Category Archives: direct democracy

“[County Executive] Sam Page indicted on election and theft charges over St. Louis County proposition mailer”

STLPR reports:

A St. Louis County grand jury on Wednesday indicted County Executive Sam Page on charges involving the use of public money to campaign against Proposition B ahead of the April election.

The measure would have allowed the St. Louis County Council to fire certain department heads with five of seven votes. Six of the council’s seven members are generally combative with Page.

The county sent out a mailer in the weeks leading up to the election outlining consequences of the issue. The front of the mailer listed groups that opposed Proposition B and included wording from a court ruling ordering a change in the language appearing on the ballot. The “paid for” line said St. Louis County.

State law forbids any elected official to spend public funds to campaign for or against a ballot measure. Page faces two misdemeanor election offenses and two counts of felony theft “by deceit” over the spending of county money.

Page has said the mailer was informational only and did not advocate a position.

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UCLA Voting Rights Project Experts Argue, Wrongly in My View, that the California Legislature Could Engage in Re-Redistricting California’s Congressional Districts without Voter Approval

What a difference half a day makes.

Contrary to the earlier reporting from Politico that California Democrats might try to call a special election to get voter approval for a Democratic gerrymander of congressional districts (to counter the expected Texas Republican gerrymander), the latest from Politico suggests that Democrats may try to re-redistrict through ordinary legislation. I don’t think they have the power to do so, given the unequivocal language taking away that power from the Legislature in two voter initiatives amending the state constitution to establish a redistricting commission and to apply it to both state legislative and congressional redistricting. (In California, voter initiated ballot measures can only be amended by another vote of the people, unless the measure provides otherwise.)

Here’s the latest from Politico:

Call it the Fleetwood Mac option: California lawmakers could go their own way on a Democratic gerrymandering bid.

Redistricting experts have been briefing elections committee staff in the Legislature on a redraw strategy that would enlarge Democrats’ House margin without voter approval, Playbook has learned. That would avert an expensive and uncertain special election — saving Newsom and allies money for other ballot battles — but it would push Democratic lawmakers into uncharted legal terrain.

Voters bequeathed California its independent House redistricting commission in 2010, and because only voters can substantially amend ballot initiatives once they’ve passed, they may need to sign off on Newsom’s plan to redraw a few California House Republicans into oblivion.

Or they may not.

Newsom has argued there’s another option: simply having the Legislature craft new maps. He’s noted that California’s constitution is silent on mid-decade redistricting (as opposed to the once-a-decade commission process linked to the Census). Now UCLA Voting Rights Project experts are bolstering that argument to the Legislature.

Their legal analysis, shared exclusively with POLITICO after it was presented to legislative staffers this week, argues the Legislature “has the legal constitutional authority to draw new districts today” if it deems it “appropriate” — as Newsom and other Democrats have argued.

None of this means the Legislature will decide to circumvent voters. Attorney General Rob Bonta suggested yesterday that the cleanest route would be lawmakers putting a new map on the ballot. That would give Democrats political cover and help inoculate them from the legal challenge that would inevitably follow if the Legislature simply goes it alone — a path that could end in an embarrassing court rebuke.

The legal analysis engages in a kind of wooden textualism which I think is not in line with either the plain text of these ballot measures as a whole nor the clear purpose of both statutes to take the matter away of redistricting away from the state legislature. And I don’t think California courts will buy it if the Legislature takes this gambit.

There is an argument that fairness in congressional redistricting needs to be considered on a national basis, and that Democratic tit-for-tat gerrymanders to counter Republican gerrymanders are otherwise justified. I’m not endorsing that argument nor rejecting it. I’m saying that as far as California goes, there is a clean way to do it, as AG Bonta suggested, is taking the matter back to the voters. And I think that’s the right way to do it. Let the voters decide.

(Note: Although I am at UCLA, I have no role with the UCLA Voting Rights Project and had no hand in this memo.)

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Ellen Katz: “Redistricting Texas Now is Illegal and the U.S. Department of Justice is the Reason Why”

Ellen Katz has posted this draft on SSRN. Here is the abstract:

The U.S. Department of Justice sent a letter to the Texas Governor and Attorney General that claims four Texas congressional districts violate the Voting Rights Act and the Constitution. The letter seemingly demands that Texas alter the racial makeup of those districts. This short essay shows why the legal claims set forth in the DOJ letter are incorrect and why Texas would violate both the VRA and the 14th Amendment’s Equal Protection Clause were it to change its districting map to target these four districtsin response to the DOJ letter.



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“Maine Supreme Judicial Court upholds voter ID ballot question language”

Maine Morning Star:

Maine’s highest court has OK’d the language of a voter identification referendum question that highlights other substantial changes the reform would make to state voting laws….

