Qualifying For The Ballot During A Once-In-A-Lifetime Pandemic
By Stephen J. Kaufman and George M. Yin
As we begin another election cycle amid the ongoing COVID-19 pandemic, sponsors of initiatives and referendums are pushing forward to qualify a new wave of measures designed to enact legislative changes at the state and local levels. These two forms of “direct democracy” enable proponents to bypass the usual legislative process and go directly to the voters. Last fall, we saw another form of direct democracy in full display during the ill-fated recall of Governor Gavin Newsom. Rather than seeking to remove the Governor through the regular election process scheduled to take place this year, proponents forced a vote to remove the Governor before the end of his current term. The powers of initiative, referendum, and recall are vested in the voters of California by the state Constitution. In 1911, voters approved a series of constitutional amendments to give themselves the ability to adopt laws (initiative), reject laws adopted by the legislature (referendum), and remove elected officials from office (recall) without relying on the customary legislative and electoral processes for doing so. (Cal. Const., art. II, §§ 8-19.) In order to qualify for the ballot, proponents of initiatives, referendums, and recalls must circulate petitions to obtain a specified number of signatures from registered voters. These signature requirements have become a major obstacle for initiative and recall proponents during the COVID-19 pandemic, leading to a series of court cases extending the statutory deadlines for gathering signatures. Those court rulings reflect the sacred status given to these constitutional powers and provide insight on how courts may respond to continuing pandemic restrictions or to future emergency conditions.
II. QUALIFYING FOR THE BALLOT
Before circulating an initiative petition, initiative proponents must first submit their initiative text and a request for an impartial title and summary of the initiative to the state Attorney General. (Elec. Code, § 9001.) Once the Attorney General issues a title and summary for the initiative, the initiative proponents may begin circulating their petition, containing the title and summary and the text of the initiative, for signatures. (Elec. Code, §§ 9004, 9014.) Currently, the minimum number of qualifying signatures for a statutory amendment is 623,212, which is 5% of the total number of votes cast in the last regular gubernatorial election (in 2018). (Cal. Const., art. II, § 8 subd. (b).) The minimum number of qualifying signatures for a constitutional amendment is 997,139, which is 8% of all votes cast in the last regular gubernatorial election. (Cal. Const., art. II, § 8 subd. (b).)
Since some signatures inevitably will be rejected for being invalid during the signature review process, initiative proponents typically plan to collect more than the minimum number of required signatures, often collecting as much as 30% more than the required number of signatures. California law provides that initiative proponents are required to turn in the applicable number of signatures within 180 days of the date the Attorney General issues title and summary. (Elec. Code, § 9014(b).) The law does not expressly provide for extensions of time. (Elec. Code, § 9014-9015.)
Under a state law enacted in 2011, statewide initiatives only appear on the ballot in November of even-numbered years, unless a special election is called. (Elec. Code, § 9016; Cal. Const., art. II, § 8, subd. (c).) Moreover, in order to qualify for the ballot, the initiative petition must be submitted, go through a signature verification process, and be certified by the Secretary of State at least 131 days before the election (which, for the November 2022 General Election, is June 30, 2022). (Cal. Const., art. II, § 8, subd. (c).)
Significantly, in California, voters may not sign an initiative petition electronically. (Elec. Code, §§ 354.5, 9020.) Rather, petition circulators (often working for professional signature-gathering coordinators) must personally attest that they witnessed the signing of the petition by a registered voter of the jurisdiction in which the petition is circulated. (Elec. Code, § 9022.) Petition circulators typically gather signatures near businesses, public events, and places where people gather, as well as door-to-door in residential neighborhoods. Thus, the signature-gathering process to qualify an initiative (or recall or referendum) in California is largely one that requires face-to-face engagement by a petition circulator and a prospective petition signer.
Throughout the pandemic, petition circulators have reported a much slower rate of obtaining signatures than they have during “normal” election cycles. Consequently, initiative proponents and, subsequently, proponents of the gubernatorial recall turned to the courts to seek extensions of the statutory deadlines to circulate their petitions.
