behind legislatively

imposed limitations on the citizenry in the initiative and/or

referendum process should be viewed skeptically in the

giving or receiving compensation for circulating petitions, or to pass any

law that would prohibit the circulation of petitions or in any way interfere

with the people's freedom to secure petitions.

'! See Meyer v. Grant, 486 U.S. 414, 422-23 (1988); Term Limits

Leadership Council, Inc. v. Clark, 984 F.Supp. 470 (S.D.Miss. 1997):

American Constitutional Law Foundation v. Meyer, 120 F.3d 1092 (10th

Cir. 1997), Bernbeck v. Moore, 936 F.Supp. 1543, 1568 (D.Neb. 1996),

aff ‘d 126 F.3d 1114 (8th Cir. 1997); and Limit v. Maleng, 874 F.Supp. 1138

(W.D.Wash. 1994).

'2 See Meyer v. Grant, 486 U.S. 414, 422-23 (1986): American

Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092, 1100 (10th

Cir. 1997), Bernbeck v. Moore, 936 F.Supp. 1543, 1561 (D.Neb. 1996),

aff'd 126 F.3d 1114 (8th Cir. 1997).

absence of evidence of unique voter fraud during these pro-

cesses. Moreover, the citizens, as the supreme branch of

legislative power in the state, should not have their separate

and supreme power limited by a distinct and inferior branch

of state government.'* Indeed, given the fact that any initia-

tive proposed for adoption by the people is subject to a vote

by them, any limitation on the process by which initiatives are

placed on the ballot should be viewed skeptically.

Il. THE HISTORY OF THE INITIATIVE AND REFER-

ENDUM PROCESS IN THE UNITED STATES

Colorado, as well as twenty-three other states and the

District of Columbia have some form of statewide direct

democracy.'* “Initiatives generally allow the public to bypass

the legislature and reserve direct lawmaking power in the

voters of the state.”'* The initiative is “the means by which

voters can correct legislative sins of omission and the popular

referendum as the means of correcting legislative sins of

commission.” !®

Direct democracy has a long history. It existed in this

country as far back as the 1600's when people in New Eng-

land, through their town meetings, placed ordinances and

'3 See Morrison v. Olson, 487 U.S. 654 (1988). See also United

States v. Johnson, 383 U.S. 169 (1966); and United States v. Brewster, 408

U.S. S01 (1972) (evidence of a legislative act of a member may not be

introduced by the Government in a criminal prosecution).

'4 States that currently have some form of statewide direct

democracy are: Alaska, Arizona, Arkansas, California, Colorado, Florida,

Idaho, Illinois, Maine, Massachusetts, Michigan, Mississippi, Missouri,

Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon,

South Dakota, Utah, Washington, Wyoming, and the District of Columbia.

'S See P.K. Jameson and Marsha Hosack, Citizen Initiatives in

Florida: An Analysis of Florida’s Constitutional Initiative Process, Issues,

and Alternatives, 23 Fra. Sr. U. L. Rev. 417, 418 (1995).

'© See MaG.esy, supra note 5, at 35.

other issues on the agenda for discussion and then a vote.!7

The first state to hold a statewide referendum for its citizens

to ratify its constitution was Massachusetts in 1778.'8 New

Hampshire followed in 1792. All but three of the states that

entered the Union after 1830 required the voters to approve

their proposed state constitutions. Congress itself required

that voters approve state constitutions proposed after 1857.!9

At this time, citizens began considering expansion of the use

of the referendum and the initiative.2° In the late 1800's,

serious reform-minded individuals began pushing for them.2!

In 1897, Nebraska became the first state to allow cities to

provide the initiative and referendum in their charters.22 One

'7 See Daviw D. Scumivt, Crrizen Lawmakers: Tue BALLoT

Inmmative ReEvoLuTION 3-4 (1989).

'S Id. at 4. Voters rejected the proposed constitution forcing the

Massachusetts legislature to rewrite it. All subsequent state constitutional

amendments in Massachusetts have been submitted to the voters for their

approval.

19 Id. at 5.

20 Id.

*! These individuals were commonly associated with the

Progressives. Id. The Populists initiated the movement in the United States

pushing the states to provide the Initiative and Referendum in

constitutions. See Jeffrey T. Even, Direct Democracy in Washington: A

Discourse on the People’s Powers of Initiative and Referendum, 32 Gonz.

L. Rev. 247, 253 (1996-1997). The labor movement joined forces with

Populists of the Midwest at the Populist Party's 1896 party convention

supporting the initiative and referendum movement. See Scumivt. supra

note 17, at 7. The Populist Party thought that the initiative and referendum

allowed the people to control their government. /d. at 8. This Court has

ruled that issues arising under the Guarantee Clause of the United States

Constitution are nonjusticiable political questions. See Luther v. Borden. 48

U.S. | (1849). In Pacific States Tel. & Tel. Co. v. Oregon, 223 US. 118

(1911), this Court applied the same reasoning to questions involving the

initiative and referendum.

