Archives for the month of: August, 2011

A nice post in the Orlando Sentinel on Tallahassee insider Adam Hasner’s effort in 2005–when he was a state lawmaker–to refer a  constitutional amendment on the ballot which would have raised legislative term limits from eight years to 12 years. The legislature reversed itself the following year, removing the measure from the 2006 general election ballot.

Hasner’s unbridled hypocrisy was highlighted by the campaign of fellow US Senate GOP hopeful, George LeMieux.  But Hasner’s effort isn’t new. Several state lawmakers have tried–some even successfully, such in Idaho in 2002–to overturn or extend legislative term limits imposed upon them by the voters at the polls.

That Hasner has taken a term limits pledge should he be elected to the US Senate should be taken for what it is–a meaningless publicity stunt.  As I’ve opined elsewhere, term limit pledges are essentially costless to those candidates who sign them.  Just ask two Florida Congressmen who have signed term limit pledges, Republican Representatives John Mica and Cliff Sterns. Both have overstayed their self-imposed limit of terms in office.

According to a story in the Boston Globe, Olivier Kozlowski, a local elected official from Mansfield, MA, has filed an initiative that would require citizens to show a government-issued photo ID card in order to cast a ballot in person.  His ballot initiative campaign will need to collect nearly 69,000 valid signatures by mid-November in order qualify the initiative for the 2012 November ballot.  Because of Massachusetts’ indirect initiative process, the state legislature will first get a crack at the measure. More on that process, here (chapter 5):

Although substantively different from Florida’s voter suppression effort, HB1355, this is yet another attempt to depress turnout leading up to the 2012 election.  Most of these efforts have language strikingly similar to that being pushed by the American Legislative Exchange Council. Of course, there is scant evidence of voter fraud at the polling station in Massachusetts. If successful, the initiative will likely disenfranchise many low-income, minority, elderly, and student voters who lack state-issued photo IDs.

Petition gatherers are fighting back in California, picketing Safeway‘s corporate headquarters in Pleasanton, CA. They’re claiming that the grocery chain is disrupting their free-speech rights. According to a San Jose Mercury News story, a press release handed out by a dozen or so petition circulators claimed that “Safeway’s unconstitutional policies specifically target the rights of citizens to lawfully collect signatures to qualify ballot measures,” and that recently, “Safeway managers have been harassing, photographing and threatening signature gatherers with restraining orders, denying their right to participate in California’s direct democracy.”

The California petition gatherers are on pretty solid legal ground.  Why? California’s state’s constitution, which has strong freedom-of-speech protections that generally exceed those of the federal constitution’s 1st and 14th Amendments.  A 1946 U.S. Supreme Court decision, Marsh v. State of Alabama, which found that pamphleteers could not be ejected or arrested when petitioning on private property that is essentially a “company town,” as well as the U.S. Supreme Court’s 1980 decision dealing directly with petition gathering in California, Pruneyard Shopping Center v. Robins, clearly extends petition rights to smaller private venues, such as shopping centers, at least in California. As the majority in Pruneyard noted, California’s constitution protects “speech and petitioning, reasonably exercised, in shopping centers even when the shopping centers are privately owned.”

Welcome, in contrast, to petition gathering in Florida. In the Sunshine State, the barriers against signature gathering are considerably steeper.  In 2007, the grocery giant Publix helped to push a bill through the Republican-controlled Florida state legislature that gave corporate entities the right to remove unauthorized petition gatherers from their private property.  Previously, in a 2005 decision, Publix Super Markets, Inc. v. Tallahasseans for Practical Law Enforcement, et al., the Florida 2nd District Court of Appeals ruled that signature gatherers in Florida “are not entitled to the First Amendment or the Florida Constitution to solicit signatures…on Publix’s privately owned property without Publix’s permission,” and as such, do not have a “constitutional right to solicit at such properties over Publix’s objection.” Interestingly, the 2007 Florida law (Section 106.371(8), Florida Statutes) banning ballot initiative petition gathering on private property does not apply to petitions being solicited for candidates.  “This issue,” as the Florida Secretary of State’s Candidate Petition Handbook states, “has been addressed by the Florida courts and turns on whether the private property is a quasi-public or public forum (such as a mall) rather simply a private business.”

