Category Archives: voter initiatives

Eighth Circuit finds Nebraska’s per-county signature requirement for ballot initiatives passes constitutional scrutiny

From Eggers v. Evnen, in an opinion by Judge Raymond Gruender, joined by Judge David Stras (some citations omitted):

The Nebraska constitution gives voters the power directly to enact statutes and constitutional amendments placed on the general-election ballot. Neb. Const. art. III, § 2. To qualify for placement on the ballot, a proposed statute or constitutional amendment must satisfy two conditions. First, at least seven percent (in the case of a proposed statute) or ten percent (in the case of a proposed constitutional amendment) of registered voters must sign a ballot petition. Id. Second, the signatories must “be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state.”

This case concerns the second requirement (the “signature distribution requirement”). On September 2, 2021, [Nebraskans for Medical Marijuana] initiated petitions to place proposals to legalize marijuana for medical and recreational purposes on the November 2022 ballot. Eggers is a paid contractor, volunteer, and sponsor of NMM. On May 16, 2022, Eggers and NMM sued the Nebraska Secretary of State in federal court. As relevant here, the plaintiffs claimed that the signature distribution requirement violated Eggers’s rights under the Equal Protection Clause because it devalued her signature relative to the signatures of citizens in less populous counties. The plaintiffs sought a declaration that the signature distribution requirement is unconstitutional on its face and an injunction against its enforcement. . . .

The plaintiffs’ contention is foreclosed by circuit precedent. No right can qualify as “fundamental” for purposes of equal-protection analysis unless it is guaranteed by the U.S. Constitution. And we have repeatedly stated that the right to place initiatives on the state ballot “is not a right guaranteed by the United States Constitution, but is a right created by state law.” [string citation, including,] cf. John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring) (“[Initiatives and referenda] are not compelled by the Federal Constitution. It is instead up to the people of each State . . . to decide whether and how to permit legislation by popular action. States enjoy considerable leeway . . . to specify the requirements for obtaining ballot access . . . .” (internal quotation marks omitted)). Contra Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 & n.7 (9th Cir. 2003). In fact, we have applied this principle to the very provision at issue here, distinguishing the “right to vote in an election of political representatives,” which we recognized is “fundamental,” from the right burdened by the signature distribution requirement “to participate in [placing] initiatives and referenda” on the ballot, which we held is “state-created” and thus “nonfundamental.”

Judge Jane Kelly dissented:

The district court relied on Moore v. Ogilvie, 394 U.S. 814 (1969), for the premise that access to the ballot is a right protected by the Fourteenth Amendment. At issue in Moore was an Illinois statute requiring independent candidates to provide an “aggregate total of 25,000 signatures” including “the signatures of 200 qualified voters from each of at least 50 counties” in order to qualify for the ballot. The Court held that because the requirement “discriminates against the residents of the populous counties of the State in favor of rural sections” it “lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.” . . .

The plaintiffs have persuasively argued that Nebraska’s signature distribution requirement may restrain the fundamental right to vote, thus triggering heightened scrutiny review. And the Secretary’s arguments in favor of the signature distribution requirement do not survive strict scrutiny. “[T]he States are required to insure that each person’s vote counts as much, insofar as it [i]s practicable, as any other person’s.” Hadley v. Junior Coll. Dist. of Metro. Kan. City, 397 U.S. 50, 54 (1970). Nebraska’s requirements discriminate against voters in more populous counties in precisely the same manner as the Illinois state law struck down in Moore, a violation of the one person, one vote principle.

The Secretary claims, and the court accepts, that there should be a distinction between the right to vote for a political representative and the right to vote on an initiative, the latter right granted only by the states and thus not guaranteed by the Federal Constitution. But the right addressed in Moore included the right to vote for presidential electors, a right not guaranteed by the Federal Constitution but instead granted by the states. See Moore, 394 U.S. at 815; Bush v. Gore, 531 U.S. 98, 104 (2000) (“The individual citizen has no federal constitutional right to vote for electors for the President of the United States.”). This distinction, therefore, cannot be dispositive. See Bush, 531 U.S. at 104-05 (“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”); see also San Antonio Indep. Sch. v. Rodriguez, 411 U.S. 1, 35 n. 78 (recognizing that “the right to vote, per se, is not a constitutionally protected right,” but is “shorthand” for “the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State’s population”). In any event, the Supreme Court has not expressly limited the “right to vote” in the way the court does today.

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“Can ‘community centers’ help GOP court voters of color?”

National Journal

RNC, under Ronna McDaniel, is opening community centers around the county to court voters of color. For the moment, centers are focused on “firing up already-involved activists and local politicians,” more than “finding new votes,” and their hours are spotty. But it appears that the community centers will be a key part of the “RNC’s strategy to build on its recent gains among voters of color in 2022 and beyond.”