22 Scumipt, supra note 17, at 7.

year later, South Dakota became the first state to adopt the

Statewide initiative and referendum.23

Oregon followed in 1902 when Oregon voters approved

initiative and referendum by a margin of 11 to 1.24 Other

states soon followed.?> Between 1898 and 1918, with the help

of the Progressives who picked up where the Populists left

off, nineteen states had adopted some form of the initiative.26

The initiative and referendum is based on a theory of

trusting the individual and distrusting politicians and political

parties, as well as legislatures.2”7 The Progressives worked

steadily to bring down the political machines and bosses

controlling American politics.2* These early reformers, like

many of today’s proponents of the initiative and referendum,

wanted to ensure that elected officials remained accountable

to the electorate.?? Indeed, the theory behind the initiative and

referendum is that in America, it is the people who govern. 2°

23 Id.

24 Id. at 8.

25 In 1906, Montana's voters approved an initiative and referendum

amendment proposed by the state legislature. Oklahoma became the first

state to provide for the initiative and referendum in its original constitution

in 1907. Maine and Michigan passed initiative and referendum

amendments in 1908. See id. at 8.

26 Fourteen states provide for constitutional amendments proposed

through the initiative. See Macey, supra note 5, 38-39.

27 Id. at 20.

*8 Id. at 21. The Progressives sought reforms eliminating the

influence of special interests, businesses, and political parties on

government. /d. at 22.

2% Id. at 20. The Progressives are credited with the initiative and

referendum, women's right to vote, the direct election of Senators, and

direct primaries. /d. at 23.

(Marshall, C.J.) (“The government of the Union . . . is, emphatically and

truly, a government of the peopie.”).

Ill. THE LEGISLATURE HAS UNCONSTITU-

TIONALLY IMPOSED RESTRICTIONS ON THE

PEOPLE’S RIGHT TO THE INITIATIVE AND

REFERENDUM

A variety of legislative enactments in various states dem-

onstrates how the legislatures have reacted to the use of the

initiative process. Their response appears based on self-inter-

est rather than an interest in protecting a system of govern-

ment where the citizens are a supreme and independent

branch of government. A review of the various legislatures’

responses reveals that control of a superior and distinct

branch of government, the people, by legislative action is not

about fraud but about raw politica’ power.

A. States have banned paying petition circulators

on a ‘per signature’ basis.

Several states have prohibited sponsors of initiative peti-

tions from paying or compensating persons who circulate or

obtain signatures on petitions according to the number of

signatures collected or petitions circulated. These laws were

enacted despite the absence of any showing that the initiative

process needed correction.

i. Florida

In Florida, the citizenry may propose constituticnal

amendments in a manner controlled by the legislature.*! In

both 1990 and 1991, when the statewide campaigns for term

limits on the legislature were moving forward,*? the legisla-

ture introduced bills that would have changed the process for

collecting signatures for initiative petitions.

‘! See Fla. Const. art. XI, §3. Legislative enactments control the

procedures for amendments. See Fla. St. Ann. §99.097, §100.371, and

§101.161.

32 See Fla. Const. art. VI, §4.

First, in 1990, Senate Bill 870 required that each signa-

ture on a petition be witnessed and the sponsor certify that no

per signature fee was paid. Second, the 1991 bill required

initiative sponsors to certify that they had not paid a per

signature fee for the collection of signatures. These two

attempts by the legislature to make the collection of initiative

signatures more difficult were vetoed.*?

Both Governor Martinez and Chiles concluded that this

proposed legislation would “‘so stringently limit access to

certification of a citizen initiative that it must be viewed as an

effort to quash or severely limit the ability of the people to

revise their constitution, in contradiction to the spirit

expressed by this reservation of power.’ "*4 Interestingly,

these bills were introduced while term limit petitions were

circulating. In 1992, term limits were enacted on Florida’s

state legislature.

Currently, Florida is attempting to require sponsors of

initiatives who intend to use paid petition circulators to file

an affidavit with Florida’s election division.*> This is being

done despite this Court’s statement that it was

not prepared to assume that a professional circula-

tor — whose qualifications for similar future assign-

ments may well depend on a reputation for

competence and integrity — is any more likely to

accept false signatures than a volunteer who is

motivated entirely by an interest in having the prop-

osition placed on the ballot.

Mever, 486 U.S. at 426.*© The Florida legislature is aitempt-

ing to end-run Meyer.

33 See Jameson and Hosack, supra note 15, at 450-51 (1995).

‘4 See id. (quoting Governor Martinez, Veto of Fla. SB 870 (1990)).

35 Those sponsors who use paid circulators must provide the names

and addresses for each person who will be paid to circulate and include

their name on each petition they circulate. See Fla. St. Ann. §100.371 (West

1998 Cum. Pocket Part).

3© See Term Limits Leadership Council, Inc. v. Clark, 984 F.Supp.

