Ballot Box Planning: Signature-Gathering Shenanigans

The Third District Court of Appeal recently issued tandem decisions clarifying the rules set forth in the Elections Code regarding signature gathering for initiative and referendum "voter petitions."

In Preserve Shorecliff Homeowners v. City of San Clemente, the court held that the Elections Code requirement that petition circulators (the people who gather the signatures) be eligible to vote in the city in which the petition is being circulated is an unconstitutional limitation on political speech. Thus, despite having violated section 9238, the petition was upheld as valid.

In Capo for Better Representation v. Kelley, the court held that Elections Code sections 100 and 11043 require each signer to personally affix her address to each petition she signs. Affixing an address to just one of seven recall petitions, where signature gatherers then filled in the remaining six, violated this mandate, thus rendering the recall petitions invalid.

The lesson, as always: wade very carefully through the Elections Code waters, and err on the side of complying with every requirement, no matter how trivial it may seem.

Preserve Shorecliff Homeowners v. City of San Clemente, Case No. G038649 (Jan. 16, 2008)

In Preserve Shorecliff, referendum proponents hired a professional signature-gathering firm staffed with non-residents of the city. To comply with Elections Code section 9238 – which requires that circulators be eligible to vote in the city – the proponents had voters sign a separate "declaration of circulator" which stated that each signer was the circulator for his own signature. The court held that this violation of Section 9238 did not matter, because the requirement unconstitutionally restricted the pool of circulators, an impermissible restriction on the First Amendment's protection of core political speech.

The court relied on the U.S. Supreme Court case Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182, which struck down a Colorado state law requiring circulators to be registered to vote within the state. The Buckley Court had found that the restriction was a "drastic" reduction, not necessary to serve the state's interest of ensuring that circulators be subject to the state's subpoena powers. A residency requirement, rather than a voter registration requirement, could have served the same purpose without reducing the pool of circulators.

The Preserve Shorecliff court held that Section 9238 would reduce the pool of circulators by a far greater percentage, because it limited eligibility to cities. As a result, that section created a "severe" burden on First Amendment rights.

For some time now, practitioners have contended that such requirements were unconstitutional in California. Shortly after Buckley, the California Attorney General opined that Section 9209's requirement that the circulator be a voter of the relevant city was unconstitutional. 82 Ops. Cal. Atty. Gen. 250 (1999). Preserve Shorecliff now closes the loop by doing the same for Section 9238.

Capo For Better Representation v. Kelley, Case No. G037690 (Jan. 16, 2008)

In Capo, the Registrar of Voters disqualified signatures where the signers’ addresses had been filled in by someone other than the actual signer. After the signers signed their names to the seven recall petitions, but wrote in their addresses on only one, the circulators filled in the addresses on the remaining six. The court held this practice violated the requirements in Sections 100 and 11043 that each signer personally affix her address to a recall petition, because the language in those sections is plain and mandatory.

The court also held there was no substantial compliance, a doctrine which excuses minor defects that do not compromise the integrity of the electoral process. The Elections Code provides specific protections for officials subject to recall: Section 11044 requires a separate petition for every official sought to be recalled, and Section 11023 gives officials the right to file an answer to the recall petition. The court criticized the lumping together of all seven officials: “the practice simply crosses the line from being an essentially harmless goof that courts may legitimately excuse to one that thwarts important rights and statutory protections.”

The holding is consistent with strict judicial interpretation of other procedural Elections Code provisions. For instance, Section 9201 requires the full text of a measure to be attached to the petition, including pages of the general plan that are the subject of the initiative. Mervyn's v. Reyes, 69 Cal. App. 4th 93 (1998). Section 9205 requires proponents to publish and post in three places in the city the notice of intent, title and summary, before they begin circulating the petition, so that where the crucial margin of signatures had been gathered before the posting, the initiative was invalid. Ibarra v. City of Carson, 214 Cal. App. 3d 90 (1989). Section 9203(b) requires that the ballot title and summary appear at the top of every page of an initiative petition on which signatures are to appear. Alliance for a Better Downtown Millbrae v. Wade, 108 Cal. App. 4th 123, 130 (2003).

For a thorough discussion of all the procedural hazards of qualifying an initiative petition, see Ballot Box Navigator, A Practical and Tactical Guide to Land Use Initiatives and Referenda in California (Solano Press Books, 2003).

Conclusion

The Elections Code is full of technical and procedural requirements, each of which must be followed strictly. It is risky business to rely on a substantial compliance argument, or to hope that a court will find the relevant statute unconstitutional.