Andrew Taramykin | Are Ballot Petitions a Fundamental Right? Reconsidering the Application of Strict Scrutiny to State Regulations over Voter Initiatives

Background

At the height of the COVID-19 pandemic in 2020, a group of voters in Oregon City, Oregon sought to remove their mayor, Dan Holladay, from office. As a former electrician and longtime local activist, Holladay’s reputation as mayor soured due to a series of clashes with city commissioners and residents on issues ranging from his opposition to Oregon’s pandemic restrictions to his criticism of the Black Lives Matter protests. Voters in the small Portland suburb, led by Commissioner Adam Marl, launched a petition to have Holladay recalled. However, Oregon’s emergency orders limited public gatherings, which would make it more difficult for petitioners to gather the required signatures before the state’s 90-day deadline for recall petitions. In response, the petitioners sued the city seeking nominal damages, declaratory relief, and injunctive relief for future petitions.

When determining the constitutionality of a government action pertaining to a fundamental right, courts apply strict scrutiny. Strict scrutiny is a heightened standard of judicial review which presumes unconstitutionality and places the burden of proof onto the government (usually as the defendant) to illustrate that the action is constitutional. To prove its actions constitutional, the government must demonstrate that they were narrowly tailored to further a compelling governmental interest and that the action taken was the least restrictive means to advance that interest. As one of the most fundamental rights in the American republic, voter participation or voting rights-adjacent cases may often require strict scrutiny.

The Supreme Court held in Moore v. Ogilvie, 394 U.S. 814, 819 (1969) that questions about geographic requirements to ballot access for political candidates may be held to strict scrutiny. However, that question remains unsettled for ballot access for initiatives. While courts throughout the country have long maintained that the right to participate in representative democracy is sacrosanct, there is less history of heightened judicial standards for protecting the right to participate in direct democracy.

That is, except in the Ninth Circuit, where Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012) affirms that strict scrutiny is to be applied to laws inhibiting ballot initiatives as exercises of citizens’ First and Fourteenth Amendment rights. Angle may be a legacy of the western states’ unique affinity for direct democracy. Whereas only a handful of states east of the Mississippi River allow ballot initiatives, nearly every state west of the Rockies does (in particular, every state in the Ninth Circuit except Hawaii). Even though the Ninth Circuit held the 90-day deadline in Committee to Recall Dan Holladay v. Wiley, 120 F.4th 590, 9th Cir. 2024) would not be subject to strict scrutiny, it also declined to reconsider the Angle precedent. This keeps the circuit at odds with several others; however, the Sixth Circuit has recently created a third, middle ground category by applying the Anderson-Burdick framework to ballot initiatives. See Thompson v. Dewine, 959 F.3d 804, 808 (6th Cir. 2020). This leaves the status of what kind of scrutiny to apply to ballot initiative regulations split at least three ways across several circuit courts of appeal

Issue

Should state regulations that significantly inhibit the placement of voter initiatives on the ballot be subject to strict scrutiny?

The Split

Committee to Recall Dan Holladay reaffirmed Ninth Circuit precedent that was first established in Idaho Coalition United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 (9th Cir. 2003) and extended by Angle v. Miller in 2012. Idaho Coalition first created the ongoing circuit split in 2003 by breaking with opinions from the Eighth Circuit in 1997 and the D.C. Circuit in 2002. In 2006, the Tenth Circuit joined the others in not applying strict scrutiny to laws regulating ballot initiatives, and the Second Circuit in 2009 and the Seventh Circuit in 2018 followed. This put the Ninth alone on the issue, although in 2019, the Sixth Circuit created a middle position by applying the Anderson-Burdick framework to all election regulations.

The Ninth Circuit & Strict Scrutiny

In 2003, the Ninth Circuit considered a law requiring Idaho ballot petitions to obtain signatures from six percent of the voters in at least 22 of Idaho’s 44 counties. Idaho Coalition, 342 F.3d at 1077. It ruled on the case by following Moore v. Ogilvie, 394 U.S. 814, 819 (1969), which held that an Illinois law requiring independent candidates to get signatures from at least 200 voters in at least 50 counties was subject to strict scrutiny. In both Moore and Idaho Coalition, the county-based geographic requirements were found to violate the Equal Protection Clause by giving voters in sparsely-populated counties disproportionate power over what became eligible for the ballot. In Idaho Coalition, the Ninth Circuit noted that the county-based requirement was not narrowly tailored because the state “could achieve the same end” by basing geographic distribution on congressional or legislative districts, which are units of equal population. This marked the first instance of a circuit applying Moore to ballot initiatives, which are not found anywhere in the United States Constitution but are central to political life in many states, particularly in the region of the country where the Ninth Circuit sits.

