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Election Litigation: Ballot Measures
Suits to Extend Deadlines for Ballot-Petition Signatures in Nevada During a Pandemic
Fair Maps Nevada v. Cegavske (Miranda M. Du , 3:20-cv-271) and Fight for Nevada v. Cegavske (Richard F. Boulware II, 2:20-cv-837) (D. Nev.)
An organization collecting signatures to put a constitutional amendment on Nevada’s ballot received a court-ordered extension of the due date during a global infectious pandemic, which triggered state-ordered social distancing, on a finding of diligence in collecting signatures before social distancing went into effect. An organization seeking the recall of Nevada’s governor did not receive a deadline extension on a finding that it collected few signatures before social-distancing requirements.
Topics: Ballot measure; COVID-19; getting on the ballot.
Suit for Electronic Signatures to Get an Initiative on the Ballot During a Pandemic
Thompson v. DeWine (Edmund A. Sargus, Jr., S.D. Ohio 2:20-cv-2129)
A federal action sought changes to requirements for getting initiatives and referenda on the ballot during a time of social distancing to prevent transmission of COVID-19 during a global pandemic: acceptance of electronic signatures, a reduced signature requirement, and extended deadlines. The district judge ordered acceptance of electronic signatures and an extension of the deadline but not a reduction in the number of signatures required. The court of appeals, however, stayed the injunction, finding ballot access requirements modest even during the pandemic.
Topics: Getting on the ballot; COVID-19; intervention; ballot measure.
Injunction Against Content-Based Removal of a Ballot Initiative
Hyman v. City of Salem (Thomas S. Kleeh, N.D. W. Va. 1:19-cv-75)
A district judge enjoined removal of a marijuana decriminalization initiative from a city’s ballot as content-based discretion to remove an initiative that might be in conflict with state law.
Topics: Ballot measure; getting on the ballot.
Requiring Meaningful Review for Keeping an Initiative Off the Ballot
Schmitt v. Husted (Edmund A. Sargus., Jr., S.D. Ohio 2:18-cv-966)
As an election approached, a district judge enjoined local election board discretion to keep an initiative off the ballot without review more available than a writ of mandamus. The court of appeals, however, concluded that mandamus relief was not so insurmountable as to require federal judicial intervention.
Topics: Ballot measure; getting on the ballot.
Breaking an Initiative Into Separate Subjects Is Content Neutral
Committee to Impose Term Limits on the Ohio Supreme Court and to Preclude Special Legal Status for Members and Employees of the Ohio General Assembly v. Ohio Ballot Board (James L. Graham, S.D. Ohio 2:16-cv-1030)
Proponents of a state constitutional amendment initiative filed a federal complaint alleging that the state’s breaking the two provisions of the proposed initiative into separate initiatives was impermissibly content based. The district court and the court of ap-peals held that it was content neutral.
Topics: Ballot language; ballot measure.
Votes on City Incorporation by Voters Who Might Not Be in the New City
Davis v. Cooney (Eleanor L. Ross, N.D. Ga. 1:16-cv-3844)
A voter filed a suit to stop a referendum on the incorporation of a new city because two regions of the proposed city might not be included in the new city, depending on the results of other litigation, and so voters in those regions allegedly would dilute the plaintiff’s vote. The district judge determined that the Equal Protection Clause did not restrict who could vote on incorporation as the plaintiff alleged.
Topics: Enjoining elections; equal protection; ballot measure.
Verbal Requirements in Initiative Advertising
Residents for The Beverly Hills Garden & Open Space Initiative v. City of Beverly Hills (Fernando M. Olguin, C.D. Cal. 2:16-cv-5532)
On July 25, six days after a condominium development initiative was approved for a city ballot in the November 8 general election, proponents of the initiative sought a temporary restraining order against a requirement that a substantial portion of their initiative advertising be devoted to a summary of the initiative prepared by city officials. On the following day, the district judge ordered the city to respond six days after that. On the day that the response was due, the parties stipulated to an injunction reducing the amount of specified text required in advertising for the initiative. In the event, the initiative failed.
Topics: Ballot measure; campaign materials.
Nullifying an Initiative Gag Order
Taylor v. Johnson (John Corbett O’Meara, E.D. Mich. 5:16-cv-10256)
A district judge issued a preliminary injunction against a new statute that forbade local officials from providing any information on pending initiatives within 60 days of an election.
Topics: Ballot measure; campaign materials; campaign finance.
State Court Ballot Litigation and the Federal Deadline for Overseas Ballots
Board of County Commissioners v. Duran (1:14-cv-844) and New Mexico ex rel. Salazar v. Duran (1:14-cv-848) (Karen B. Molzen, D.N.M.)