The Dinner Table PAC launched the campaign in April 2024 as an effort to require voters to show photo identification at the polls. However, the official five-page petition submitted to the state in January seeks to change additional aspects of Maine election law, such as absentee voting. 

Secretary of State Shenna Bellows called the petition “a wolf in sheep’s clothing” when it was first submitted to the state. When Bellows released the wording for the question that will appear on the November ballot, it encompassed the changes beyond photo ID requirements. 

It will read: “Do you want to change Maine election laws to eliminate two days of absentee voting, prohibit requests for absentee ballots by phone or family members, end ongoing absentee voter status for seniors and people with disabilities, ban prepaid postage on absentee ballot return envelopes, limit the number of drop boxes, require voters to show certain photo ID before voting, and make other changes to our elections?”…

In its decision, issued Friday, the [Maine Supreme Judicial Court] noted that the language accurately reflected the proposed legislation and used terms that would be clear to an informed voter.

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Montana Plan is not Without Its Skeptics

Earlier this week, I blogged about a new initiative in Montana that seeks to rein in corporate political spending by amending the state’s constitution to limit the powers conferred on corporations. In a new article for the local Independent Record, Brad Smith, chairman of the Institute for Free Speech and a former commissioner for the Federal Election Commission, dismissed the plan as unserious: “the state cannot condition a benefit (in this case, the right to incorporate) on citizens giving up their constitutional rights.”

Meanwhile, our very own, Rick Hasen, despite his general sympathy for regulating money in politics, told reporters he was “skeptical of the legal strategy behind this maneuver, given the incredible skepticism of the Supreme Court about the constitutionality of regulating corporate political spending.” I agree.

Still, he emphasized:

“There is a political benefit in pushing such a measure and in galvanizing public support against the Supreme Court’s damaging approach to issues of money in politics. . . .

Passing such a measure and having the Court strike it down is a way of reminding the public that the Supreme Court is the entity standing in the way of achieving a fair balance between robust political competition and not allowing the ultra-wealthy to have disproportionate political power in society.”

Jeff Clements, a major advocate of both overturning Citizens United and this new plan, also sought to rein in the idea that the Montana Plan would solve all our money in politics problems (for those who agree they exist).

“While the Montana Plan would help, he said, he also pointed out that billionaires would still be able to spend huge sums of money, another feature of the Citizens United decision.”

This is a point that Rick and I have both made before.

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New Montana Initiative Seeks to Use Corporate Law to Restrain Corporate Political Spending

Veteran election leaders today unveiled “The Montana Plan,” a ballot initiative that seeks to eliminate corporate and dark money from Montana politics without running afoul of Citizens United. The initiative would amend Montana’s constitution to prohibit the state from granting corporations it creates the power to spend in politics. Today, Montana, like most states, grants its corporations every power held by an individual to do all things necessary or convenient to carry out its business and affairs. The initiative if passed would change that to eliminate the power to spend in politics.

Proponents argue, “This is authority every state possesses but no state has used in more than a century.”

But what about out-of-state corporations? Well, Montana law already limits corporations chartered in other states to the same set of powers that Montana-chartered corporations hold. Thus, were Montana to limit its own corporations’ political spending, the restriction would automatically apply to out-of-state corporations.

Intriguing. The Montana Plan is being sponsored by the Transparent Election Initiative, a Montana-based nonprofit organization.

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“Republicans Add New Barriers to Oklahoma’s Dizzyingly Fast Process for Citizen Initiatives”

Daniel Nichanian (Bolts Magazine)

Yet another profile of Republican efforts to make direct democracy more difficult in states where it has been used for initiatives–such as raising the minimum wage–that reflect public opinion more closely than the party’s current platform.

Oklahoma “has the nation’s shortest window of time for collecting the tens of thousands of signatures needed to qualify citizen-led measures—just 90 days, compared to other states with ballot initiatives, which all give canvassers 180 days or more.”

Now, it is adding to that a variety of other constraints, making it more challenging to get measures onto the ballot, from geographic signature requirements to “mandating that ballot campaigns file weekly reports about their finances” and requiring “anyone who signs a petition to attest that they’ve read its entire text, or had it read to them.”

Proponents say the measure is meant to “empower rural areas,” enabling them to check the power of numbers (“the urban elites in Oklahoma City and Tulsa”).

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“Legal challenge to come against Oklahoma bill capping initiative petition signatures”

The Oklahoman covers (paywall) threats of litigation to a new Oklahoma requirement (with some comparisons to recent measures in other states restricting direct democracy) that restricts the number of signatures for an initiative coming out of any given county to a certain percentage of that county’s votes for governor in the last election  (20.8% for constitutional initiatives, 11.5% for statutory ones).  Oklahoma also has a 90-day signature-gathering period.