Moore and Idaho Coalition were later used to apply strict scrutiny to, and ultimately invalidate, a county-based geographic distribution requirement in Nevada called the “13 Counties Rule,” which required petitioners to garner support of ten percent of voters in at least 13 of Nevada’s 17 counties. See ACLU of Nevada v. Lomax, 471 F.3d 1010 (9th Cir. 2006). In response to Lomax, Nevada followed the recommendation found in Idaho Coalition and replaced the 13 Counties Rule with an “All Districts Rule.” The new rule stipulated that initiatives must receive signatures from a number of registered voters “equal to [ten] percent of the votes cast in the previous general election in each of the state’s congressional districts” to qualify for the ballot. Angle, 673 F.3d at 1126.

Just six years later, the All Districts rule was challenged in Angle, where plaintiffs alleged hostility to ballot initiatives from officials in the rural north of the state imposed severe burdens, and therefore strict scrutiny should be applied. The Ninth Circuit found that the plaintiffs-appellants failed to show such a severe burden, so the panel applied intermediate scrutiny and found the All Districts Rule was constitutional. Id at 1134-35. However, by following Idaho Coalition and Moore, the Ninth Circuit affirmed the application of the strict scrutiny test to ballot initiative regulation, even if strict scrutiny itself was not applied.

This background leads us to Committee to Recall Dan Holladay, 120 F.4th 590. The case emerged from a COVID-19 era challenge to burdensome petition deadlines, and the court found that the burden imposed by Oregon’s 90-day deadline was indeed constitutional because it did not restrict political speech, even if the circumstances of the pandemic made it more difficult to acquire signatures in person. The Ninth Circuit remanded the case back to the district court, and the judges also denied a petition for rehearing en banc. Circuit Judge Patrick J. Bumatay dissented on the court’s denial, arguing in his opinion that the Angle precedent incorrectly “extrapolates a right to put an issue on the ballot from the right to advocate for an issue,” which he felt the bench should reconsider and reject. Committee to Recall Dan Holladay, 120 F.4th at 591 (Bumatay, J., dissenting). However, by declining to rehear the case, the Ninth Circuit kept the Angle precedent and the application of strict scrutiny to regulations restricting ballot initiatives.

The Sixth Circuit & Anderson-Burdick

The Anderson-Burdick balancing test requires strict scrutiny for any challenged law that places a severe burden on voter participation. The test is named after two cases involving political candidates’ ballot access (Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992)), and it requires the court to balance the burden on electoral participation imposed by a regulation against the state’s interest in issuing that regulation.

Seven years after Angle (and sixteen years after Idaho Coalition), the Sixth Circuit created its new position. In an appeal by the Ohio secretary of state and a county board of elections after a district court ordered an injunction on the state’s denial of plaintiff’s proposed ballot initiative decriminalizing marijuana possession in two Ohio municipalities, the Sixth Circuit applied the Anderson-Burdick test. See Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019). In that case, the panel found the restriction imposed by the regulation was not so severe that it outweighed the government’s interest in issuing it. However, although the law stood, the case set the precedent that the test would be applied to ballot initiatives.

The following year, the Sixth Circuit elaborated in a case that, like Committee to Recall Dan Holladay, challenged a state’s petition deadlines during COVID-19. In a per curiam order, they explained, “Although the Constitution does not require a state to create an initiative procedure, the state cannot place restrictions on its use that violate the federal Constitution.” Thompson, 959 F.3d at 808 (citing Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) Although this decision also found that the burden did not outweigh the government’s interest, Thompson cemented that the Sixth Circuit applies Anderson-Burdick when considering challenges to ballot initiative restrictions. It should be noted that the Sixth Circuit has not yet found a regulation unconstitutional under this test.

The Second, Seventh, Eighth, Tenth, Eleventh, & District of Columbia Circuits

The opinions of both the Sixth and Ninth Circuit are minority views. The majority of circuits do not use strict scrutiny or the Anderson-Burdick test when considering regulations restricting ballot initiatives or petitions.

 In 1996, the Eleventh Circuit rejected an argument from a ballot petitioner seeking to enjoin enforcement of Florida’s statutory requirements for ballot initiatives as burdening “core political speech.” Biddulph v. Mortham, 89 F.3d 1491, 1493 (11th Cir. 1996).  The Florida Constitution gives citizens the right to place initiative on the general election ballot, but state statute governs the petition process. The plaintiff, Biddulph, filed a petition for an amendment that would subject all state tax increases to a statewide referendum. After the petition’s format was approved by the secretary of state and it received the requisite signatures, it was rejected by the state’s attorney general just one month before the 1994 election. The “Voter Approval of New Taxes” proposal was rejected because it violated Florida’s single-issue requirement and title requirements for ballot initiatives, but when Biddulph submitted new language and modified the title, the secretary of state declined to put the revised petition on the ballot.

