North Dakota voters recently approved an initiative that would bar congressional candidates over the age of 81 from serving in office (even if it’s unconstitutional under U.S. Term Limits, Inc. v. Thornton). A similar effort was attempted in Utah, but it won’t appear on the ballot. Here’s the Utah Supreme Court’s unanimous decision in Phillips v. Henderson:

Ian Daniel Phillips and a group of Utah voters (collectively, the Sponsors) wish to initiate state legislation that would place an age limit on Utah candidates for federal office. The Lieutenant Governor rejected the Sponsors’ initiative application after concluding that, under U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the proposed law was “patently unconstitutional” or “could not become law if passed,” see UTAH CODE § 20A-7-202(5). In Thornton, the United States Supreme Court held that the federal Constitution forbids states from enacting laws imposing qualifications on candidates for federal congressional office. 514 U.S. at 800.

After their initiative application was rejected, the Sponsors sued the Lieutenant Governor. The Sponsors sought a declaration that the initiative is not patently unconstitutional and could become law if enacted because Thornton either did not apply or should be overruled. The district court rejected both arguments, ruling that the Sponsors were not entitled to relief, because the proposed initiative is “squarely foreclosed by” Thornton, a decision that the court had no authority to overrule. Accordingly, the district court dismissed the Sponsors’ complaint for failure to state a claim upon which relief can be granted.

On appeal, the Sponsors maintain that Thornton should be overruled because its prohibition on state-created qualifications for federal officeholders violates the Tenth Amendment of the United States Constitution. But because the Sponsors recognize that this court lacks authority to overturn Thornton, they ask us to affirm the district court’s decision, thereby paving the way for them to petition the United States Supreme Court for review.

The Lieutenant Governor also urges us to affirm, but she questions whether appellants who seek an affirmance have standing on appeal. We hold that appellants who concede that they cannot prevail at a particular stage on appeal have appellate standing so long as they had traditional standing in the district court, were a party or privy to that action, and were aggrieved by the district court’s judgment. The Sponsors meet each of these requirements and therefore have appellate standing. And because controlling federal law precludes the Sponsors’ requested relief, we affirm the district court’s ruling on the merits.

Unanimous decision in Legislature of the State of California v. Weber. From the introduction:

Petitioners — the Legislature of the State of California, Governor Gavin Newsom, and elector and former Senate President Pro Tempore John Burton — filed this original proceeding seeking a writ of mandate or prohibition to bar the Secretary of State (Secretary) from placing an initiative measure on the November 2024 general election ballot. The measure at issue has been designated Attorney General Initiative No. 21-0042A1 and Secretary of State Initiative No. 1935, and has been named the “Taxpayer Protection and Government Accountability Act” by its drafters. We refer to it as the “TPA.” The petition primarily contends that the TPA is invalid because it attempts to revise the California Constitution via citizen initiative. Petitioners also argue that the TPA is invalid because it would seriously impair essential government functions. Petitioners named Thomas W. Hiltachk, the proponent of the challenged measure (Proponent), as real party in interest.

…

“We stress initially the limited nature of our inquiry. We do not consider or weigh the economic or social wisdom of general propriety of the initiative.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219 (Amador Valley).) The only question before us is whether the measure may be validly enacted by initiative. After considering the pleadings and briefs filed by the parties and amici curiae as well as the parties’ oral arguments, we conclude that Petitioners have clearly established that the challenged measure would revise the Constitution without complying with the appropriate procedure. The changes proposed by the TPA are within the electorate’s prerogative to enact, but because those changes would substantially alter our basic plan of government, the proposal cannot be enacted by initiative. It is instead governed by the procedures for revising our Constitution. We therefore issue a peremptory writ of mandate directing the Secretary to refrain from taking any steps to place the TPA on the November 5, 2024 election ballot or to include the measure in the voter information guide.

From Advance Colorado v. Griswold:

In 2021, the Colorado state legislature passed The Ballot Measure Fiscal Transparency Act (“HB 21-1321”), which requires certain language be included in state-imposed titles of citizen-initiated ballot measures. Specifically, if the proposal contains a tax change affecting state or local revenues, the measure’s title must incorporate a phrase stating the change’s impact on state and district funding priorities. In 2023, Appellants (collectively, “Advance Colorado”) proposed two tax reduction measures subject to the provisions of HB 21-1321. After Colorado’s Ballot Title Setting Board (the “Title Board”) included the mandated transparency language in each initiative’s title, Advance Colorado filed suit challenging HB 21-1321 as unconstitutionally compelling its political speech. The district court denied the corresponding request for a preliminary injunction, concluding the titling process qualified as government speech and, therefore, Advance Colorado was not likely to succeed on the merits of its claims. We agree that HB 21-1321’s requirements do not result in improperly compelled speech under the First Amendment of the United States Constitution.

And from later in the opinion (lightly revised):

The Colorado Title Board has existed and set ballot titles in a similar manner for over eighty years. As is the case today, when it was first formed the Title Board was solely responsible for setting a measure’s title without the influence of proposal advocates. The long history of the Title Board’s practices reflects the substantial control the government asserts over initiative titles and its legitimate interest in providing a standardized process for presenting measures to voters. Titling is statutorily separated and preserved as an express function of the government under Colorado law. Despite the catalytic role played by citizens in the initiative process, ballot titles are fully and exclusively crafted by the government through the Secretary of State’s office. Indeed, “[t]he fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum provider.” Walker [v. Texas Div., Sons of Confederate Veterans, Inc.]. Advance Colorado has failed to offer any evidence refuting this history of substantial government control.

Advance Colorado is also unable to demonstrate that . . . the general public perceives initiative titles to be the speech of private citizen-advocates. . . .

Cleveland.com:

A state panel has set the language that will appear before voters for the upcoming Aug. 8 election when they’re asked to make it harder to change the Ohio constitution.

The Ohio Ballot Board, chaired by Republican Secretary of State Frank LaRose, also voted Thursday to give the proposal its official ballot name, State Issue 1.

In a party-line vote, the majority Republican panel voted 3-2 to adopt the language, along with accompanying language summarizing the measure. Republicans rejected proposed changes from a lawyer for One Person One Vote, the campaign group opposing State Issue 1, that would more explicitly describe the status quo that voters are being asked to change.

And from the Cincinnati Enquirer, “Dems object to ballot language for August issue to make it harder to amend constitution.”

Molly Beck in the Milwaukee Journal Sentinel:

The Wisconsin Supreme Court has rejected a challenge to a constitutional amendment known as Marsy’s Law aimed at expanding and strengthening the rights of crime victims.

The 6-1 decision released Tuesday by the state’s highest court overturned a Dane County judge’s 2020 ruling that determined the measure was improperly enacted and should be rescinded. The court said in its decision the referendum was properly worded and therefore legally adopted.

The 116 pages of opinions in Wisconsin Justice Initiative v. Wisconsin Elections Commission are here. Justice Brian Hagedorn wrote the lead opinion for the majority concluding that the law was a single amendment, not multiple amendments.

From the Ohio Capital Journal:

State lawmakers approved a measure to ask voters if Ohio should raise the threshold for approving constitutional amendments to 60%. But in an unusual move, they set the August date for that election through the resolution itself. They made no changes to state law which strictly limit such elections.

Republican House and Senate leaders insist it’s all above board. But in an illustrative statement, House Minority Leader Allison Russo said it was at best “legally questionable.”

And a companion piece at the same site, “Upcoming August special election is illegal, law experts say.”

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.