A state’s secretary of state removed two actions to federal court that challenged her refusal to put nonbinding ballot questions on two counties’ ballots, citing federal requirements that she transmit absentee ballots to overseas voters imminently. The parties consented to a magistrate judge’s presiding over the cases, and the judge determined that she did not have federal jurisdiction over the cases, applying the well-pleaded complaint rule. The state court ruled promptly against the secretary of state.
Topics: Getting on the ballot; ballot measure; absentee ballots; case assignment; matters for state courts; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).
Electronic Bingo and Voting Rights
Johnson v. Riley (Sharon Lovelace Blackburn, N.D. Ala. 7:10-cv-2067)
Voters filed a federal complaint challenging police actions against electronic bingo operations as a violation of the voting rights of the voters who approved the operations. The complaint included a claim that executive orders and police actions violated the Voting Rights Act because they had not received section 5 preclearance. The district judge denied as moot a motion for a temporary restraining order preserving a state-court injunction, because the state court had denied a motion to dissolve its order. The following year, the court accepted a voluntary dismissal.
Topics: Section 5 preclearance; matters for state courts; ballot measure.
Certification Deadline for Ballot Initiative Signatures
Personhood Mississippi v. Hood (Daniel P. Jordan III, S.D. Miss. 3:10-cv-71)
Supporters of a ballot initiative alleged in a federal complaint unconstitutional application of the year-long signature period because county election officials were sometimes taking too long to certify ballot petition signatures so that the initiative supporters could not efficiently determine where to allocate signature-drive resources. The parties appeared in chambers on the day that the complaint was filed, and the state filed a response three days later. Four days after that, the district judge abstained from providing immediate relief because resolution of issues of state law could moot the federal constitutional issues. Later, the court dismissed the action on stipulation.
Topics: Ballot measure; getting on the ballot.
Public Disclosure of Referendum Petition Signatures
Doe v. Reed (Benjamin H. Settle, W.D. Wash. 3:09-cv-5456)
Persons who signed a referendum petition filed a federal complaint seeking to enjoin the state’s releasing the identities of the over 138,500 signatories. The district court held a proceeding that afternoon and a hearing on the following day, which the state defendants chose not to attend. The court issued a temporary restraining order and held a preliminary injunction hearing a little more than a month later. The district court granted a preliminary injunction, but the court of appeals reversed it. At the beginning of its term, the Supreme Court stayed the reversal, reinstating the injunction, but the Supreme Court affirmed the court of appeals at the end of the Court’s term. On remand, the district court denied the plaintiffs’ as-applied challenge and lifted the injunction. After the petitions were released on the Internet, the court of appeals determined that the case was moot.
Topics: Ballot measure; intervention.
Preclearance of an Election to Incorporate a City
Sabel v. Pinal County (James A. Teilborg, D. Ariz. 2:07-cv-2000)
A suit to enjoin an election on the incorporation of a city for lack of preclearance was filed three weeks before the election. A three-judge district court determined that incorporation elections did not require preclearance.
Topics: Section 5 preclearance; enjoining elections; three-judge court; case assignment.
Grievance About a Change in Mayoral Power
Winstead v. Stodola (William R. Wilson, Jr., E.D. Ark. 4:07-cv-682)
Five days before a special election, a federal complaint challenged a ballot measure that would convert the position of Little Rock mayor from part time to full time. Following two recusals, the district judge then assigned the case denied immediate relief on the day before the election.
Topics: Ballot measure; case assignment; recusal; class action.
Constitutionality of a Ballot Measure
Ajax Gaming Ventures, LLC v. Brown (William E. Smith, D.R.I. 1:06-cv-336)
The suit challenged the constitutionality of a ballot measure in an upcoming election. The court denied immediate relief, because constitutionality could be assessed after the election. The measure did not pass.
Topics: Ballot measure; intervention.
Signature Requirements for a Ballot Question
Protect Marriage Illinois v. Orr (Elaine E. Bucklo, N.D. Ill. 1:06-cv-3835)
On July 14, 2006, proponents of an advisory question for the 2006 general election in Illinois filed a constitutional challenge to the petition requirements for getting their question on the ballot. The plaintiffs claimed that the number of signatures required was too onerous, as was the requirement that the signatures and the signers’ addresses match voter registration cards. On August 2, the district judge granted the defendants’ motion to dismiss the case. The court of appeals affirmed.
Topics: Getting on the ballot; ballot measure; intervention.
