(Photo: Christian Schwier)
A federal appeals court has struck portions of California’s election law that require ballot-initiative proponents to disclose their identities on petitions, but upheld a separate requirement that official initiative proponents be real people, not associations or corporations.
Monday’s opinion by the U.S. Court of Appeals for the Ninth Circuit was a mixed result for James Bopp of The Bopp Law Firm in Terre Haute, Ind., in his latest First Amendment challenge to election laws.
“Those interested in imposing restrictions on core political speech have been waiving ‘disclosure’ around like a magical talisman that supposedly allows whatever government imposes. The court in this case joins other courts in rejecting that misguided approach,” he said in a prepared statement.
In an emailed statement to The National Law Journal, Charles Bird, a partner in the San Diego office of McKenna Long & Aldridge, who represented the defendants—city officials of Chula Vista, Calif.—said: “In the district court and on appeal, the city of Chula Vista’s officials concerned themselves only with the issue whether an initiative’s official proponents must be real people who vote where the initiative would have consequences. The city’s officials and their lawyers are proud to have defended this traditional provision and purpose of the statewide and local initiative process in California.”
Nicholas Pacilio, a spokesman for the California attorney general’s office, which intervened in the case, said, “We’re reviewing the ruling.”
The Chula Vista Citizens for Jobs and Fair Competition and the Associated Builders and Contractors of San Diego Inc. sued after city officials rejected their first attempt to place an initiative on the city’s ballot because no individuals had signed the petition. After two members of one of the groups signed the measure, voters passed the initiative in 2010.
U.S. District Judge Roger Benitez of the Southern District of California tossed out the case on summary judgment.
On appeal, both groups likened initiative proponents to lobbyists, but Circuit Judge Diarmuid O’Scannlain, writing for the majority, found them more akin to legislators. Citing the U.S. Supreme Court’s 2011 decision in Nevada Commission on Ethics v. Carrigan, O’Scannlain concluded that a public official’s right to vote isn’t protected free speech under the First Amendment.
But the panel reversed Benitez’s ruling as to a second requirement that initiative proponents disclose their identities when gathering signatures on a petition.
Citing precedents from the U.S. Supreme Court and the Ninth Circuit, O’Scannlain, a Reagan appointee, concluded that the requirement was “onerous,” especially since the individuals had provided their names on two occasions during the initiative process.
“Voters who wish to know the identities of official proponents need only make a trip to the city clerk’s office or search for the publication of the petition in their newspapers of general circulation,” he wrote.
The panel was far from unanimous. Circuit Judge Susan Graber, a Clinton appointee, found in a dissent that the disclosure requirement was constitutional because “the government has an essential interest in preserving an electoral process that allows voters to know to whom they are delegating lawmaking power when signing a particular petition.”
And Circuit Judge Carlos Bea, a George W. Bush appointee, while agreeing with the opinion, cited the U.S. Supreme Court’s landmark 2010 opinion in Citizens United v. Federal Election Commission in concluding that an initiative proponent’s actions are expressive, not legislative, and thus protected by the First Amendment. But he found those free speech rights were outweighed by California’s interest in ensuring that only locals serve as official proponents of initiatives.
Contact Amanda Bronstad at firstname.lastname@example.org.