High Court Rejects Curbs on Ballot Initiatives
Washington Post Staff Writer
Wednesday, January 13, 1999; Page A1
The Supreme Court yesterday struck down a state's aggressive effort to regulate ballot initiatives, in a decision extolling the free speech rights of people who circulate such petitions and sending a strong warning to legislators who try to rein them in.
In a split decision, the justices rejected Colorado's requirements that people who circulate petitions wear identification badges, be registered voters in the state and be subject to requirements on how much they were paid to collect signatures.
The decision is likely to be carefully evaluated by state lawmakers around the country who have been overwhelmed in recent years by a flurry of ballot initiatives designed to buck the political status quo. The initiatives are permitted in 24 states and the District and have been used to rewrite state laws governing everything from term limits and tax caps to gay rights and the legality of assisted suicide.
But as the populist tool has developed into a multimillion-dollar industry dominated by professional firms and powerful national lobbyists, states increasingly are trying to devise ways of regulating the process. And Colorado, which has seen an abundance of initiatives on the ballot this decade, has been at the forefront of that effort.
In their decision yesterday, the justices made clear that regardless of how commercialized the process has become, they still view the initiatives as an important form of free speech.
"The First Amendment requires us to be vigilant . . .," Justice Ruth Bader Ginsburg wrote for the court, "to guard against undue hindrances to political conversations and the exchange of ideas."
Chief Justice William H. Rehnquist dissented from the ruling entirely. Justices Sandra Day O'Connor and Stephen G. Breyer dissented only on the portion of the opinion striking down voter registration and financial disclosure requirements.
Dissenting justices, as well as a Colorado official, warned that the ruling would make it harder for states to protect the integrity of petition drives. But advocates of the process said the decision safeguards an important access that citizens have to the political process.
"The ironic effect of today's opinion," Rehnquist maintained, "is that, in the name of the First Amendment, it strikes down the attempt of a state to allow its own voters (rather than out-of-state persons and political dropouts) to decide what issues should go on the ballot."
O'Connor and Breyer added separately that the decision strikes down "regulations that are vitally important to the integrity of the political process," noting that the majority's approach could threaten other attempts to regulate the initiative process.
M. Dane Waters, president of the Initiative and Referendum Institute, praised the ruling as sending "a clear message to state legislators that people do have the right to self-govern" and should not be deterred from participating in initiatives. He said that 14 states besides Colorado require circulators to be registered voters, and that four others require them to wear some form of identification. Neither Maryland nor Virginia allows voter initiatives on the ballot; the District does, and Rehnquist specifically noted that its law requires circulators to be eligible to vote.
Colorado had defended the voter registration provision by arguing that it makes it easier for the state to track down people who collect signatures if regulators hear complaints about misrepresentations or fraud. But Ginsburg said putting such a registered-voter requirement on circulators "cuts down the number of message carriers in the ballot-access arena."
In a similar vein, she said the badge requirement limits the number of people who will collect signatures for a cause. She said the state could not justify the regulation that proponents disclose how much they have paid each circulator, asserting that ballot initiatives "do not involve the risk of 'quid pro quo' corruption present when money is paid to, or for, candidates." She also noted that states can still require sponsors of ballot initiatives to disclose who pays the petition circulators and the total amounts.
Ginsburg relied on a 1988 high court ruling, on an earlier Colorado case, emphasizing the "core political speech" involved in petition drives. That ruling said "First Amendment protection for such interaction . . . is at its zenith."
Throughout her opinion, an overriding concern was whether the state rules would reduce the number of people participating in a ballot initiative.
Ginsburg was joined by Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy and David H. Souter. Justice Clarence Thomas concurred in the judgment in Buckley v. American Constitutional Law Foundation but expressed a different rationale.
Colorado deputy attorney general Maurice G. Knaizer said yesterday that the state was trying "to protect the integrity of the system" and that he expects more reports of fraud because of the ruling. But Neil D. O'Toole, who represented the American Constitutional Law Foundation, which challenged the regulations, contended that fraud really isn't a problem and praised the court for endorsing "the right of the people to change government peaceably."
Staff researcher Ben White contributed to this report.
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