After being dismissed by the Northern District of Florida, Biddulph’s appeal relied on Meyer v. Grant, 486 U.S. 414 (1988), which applied strict scrutiny to a Colorado law prohibiting payment of petition circulators. The Meyer Court reasoned that this prohibition inhibited the communication of political ideas and was therefore burdening a fundamental right. This reasoning was not applicable to Biddulph, because the plaintiff failed to show that the initiative process “substantially restricts political discussion of the issue [he] is seeking to put on the ballot.” Biddulph, 89 F.3d at 1498. Therefore, the Eleventh Circuit interpreted Meyer as not imposing strict scrutiny on regulation of ballot initiatives themselves, but rather, only on regulations that impinge the communication of the political ideas contained therein. As for the initiative process itself, states have broad power to institute whatever procedures they see fit, if they choose to permit ballot initiatives in the first place. Id at 1500.

One year later, the Eighth Circuit held similarly that a regulation on signature requirements did not inhibit the circulation of petitions or the right to engage in political speech, and appellants’ reliance on Meyer was therefore inapplicable. Dobrovolny v. Moore, 126 F.3d 1111, 1112 (8th Cir. 1997). In that case, appellants challenged a Nebraska law requiring ballot petitions to have signatures from 10% of the number of registered voters on the day the petition was filed. Because it was impossible to know that exact number beforehand, the exact requirement petitioners had to aim for was also unknowable; however, nothing about that law prevented them from circulating petitions anyhow, so the Eighth Circuit held Meyer did not apply and upheld the law without subjecting it to strict scrutiny.

In 2002, the D.C. Circuit heard a challenge to an amendment to the District of Columbia appropriations act that prevented the District from enacting any law to reduce penalties for marijuana offenses. The federal government was sued for restricting residents’ First Amendment right to pass laws via ballot initiative. However, the D.C. Circuit reversed the district court’s opinion and upheld Congress’s amendment, holding that both Congress has constitutional authority to control the District’s legislative agenda and that the amendment did not impede on advocates ability “to lobby, petition, or engage in other First Amendment-protected activities to reduce marijuana penalties.” Marijuana Policy Project v. United States, 304 F.3d 82, 85 (D.C. Cir. 2002). Additionally, they note that “although the First Amendment protects public debate about legislation, it confers no right to legislate on a particular subject.” Id.

The Tenth Circuit also declined to apply strict scrutiny to ballot initiative regulations in 2006. In Utah, advocacy organizations challenged a provision of the Utah Constitution stipulating that ballot initiatives pertaining to wildlife management needed a two-thirds majority vote to become law. Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006). This threshold was higher than the standard for initiatives in other policy areas, which the Tenth Circuit permitted for the same reasons as earlier appeals courts: namely, stricter rules for implementation do not prevent advocates from speaking out. As the majority in Initiative & Referendum held, “The First Amendment ensures that all points of views may be heard; it does not ensure that all points of view are equally likely to prevail.” Id. at 1101.

The Tenth Circuit notes that while Initiative & Referendum was on appeal, a similar case was decided in the First Circuit. In Wirzburger v. Galvin, 412 F.3d 271, 279 (1st Cir. 2005), the circuit ruled against an appellant who sought to change Massachusetts’s constitutional amendment prohibiting public funding for private schools, to enable the state to provide grants or loans to private, religious schools. However, the Massachusetts Constitution also excludes certain matters from being amended by ballot initiative, including the “anti-aid” amendment or any matters relating to religion or religious institutions. Mass. Const. Art. 48, Pt. II, §2. The First Circuit notes that regulations of ballot initiatives are “at most, subject to intermediate scrutiny.” Wirzburger, 412 F.3d at 275. Intermediate scrutiny is a judicial standard that is higher than rational basis review but not as stringent as strict scrutiny. Here, they decided to apply intermediate scrutiny, and ultimately upheld Massachusetts’s subject-based exclusions. Id. at 279 (citing United States v. O’Brien, 391 U.S. 367, 377 (1968)).

Thus, the First Circuit’s position on how to review ballot regulations is distinct from the majority rule’s use of rational basis review, but still closer to the majority than the approaches in either the Sixth or Ninth Circuits–notably, with similar results to the majority as well. The Tenth Circuit acknowledged the First’s holding and respectfully disagreed. Initiative & Referendum, 450 F.3d at 1085.