470, 475 (S.D.Miss. 1997).

ii. Mississippi

Florida is not alone. The Mississippi legislature recently

overrode the Governor's veto to enact legislation making it

unlawful for persons who pay other persons to circulate

initiative petitions or who collect signatures on a petition to

base that pay on the number of signatures collected or peti-

tions circulated.*’ This law requires the State to refuse to

accept any initiative petitions, even if only one signature on

the entire petition was obtained in violation of the “per

signature” ban.** This legislation coincided with a term limits

initiative for the state legislature. Mississippi's Constitution

directs the legislature not to restrict or impair the people's

reserved power to propose constitutional amendments.*?

iii. Washington -

Like Mississippi, the Washington legislature, in 1993,

one year after term limits were approved by the voters via the

initiative, enacted a statute making it a “gross misdemeanor”

to pay or compensate circulators according to the number of

signatures collected.4° The legislature asserted that this form

37 See Miss. Code Ann. §23-17-57(3).

38 See Miss. Code Ann. §23-17-23(c). Under Miss. Code Ann.

§23-17-61, any violation of §§23-17-49 through 23-17-59 which includes

paying someone on a per signature basis, could be punished by a prison

term in the county jail not to exceed one (1) year and/or a fine not to exceed

one thousand ($1,000) dollars.

3° In Term Limits Leadership Council, Inc. v. Clark, 984 F.Supp. 470

(S.D.Miss. 1997), Mississippi asserted that it had a compelling interest in

protecting the integrity of its initiative process and that paying circulators

on a “per signature” basis encouraged fraud because it provided an

incentive for the circulators to collect as many signatures as possible, no

matter how they collected them. /d. at 474. The court found that the State

had “not even remotely approached demonstrating a compelling state

interest for the statutes.” /d. at 473.

40 See Rev. Code of Washington, §29.79.500 and §29.79.490(2).

Interestingly, in the same piece of legislation wherein the legislature

of compensation “encourages the introduction of fraud in the

Signature gathering process . . . Such payments also threaten

the integrity of the initiative and referendum process by

providing an incentive for misrepresenting the nature or effect

of a ballot measure in securing petition signatures for the

measure.”4!

This restriction was struck down because the State failed

to produce proof of fraud or an actual threat to the “citizens’

confidence in government” resulting from circulators being

compensated based on the number of signatures they pro-

cured.4

iv. North Dakota, Maine, and Wyoming

Three other states have enacted measures similar to those

previously discussed. Wyoming and Maine enacted legislation

prohibiting the payment of initiative petition circulators based

on the number of signatures they collect.4* Maine’s legislature

passed its statute in 1994, one year after term limits were

passed by the voters through the initiative. Wyoming's legis-

lature imposed its restriction on the people in 1996, at a time

banned paying petition circulators on a “per signature” basis, it also

amended the provisions regarding the contents of reports required to be

filed by candidates and political committees in Washington. Section

42.17.090 of the Revised Code of Washington was amended to add

subsection (g) to section 1. Under subsection (g), reports filed under

Section 42.17.080 must disclose:

The name and address of each person to whom any expenditure

was made directly or indirectly to compensate the person for

soliciting Or procuring signatures on an initiative or

referendum petition, the amount of such compensation to each

such person, and the total of the expenditures made for this

See Rev. Code of Wash. §42.17.090(1)(g).

4! See Rev. Code of Washington, §29.79.500 and §29.79.490(2).

42 Limit v. Maleng, 874 F.Supp. 1138 (W.D. Wash. 1994).

43 See Wyo. St. §22-24-125(a); and 21-A, Me. Rev. St. Ann. §904-A.

when there was an initiative campaign underway that would

inform voters on the ballot whether candidates for the state

and federal legislatures supported a term limits amendment to

the United States Constitution.

North Dakota enacted legislation in 1988 that also pre-

cluded paying initiative and referendum petition circulators

based on the number of signatures collected.44 This was a

legislative response to the criminal convictions of five paid

circulators for petition fraud in a 1986 initiative involving the

lottery.45 Thus, this one time experience with petition fraud,

iraud that was detected and powerfully prosecuted, was used

to permanently deprive the people of an effective method for

exercising their constitutional right to the initiative and refer-

endum.

v. Summation

With the exception of North Dakota, every state legisla-

ture that restricted initiative sponsors from paying circulators

on a “per signature” basis imposed the restriction shortly after

the people, exercising their constitutional right to the initia-

tive, passed term limits on state officials, including legisla-

tors. This historical evidence suggests that this Court should

be skeptical of any limitation on the initiative process where

the purported interest is protecting the integrity of the initia-

tive process.

B. “Notice” requirement of circulators who are being

paid.

Although not prohibiting the payment of petition circula-

tors, some states have sought to limit the initiative by requir-

ing some form of “notice” or disclosure either on the

initiative petition itself or in a statement to be filed with an

4 See N.D.C.C. §16.01-12(11).

45 See CaLiroRNiIA COMMISSION ON CAMPAIGN FINANCING,

Democracy By Inrmative — SHapinc Cauirornia’s Fourru BRaNncn oF

GOVERNMENT 143 (1992).

official informing potential signers and the appropriate offi-

cials whether and how much such circulators are or will be

paid. These states include Idaho,*6 Colorado,*”’ Arizona,**

Ohio,*? Oregon,*® and California.*!

i. Oregon

Oregon's statutes provide that the chief petitioners of a

measure must include a statement with their prospective peti-

tion indicating whether persons will be paid money or “other

valuable consideration” for collecting signatures on the peti-

tion.52 In 1992, the same year that term limits were enacted

on legislators via the initiative, the legislature proposed an

amendment to that section that would also require that each

sheet of the petition indicate whether circulators were paid.