“Despite Democrats’ persistent and considerable advantage with these voters, immigrant neighborhoods across the country grew redder in 2020. Several of Republicans’ biggest victories in the House were the work of candidates from immigrant backgrounds, like Korean American Reps. Young Kim and Michelle Steel in Orange County and Cuban American Reps. Carlos Giménez and Maria Elvira Salazar in South Florida. Nationwide, Latino voters voted for former President Trump at higher rates than they did in 2016. Trump even improved his performance with Black voters. Then, following last week’s gubernatorial election in Virginia, some exit polls indicated that Glenn Youngkin outperformed Trump among Black voters. And there’s debate over whether he won Latino voters against former Gov. Terry McAuliffe.

The Republican Party’s message to voters of color isn’t much different from its message to voters in general. Empowering parents to shape their children’s education is a major focus. RNC communications director Danielle Alvarez said school choice is a topic of discussion at the party’s Black community centers, as are HBCUs. Across the community centers, Republicans said, visitors are concerned about Democratic overreach and its impact on the economy, a topic that came up at the Wednesday roundtable.”

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“The Common Good and Voter Polarization”

New draft on SSRN by John G. Matsusaka and Chad Kendall:

Do voters see democracy entirely as a game of self-interest in which one person’s gain is another’s loss, or do they also view it as a search for the common good, as some democracy theorists have long conjectured? Existing empirical research that assumes entirely private interests cannot answer this question, by design. We develop an empirical model in which voters derive utility from both common-good and private considerations, and show formally how to disentangle the two preference components. We estimate the model on California ballot propositions from 1986 to 2020, and find that 46 to 87 percent of voters place significant weight on the common-good aspects of proposals. Common-good concerns mitigate the effects of voter polarization, which we find substantially increased over out study period – particularly in the last six years.

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DNC to Spend $25 Million on Voter Outreach and Litigation

NYT:

Facing an onslaught of state-level ballot restrictions and gridlock in Congress over voting rights legislation, the White House detailed a multimillion-dollar plan on Thursday to register voters and fight voter suppression.

In a speech at Howard University, Vice President Kamala Harris said the Democratic National Committee would invest $25 million in voter outreach and litigation.

… The $25 million investment is in addition to $20 million that Jaime R. Harrison, the chairman of the Democratic National Committee, pledged would be spent before the 2022 midterm elections.

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Initiatives after Hollingsworth v. Perry

There’s quite a bit of coverage of Perry‘s holding with respect to the initiative process.  A smattering:

In California:
LA Times: Prop. 8 ruling raises fears about effects on other initiatives
Orange County Register (editorial): Prop. 8 ruling blow to direct democracy
Sacramento Bee: Supreme Court gay marriage ruling raises questions for California initiative process
SF Chronicle: Some supporters of Prop. 8 ruling leery of impact on initiatives
      and here: Did Jerry Brown, Kamala Harris “refuse to do their jobs”?
San Jose Mercury-News: Marriage ruling raises ballot measure questions
Long Beach Press-Telegram: Attorney: California ballot measure system may be weaker after Prop. 8 ruling

and beyond:
Governing: What the Supreme Court’s Prop. 8 Ruling Means for Voter-Approved Laws
Kevin Drum in Mother Jones: The Big Problem With the Supreme Court’s Prop. 8 Decision
Allysia Finley in the Wall St. Journal: Democrats’ Prop. 8 Veto
Scott Shackford in Reason: How Concerned Should Ballot Initiative Lovers Be About the Prop. 8 Punt?
Joshua Spivak in The Week: How the Supreme Court Crippled Direct Democracy
Tamara Tabo in Above the Law: What’s Horrible About Hollingsworth Is Horrible for Us All  (yes, Above the Law)
Paul Waldman in The American Prospect: Why the Prop. 8 Decision Should Make Liberals Uneasy

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BREAKING NEWS: DOMA struck down, Prop 8 case dismissed on standing

DOMA has been struck down as unconstitutional. Prop 8 case from California dismissed on standing grounds (initiative proponents have no cognizable injury distinct from the general population). I haven’t yet read thoroughly, but SCOTUSblog reports that neither finds a constitutional right to same-sex marriage.

DOMA decision is here; Prop 8 is here.

Both 5-4, very different majorities. DOMA is Kennedy, Ginsburg, Breyer, Kagan, Sotomayor; Prop 8 is Roberts, Scalia, Ginsburg, Breyer, Kagan.

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Sounds Like There Will Be No Emergency SCOTUS Action in the Texas Voter ID Case

Earlier today I wrote about how Texas, which had indicated an intent to appeal, could seek emergency relief from the Supreme Court to put its ID law into effect for November’s elections.

But now comes this from AP: “State Attorney General Greg Abbott said he will appeal to the U.S. Supreme Court, “where we are confident we will prevail.” He also told the Associated Press late Thursday that there is now definitely not enough time to salvage the law for the November election.”

So we are just waiting on Pa. and South Carolina as states whose ID laws are on hold (and Wisconsin, if the Supreme Court takes up AG van Hollen’s invitation to look at this case again—very unlikely).

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“Democrats propose measures to rein in California initiative process”

The LA Times offers this front-page report.

Back in 2000, I wrote this piece for the Columbia Law Review discussing the complex relationship of political parties to the initiative process, especially in California.  More recently, Chris Elmendorf and Ethan Leib have written this interesting article on the topic, which is forthcoming in the California Law Review.

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