Supreme Court throws out Colorado’s ballot-initiative rules

Wednesday, January 13, 1999

(Editor’s note: This story replaces yesterday’s article about the Supreme Court’s Buckley decision. It clarifies and amplifies several points.)

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

In doing so, some justices feared that the court might be jeopardizing other forms of campaign regulation, including rules that require political campaigns to disclose financial information important to the public.

As a result, some are reading the decision as yet another signal from the court that it is not ready to change its view that all aspects of the electoral process are imbued with First Amendment protections. That view, first articulated in the 1976 decision Buckley v. Valeo, has been seen as a major stumbling block to campaign finance reform in recent years.

The court said yesterday 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 about the names and salaries of paid circulators.

“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.

She said the regulations “drastically reduce” the number of people who may circulate petitions, producing a “speech diminution” that violates the First Amendment.

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-four states allow voters to circumvent state legislatures and initiate ballot measures that can result in often controversial legislation or constitutional amendments. Initiative proponents are spending millions on advertising and on soliciting petition signatures through paid circulators. Initiatives have prompted major changes in laws concerning a range of issues, from gay rights to bilingual education, from taxes to affirmative action.

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 yesterday, 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.”

But even Rehnquist agreed that the requirement that circulators wear name badges was unconstitutional, making that feature of the ruling unanimous. 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.”

O’Connor and Breyer voiced fear that by striking down the reporting requirements, the court could be undermining long-standing campaign finance reporting regulations that were upheld even in Buckley v. Valeo.

“The court’s decision invalidates permissible regulations that are vitally important to the integrity of the political process, and … threatens the enforceability of other important and permissible regulations,” O’Connor wrote.

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.

Thomas wrote a separate concurrence to agree with the court’s judgment striking down the three provisions of the Colorado law. But he argued that all three should have been examined under the difficult-to-meet “strict scrutiny” standard. Ginsburg’s opinion used a less exacting standard in scrutinizing the registration and reporting requirements because their impact on speech was less direct.

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 last 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 yesterday’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.