Combatants in Colorado ballot-initiative case ready for day in Supreme Court

Monday, October 12, 1998

Ballot initiatives and public referendums are forms of direct democracy that have been part of the American political scene since the town meetings of pre-Revolutionary New England.

Twenty-four states and the District of Columbia currently allow voters to correct what have been called “sins of omission and commission” by their legislatures through the ballot box.

A case to be argued before the Supreme Court on Wednesday, Buckley v. American Constitutional Law Foundation, could affect the future of the initiative movement, as well as the First Amendment rights of free speech, association and petition implicated when states seek to regulate those initiatives.

At issue will be a Colorado law that imposes a series of regulations on groups and individuals who circulate ballot initiatives, including a rule that petition circulators wear an identification badge. The state claims the regulations were enacted by the Colorado Legislature to prevent fraud and abuse in the process, but opponents say the rules impose unnecessary restrictions that chill political speech.

“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,” asserts a brief by the Initiative and Referendum Institute. “Legislative control of the initiative is the ability to control whether or not the initiative is used.”

The case will be argued against a backdrop of mixed signals coming from the high court in the area of regulation of the state election process. With its increasing interest in federalism and the preservation of state powers, the court in recent years has upheld a number of state election laws even when they have imposed burdens on First Amendment rights.

But the court has also ruled in favor of the First Amendment in other cases. In one 1995 decision, McIntyre v. Ohio, the court invoked traditions running back to the Federalist Papers, published under pseudonyms in 1788, to strike down an ordinance that required names to be attached to political handbills. The court said anonymous political advocacy should be protected by the First Amendment — a view that would seem to spell trouble for the Colorado ID badge requirement.

The leading precedent in the area, ironically, is another case from Colorado, Meyer v. Grant. In that 1988 decision, the court struck down, on First Amendment grounds, an earlier law that made it a felony to pay petition circulators. Such a ban on paid circulators was an unjustified burden on “core political speech,” the court said then.

After that ruling, according to Colorado Attorney General Gale Norton, Colorado experienced a “significant increase” in ballot initiative efforts.

Complaints of abuse also increased, Norton says. In 1992, a year when 10 separate initiatives were on the ballot, three circulators of petitions were convicted on charges of forgery. Others allegedly involved in fraud were impossible to track down, state officials said.

In response, the Legislature enacted a law requiring circulators to wear identification badges and imposed new reporting requirements on groups seeking to have issues place on the ballot. Among the requirements: all petitions circulators must be registered voters in Colorado, and groups circulating the petitions must file reports with the state identifying their circulators and how much they are paid. Other states with ballot initiative mechanisms have passed similar laws, often in the wake of initiatives that imposed term limits on state legislators.

The Colorado regulations were challenged by the American Constitutional Law Foundation, a group that says it supports “direct democracy,” as well as several Colorado residents who said the rules restricted their right to political expression. Federal District Judge Richard Matsch — the same judge who presided over the trial of Oklahoma City bomber Timothy McVeigh — struck down all the regulations except the residency requirement.

On appeal, the 10th U.S. Circuit Court of Appeals struck down that regulation as well as the others on First Amendment grounds, setting the stage for the high court review.

In the briefs before the Supreme Court, as with many other First Amendment cases, a major issue under dispute is the level of scrutiny the court should use to determine whether the Colorado regulations are constitutional.

Opponents of the regulations, invoking the Meyer v. Grant precedent, say the new law violates core speech rights and should be examined under the highest possible level of scrutiny — a level that is nearly impossible for any law to survive.

“To peaceably petition the government for redress of grievances is a fundamental exercise of sovereignty by the people,” the brief of the challengers declares. The law’s opponents also assert that fraud is a minimal problem and that the law is not reasonably tailored to solve the problem.

But attorneys for the state of Colorado argue for a “flexible standard” that would allow the law to be upheld. Colorado’s brief says that the law merely regulates the electoral process and does not infringe on core speech rights. “The initiative process can and must be subject to reasonable regulation,” Colorado’s brief asserts.

Because it does not infringe on First Amendment rights, the state says, the law should be examined under the line of court precedents that deals with laws affecting “ballot access.” The court has repeatedly ruled, in cases involving minor parties and write-in candidates, that states have significant powers to regulate access to their ballots to minimize voter confusion and fraud. In making those rulings, the Supreme Court has used a less stringent standard of First Amendment review.

A coalition of states and other organizations including the National League of Cities have filed briefs supporting Colorado in the dispute They express concern that, as Colorado’s brief states, “while there are still initiatives that represent true, volunteer, citizen effort, there are increasingly more initiatives that are the product of large monied interests.” A recent Denver Post article noted that spending on ballot initiatives in Colorado now surpasses spending on the governor’s race.

But the American Civil Liberties Union, in its brief opposing the Colorado law, says concern about the growth of ballot initiatives does not justify unconstitutional measures.

“The registration, badge and reporting requirements do not promote the state’s effort to protect the initiative and referendum process from fraud,” the ACLU argues. “But they do unnecessarily restrict the ability of the people to communicate with fellow citizens to effect changes in the law.”

Following arguments in the case Wednesday, the Supreme Court could rule in the case any time before next summer.

States that allow citizen initiatives

In addition to Washington, D.C., these are the states that permit some form of ballot initiative or referendum for state legislation or constitutional amendments, according to the Initiative and Referendum Institute: 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 and Wyoming.