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Corps Can't Sponsor Ballot Initiatives, 9th Rules En Banc

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By Casey C. Sullivan, Esq. on April 06, 2015 3:58 PM

Corporations and other non-human associations don't have a First Amendment right to serve as official proponents of ballot initiatives, the Ninth Circuit held in a unanimous en banc ruling last Friday. The case involved a local law in Chula Vista, a San Diego suburb, which required that proponents of ballot measures be electors -- in other words, actual humans.

With corporate personhood extending at least to encompass political speech, via political spending, commentators wondered if that personhood could stretch to actual legislative power. The Ninth wasn't willing to take things that far.

The case continues the process of clarifying the political rights afforded corporations following the Supreme Court's ruling in Citizens United.

It's Legislative Power, Not Speech

The lawsuit arose after proponents of an imitative, two business-backed associations, sought to propose a bill that would withhold funds for public work projects requiring union labor. Their initiative was rejected as improperly sponsored. The associations argued that the rule that proponents be an elector violated their rights to free speech and association. This claim implicated not just the law in Chula Vista, but the California Constitution, which, like the city, limits initiative and referendum powers to electors.

The Ninth was not sympathetic to the plaintiffs' argument that the ballot imitative process was simply a form of political speech. Limiting the initiative process to actual humans does not impose any meaningful burden on First Amendment rights, the court held. The initiative power is a legislative power and the official proponents of initiatives do not just participate in the legislative process, they play a distinct and particular role in it. As such, there is little more than "at most an incident burden" on the First Amendment when that legislative power is limited to electors. This restriction, under Citizens United, does not require strict scrutiny as it does not limit speech, but legislative sponsorship.

Actual Proponents Must be Known

The plaintiffs also objected to the requirement that proponents list their names on initiative petitions which are used to gather the signatures needed to qualify for the state ballot. The Ninth Circuit had previously held, in an opinion by Judge O'Scannlain, that a requirement that initiative proponents be listed on the face of initiative petitions was invalid. Rehearing the case en banc, the circuit switched gears, noting that disclosure does not reduce "the total quantum of speech pertaining to ballot initiatives."

Disclosures about an initiative sponsor's identity, the court held, helps ensure the integrity of the initiative process, buy allowing voters to know who is behind the initiative.

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