As the following is no longer available as an active link, it is presented below for educational purposes alone, under the "fair use" doctrine.
This appears to be a fair and objective report on the increasing role of professional "initiative" companies in so-called "grassroots" initiatives in states allowing voter referendums.
Court hears arguments on voter referendums
BY LINDA GREENHOUSE
New York Times, October 14, 1998
WASHINGTON -- With voter referendums gaining an ever more prominent role as adjuncts to ordinary lawmaking, the Supreme Court heard arguments Wednesday on how far states can go in regulating the process of getting such measures on the ballot.
The case is an appeal by the state of Colorado
, where a federal appeals court invalidated a law requiring people who circulate petitions to wear badges identifying themselves and to disclose to potential signers whether they are volunteers or paid workers.
While the state argued that the law was necessary to deter fraud in the signature-collection process, the appeals court held that the disclosure requirements, as well as other regulations at issue in the case, curbed political expression in violation of the First Amendment.
Twenty-four states, nearly all in the Midwest and West
, provide for voter referendums, and the Colorado case is being closely watched by state election officials and by organizations involved in the serious business of obtaining sufficient support to get often far-reaching measures on state ballots.
One political consulting firm,
National Voter Outreach Inc., told the justices in a brief opposing Colorado that it had conducted over 150 signature drives in 36 states, collecting more than 18 million signatures. It said that professional management, including paid workers to circulate petitions, were often necessary because states have established such detailed qualifications and tight deadlines that amateur signature collectors risked having their work invalidated through such minor errors failing to get a ``Junior'' or ``Senior'' after a name.
A brief filed on Colorado's behalf by the Council of State governments and other state and local government organizations, on the other hand, was critical of what it described as the ``hucksterism'' attendant on the ``initiative industry.'' ``The initiative process has become dominated by wealthy special interests,'' the government groups said, drawing a contrast to the spirit of the Progressive era, when the referendum approach was devised as a way of outflanking legislatures that were controlled by special interests.
``We are seeing the development of bands of people who go from state to state simply to circulate petitions,''
Gale Norton, Colorado's attorney general, told the court Wednesday. She said the disclosure provisions, as well as the requirement that signature collectors be registered Colorado voters, were necessary ``to protect the integrity of the process.'' The 10th U.S. Circuit Court of Appeals in Denver ruled last year that the registered-voter requirement also violated the First Amendment, as did a requirement for sponsors to file monthly reports with the state disclosing the identities of signature collectors and the amount of money spent on the petition drive.
The Colorado law was challenged by an organization interested in promoting voter referendums,
the American Constitutional Law Foundation, and by a group of individual Colorado voters interested in supporting referendums on such subjects as legalizing marijuana and authorizing school vouchers. The plaintiffs' lawyer, Neil O'Toole, told the justices that the state's concern about fraud was merely a ``talismanic invocation,'' and that the real goal was ``to hinder the collection of signatures.''
An earlier Colorado law had made it a crime to pay people to collect signatures for referendum petitions. In a 1988 decision, Meyer vs. Grant, the Supreme Court unanimously declared that law unconstitutional and said that the process of collecting signatures to bring a measure before the voters was ``core political speech'' that could not be limited without proof of a compelling state interest.
To salvage its current regulations, Colorado has to persuade the court to look at this case, Buckley vs. American Constitutional Law Foundation, No. 97-930, differently than the prohibition it struck down in 1988. Some of the justices were openly unreceptive to the state attorney general's efforts. For example, Justice Sandra Day O'Connor challenged Ms. Norton's defense of the requirement that signature collectors be registered voters, rather than simply residents of the state.
``Why can't someone who is an adult resident of Colorado perform that function as well as a registered voter?'' O'Connor asked, adding: ``It's very hard for me to understand the justification.''
Ms. Norton replied that since petition drives were part of the state's ``lawmaking process,'' it made sense to require signature gatherers to demonstrate a commitment to the state by being registered voters. In addition, she said, the state could then use its voter lists to track people down in case questions arose about the validity of the signatures they had collected.
A challenge in this case, for the justices as well as the lawyers, is that it stands at the intersection of two somewhat contradictory lines of court precedent: cases dealing with political expression, in which a state's regulatory role is sharply limited, and cases about ballot access and election rules, where the court has given states considerably more leeway.
Justice Stephen Breyer captured this inherent tension when he told Ms. Norton: ``I think there's a lot of speech involved in this case, but it's important that the state can regulate the process.'' Could the attorney general offer any precedents that might reconcile these two concerns, he wanted to know. Although Ms. Norton mentioned several cases, each appeared to fall in one camp or the other.
If Ms. Norton could not allay Breyer's concerns, neither did the other side's lawyer. If the court agreed with O'Toole that the disclosure requirements were unconstitutional, Breyer wanted to know, what might be the implications for campaign finance cases down the line, given that the court has already upheld disclosure requirements for contributions to federal elections. ``I'm quite concerned over deciding for you here,'' Breyer said, as the argument drew to a close leaving his concerns apparently unallayed.
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