The “notice” would state “Some Circulators For This Petition

Are Being Paid.”** This bill was passed over the Governor's

veto.*4

4© See Idaho Code Ann. §34-1814A.

47 See Colo. Rev. St. Ann. §1-40-112.

48 See Ariz. Rev. St. Ann. §19-101(B)(C) and §19-102(B)(C).

49 Ohio Rev.Code. Ann. §3519.05 provides that before any signatures

may be placed on a petition, the circulator must state what he or she has

received or expects to receive in consideration of their services and from

whom. The address of the person giving the compensation must also be

included. However, the sample forms the State of Ohio provides for

nominating petitions for candidates secking to be placed on the ballot for a

primary or general election do not make provisions for such information

regarding whether or not the circulator of a nominating petition was

receiving compensation and from whom. See Ohio Rev. Code Ann.

$3513.07 and §3513.261.

50 See Oregon Rev. St., §250.045(4) and §250.045(5)(b)(B\(C).

5! See Ann. Calif. Code, Elec., $101.

52 See Oregon Rev. St. §250.045(4).

53 See Oregon Rev. St. §250.045(5)(b)(B).

54 This House Bill, 2465, also known as the “Scarlet Letter Bill,” was

vetoed by Governor Barbara Roberts who noted that sponsors of initiative

ii. Arizona

Arizona requires each petition sheet to have a space for

indicating whether a circulator is a paid circulator or is a

volunteer. This provision was added by the legislature in 1991

just before term limits were adopted by the people through the

initiative process in 1992.55 Arizona invalidates those signa-

tures obtained by a circulator who does not indicate whether

he or she is paid or is a volunteer.*®

iii. California

In the same year that legislative term limits were

approved by the voters via the initiative in California, the

legislature added its “notice” provision to California’s Elec-

tions Code in 1990 as Section 41.5.5’ This section provided

that

and referendum petitions were already required to inform the State in their

explanatory page of the petition whether circulators were being paid.

Governor Roberts stated, “HB 2465 is an inappropriate and unnecessary

expansion of current law and implies a difference in the commitment of

petition circulators based on whether they are volunteers or paid

supporters.” See Oregon Legislation, ISS 1 (1992), ch. 1, HB 2465

(Westlaw). Candidates filing nominating petitions must include a statement

with their petition whether one or more circulators will be paid. See O.R.S.

§249.061(3); §249.078(2); and §249.740(3). However, these nominating

petitions do not require that each sheet of the petition indicate whether the

circulators are paid. This is unlike the petitions for initiatives which are

required to include a statement on each sheet whether a circulator is being

paid.

55 See AZ Legis. 3SS 1 (1991) (S.B. 1001) (Westlaw). Section

19-102 was amended in 1991 to require that circulators indicate whether

they were paid or were volunteers. However, it did not include the

provision stating that each petition sheet would have printed on them the

spaces for “__ paid circulator” “____ volunteer.” Therefore, in 1995,

Section 19-102 was amended inserting subsection B and moving former

subsection B to become the new subsection C.

5© See Ariz. Rev. St. Ann. §19-101(D) and §19-102(D).

57 See CA Legis. 1026 (1990) (Westlaw).

Notwithstanding any other provision of law, any

state or local initiative petition required to be

signed by voters shall contain in 12-point type,

prior to that portion of the petition for voters’

signatures, printed names, and residence addresses,

the following !anguage: NOTICE TO THE PUB-

LIC THIS PETITION MAY BE CIRCULATED

BY A PAID SIGNATURE GATHERER OR A

VOLUNTEER. YOU HAVE THE RIGHT TO

ASK. (emphasis added).

Only initiative petitions require such a notice.

iv. Idaho

The Idaho legislature revised in 1997 its state's statutory

provisions governing the initiative and referendum.** The

legislature imposed new restrictions making it more difficult

for the citizens to successfully qualify an initiative or referen-

dum petition for the ballot.

Included in these revisions was a specific statement that

“Any person who circulates any petition for an initiative or

referendum shall be a qualified elector of the state of

Idaho.”** Section 34-1807 further states that “Any petition

upon which signatures are obtained by a person not a quali-

fied elector of the state of Idaho shall be void.” Thus, like

Mississippi, Idaho not only punishes the circulator, but it also

punishes the signers of these petitions, even when the signa-

tures are valid.©°

*8 See Idaho Code Ann. §34-1801 through §34-1823 (Michie 1997

Cum. Pocket Part).

*% See Idaho Code Ann. §34-1807 (1997 Cum. Pocket Part).

©° Cf Washington. Violations of Rev. Code of Wash. §29.79.490 do

not invalidate the signatures on the petitions because despite the

misconduct of the proponent, the signers of the petition were still

exercising a constitutional right. See Even, supra note 21, at 263, nn. 121,

123.

Idaho also now requires that initiative and referendum

petitions circulated by paid circulators have printed in bold

red type the statement:

THIS INITIATIVE (OR REFERENDUM as the case

may be) PETITION IS BEING CIRCULATED BY

A PAID SIGNATURE GATHERER. THE SIGNA-

TURE GATHERER IS EMPLOYED BY OR HAS

CONTRACTED WITH. ..., THE MAIN OFFICE

OR HEADQUARTERS OF WHICH IS LOCATED

AT (city and state).°!

