Ballot-Initiative Secrecy Faces En Banc Review

(CN) - After clearing the way for California voters to anonymously introduce ballot initiatives, the 9th Circuit agreed Tuesday to rehear the case en banc.

The rules that prompted the challenge limit the introduction of ballot initiatives to individual voters, as opposed to associations or advocacy groups, who must put their names on publicly circulated petitions.

In this case, the Chula Vista City Council had rejected a petition from two San Diego groups for a local ballot measure against union-only building contracts in 2008.

California intervened in the case, arguing that the requirements served the state's interest in an informed electorate and the integrity of the electoral process.

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

A divided three-judge panel with the 9th Circuit affirmed as to the so-called elector requirement this past June, but found that California had failed to show evidence of a compelling interest against anonymity in the initiative process.

The appellate panel returned the case to San Diego and called for an injunction against the name-disclosure requirement, but the state quickly petitioned for en banc review before an 11-judge panel.

In its petition, California stressed the divided nature of the three-judge panel's ruling.

"While one majority holds that serving as an official proponent of an initiative is not an aspect of protected speech, a different majority holds that requiring disclosure of the identity of that proponent on the initiative petition is nonetheless a restraint on speech," the petition states. "These results give state officials little guidance on how to conform the initiative process to the restraints of the First Amendment."

A majority of the 9th Circuit's nonrecused active judges agreed late Tuesday to reconsider the case before an en banc panel, Judge Sidney Thomas said in a brief order. The three-judge panel ruling can no longer be cited as precedent.

Chula Vista Citizens for Jobs and Fair Competition and the Associated Builders and Contractors of San Diego are the plaintiffs.

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