In 2009, the Second Circuit heard a challenge arising not out of an ongoing or prospective petition, but on a legislative action that undid a past ballot initiative. In 2008, New York City Mayor Michael R. Bloomberg signed a law passed by the City Council enabling all city officeholders to serve three consecutive terms, rather than the two-term limit enacted by referendum in 1993. Molinari v. Bloomberg, 564 F.3d 587, 589 (2d Cir. 2009). Plaintiffs, including several executive and legislative branch elected officials and prospective candidates in the city, relied on Meyer and one of its progeny, Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), to argue that undoing a referendum by legislation would violate four different governing laws: the First Amendment by causing a chilling effect on referenda participation, the Fourteenth Amendment Due Process rights of the plaintiffs to extend the defendants’ political careers, New York’s home rule law which required a referendum to pass the law in question, and the City Charter’s conflict of interest provision. Id. However, the court maintained that “Meyer and Buckley do not guarantee a right to legislate by referendum, much less a right protecting a law enacted by referendum from amendment or repeal by a legislative body.” Molinari, 564 F.3d at 599. (citing Initiative & Referendum, 450 F.3d at 1099-1100) Therefore, because no fundamental right was burdened, strict scrutiny would not be applied.

The most recent circuit to decline to use strict scrutiny was the Seventh. In an opinion by Judge Easterbrook, the Seventh Circuit affirmed a district court’s ruling in favor of a defendant, the mayor of a Chicago suburb, in upholding Illinois’ law (known as the “Rule of Three”) limiting any ballot to having no more than three initiatives on it. Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 936. This case, like Molinari, involved city officials’ term limits. The plaintiff-appellant, Thaddeus Jones, sought to prevent the defendant-appellee, Michelle Markiewicz-Qualkinbush, from serving another term as mayor of Calumet City, so he proposed an initiative preventing anyone from serving more than three consecutive terms. However, before he could submit his petition, the city got three other initiatives on the ballot (including one that would bar Jones from re-election as an alderman or mayor), therefore meeting the Rule of Three’s maximum number of initiatives on one ballot. Id. In his opinion, Easterbook justifies using rational basis review to answer the question, explaining that, “Because the Rule of Three does not distinguish by viewpoint or content, the answer depends on whether the rule has a rational basis.” Id. at 938. Using rational basis review, the Seventh Circuit determined that, while the maneuvering by the mayor was “rough-and-tumble” politics, it was all legal, and it would be inappropriate for courts to intervene. Id. at 939.

Looking Forward

Judge Bumatay’s dissent in Committee to Recall Dan Holladay v. Wiley, 120 F.4th at 593 (Bumatay, J., dissenting) argued that the case offered an ideal opportunity for the Ninth Circuit to reconsider Angle and the use of strict scrutiny on ballot initiative regulations without widespread backlash or political pressure from either side of the issue. The case was otherwise uniquely uncontroversial. It was a nonpartisan election, there was no “hot-button proposal” involved, and the recall election was already over. Holladay was successfully recalled, and the only reason the case was not moot was that the appellants sought nominal damages and an injunction on the 90-day deadline being enforced on any future petitions. Id. While the Ninth Circuit was uninterested in reconsidering, the question may become more nationally prevalent in light of the Sixth Circuit decision to apply strict scrutiny in Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020). However, the Supreme Court twice declined to hear Thompson, most recently in 2022, so the issue is at rest for now.  Among the cases in circuits where rational basis was used instead of strict scrutiny, certiorari was denied for four of them, the most recent being Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir. 2018).

It seems as though the Supreme Court is uninterested in resolving this split for the time being, and perhaps that is because the split itself has not proven to be all that consequential. Whether or not courts use Anderson-Burdick or apply strict scrutiny has not led to significant changes in outcome, as both Angle and Committee to Recall in the Ninth Circuit and Schmitt and Thompson in the Sixth Circuit saw the circuit courts uphold the laws in question after using their respective tests and determining what level of scrutiny to apply. Additionally, the cases where strict scrutiny was applied and the law was changed—Idaho Coalition and Lomax—involved regulations that gave certain voters disproportionate disadvantages relative to each other, whereas the cases in the Second, Sixth, Seventh, Eighth, Tenth, Eleventh, and D.C. Circuits involved challenges to laws that gave voters disadvantages relative to the state itself. Across circuits, it appears consistent that voters are entitled to be equal to other voters, but that ballot initiatives are a matter of state law and subject to state regulation–even if that state is in a circuit that applies strict scrutiny to such regulations.

Yet as long as federal law remains inconsistent across the states, the soil remains fertile for deeper discrepancies. Should the use of the Anderson-Burdick test or the application of strict scrutiny begin to produce highly variable outcomes in otherwise comparable cases across the circuits on different sides of this split, the Supreme Court may become interested in getting involved. Until that happens though, it is unlikely that this question will make its way to the high court anytime soon.

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