If the person is a volunteer, however, the petition must have

printed in bold red type: “THIS INITIATIVE (OR REFEREN-

DUM as the case may be) PETITION IS BEING CIRCU-

LATED BY AN UNPAID VOLUNTEER.”® No “Notice”

requirements must be placed on legislative nominating peti-

tions indicating to signers of such petitions that the circulator

is being paid, is a volunteer, or even is an employee of a state

legislator.®*

v. Colorado

In 1993, the Colorado legislature amended its entire

Statutory article governing initiatives and referendums. It

added a subsection that not only required “notice” whether a

petition circulator was paid, but also required the circulator to

wear a badge while circulating. This badge was to have

©! See Idaho Code Ann. §34-1814A(1) (1997 Cum. Pocket Part).

®2 See Idaho Code Ann. §34-1814A(2) (1997 Cum. Pocket Part). In

addition, a circulator of an initiative or referendum petition, regardless of

whether they are paid or not, must now show each signer the short ttle and

general utle of the petition, as defined in §34-1809 of the Idaho Code, and

allow the signer the opportunity to read them before signing the petition.

Otherwise, it is unlawful, and any signature collected without complying

with this section is void. See Idaho Code Ann. §34-1815.

©’ The “Notice” requirement that was added to the initiative and

referendum petitions in 1997 specifically refers to initiative and

referendum petitions. See Idaho Code Ann. §34-1814A.

® See Colorado Rev. St. §1-40-112(2).

printed on it in bold-faced type “VOLUNTEER CIRCULA-

TOR” or “PAID CIRCULATOR.” Moreover, if the circulator

was paid, the name and telephone number of the person who

hired them was also to be printed on the badge.®* This

“badge” was purportedly necessary to help “prevent fraud by

enabling the public to identify individuals who make false or

fraudulent statements while circulating.”

The Tenth Circuit Court of Appeals upheld the trial

court's ruling striking down this requirement as unconstitu-

tional. While agreeing that the state has a “compelling inter-

‘est” in maintaining the integrity of its initiative process,®’ the

Tenth Circuit held that this provision was not narrowly tai-

lored to serve the state's interest.%* This case is here for

review by this Court.

C. Residency and voter registration requirements for

petition circulators.

In addition to the above restrictions, most of the states

that provide for the initiative and referendum now require that

these circulators be residents and registered voters of the state

6S See Colorado Rev. St. §1-40-112(2a\(b).

F.3d 1092, 1102 (10th Cir. 1997).

®* The Tenth Circuit stated,

Conditioning circulation upon wearing an identification badge

is a broad intrusion, discouraging truthful, accurate speech by

those unwilling to wear a badge, and applying regardless of the

character or strength of an individual's interest in anonymity.

Additionally, the badges are but one part of the state's

comprehensive scheme to combat circulation fraud.

Id. at 1103.

in which they circulate.%? Thus, fewer people are able to

engage in “core political speech.”’°

A residency/voter registration requirement for petition

circulators diminishes the number of persons available to

promote a political message through the initiative petition.

This, in turn, reduces “the size of the audience they can

reach.”’! Certainly, such restrictions make it less likely that

sponsors of initiatives will collect signatures necessary to

place the initiative on the ballot.’?

Yet, some of the states that now require circulators to be

residents/registered voters did so because the legislatures

claimed they were dealing with problems associated with paid

circulators. However, like the restrictions discussed above,

the residency and/or voter registration requirement(s) are a

reaction to limits on the legislature.

i. Nebraska

Nebraska's unicameral limited initiative petition circula-

tors to Nebraskans. The legislative debates surrounding the

voter registration requirements acknowledged that such a

requirement was enacted to address problems associated with

6 See Miss. Code Ann. §23-17-17(2); I. Comp. St. 10 ILCS 5/28-3;

Alaska St. Ann. §15.45.110; Idaho Code Ann. §34-1807; Me. Rev. St. Ann.

21-A, §903-A and Me. Const. art. IV, Pt. 3, §20; Utah Code Ann.

§§20A-7-203, 205, and 206 (eff. in 1994 and 1995. Legislative term limits

were enacted via the initiative in 1994 in Utah), Wyo. St. Ann. §22-24-112

(see also Wyo. St. Ann. §22-24-107), Colo. Rev. St. Ann. §1-40-111(2);

Mich. Comp. Laws Ann. §§168.544C(2), 168.482(5), and 168.544C(10),;

AZ. Rev. St. §19-114(A); Vernon's Ann. MO. St. §116.080, Nev. Const.

art. XIX, §1(2), §2(2), §3, and Nev. Rev. St. §295.055(2); Okla. St. Ann.

ch. 34, §3.1; S.D. Codified Laws Ann. §2-1-10, and Ann. Calif. Code,

Elec. §102 and §9021.

7° The “circulation of a petition involves the type of interactive

communication concerning political change that is appropriately described

as ‘core political speech.’ “ Meyer v. Grant, 486 U.S. 414, 421-22 (1988).

7! Meyer v. Grant, 486 US. at 423.

