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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0142%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 182

## Text

MOTION FILED ,
JUN 1g 1998 \o

No. 97-930 2 3

In The

Supreme Court of the United States

October Term, 1997
e

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

iv

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

Vv

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

ix

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

xi

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).

2

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

3

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.

4

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).

© Id. at 35-36. If the legislature fails to approve the statute or it
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.

5

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

6

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).

7

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.

8

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.

9

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.

*© See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404 (1819)
(Marshall, C.J.) (“The government of the Union . . . is, emphatically and
truly, a government of the peopie.”).

10

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).

12
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

13

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.

14

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).

15

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

16
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).

17

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).

19

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).

©© See American Constitutional Law Foundation, Inc. v. Meyer, 120
F.3d 1092, 1102 (10th Cir. 1997).

©” See id., at 1102.

®* 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.

20

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.

21

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).

22

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

23

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).

24

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.

25

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-
ing the sponsoring of “multi-subject” initiatives.8© Similarly,
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.

8© See MaG.esy, supra note 5, at 45. California's Constitution also
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

26

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

27

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

28

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).

%© Under its “Sunshine Law,” lobbyists must register with the
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.

29

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).

30
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0142%3A16. Public record. Not legal advice.