One of the ostensible justifications for the rules is protecting rural voters.  And it’s true that it’s impossible to reach the thresholds under the new structure with signatures only from Oklahoma City and Tulsa.  But using 2022 results, there’s also no way to meet the threshold for either constitutional or statutory provisions without Oklahoma City or Tulsa.  That is, even if you max out signatures from the 75 most rural counties, you can’t reach the statewide threshold to get anything on the ballot.

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“States Are Tightening Rules for Getting Citizen-Led Proposals on the Ballot”

NYT:

After a wave of successful citizen-led efforts to expand abortion rights via ballot measures, some state legislatures are making it harder for members of the public to put such measures before voters.

Florida, which late last week became the latest state to enact stricter rules around the process, is already facing a lawsuit over whether imposing more restrictions on the ballot initiative process is constitutional. The suit was brought by a group, Florida Decides Healthcare, that is trying to get a proposal on next year’s ballot to expand Medicaid in the state.

The group, which faces a February deadline to collect nearly 900,000 signatures from residents supportive of the plan, said that the new law was making signature-gatherers nervous.

The law imposes a possible criminal penalty if someone circulating petitions does not register with the state; limits to 25 the number of signatures that an unregistered canvasser can collect; requires canvassers to collect more identifying information, and shortens the time frame for petition submission to 10 days after signatures are received.

“This isn’t about transparency or accountability — this is about control,” said Holly Bullard, the co-chairwoman of the organization that sued. The citizen-led process, she added, “is not perfect, but it’s powerful. And that’s exactly why they’re trying to undermine it.”

Gov. Ron DeSantis, in a post on social media, said that the bill, which he signed on Friday, would “combat petition fraud and prevent the special interest abuse of our constitutional amendment process.” A report compiled by the state’s Office of Election Crimes and Security charged that some of the organizers and petitioners behind last year’s abortion ballot question had committed “widespread petition fraud.” But the state did not challenge any signatures earlier in the year, when it had a chance to.

Less than half of the nation’s 50 states allow for citizens to collect signatures and to place proposals on the ballot. State legislatures can also put questions on the ballot, and typically author the overwhelming majority of constitutional amendments.

But after the fall of Roe v. Wade in 2022 allowed states to restrict abortion access, abortion rights groups turned to the ballot initiative process as a way to circumvent conservative legislatures and to put the question of abortion access directly before voters.

The new restrictions in Florida are similar to several that were approved last month in Arkansas, where petitioners almost succeeded in getting an abortion rights amendment on the ballot last year. The Republican-led state had recently required that a certain minimum of signatures be obtained in at least 50 of its 75 counties, more than double the previous threshold….

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“Ohio GOP pushes new rules that voting rights groups say will make it harder to get issues on the ballot”

Cleveland.com:

The next time someone asks you to sign a petition, they might be wearing a government-issued badge.

Republicans say voters deserve to know when someone is being paid to gather signatures, and that a badge will make the process more transparent.

“They might see the badge and think, ‘Hey, wait a minute— is there more behind a petition than meets the eye?’” said Republican state Sen. Andrew Brenner of Delaware.

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Supreme Court Denies Stay in Ohio Ballot Initiative Case

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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“Constitutional Limits On Legislative Overrides Of Statutory Initiatives In Ohio”

Derek Clinger has posted this draft on SSRN (forthcoming, Case Western Law Review). Here is the abstract:

After Ohioans overwhelmingly approved an initiated statute in 2023 legalizing adult-use marijuana and establishing a regulatory framework for the new commercial industry, state lawmakers swiftly moved to amend—and even repeal—key provisions. While no changes have passed yet, growing momentum in the Ohio General Assembly raises a fundamental question: Does the Ohio Constitution allow legislators to override the will of the people?

A common assumption is that Ohio lawmakers have complete discretion to alter voter-approved laws because, unlike some other state constitutions, Ohio’s lacks an explicit prohibition. But Ohio courts have never ruled on the issue, leaving the question unresolved and creating uncertainty not only for the marijuana law but also for the future viability of Ohio’s century-old statutory initiative power.

This Essay challenges the prevailing view that statutory initiatives in Ohio lack constitutional protection, offering the first in-depth analysis of the issue. After surveying how other state constitutions address legislative alterations of initiated statutes, it argues that the most faithful reading of Ohio’s constitutional text, structure, and history is one that significantly limits—but does not entirely prohibit—legislative overrides of initiated laws. More specifically, it argues that the constitution allows lawmakers to amend voter-approved initiated statutes only if their changes “facilitate” the initiative without in any way limiting or restricting it. The Essay then considers how this framework would apply to the most recent statutory initiatives Ohioans have approved: the 2023 marijuana legalization law and a 2006 indoor smoking ban.

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