Colorado’s ballot-initiative rules face Supreme test

Tuesday, February 24, 1998

The Supreme Court has again agreed to consider a case in which it will have to balance state election laws and regulations against the First Amendment rights of political activists.

The court on Feb. 23 said it would consider Buckley v. American Constitutional Law Foundation, a challenge to regulations imposed by Colorado on the gathering of petitions for ballot initiatives. No date has been set for the arguments.

The case could have impact nationwide on the increasingly popular practice of deciding important issues by ballot initiative rather than by legislation.

Last year, the court upheld a Minnesota law that barred so-called “fusion” candidacies in which a single candidate runs on more than one party ticket. Over the years, the court has upheld several other restrictions on ballot access and campaign practices.

Colorado’s constitution has long allowed for ballot initiatives and permits the Legislature to regulate the practice to guarantee against fraud or abuse. The Legislature in 1994 passed a law imposing several requirements on people circulating the petitions necessary to get an issue on the ballot. They were required to be registered voters, to wear badges identifying themselves and to be over 18, among other things.

The American Constitutional Law Foundation challenged the law, along with several individuals who were involved in petition drives on the subject of marijuana and school vouchers. Their challenge to the law was based on the First Amendment and on equal-protection grounds.

The U.S. Court of Appeals for the 10th Circuit struck down most of the challenged provisions of the law. Restricting the ballot initiative process to registered voters only would unconstitutionally keep non-voters from “participating in core political speech.” The badge requirement also runs afoul of the First Amendment, the court ruled, because under the Supreme Court’s ruling in McIntyre v. Ohio, anonymous speech is protected.

The appeals court did, however, uphold the age requirement for circulators as “a neutral restriction that imposes only a temporary disability.”

Colorado’s petition to the Supreme Court asks that the provisions of the law which were struck down be restored, arguing that “states have a strong interest in protecting the stability, integrity and fairness of their political systems.”

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.