Calif. Ballot Measures Addressed by 9th Circuit

(CN) - Individual California voters, not associations, must introduce ballot initiatives, but the voter can remain anonymous up to a point, the 9th Circuit ruled Monday.

At issue is the rejection by the Chula Vista City Council of a petition for a local ballot measure that sought to prohibit the San Diego community from entering into union-only building contracts.

Chula Vista Citizens for Jobs and Fair Competition, the Associated Builders and Contractors of San Diego, and two individuals claimed in their complaint that the city's "elector requirement," which is also in the California Elections Code, violates the First Amendment.

They also challenged a rule requiring voter-proponents of ballot measures to put their names on petitions circulated among the public.

A revised ballot measure, run by two individuals to comply with the allegedly unconstitutional requirements, passed in 2010.

Meanwhile, U.S. District Judge Roger Benitez ruled for the defendants on both questions, finding that the "initiative power belongs to people," and that proponent anonymity went against the state's interest in fair elections.

An appellate panel affirmed on the former point Monday, but reversed on the latter.

"The First Amendment does not require that associations be allowed to share in the legislative power simply because the exercise of such power might be expressive," Judge Diarmuid O'Scannlain wrote for the three-judge panel (emphasis in original).

"If the mere fact that an activity is expressive meant that there was a First Amendment right to engage in that activity, irrespective of the context in which the activity occurs, then the First Amendment would protect the right of any voter to participate in the debates of the state legislature," he added. "After all, such debates are highly expressive in nature. Yet, no one would maintain that the First Amendment prohibits limiting participation in such debates to members of the state legislature. Similarly, the exercise of an official proponents' authority, if expressive in nature, can be limited to those who qualify as official proponents."

The panel was not so convinced by the "compelled disclosure" rule, however, prompting a partial dissent by Judge Susan Graber.

California, which intervened in the case as a challenge to state election code, argued that requiring proponents of ballot measures to include their names on petitions served the state's interests in an informed electorate and the integrity of the electoral process.

But the state failed to show evidence of such allegedly compelling interests, the majority found.

"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," O'Scannlain wrote. "Under these circumstances, the informational interest does not bear a substantial relation to the petition-proponent disclosure requirement and fails exacting scrutiny."

The appellate panel returned the case to San Diego and called for an injunction against the petition-proponent disclosure requirement.

Graber's dissent defended the state's interest in transparent elections.

"The local government has an 'essential' interest in preserving an electoral process in which members of the California public who are considering whether to sign an initiative petition know for whom they are expressing support as the official proponent when they sign a petition - and to whom they will delegate certain lawmaking duties if the petition is successful," she wrote. "The government's interest in supporting the integrity of the electoral process by providing the public with the identity of an official proponent is not directed solely at preventing fraud. The electoral process would be degraded if potential signers have no way of knowing whether their signatures are delegating lawmaking duties to a desirable proponent for the initiative, who will present arguments on behalf of the initiative and defend the initiative in a manner with which the signers agree. As noted, in California official proponents play a central role, both during the lawmaking process and after their initiative is enacted."

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