The attack on citizens initiative rights in Florida has gained considerable steam over the past decade, as Republican lawmakers–and former Governor Jeb Bush–saw ballot initiatives as a direct threat to their control over public policy in the state.  But more on that sordid story another time….

Earlier this week, the 1st Circuit Court of Appeals in Boston issued an important decision upholding Maine’s campaign finance public disclosure laws. The opinion in NOM v. McKee is available here.  (Disclosure: In 2010, ElectionSmith provided pro bono assistance to Thomas A. Knowlton and Phyllis Gardiner, Assistant Attorneys General, Office of the Maine Attorney General).

The appellate court affirmed the constitutionality of several of Maine’s election laws governing the registration and campaign finance public disclosure of the activities of political action committees (“PACs”).  The National Organization for Marriage (“NOM”), a New Jersey-based nonprofit opposed to same-sex marriage (and represented by attorney James Bopp), appealed a district court’s ruling that broadly rejected NOM’s facial and as-applied challenge that Maine’s public disclosure laws  supposedly chilled the group’s First Amendment rights to influence elections. In 2009, NOM spent more than $1.8 million in Maine in an effort to overturn the state’s recently enacted same-sex marriage law, but it refused to disclose its donors.

Here’s a snippet of the NOM v. McKee decision:

After careful consideration of the parties’ arguments and key precedents, we conclude that Maine’s laws pass constitutional muster. Central to our holding is the nature of the laws NOM challenges here. These provisions neither erect a barrier to political speech nor limit its quantity. Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas. As the Supreme Court recently observed, such compulsory “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). While we acknowledge that disclosure can, in some cases, unduly burden or chill political speech, there is no evidence that the Maine laws at issue here have had such a deleterious effect on NOM or its constituents.

We agree with the appellees that the use of “for the purpose of influencing” in the statutes at issue, given the appropriately limited reading offered by Maine’s Commission on Governmental Ethics and Election Practices, is not unconstitutionally vague, and therefore we vacate the district court’s holding as to that phrase and the consequent severance of  portions of Maine’s statutes. We otherwise affirm the district court’s judgment in its entirety.

The 1st Circuit Court of Appeals’ three-judge panel rightly drew upon the US Supreme Court’s Citizen United decision affirming the constitutionality of public disclosure laws; in Citizens United, the majority held that disclosure laws “impose no ceiling on campaign-related activities” and “certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption.”

As I’ve written before, most notably in my 2005 Election Law Journal article with Elizabeth Garrett, “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” campaign finance public disclosure laws shed light on otherwise subterranean activities, and in doing so, provide information brokers—and by extension, voters—with insight into the financial interests promoting or opposing ballot measures. They are an essential bulwark against unregulated and anonymous special interest involvement in ballot issue campaigns.  I expect a similar ruling from the U.S. District Judge Robert Hinkle in the Florida public disclosure case, Worley v. Roberts, which I write about here.

UPDATE: Bright Colorado qualifies as Proposition 103 on the November, 2012 ballot:

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Last week supporters of the Bright Colorado initiative submitted over 142,000 signatures in an effort to restore funding to Colorado’s underfunded public education system.

Since the passage in 1992 of the anti-tax constitutional amendment, TABOR, which I profile in my book, Tax Crusaders and the Politics of Direct Democracy, Colorado’s education system has taken a hit.  A huge hit, as the Center on Budget and Policy Priorities documents.

K-12 spending as a percentage of personal income dropped from 35th to 49th between 1992 and 2001. Colorado’s K-12 public education funding remains in the bottom quintile of the 50 states. Funding for K-12 public schools has been cut by $600 million over the past three years.  Higher education funding is no better.  It too is one of the stingiest in the country, and support for higher ed has been sliced by nearly half over the past decade.

By returning state tax rates to 1999 levels–which amounts to a 0.1 percentage point increase in the state sales tax and a 0.37 percentage point increase in the personal and corporate income tax rates–Bright Colorado is expected to temporarily generate more than $500 million annually for K-12 and higher education through 2016.

There’s no question that raising revenue in the current economic climate is not easy, but if conducted wisely, the Bright Colorado ballot initiative campaign has a chance.

Wouldn’t it send a strong signal across the country that Colorado means business by restoring its public education system?

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