72 Meyer v. Grant, 486 US. at 423.

paid circulators.’* The legislature sought to do indirectly that

which this Court ruled a state could not do, prohibit the use of

paid professional circulators.’4

ii. Colorado

Although Colorado's Constitution was amended to

require that circulators of petitions be “registered electors,”75

the Tenth Circuit Court ruled that this law “unconstitutionally

impinged on free expression.”’® Without deciding whether a

State's imterest in preserving the integrity of its initiative

process required that all circulators be residents of the state,

the court found that Colorado's voter registration requirement

™* See Bernbeck v. Moore, 936 F.Supp. 1543, 1548 (D.Neb. 1996),

aff'd 126 F.3d 1114 (8th Cir. 1997).

™ The court in Bernbeck noted that based on undisputed evidence,

when the petition sponsors and organizers tned to follow the statutory

restrictions imposed by the Nebraska state legislature, “the number of

individuals they could hire to solicit signatures was grossly insufficient to

the task, and this was true despite efforts to obtain “qualified”

circulators . . .” Bernbeck v. Moore, 936 F Supp. at 1561 (emphasis added).

The court concluded that “As a factual matter, there is no doubt the

challenged restrictions dramatically reduce the number of circulators who

can be hired or recruited as volunteers to spread the message of the various

petition-drive organizers.” Id.

In American Constitutional Law Foundation, Inc. v. Meyer, 870

F.Supp. 995 (D.Colo. 1994), aff'd and rev'd in part, 120 F.3d 1092 (10th

Cir. 1997), although the district court upheld Colorado's statutory voter

registration requirement for initiative and referendum petition circulators,

the court did note that “The record does show that the requirement of

registration limits the number of persons available to circulate and sign

these petitions and accordingly, restricts core political speech.” /d. at 1002.

On appeal, the Tenth Circuit struck down this voter registration

requirement for petition circulators as “unconstitutionally imping{ing} on

free expression. . . . " American Constitutional Law Foundation, Inc. v.

Meyer, 120 F.3d at 1100.

> See Colo. Const. art. V, §1(6).

7 See American Constitutional Law Foundation, Inc. v. Meyer, 120

F.3d 1092, 1100 (10th Cir. 1997).

was not narrowly tailored to satisfy a compelling state inter-

est.”’? This decision is now before this Court for review.

iii. Mississippi

Article 15, §273(12) of Mississippi's Constitution states

that the legislature “shall provide by law the manner in which

initiative petitions shall be circulated, presented and certi-

fied.” Subsection 13 continues by stating that while the legis-

lature may enact laws so as to allow the people to exercise

this initiative power, the legislature “shall in no way restrict

or impair the provisions of this section or the powers herein

reserved to the people.”’*

The legislature enacted legislation implementing the ini-

tiative process in 1993. However, along with the restriction

that prohibited circulators from being paid “per signature,”

the legislature overrode the Governor's veto in 1996 and

required circulators to be qualified electors of Mississippi.’”

This law was struck down.*®

77 The court also noted that Colorado's voter registration requirement

also had a discriminatory effect because it precluded persons who were not

registered voters “from participating in core political speech.” American

Constitutional Law Foundation, Inc., 120 F.3d at 1100.

78 See Miss. Const. art. 15, §§273(12) and (13).

7 See Miss. Code Ann. §23-15-!1 (qualified elector); Miss. Code

Ann. §23-17-17(2). An initiative petition circulator must be a resident of

and registered to vote in Mississippi.

80 See Term Limits Leadership Council, Inc. v. Clark, 984 F.Supp.

470, 471 (S.D.Miss. 1997). Plaintiffs submitted evidence to the court

demonstrating that in three earlier petition drives, out-of-state circulators

accounted for approximately 84% of all of the signatures collected, and

that these same circulators who were generally professional circulators

were able to collect the signatures with more efficiency than the circulators

who were residents. Significantly, the Plaintiffs provided evidence that

while there were 124 out-of-state circulators and 281 Mississippi

circulators, the out-of-state circulators collected an average of 3,057

signatures while the Mississippi circulators collected an average of only

251 signatures. /d. at 472-73. Based on this evidence, the court determined

Despite this recent ruling striking down the requirement

that petition circulators had to be “qualified electors,” the

legislature recently proposed an amendment to its Constitu-

tion that would require circulators to be “residents.” This

proposed amendment is to be placed on the ballot for the

people to ratify in November, 1998.

Mississippi's legislature is fervently seeking to impose

this restriction on the people's initiative right, despite the fact

that its constitution specifically prohibits it from enacting

legislation that restricts or impairs the people's power to the

initiative.

D. Different voting schemes are used for legislation

versus initiatives.

In addition to placing additional qualifications on per-

sons seeking to use the initiative and referendum, several

that the use of out-of-state circulators who were paid “per signature” was

the “ ‘most effective’ and ‘economical’ avenue of political communication

for them.” /d. at 473 (citing Meyer v. Grant, 486 U.S. 414, 424 (1988)).