Discrepancies Between Ballot Petitions and Ballot Text
Martinez v. Monterey County (Jeremy Fogel, N.D. Cal. 5:05-cv-2950)
A federal complaint challenged a ballot initiative as different in wording from the text circulated for ballot-access signatures and challenged the change in wording as a change in election procedures requiring preclearance pursuant to section 5 of the Voting Rights Act. In parallel litigation, the state’s supreme court provisionally ruled that the electorate should not be denied an opportunity to vote on the initiative unless the text discrepancies were sufficiently misleading. A three-judge federal district court declined to interfere with state proceedings because the state court also had jurisdiction over the federal question. The initiative failed and the state’s supreme court subsequently ruled that the text discrepancies were not so great as to merit an injunction against including the initiative on the ballot.
Topics: Ballot language; ballot measure; section 5 preclearance; matters for state courts; three-judge court; case assignment.
Preclearance of an Election to Create a Hospital District
Hernandez v. Kirkham (Marcia A. Crone, E.D. Tex. 1:05-cv-134)
Eleven days after an election to create a hospital district, five residents filed a federal complaint charging that the election and earlier precinct changes had not received preclearance pursuant to section 5 of the Voting Rights Act. At a district court hearing two days later, the parties agreed to a temporary restraining order that enjoined the conveyance of any property to the hospital district until the end of April. The Justice Department granted preclearance in April, so the district court action was dismissed.
Topics: Section 5 preclearance; three-judge court.
Initiative to Reallocate Electoral Votes
Napolitano v. Davidson (Lewis T. Babcock, D. Colo. 1:04-cv-2114)
A pro se plaintiff challenged a ballot initiative that would change the allocation of the state’s Electoral College votes in the same election, alleging uncertainty in the strategic value of presidential votes. After expedited hearing, the court dismissed the complaint as too speculative.
Topics: Ballot measure; pro se party; intervention; recusal.
Challenge to a Ballot Initiative Financial Impact Estimate
Oregonians for Accountability v. Bradbury (Garr M. King, D. Or. 3:04-cv-1170)
The district judge dismissed a complaint alleging that a financial impact estimate accompanying a ballot initiative was misleading, because the measure text, summary, and explanatory text would make clear to the voters what the measure would do.
Topics: Ballot language; ballot measure; laches.
Minimum County Requirements for Ballot Petitions
Committee to Regulate and Control Marijuana v. Heller (James C. Mahan, D. Nev. 2:04-cv-1035)
Supporters of an initiative to regulate marijuana filed a federal complaint, claiming that Nevada had improperly disqualified signatures on their ballot petition. Three days later, the district judge enjoined the state from taking any action that would prevent the court from providing the plaintiffs with further injunctive relief. One month later, the judge invalidated a state provision requiring a minimum number of signatures from a supermajority of counties for a ballot measure, because the provision favored voters in small counties. Because the judge left in place a provision that resulted in the disqualification of signatures by voters who may not have registered before signing the ballot petition, the initiative failed to qualify for the election. The court of appeals affirmed the district judge’s decisions.
Topics: Ballot measure; getting on the ballot; equal protection; registration procedures.
Required Ballot Notice for a Levy Initiative
Horton v. Multnomah County (Ancer L. Haggerty, D. Or. 3:03-cv-1257)
The district judge enjoined application of a statute requiring a possibly misleading notice on ballot initiatives for new levies stating that property taxes could increase by more than three percent if the initiative passed, leaving unstated that an increase that high would only arise from the maximum increase in assessments permitted by law. The court of appeals vacated the injunction pending appeal and reversed the injunction two years later.
Topics: Ballot language; ballot measure; matters for state courts; interlocutory appeal; intervention; attorney fees.
Preclearance for a Zoning Election
Watson v. Fuhrmeister (Karon O. Bowdre, N.D. Ala. 2:03-cv-1960)
One week before a special election, voters filed a federal complaint alleging that the special election was in violation of section 5 of the Voting Rights Act because the election’s question, whether a county precinct would be subject to zoning by a county planning commission, pertained to zoning laws that had not been precleared. Defendants acknowledged that the laws in question had not been precleared, so the court enjoined the election. The action was dismissed on notice of preclearance.
Topics: Enjoining elections; section 5 preclearance; ballot measure.
Enjoining Nonbinding Voting That Allots One Vote Per House or Apartment Building
Andrade v. Pulido (Cormac J. Carney, C.D. Cal. 8:03-cv-1157)
A federal complaint, which was filed two days before a nonbinding mail-in election was to end, challenged as discriminatory the election on retaining traffic barriers, because one vote was assigned to each house or apartment building. The district judge issued a temporary restraining order on the following day and ultimately ruled against a related election held three years previously using the same vote allocation.
