Cross-posted from Justia's Verdict.
The past year or so has been a rough period for people who support the design of the direct democracy process in California. Last summer, as I explained at the time, the U.S. Supreme Court wrote its Hollingsworth v. Perry ruling (involving Proposition 8, a California initiative banning same-sex marriage) using overly broad reasoning that makes it hard, if not impossible, for official proponents of an initiative to ever defend the measure in federal court when elected representatives decline to defend.
More recently, the California legislature, Governor and state judiciary have themselves all taken actions that violate the state's direct democracy scheme. The legislature passed, and the Governor earlier this month signed, a repeal of parts of an initiative concerning immigration policy, despite the fact that initiatives are not supposed to be subject to ordinary legislative amendment or repeal. To be sure, the initiative at issue in this instance-Proposition 187-deserved to be repealed (insofar as it was a misguided measure from the start). But, as I argued in an earlier column, the legislature and Governor lacked power to repeal it, and yet they did so anyway, without any convincing legal basis.
As for the California judiciary, last month the California Supreme Court, for reasons that I am not fully persuaded by, blocked (at least temporarily) voters from being able to weigh in on Proposition 49, a measure that would have solicited voter views on the desirability of amending the U.S. Constitution to undo the highly publicized Citizens United ruling concerning campaign finance.
In the space below, I describe yet another blow to the California statutes and constitutional provisions that set up the Golden State's direct democracy system. This time, the injury was inflicted by the U.S. Court of Appeals for the Ninth Circuit; in June, in Chula Vista Citizens for Jobs and Fair Competition v. Norris, that court invalidated state statutory provisions that require the identities of the official proponents of an initiative be disclosed to would-be signatories of the initiative petition (whose signatures are needed to qualify the measure for the ballot) at the time that signatures are sought.
In striking down the so-called petition-proponent disclosure requirement, the three-judge Ninth Circuit panel found that requiring disclosure amounted to a direct regulation of the content of political speech, and impermissibly burdened, in violation of the First Amendment, the free speech choices of initiative proponents to engage in political expression anonymously. The State of California has requested the Ninth Circuit to rehear the case en banc, but unless something changes, the provisions in California law containing the petition-proponent disclosure requirement are unenforceable.
The Straightforward Case for the Permissibility of Disclosure Requirements
On the face of things, it is hard to understand why California cannot require disclosure of the identity of initiative proponents at the time signatures are sought. After all, the identity of proponents could be very relevant, non-misleading information that many would-be signatories might want to have in deciding whether a measure should be placed on the ballot. And, of course, California need not have an initiative at all; the greater power not to have initiative signature gatherers altogether would seem to subsume the lesser power of allowing them but regulating their activities. Of course, if state law required signature gatherers to disclose certain information in such a way as to create a partisan skew, or to disclose information that was false or misleading, or if the failure to comply with disclosure requirements subjected initiative proponents or signature gatherers to punishment, the First Amendment might very well be violated. But in the case of California's law, the petition-proponent disclosure requirement is not viewpoint based or skewed, and the only consequence of noncompliance with the requirement seems to be that the signatures do not count towards the requisite number needed to place a measure on the ballot; there doesn't seem to be a suggestion that the signature gatherers or initiative proponents would be punished in any other way for their failure to disclose.
Why, then, were these provisions struck down? The fault really lies not mainly with the Ninth Circuit, but rather with the U.S. Supreme Court, which in a few cases has mistakenly said that regulating signature gathering is regulating "petitioning," an activity singled out for protection by the First Amendment, rather than regulating access to the official election ballot, which is subject to much less judicial skepticism. Because of this category recognition mistake-the Supreme Court effectively has, as Justice Scalia put it in the context of a different case, been "faked out" by a label-the Court has subjected signature-gathering rules to "exacting" scrutiny under the First Amendment, rather than a much more generous "reasonableness" standard that normally applies to a state's decisions about how to regulate access to the official ballot. Because of these Supreme Court decisions (described in more depth in the following paragraphs), the three-judge panel really had little recourse but to apply rigorous scrutiny to the state laws. And under that searching review, the disclosure requirements did not survive.