The court determined that one alleged incident of fraud on the part of

a non-resident paid circulator was not adequate to support the State's

conclusion that non-resident petition circulators were more likely to

commit fraud or “otherwise pose a threat to the integrity of the initiative

process.” /d. at 475. In addition, the court questioned the state's reasoning

that individuals who were disinterested in whether or not an initiative made

it on the ballot were any more likely to commit fraud or offer false

information than individuals who were “zealously interested in the success

of an initiative petition drive.” /d. at 475. Finally, the court noted that the

state failed to provide any evidence to support its claim that residents were

more likely to know more than non-residents regarding the petition.

Compare this court's conclusions with North Dakota's statutory ban

against paying initiative petition circulators on a per signature basis. This

ban was enacted after one incident involving petition fraud during a lottery

imitiative. See N.D.C.C. §16.01-12(11) and Catirornia Commission ON

CAMPAIGN FinancinG, Democracy By Inrmative — SHAPING CALIFORNIA'S

Fourtn Brancu of Government 143 (1992).

states have also imposed unique voting schemes on initia-

tives; 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,. .. . “8! 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 mea-

sure, 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 per cent of the total

number of ballots cast at such state election and also by a

majority of the voters voting on such amendment.”*4

5! See Miss. Const. art. 15, §273(2).

82 See Miss. Const. art. 15, §273(7); Miss. Code Ann. §23-17-29.

®* See Wyo. Const. art. 3, §52(f); Wyo. St. Ann. §22-24-120.

84 See Mass. Const. am. art. 48, Pt. 4, §5. See also Mass. Const. am.

art. 48, Pt. 5, §1.

E. The Legislature naturally encroaches on legislative

power.

Many, if not most, of the restrictions discussed above

were enacted during the recent wave of term limit initiatives

enacted by the citizenry. However, legislatures have always

vigilantly inhibited the people’s right to the initiative and

referendum. Restrictions imposed on the people's use of these

powers have typically been direct responses by the legislature

to use of these powers.

In Washington, Article II of its constitution was amended

allowing the legislature to amend any statute approved by the

voters within two years of its enactment if a two-thirds vote

in each house votes to amend.** California’s “single-subject”

requirement for initiatives resulted from a “pension bill of

rights” initiative in 1948. The California Supreme Court

struck it down, and an amendment was then adopted preclud-

the Colorado legislature held a referendum regarding the

“single-subject” requirement for initiatives in 1994. This

move by the legislature was in response to a successful 1992

tax and spend limitation initiative and the likelihood that

there would be more multiple issue initiatives on the ballot in

1994.87

85 This amendment appears to have been in response to two

initiatives that were passed in 1948 which created a bonus for World War Il

veterans and increased public assistance benefits. Because of the burden

these initiatives had on the state budget, Amendment 26 was approved. See

Evens, supra note 21, at 252, 271.

prohibits identifying a private corporation by name in a proposed

constitutional amendment. This restriction resulted from a 1964 initiative

that proposed a state lottery and named a specific corporation to run it. Id.

at 46.

87 See Richard B. Collins and Dale Oesterle, Structuring the Ballot

initiative: Procedures That Do and Don't Work, 66 U. Coro. L. Rev. 47, 88

(1995). Other statutory restrictions that the Colorado legislature enacted

but which were struck down include a 1971 statutory amendment that

These are just a few examples of how the legislatures

have acted to limit the people's right to initiate laws and/or

amendments. No instance exists where the citizens have initi-

ated a law to limit their own independent legislative power.

Instead, the legislature has determined that the people have

abused their legislative power, and they must be stopped

before they act again.

F. Similar restrictions are not imposed on lobbyists

or other campaign workers.

Throughout this Brief, Amicus Curiae has 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 initia-

tive states have failed to impose the same or similar restric-

tions 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) Inftuencing or attempting to

influence legislative or executive action through oral or writ-

ten communication; .. . ,"* the legislature has imposed no

restrictions on who may come into the state seeking to

would require circulators and signers of initiative petitions to be registered

voters, see Colorado Project-Common Cause v. Anderson, 495 P.2d 220

(Colo. 1972); an increase in the minimum number of petition signatures to

qualify a petition from eight (8%) percent to fifteen (15%) percent, see

Baker v. Bosworth, 222 P.2d 416 (Colo. 1950); and a requirement that

petitions for initiatives had to be filed with the appropriate state official

eight (8) months before the election, see Yenter v. Baker, 248 P.2d 311

(Colo. 1952).

88 See Miss. Code Ann. §§5-8-1 through 5-8-23.

89 See Miss. Code Ann. §5-8-3(k). Mississippi requires lobbyists and

lobbyists’ clients to file registration statements, expenditure reports, and

reports regarding payments to lobbyists by their clients with the

influence the course of legislative and executive policymak-

ing. Yet, it requires those utilizing the initiative to be both

residents and registered voters.

Similarly, despite having residency and voter registration

requirements for circulators of initiative and referendum peti-

tions, Wyoming fails to impose similar restrictions on lobby-

ists.%° Furthermore, while Wyoming requires petitions for

candidates who are nominated by petition as independent

candidates to include a circulator’s verification,?' no state-

ments indicate that the nomination petitions must be circu-

lated by “qualified registered voters."9? Nor does Wyoming

prohibit paying these circulators based on the number of

signatures they collect.?*

Mississippi Secretary of State, see Miss. Code Ann. §5-8-5, §5-8-9, and

§5-8-11.

