Buckley, Secy. of State of Colorado v. American Constitutional Law Foundation, et al. (01/12/1999)

By: Dan Baron, Medill News Service

Questions presented

Whether the state of Colorado may constitutionally regulate the process of circulating initiative petitions by requiring that (1) petition circulators who verify the signatures of petitions signers must be registered electrodes; (2) petition circulators must wear identification badges; and (3) proponents of an initiative must file reports disclosing the amounts paid to circulators and the identity of petition circulators.

Brief

Election Day is only a few months away. A few Colorado residents are standing on a street corner, circulating petitions for a ballot initiative on school vouchers in their state. They feel that they are exercising basic rights of free speech.

Colorado law defines who can circulate petitions. In 1993, the Colorado legislature amended a law regulating its ballot initiative and referendum petition process, citing the state's interest in preventing fraud in the election process. The state mandated that circulators be over 18, be registered voters and wear badges identifying themselves. The law also provided that circulators sign an affidavit.

Restrictions strike a nerve with various activist groups, including the American Constitutional Law Foundation and the Colorado Hemp Initiative, who consider the law a violation of First Amendment rights because it discriminates against nonvoters who wish to circulate petitions.

The American Constitutional Law Foundation and other plaintiffs filed suit in federal court in 1994, challenging the changes made in Colorado law that further restricted the ballot initiative and petition process. The U.S. District Court upheld much of the law, but ruled that the badge requirement violated the First Amendment.

In 1997, the 10th Circuit Court of Appeals agreed that the disclosure and badge requirements were unconstitutional, referring to the petition circulation process as ""core political expression."" The court also stated that disallowing nonvoters to participate ""has a discriminatory effect.""

This case is significant in light of the recent trend toward ballot initiatives to resolve public issues. In states like Colorado that have a small but vocal activist population, the case has many implications. Will more restrictive regulations try to shut out people who would otherwise be vocal? Or do these restrictions protect their states, and enhance the potential for fair elections?

The impact could be sweeping: more than half of all states authorize voter-initiated ballot measures. ""Ballot initiatives have been used to take power out of the hands of legislatures and put it into the hands of the people."" said Neil O'Toole, a Colorado attorney who represents the plaintiffs. In Colorado, petitioners who collect signatures of at least 5 percent of votes cast in the most recent secretary of state election can place initiatives on the state ballot.

""This could well be one of the most important First Amendment cases decided in this decade,"" said Colorado Attorney General Gale Norton, whose petition for certiorari was granted by the Supreme Court on February 23, 1998.

On Jan. 12, 1999, the Court affirmed, and, in striking down the Colorado law, found that the restrictions it placed on people who sponsor voter initiatives to change state laws were an unconstitutional limit on political speech. Writing for the majority, Justice Ruth Bader Ginsburg took issue with three provisions of the law -- one requiring that petition circulators be registered voters, another that they wear name identification badges, and a third that required ballot initiative sponsors to file monthly reports disclosing the names and addresses of those circulating the petitions and how much they are paid. She wrote that the provisions ""are not necessary to serve the state's legitimate interests in providing for administrative efficiency, fraud detection and a well-informed electorate."" The vote to strike down the badge-wearing requirements was 8-1, with Chief Justice William Rehnquist in dissent. The vote on the other two requirements was 6-3. In dissent, Justice Rehnquist wrote that ""the ironic effect of today's opinion 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 to be decided by the State's registered voters.