The Misguided Supreme Court Rulings that Constrained the Ninth Circuit
One of the wrongheaded Supreme Court decisions that put the Ninth Circuit in something of a bind here is Buckley v. American Constitutional Law Foundation (ACLF), a 1999 ruling addressing a challenge to Colorado's initiative procedures. Colorado law provided that when a certain number of voters sign up in support of a given state initiative, the measure is placed on the statewide ballot. In ACLF, the Court reviewed and invalidated three particular Colorado regulations governing this process. First, Colorado required that each signature gatherer wear a badge bearing her name and indicating whether or not she was paid to collect the signatures. Second, each gatherer had to be a registered Colorado voter. Third, initiative backers had to disclose monthly exactly how much each gatherer was getting paid.
The Supreme Court struck down all of these state law requirements as violating the right to "petition" government protected by the First and Fourteenth Amendments, presumably because initiative provisions often use the term "petition" in describing the beginning of the initiative process. The Court held that circulating an "initiative petition" is akin to distributing a handbill, and that Colorado's identity badge requirement was thus squarely foreclosed by a 1995 ruling in which the Court struck down an Ohio law banning the anonymous distribution of campaign handbills. Colorado's other rules met a similar fate; the Court found that requiring signature gatherers to be registered voters impermissibly limited the number of voices in the debate, and the Court held that the financial disclosure requirements impermissibly forced paid gatherers and their backers to surrender the anonymity enjoyed by their volunteer counterparts.'
In reaching these rulings, the Justices relied on Meyer v. Grant, another troubling case (from 1988) in which the Court invalidated another Colorado initiative provision which attempted to prohibit the payment of money to initiative signature gatherers altogether. As in ACLF, the Court in Meyer characterized the question as "involv[ing] a limitation on political expression subject to exacting scrutiny." From there, the Court quickly concluded that "[t]he refusal to permit appellees to pay petition circulators restricts political expression . . . [and that] [t]he First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.''
The Court's reasoning in these cases would be plausible if plaintiffs were in fact "petitioning" within the meaning of the First Amendment. But that label is inapt. The Colorado initiative process (like California's) is not about "petitioning the Government for a redress of grievances." It is about circumventing government by engaging in lawmaking itself. Thus, state law did not regulate "petitions" or "speech" at all. Instead, it merely provided that unless signatures were collected in a certain way, they would not count for purposes of qualifying an initiative for the statewide ballot.
In effect, citizens retained the right to collect signatures and present them to the government as a demonstration of the signers' views essentially as a handbill. None of the challenged provisions of Colorado (or California) law said otherwise. This right, however, does not include the right to have signatures count for purposes of triggering an election, when the signatures do not comply with the ballot access rules a state has put in place. No court would deny that I have the right to voice my preference for Jennifer Granholm for President, but I do not have a right to have my vote for Granholm count when that vote is made six months before the presidential election and for a person ineligible to hold the office because she is not a natural-born citizen. Indeed, the Supreme Court has repeatedly made clear that content neutral, reasonable ballot access requirements designed to limit the number of candidates or the number or issues placed on a ballot are not subject to strict judicial scrutiny.
If the Court in ACLF (and Meyer) had seen the Colorado laws for what they were (ballot access rules) and not for what they were not (impediments to pure speech) then the Court likely would have come out the other way. It would have evaluated Colorado law, not with reference to the First Amendment's protection of core political speech, but with reference to the Tenth Amendment's protections, buttressed by those provided in the so-called Guarantee Clause, of the core right of the people of each state to structure their lawmaking processes as they desire, so long as they do not discriminate on the basis of viewpoint, race, or some other illicit criterion.
The best outcome of the Chula Vista case from the Ninth Circuit would be for the Supreme Court to grant review (assuming that certiorari is, as it should be, sought) and to cut back or overrule altogether the erroneous decisions and reasoning of Meyer and ACLF. That is the only way to avoid future injuries to state direct democracy systems by lower courts.