Category Archives: referendum

Preliminary Injunction Against Maine Foreign Influence Initiative Upheld By First Circuit

campaign finance, court decisions, First Amendment theory, political equality, referendum

A panel of the Court of Appeals for the First Circuit affirmed a district court’s preliminary injunction against a Maine ballot initiative that prohibited “foreign governments and ‘foreign government-influenced entit[ies] from contributing or otherwise influencing candidate elections and ballot initiatives.” The district court granted the plaintiffs’ preliminary injunction motion on the ground that a substantial application of the statute was unconstitutional and that plaintiffs were likely to succeed on the merits. In a 47-page opinion, Judge Lara Montecalvo upheld the lower court’s decision.

According to the Court:

The Act states that “[a] foreign government-influenced entity may not make, directly or indirectly, a contribution, expenditure, independent expenditure, electioneering communication or any other donation or disbursement of funds to influence the nomination or election of a candidate or the initiation or approval of a referendum.” Tit. 21-A, § 1064(2).

The district court upheld the Act’s ban on political spending by foreign corporations. But the court concluded that a substantial number of the Act’s application was likely unconstitutional. From the opinion:

In the end, because the district court determined that a substantial number of the Act’s applications likely violated the First Amendment, and the remaining factors favored a preliminary injunction, it enjoined the Act in its entirety. Id. at 55-56. In doing so, the district court expressly noted Maine severability law but declined to sever given the expedited and preliminary nature of the proceeding; instead, the court reserved the issue for later consideration. Id. at 55.

Maine timely appealed, arguing that the district court abused its discretion as to its holdings regarding preemption, the applicable level of scrutiny, the state’s compelling interest, and whether the Act was narrowly tailored. Maine also argued that the Act was not facially invalid, the injunction was overly broad, and the district court abused its discretion in reserving its decision on severability. Since March 21, 2024, the proceedings have been stayed pending appeal.

This case raises a number of interesting issues including the level of scrutiny applicable to political spending by foreign citizens and whether one can distinguish the speech of a domestic subsidiary from the speech of its foreign parent company.

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Supreme Court Denies Stay in Ohio Ballot Initiative Case

direct democracy, referendum, Supreme Court

The shadow docket order in Yost v. Brown is here. The case concerns Ohio AG Yost’s repeated refusal to certify a proposed summary of a proposed constitutional amendment. The district court concluded that the ballot initiative proponents’ First Amendment rights were violated and issued a preliminary injunction, which it stayed pending appellate review. A divided panel of the Sixth Circuit lifted the stay. Justice Kavanaugh initially granted a stay and ordered a response. The Court, however, allowed the district court’s preliminary injunction to stand. Justices Thomas, Alito, and Kavanaugh dissented from the Court’s denial of the stay, but they declined to author opinions.

Prior coverage of this case can be found here and here.

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“The next voting rights battleground is Michigan”

legislation and legislatures, referendum

Vox:

Michigan Republicans want to pass a blitz of legislation that restricts the right to vote in the key battleground state — and they have an audacious plan to get their ideas enacted, even though they have to contend with a Democratic governor who could ordinarily veto their bills….

[E]arly this month, the state’s Senate Majority Leader Mike Shirkey (R) announced that Republicans plan to invoke a process that could allow them to bypass the governor’s veto and pass a package of “half a dozen” election-related bills. Under the state constitution, a relatively small group of voters can propose legislation through a petition and then this legislation can be enacted by the state legislature. Using this process, the GOP-controlled legislature could enact this package by a simple majority vote in both houses, and Whitmer would be powerless to veto it — although Democrats could potentially force a voter referendum on the GOP package.

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“A question to repeal national popular vote compact in Colorado is poised for 2020 ballot”

electoral college, referendum

Advocates say they’ve got the signatures.

An extra note of significance:

If certified for the ballot, it would be the first time since The Great Depression that Colorado voters would decide whether to repeal or reaffirm a law approved by the General Assembly and signed by the governor. In 1932, voters repealed a law that increased the tax on oleomargarine.

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Census Bureau Gears Up to Provide Citizenship Data to States, Which Could Be Used to Draw District Lines after 2020

referendum

Evenwel v. Abbott left open the constitutional question about whether states or localities could draw districts containing equal numbers of voters.

 Now, as expected, if the citizenship question remains on the next census, some states or localities could try to draw lines in this way, which would have profound effects on representation in some places.

https://twitter.com/hansilowang/status/1078685669671780353

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“Ohio Voters Pass Gerrymandering Reform Measure”

redistricting, referendum

HuffPost:

Ohio voters approved a ballot measure on Tuesday that changes the congressional mapmaking process, a move proponents say will rein in excessive partisan gerrymandering.

By passing the ballot measure, called Issue 1, Ohioans amended their state Constitution to create four different pathways to draw congressional districts. The new process will go into effect in 2021, when the next round of redistricting takes place.

The complex process still leaves redistricting primarily in the hands of lawmakers, but it also builds in significant safeguards intended to prevent one party from shutting the other out of the process and drawing a severely unfair map….

However, some in the state were uncomfortable with the recently passed ballot proposal, saying it would still allow lawmakers complete control of the redistricting process. The Ohio chapter of the American Civil Liberties Union, for example, did not take a position on the ballot measure, and its senior policy director expressed concern the process would encourage deals that are advantageous to politicians but not in the best interests of their constituents.

The ACLU worries that the minority party can still be coerced into agreeing to a map that egregiously benefits the party in power, despite this complex process.

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“Redistricting Petitioners in Maryland in Final Push for Names”

redistricting, referendum

If this petition drive succeeds, it would put Maryland’s congressional map up for referendum.  The only other such referendum over new redistricting lines that I’m aware of is the referendum over California’s state Senate lines (there was an earlier drive to put Ohio’s new lines to a referendum, since abandoned).  Anyone else know of any others?

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