High Court Considers Voter Initiatives
By Joan Biskupic
Washington Post Staff Writer
Thursday, October 15, 1998; Page A12
Hearing arguments in a case involving ballot initiatives popular throughout the country, Supreme Court justices yesterday questioned whether a Colorado law goes too far in putting restrictions on people who try to launch voter initiatives to change state laws.
The case tests whether Colorado may require people seeking signatures for an initiative to be registered voters and to wear badges identifying themselves as paid or volunteer. The state also forces those backing a particular initiative to file reports disclosing the names of those circulating the petitions and how much they're paid. A federal appeals court struck down the regulations as violating free-speech rights.
Colorado officials, supported by officials in 13 other states, say the regulations prevent fraud in an initiative process dominated by money and professionals who go from state to state collecting signatures. Indeed, the flourishing voter initiatives nationwide -- on subjects as varied as affirmative action, bilingual education, gambling and gay rights -- have spawned a multimillion-dollar industry in which the battles can be as expensive as any individual candidate's campaign.
A decision in the case could determine just how far states can go in setting parameters on that process.
The people who circulate petitions, Colorado Attorney General Gale A. Norton told the justices, are «essential» to the lawmaking process because successful initiatives are ultimately written into statutes or even the state constitution. Given their power, she said, the circulators of those petitions have an obligation to all of the people in Colorado, not just those who support the viewpoints they advance.
Norton also said Colorado wants more information about those who collect the signatures so that if questions arise about potentially fraudulent names on a petition, regulators can track down those who gathered them.
But those challenging the three Colorado regulations claim they limit the number of people who could qualify to collect signatures, and, as a consequence, limit the ability of a campaign to generate enough signatures to get on a ballot.
Denver lawyer Neil D. O'Toole challenged the state's assertion that fraud is rampant. «We don't see it,» he told the justices, urging them to affirm the ruling by the 10th U.S. Court of Appeals.
When the lower court struck down the regulations, it said that requiring ID badges, for example, discourages «truthful, accurate speech by those unwilling to wear a badge» and disregards «an individual's interest in anonymity.» It said the disclosure requirement also «chills» circulation of petitions.
Hearing the state's appeal, several justices seemed unmoved by Colorado's arguments. Justice Antonin Scalia observed that people who collect signatures necessarily try to persuade someone to join a cause, an activity at the heart of political speech rights.
He scoffed at the notion that outsiders descended on the state to collect signatures: «How many of these election gypsies are there?»
Justice Sandra Day O'Connor sharply questioned the state's interest in demanding that a circulator be a registered voter, not merely a state resident.
Justices Anthony M. Kennedy, David H. Souter and Ruth Bader Ginsburg also voiced skepticism about the state's need for the regulations.
Ballot initiatives have become an increasingly popular tool for changing the law. And in 1992, a record number of initiatives - 10 - were placed on the ballot in Colorado, which precipitated the controversial state regulations.
One touchstone for the case is a 1988 ruling by the high court in an earlier Colorado dispute. The state had barred any person soliciting signatures from being paid for his or her work. But the justices struck down the prohibition, saying that petition drives concern core political speech and that any infringements on the process should be subject to the strictest judicial scrutiny.
In the current case, Colorado officials say the regulations should be assessed under a more flexible judicial standard than the one the court used in the 1988 Meyer v. Grant ruling. A decision in the case of Buckley V. American Constitutional Law Foundation is likely to be handed down in early 1999