The Ninth Circuit Court of Appeals recently issued a decision with significant implications for local and statewide ballot initiative processes. In Chula Vista Citizens v. Norris, the court upheld a Chula Vista Municipal Code provision requiring official initiative proponents be “electors” (individuals) because associations do not have a First Amendment right to serve as official proponents for local ballot initiatives. On the other hand, the court struck down key provisions of the California Elections Code requiring official initiative proponents to identify themselves on the face of initiative petitions.
The court upheld the City’s Municipal Code provision requiring petition-proponent’s be “electors.” The elector requirement excludes non-natural persons, and thereby the petitioners’ association, from serving as official proponents. The court reasoned that, because serving as an official proponent is essentially a legislative act, and prior U.S. Supreme Court precedent establishes that the legal authority attaching to a legislative office is not an aspect of the freedom of speech protected by the First Amendment, it follows that “serving as an official proponent is not an aspect of speech within the meaning of the First Amendment.” As a result, the City could limit to individuals the ability to act as an initiative proponent.
The court invalidated the provisions of state law prohibiting anonymous circulators. Two sections of the Elections Code were at issue in this case. Section 9202(a) required initiative proponents to file and sign a notice of intent to circulate an initiative petition. In addition, section 9207 required each section of the petition to “bear a copy of the notice.” As a result, these two provisions required official proponents to disclose their identity to would-be signatories.
In striking down section 9207, the court noted that, to survive First Amendment scrutiny, the State of California must show a “substantial relation between the disclosure requirement and a sufficiently important governmental interest.” California asserted two main arguments in support of the disclosure requirement: (1) informing electors of an official proponent’s identity, and (2) “preserving the integrity of the electoral process.” The court rejected both arguments because California could not demonstrate that its asserted interests bore a “substantial relation” to the disclosure requirement. Rather, the court noted, there was no need for disclosure on the face of the petition because initiative proponents must also disclose their identities under section 9202(a) before a petition can be circulated, and any member of the public can access that information. As a result, even if California was concerned about fraud in the initiative process, disclosure under section 9202(a) provides an effective means for addressing it.