Archives for category: Direct Democracy

In his review of the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission heard by the U.S. Supreme Court today, election law scholar Rick Hasen writes, “The worst part is that the initiative process is the best way to deal with legislative self-interest in the political process.”

Indeed, it is.

As I write in my 2008 essay, “Direct Democracy and Elections and Ethics Reform,” in Democracy in the States: Experiments in Elections Reform edited by Bruce Cain, Todd Donovan, and Caroline Tolbert (Washington, DC: Brookings), “State legislators are likely to alter institutions so as to keep power and win elections. As such, we should not expect lawmakers to adopt either election or ethics reforms that may diminish their chances of winning and holding office.”  The chapter offers “a comparative and historical examination of the popular adoption and policy impact of a variety of election and ethics ballot initiatives in the American states,” and it also “examines recent efforts by state legislatures to regulate and restrict the use of the initiative.”


Because, as Pasco County Supervisor of Elections Brian Corley correctly noted on Monday to Steve Bousquet, “The data provided to us by the Florida Department of State lacked complete, credible and accurate data.”

Yup. Couldn’t agree more.

Here’s my Expert Report in the case, Arcia v. Detzner.

Marc Caputo reports that John Morgan’s Medical Marijuana initiative is sporting a new look as he tries to qualify it for the 2016 ballot.

Will tweaking the wording make a difference?  Perhaps.

But contrary to Morgan’s claim that “turnout wasn’t what it could have been” and that “old people, 65 and older really did us in,” what really hurt Amendment 2 was not the wording of the constitutional amendment or poor turnout, but rather down-ballot roll-off.

As this Figure reveals, support for Amendment (Yellow line) was fairly strong across the state of Florida (it only dipped below 50% in 15 mostly rural counties). The big problem for Morgan and his campaign consultants was ballot roll-off, that is, voters who cast ballots in the gubernatorial race for Democrat Charile Crist (Blue line), but who didn’t vote for legalizing medical marijuana.  Support for Crist in Broward county, for example, topped 70%, and support for Amendment 2 was nearly as high.  The down-ballot roll-off on Amendment 2, however, was 5.3%. Crist tallied 17,000 more votes than Morgan’s Amendment 2 in Broward.  In Miami-Dade county, Crist out-polled Amendment 2 by more than 28,000 votes, as roll-off was 6.7% in the populous South Florida county.  Amendment 2 failed to achieve 60% in Miami-Dade not because of poor turnout, but because of the high roll-off among Crist supporters.  Across the state, roll-off on Amendment 2 was by far the greatest in Broward and Miami-Dade, strongholds for Democrats and support for the legalization of medical marijuana.

Looking forward to 2016, the electoral demographics for Morgan’s retooled medical marijuana ballot measure should be in place in a high turnout presidential election. But limiting ballot roll-off among Democrats–especially peripheral voters who come out every four years–will again be key for the deep-pocketed Orlando trial lawyer.

in Schuette v. Coalition to Defend Affirmative Action. The opinion is available here.

Here are the relevant passages….

Cite as: 572 U. S. ___ (2014)   19
SOTOMAYOR, J., dissenting

And the costs of qualifying an amendment are significant. For example, “[t]he vast majority of petition efforts . . . require initiative sponsors to hire paid petition circulators, at significant expense.” Segura Brief 10; see also T. Donovan, C. Mooney, & D. Smith, State and Local Politics: Institutions and Reform 96 (2012) (hereinafter Donovan) (“In many states, it is difficult to place a measure on the ballot unless professional petition firms are paid to collect some or all the signatures required for qualification”);


SOTOMAYOR, J., dissenting

In 2008, for instance, over $800 million was spent nationally on state-level initiative and referendum campaigns, nearly $300 million more than was spent in the 2006 cycle. Donovan 98. “In several states, more money [is] spent on ballot initiative campaigns than for all other races for political office combined.” Ibid.


Gronke’s full report is available here

Of particular interest to ElectionSmith readers, this paragraph on page 12:

Two recent articles on the racial impact of voting law changes in Florida, one published in the Election Law Journal (ELJ)21 and the second published in Political Research Quarterly are particularly pertinent to this report. In the first, the authors examined the impact of a new Florida law passed in 2011 that truncated the state’s early voting period and eliminated voting on the last Sunday
before Election Day. The authors reported that “Democratic, African American, Hispanic, younger, and first-time voters were disproportionately likely to vote early in 2008 . . . We expect these types of voters to be disproportionately affected by the recent changes to Florida’s voting laws.”22 The second article followed up on the initial research conducted in the ELJ article. In this second
piece, the authors examine the racial and ethnic composition of the early inperson electorate in Florida using voter registration and voter history files. They show that Black early-in person participation dropped by four percentage points as a consequence of the cutback in early voting, while White early in-person participation dropped less than a percentage point. This difference is not due to changing composition of the electorate.23


22 Michael C. Herron and Daniel A. Smith, “Souls to the Polls: Early Voting in Florida in the Shadow of House Bill 1355,” Election Law Journal 11, no. 3 (2012): 331.
23 See Michael C. Herron and Daniel A. Smith, “Race, Party, and the Consequences of Restricting Early Voting in Florida in the 2012 General Election,” Political Research Quarterly (published online Feb. 24, 2014),, at Tables 2 & 3.

Want evidence? Start here:



I didn’t have a chance to blog SCOTUS’s decision not to grant cert. in the case, NOM v. McKee, which grew out of a an investigation launched by the Maine Ethics Commission in 2009 after the National Organization for Marriage (NOM) failed to disclose its donors in its effort to defeat Question 1, which overturned marriage equality in the state.

Here’s a link to a series of discussions about the case by Rick Hasen on his ElectionLaw blog.

Back in the spring of 2010, I provided some pro-bono assistance to attorneys in the Maine Attorney General, drawing on my work on campaign finance disclosure in similar lawsuits in California, Colorado, and Florida, and my Election Law Journal article with Beth Garrett, Veiled Political Actors.



Well, I had completely forgotten about this case.

The Initiative & Referendum Institute filed an initial lawsuit back in 2000, bringing a facial challenge to a 1998 ban by the US Postal Service on “soliciting signatures on petitions” on “all real property under the charge and control of the Postal Service.” 39 C.F.R. § 232.1(a), (h)(1) Violators were subject to both a criminal fine and imprisonment. Id. § 232.1(p)(2).

[For the record, I sit on the “Board of Scholars” of the I&R Institute, although I have not received any communication for years from the Institute, now housed at the University of Southern California. Also, for the record, their website is terribly awkward, not to mention, outdated.]

Seemed at the time, a tad harsh. Not to mention, unconstitutional.

But lo and behold! After several iterations by the US Postal Service modifying its rule — and subsequent litigation — the U.S. Court of Appeals, D.C. Circuit, upheld the most recent (2010) Postal Service regulation that allows petition gatherers to solicit signatures while standing on interior postal sidewalks, but the physical act of signing a petition is not permitted on the interior sidewalk. Rather, those wishing to sign the petition must head to a designated “Grace” area to fill in the information on the petition.

But, as Judge Janice Rogers Brown, who signed the majority opinion but wrote separately in a Concurring Opinion, stated:

“…this half-a-loaf solution seems more persnickety than practical. The harms about which the Postal Service is concerned—the impeding of traffic and the appearance of
Postal Service endorsement, Majority Op. at 11–12—and, indeed, all of the harms I can imagine, accrue in the initial, permitted phase of a signature-gathering encounter: the

Look for this decision to be appealed to the Supreme Court of the United States.