Supreme Court questions Colorado’s ballot-initiative restrictions

Wednesday, October 14, 1998

Supreme Court justices today appeared hostile toward Colorado’s restrictions on the ballot-initiative process, which have been challenged on First Amendment grounds.

In oral arguments in the case of Buckley v. American Constitutional Law Foundation, justices grilled Colorado Attorney General Gale Norton and seemed dubious about her justifications for the regulations.

Under the state law, circulators of petitions must be registered Colorado voters who identify themselves with ID badges and file regular reports with the state. Ballot-initiative groups challenged the regulations as a violation of their rights of speech and petition, and the 10th U.S. Circuit Court of Appeals struck them down.

Speaking before the court today, Norton said the state has a legitimate interest in “preventing fraud,” and asserted that the regulations advance that interest.

But Justice John Paul Stevens and others repeatedly asked Norton to provide evidence that fraud exists and that the law would prevent it. Several justices focused in particular on the requirement that petition circulators be registered voters.

“Do you think that Coloradans are more honest than non-Coloradans?” asked a skeptical Justice Antonin Scalia. Norton smiled and replied, “I would like to think so,” and then suggested that it might be easier to track down registered voters than non-voters if problems arose with the petitions circulated.

Justice Sandra Day O’Connor repeatedly invoked the precedent of Meyer v. Grant, a 1988 decision, which struck down an earlier Colorado law that made it a felony to pay petition circulators. The law infringed on “core political speech,” the justices ruled then, leading the court to examine and strike down the law under a difficult-to-meet “strict scrutiny” standard. O’Connor appeared ready to apply the same standards to the new Colorado law, which would spell trouble for the state’s defense of the law.

The restrictions are “very difficult to understand in light of Meyer,” said O’Connor.

Scalia and others justices also inquired whether the same rules that apply to ballot initiatives also apply to the registration of voters or to circulating petitions to put a candidate on the ballot. Most do not, Norton acknowledged, leading Scalia to suggest that ballot initiatives have been singled out for extra regulation.

“I come to this with the idea that legislatures don’t like these things,” Scalia said.

Throughout her half-hour before the court, Norton appeared to have the support of only one justice, Chief Justice William Rehnquist.

Neil O’Toole, a Denver lawyer representing groups that challenged the Colorado law, was also questioned sharply to see if, by striking down the regulations, the court would be jeopardizing other kinds of legitimate restrictions on the election process.

For example, O’Connor asked if a law increasing the number of required signatures on ballot initiatives would also deter free speech. O’Toole said that law might be evaluated differently because it did not involve “core political speech.”

In another line of inquiry that was not answered, Justice Stephen Breyer wondered aloud whether a Supreme Court decision striking down the Colorado law might end up being cited to block campaign financing reform measures in the same way that the 1976 Buckley v. Valeo decision has also been invoked.

Following today’s oral arguments, a decision in the case could come anytime before the court adjourns next June or July.