Supreme Court strikes down Colorado’s rules on ballot initiatives

Tuesday, January 12, 1999

WASHINGTON — The Supreme Court gave a boost to the First Amendment right of petition today by striking down several regulations imposed by Colorado on the ballot-initiative process.

The court said states could not require that petition circulators be registered voters, force them to display their names on badges or direct them to file detailed reports with the state.

“The First Amendment calls for vigilance in making those judgments, to guard against undue hindrances to political conversations and the exchange of ideas,” said Justice Ruth Bader Ginsburg in announcing the opinion.

Supporters of ballot initiatives said the decision in Buckley v. American Constitutional Law Foundation could halt the trend toward increasing state regulation of the referendum process. “It sends a message to states seeking to undermine this process that they should be hesitant to do so,” said M. Dane Waters of the Initiative and Referendum Institute.

Twenty-seven states allow voters to circumvent state legislatures and initiate ballot measures that can result in often controversial legislation or constitutional amendments. Circulating petitions has become a cottage industry involving paid circulators and massive expenditures of money to persuade voters. States have reacted by enacting regulations similar to Colorado’s, ostensibly to prevent fraud and the influence of “outsiders.”

“The response of legislators is to refine the process in the name of reducing fraud, but the result is disenfranchising voters,” said Bill Orr of the American Constitutional Law Foundation, which sued Colorado.

In the high court ruling issued today, Chief Justice William Rehnquist was the main dissenter, arguing that “a state should be able to limit the ability to circulate initiative petitions to those people who can ultimately vote on those initiatives at the polls.”

The vote to strike down the badge-wearing rule was 8-1, while the vote against the other two requirements was 6-3.

Justices Sandra Day O’Connor and Stephen Breyer joined Rehnquist in voting to uphold the reporting requirement and the provision requiring circulators to be registered voters, saying they were constitutional and “reasonable [regulations] of Colorado’s electoral process.”

But Ginsburg argued that the provisions “are not necessary to serve the state’s legitimate interests in providing for administrative efficiency, fraud detection, and a well-informed electorate.”

Joining Ginsburg in voting against each of the requirements were Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas.

All three requirements had been invalidated by the 10th U.S. Circuit Court of Appeals after they were challenged by a group of state residents and the American Constitutional Law Foundation.

Colorado’s attempt to reverse the appeals court ruling got a frosty reception when the case was argued before the justices in October.

In Colorado, supporters must collect signatures amounting to at least 5% of the total votes cast in the most recent race for secretary of state to get a measure on the ballot.

After a record 10 initiatives were placed on the state’s ballot in 1992, the Legislature passed a law that imposed various requirements — including the three at issue in today’s decision.

Colorado earlier had reacted to ballot initiatives begun by commercial interests, such as backers of legalized gambling, by banning paid petition circulators. The nation’s highest court struck down that ban in the 1988 decision Meyer v. Grant, ruling that it interfered too much with “core political speech.”

— The Associated Press contributed to this report.