Topics: Enjoining elections; ballot measure; equal protection; attorney fees.
Failure to Preclear a Change in the Percentage of Votes Needed to Avoid a Runoff Election
Luper v. Anchorage (James K. Singleton, Jr., Richard Tallman, and James A. von der Heydt, D. Alaska 3:03-cv-79)
A federal complaint challenged the forgoing of a runoff election because the leading candidate received more than 45% of the vote and in the same election voters approved a change in law allowing that, claiming that the new rule was invalid because it had not been precleared pursuant to section 5 of the Voting Rights Act. Because the change was precleared after the election, a three-judge court denied the plaintiffs a remedy, reasoning that failure to preclear the change was an innocent oversight.
Topics: Section 5 preclearance; three-judge court; ballot measure; matters for state courts; intervention.
Defective Suit to Stop an Annexation Election
Kleisner v. City of White Sulphur Springs (David A. Faber, S.D. W. Va. 5:03-cv-101)
A motion for a temporary restraining order against a municipal annexation election omitted an affidavit of immediate injury, verification of the complaint, and reference to defendant notice, so the district judge denied the motion. In addition, a state court had already stayed the election.
Topics: Enjoining elections; absentee ballots; ballot measure; matters for state courts; class action.
Propriety of an Advisory Question on the Ballot in Washington
Lamar Co. v. Spokane County Board of County Commissioners (Fred Van Sickle, E.D. Wash. 2:02-cv-326)
The district court ruled that it was not improper for a county to put on the general election ballot an advisory question on curtailing roadside billboards.
Topics: Ballot measure; getting on the ballot; enjoining elections; laches; ballot language.
Overturning State Court Blocking of a Ballot Initiative
Anderson v. Gale (Richard G. Kopf, D. Neb. 4:02-cv-3257)
Supporters of a ballot initiative filed a federal complaint seeking relief from a state court invalidation of the initiative as concerning more than one subject. On the day that the complaint was filed, the federal judge held a conference call with the parties and scheduled a hearing for two days later. The judge denied immediate relief so as to not interfere unduly with the coming election and because he found no constitutional problem with the one-subject rule.
Topics: Ballot measure; getting on the ballot; intervention; matters for state courts.
Enjoining a Water District Annexation for Want of Section 5 Preclearance
Thelma Area Neighborhood Corp. v. Evergreen Underground Water Conservation District (Edward C. Prado, W.D. Tex. 5:01-cv-1191)
A district judge enjoined an election to annex territory to a water conservation district, because the election had not been precleared pursuant to section 5 of the Voting Rights Act. The election was canceled and held three months later than originally scheduled, and annexation failed.
Topics: Section 5 preclearance; enjoining elections; ballot measure.
Unconstitutionality of a Referendum
Nogueras Cartagena v. María Calderón (Hector M. Laffitte, D.P.R. 3:01-cv-1789)
A Puerto Rico voter filed a pro se federal complaint on June 13, 2001, challenging the constitutionality of a local referendum and a later federal referendum on the U.S. military’s continued use of the island of Vieques for explosives exercises. Respecting the imminent local referendum, the court ruled that the plaintiff did not have standing to pursue a general grievance in court. Later, the court issued an order to show cause why claims concerning the federal referendum should not be dismissed, and then the court dismissed those claims.
Topics: Ballot measure; enjoining elections; pro se party.
Enjoining a Referendum on a Property Transfer
Petitioners Alliance v. City Council (Sharon Lovelace Blackburn, N.D. Ala. 2:01-cv-497)
On the day before a special election, five voters filed a federal complaint seeking to enjoin transfer of assets in frustration of a ballot question, which was a referendum on the city’s transfer of assets to a water and sewer board. The judge denied immediate injunctive relief and, in time, granted the defendants a dismissal because the plaintiffs had not alleged infringement of the right to vote.
Topic: Ballot measure.
Unsuccessful Pro Se Challenge to a Fluoride Ballot Initiative
Espronceda v. Krier (H.F. Garcia, William Wayne Justice, and Pamela A. Mathy, W.D. Tex. 5:00-cv-1259)
One week after the election, a pro se federal complaint challenged the passage of a referendum to add fluoride to a city’s drinking water. A little over a year later, a three-judge district court granted the defendants summary judgment.
Topics: Ballot measure; enjoining certification; pro se party; section 5 preclearance; three-judge court; case assignment; recusal.