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9th Circuit Upholds Initiative Transparency

PASADENA, Calif. (CN) - Rules that require proponents of ballot initiatives be registered voters and be identified on circulation petitions passed muster with the full 9th Circuit on Friday, which found neither violated First Amendment rights.

Chula Vista Citizens for Jobs and Fair Competition, the Associated Builders and Contractors of San Diego, and two individuals claimed in a 2009 federal complaint that the city's "elector requirement," which excludes non-natural persons from being proponents and 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.

The groups claimed that Chula Vista - a community in southern San Diego County - had used the rules to reject Proposition G, a municipal measure to bar the city from entering into project labor agreements requiring contractors to pay their workers a prevailing wage.

Proposition G eventually wound up on the 2010 ballot and was passed by voters.

However, U.S. District Judge Roger Benitez upheld both laws, finding that the "initiative power belongs to people," and that anonymity went against the state's interest in fair elections.

On appeal, a three-judge panel of the 9th Circuit disagreed on one point , saying Benitez should have enjoined the proponent-disclosure requirement. But the court vacated that holding in favor of a rehearing en banc.

At the en banc hearing this past December, plaintiffs' attorney James Bopp - the prominent conservative attorney behind the landmark U.S. Supreme Court case Citizens United v. Federal Election Commission that found corporate and union political spending is a form of constitutionally protected free speech - sparred with the judges about corporate "personhood" and voters' right to know who's behind the initiative petition they're being asked to sign.

On Friday, the 11-judge en banc panel agreed in a 42-page opinion that neither Chula Vista nor California violate free-speech rights by requiring proponents of ballot initiatives be registered voters.

"These provisions mean what they say: only natural persons (also known as human beings) who have the qualifications to vote may undertake official roles in California's initiative process, including the role of official proponent," Judge Stephen Reinhardt wrote for the court. "The plaintiffs contend that the California Constitution 'merely says that electors "propose" initiatives by signing petitions in sufficient number to qualify them for the ballot and then "adopt or reject" them. It says nothing about who may be proponents.'"

He continued: "It is obvious, however, that a 'proponent' is one who 'proposes,' and that an official proponent exercises initiative powers. Thus, both the California Constitution and the Chula Vista City Charter plainly reserve to electors the right to be proponents."

In essence, proposing a ballot initiative is a quasi-legislative power and - like all legislative and official acts - is reserved for members of the electorate, the court said.

The judges also acknowledged that proposing initiatives is core political speech. But the issue deviates from Citizens United in that corporations and associations are limited to supporting ballot bids - also core political speech, panel said.

As for compelled-disclosure rules, the court found nothing about having proponents' names displayed on petitions reduces the authors' freedom of speech. Voters also have a right to know who's behind what they're about to sign, according to the court.

"At the petition circulation stage, an official proponent resembles a candidate for public office, and the petition is effectively the ballot used by voters to imbue him with special legislative authority," Reinhardt wrote. "Accordingly, when deciding whether to sign a petition, the identity of the official proponent matters, and voters need to know whom they are being asked to vest with that authority."

He added: "The challenged disclosure poses at the most a minimal burden on First Amendment rights."

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