Section 5-8-9(2)(a) provides that a lobbyist’s client must submit

reports of expenditures every January 30th which includes “A payment to a

lobbyist for salary, fee, compensation for expenses, or other purpose by a

person employing, retaining, or contracting for the services of the lobbyist

separately or jointly with other persons.”

% See Wyo. St. Ann. §28-7-101 to §28-7-104. Wyoming merely

requires that persons who are being compensated as a lobbyist on behalf of

an association, corporation, labor union, or any other non-personal interest,

must register with the director of the legislative service agency before

making any statements to members of the legislature or to standing

committees. Such individuals are required to give their name, business

address, and the name and business address of the entity on whose behalf

he or she is appearing. The director of the legislative service agency must

then distribute this registration information to all members of Wyoming's

state legislature. See Wyo. St. Ann. §28-7-101.

%! This requires the circulator to sign the petition he/she circulated

and to write their residence address.

92 See Wyo. St. Ann. §22-5-301.

%3 See Wyo. St. Ann. §22-5-301 through §22-5-308. Yet, in 1996, the

legislature amended the provisions regarding initiative and referendum

petitions, §22-24-110, in order to require that each page of a petition

include the statement in bold, red type that the circulator is being paid, and

the State must include a similar notice on all materials used to describe the

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.”

proposition. See Wyo. St. Ann. §22-24-110(e). Wyoming also legislatively

prohibited the payment of circulators of initiative and referendum petitions

from being paid per signature. See Wyo. St. Ann. §22-24-125(a). In 1993,

the Wyoming state legislature added subsection (f) to Wyo. St. Ann.

§22-25-107 which now requires an organization that supports a petition

drive to file a statement with the Wyoming Secretary of State indicating the

total amount spent to get signatures on the petition; the names and

addresses of the individuals paid to get the signatures, the amount paid to

each circulator who collected signatures, and the period in which the

signatures were collected.

%4 See Colo. Rev. St. Ann. §1-4-901 through §1-4-912.

%5 Colorado does require that “registered professional lobbyists” and

any firm that is organized for professional lobbying purposes to disclose

“the gross income for lobbying since the prior month's disclosure statement

and the name and address of any person from whom gross income for

lobbying is received totaling one hundred dollars or more.” See Colo. Rev.

St. Ann. §24-6-302(2.5)(a). See also Colo. Rev. St. §24-6-303(1)(d).

Secretary of State, see Colo. Rev. St. Ann. §24-6-303, and file disclosure

statements, see Colo. Rev. St. Ann. §24-6-302.

North Dakota also requires lobbyists to register with the Secretary of

State and to get a “distinctive lobbyist identification badge.” See N.D.C.C.

§54-05.1-03(1). However, it does not require lobbyists to be residents or

voters of the state. Nor does it impose any prohibitions on how lobbyists

are paid or by whom the lobbyist is paid or will be paid.

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.

Finally, Idaho also regulates lobbyists.2? Lobbyists are

not required to wear display tags at the time of lobbying.

More importantly, while the legislature requires persons seek-

ing to evoke change through the initiative and referendum to

be residents and registered voters of the State,'° persons

seeking to accomplish the same thing via lobbying are not

required to be residents or registered voters of Idaho.'®!

97 See 3 Me. Rev. St. Ann. §316. See also 21-A Me. Rev. St. Ann.

§903-A; Me. Const. art. IV, Pt. 3, §20.

98 See 21-A Me. Rev. St. Ann. §354(7)(A).

” See Idaho Code Ann. §67-6617. See also Idaho Code Ann.

§67-6623.

100 See Idaho Code Ann. §34-1807.

101 As the court noted in Bernbeck v. Moore, “In no other case are

Nebraskans who advocate or oppose electoral measures prohibited from

hiring or recruiting people to help get their message out merely because a

prospective worker or volunteer is not registered to vote.” Bernbeck v.

Moore, 936 F.Supp. at 1563.

Idaho, does, however, require the political treasurer of a candidate or

political committee be a registered elector of the state. See Idaho Code

Ann. §67-6603(a).

CONCLUSION

Legislators have limited the initiative rights of the sepa-

rate and supreme branch of state government, the citizenry.

No precedent supports the right of an inferior and separate

branch of government to limit the means by which the law-

making power of a superior branch is exercised. The citizens

certainly have the means to limit their power through the

initiative.

Legislative attacks on the initiative have not been

focused on instances of fraud in the legislative process in

general, but instead have limited the citizenry’s right to gov-

ern. In addition, even if an initiative or referendum is allowed

on the ballot by fraudulent means, the citizens themselves

still must approve that measure. The citizens, therefore, serve

as the final bulwark against state initiatives drafted by the

people. Because the initiative states recognize the citizens as

the supreme branch of state government, and because of the

First Amendment rights of the citizens, the legislature does

not have the right to change that process.

The judgment below should be affirmed.

Respectfully submitted,

StrerpHen J. SAPRANEK

651 E. Jefferson

Detroit, Michigan 48226

(313) 596-0268

Legal Counsel of Record

for Amicus Curiae

Initiative & Referendum Institute

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.