III. JUDICIAL REVIEW OF STATE RESTRICTIONS AS APPLIED TO INITIATIVE SIGNATURE GATHERING
Two years into the COVID-19 pandemic, the virus is still posing problems for Californians as new variants such as the highly contagious Omicron variant rage on. It is uncertain when the Omicron variant or future COVID-19 variants will abate or what problems they are likely to cause for petition circulators in upcoming election cycles.
Several recent cases adjudicated in Sacramento Superior Court, which applied First Amendment principles enunciated in prior federal court decisions, point to the possible direction that California courts will take in assessing whether to grant extensions of the statutory circulation deadlines in future cases arising out of COVID-19 or other serious emergencies. While the Sacramento cases are persuasive and not mandatory authority, Sacramento Superior Court is the designated venue in which statewide ballot measures are litigated (Elec. Code, § 13314(b)(3)), and the court’s First Amendment analysis in these cases warrants attention as an emerging trend.
In the summer of 2020, Superior Court Judge James Arguelles granted petitions for writ of mandate in two related cases, which extended the deadline for filing statewide initiative petitions beyond the statutory 180-day deadline. One of these cases, Sangiacomo v. Padilla (Super. Ct. Sacramento County, 2020, No. 34-2020-90003413), involved an initiative called the California Recycling and Plastic Pollution Reduction Act of 2020. The other case, Macarro v. Padilla (Super. Ct. Sacramento County, 2020, No. 34-2020-80003404), involved an initiative called the California Sports Wagering Regulation and Unlawful Gambling Enforcement Act.
In both cases, the initiative proponents asserted that they duly began to circulate their initiative petitions, using professional paid signature gatherers and expending millions of dollars in the process, once they were legally authorized to do so. However, the proponents’ signature-gathering efforts were severely impeded by the shelter in place and other orders issued by Governor Newsom and the State Public Health Officer. (Final Ruling in Sangiacomo at 2-3; Final Ruling in Macarro at 2-3.)
Moreover, as the Governor’s four-tier plan to reopen businesses and gradually ease shelter-in-place rules unfolded, the proponents still were only able to collect signatures at rates much lower than what they normally would have expected due to restrictions and social-distancing requirements. These initiative proponents had given up on trying to qualify their initiatives for the November 2020 General Election, but instead were seeking to extend the filing deadlines to at least allow them to qualify for the November 2022 General Election.
In both of these cases, Judge Arguelles kept in mind the often-cited principle that “[t]he right of initiative is among the most precious rights in the California democratic process, and courts must guard it jealously for the people.” (Final Ruling in Sangiacomo at 5; Final Ruling in Macarro at 5.) Judge Arguelles then adopted an analytical method applied to government restrictions on election-related speech enunciated in Angle v. Miller (9th Cir. 2012) 673 F. 3d 1122, 1132.
In Angle, the Ninth Circuit addressed whether a Nevada rule requiring initiative proponents to meet a 10% signature threshold in each of Nevada’s congressional districts was unconstitutional under the First Amendment of the U.S. Constitution. (Angle v. Miller, supra, 673 F.3d at 1126-1127.) The Angle court ruled that where a state authorizes initiative measures, state action burdening that authority implicates protected free speech and petitioning activity, stating:
The [United States] Supreme Court has identified at least two ways in which restrictions on the initiative process can severely burden “core political speech.” Meyer v. Grant, 486 U.S. 414, 422 (1988) . . . . First, regulations can restrict one-on-one communication between petition circulators and voters. See Id. at 422-23. Second, regulations can make it less likely that proponents will be able to garner the signatures necessary to place an initiative on the ballot, “thus limiting their ability to make the matter the focus of statewide discussion.” Id. at 423.
(Id. at 1132.) The Angle court then:
laid out a test for when to apply strict scrutiny to restrictions on . . . ballot initiatives . . . like those at issue here. Angle requires application of strict scrutiny when: (1) the proponents of the initiative have been “reasonably diligent” as compared to other initiative proponents; and (2) when the restrictions significantly inhibit the proponents’ ability to place an initiative on the ballot.
(Fair Maps Nev. v. Cegavske (D.Nev. 2020) 463 F.Supp.3d 1123, 1142 [construing Angle, supra, 673 F. 3d at 1134-1135].)
Like the initiative proponents in Fair Maps Nevada v. Cegavske, a federal district court case construing the constitutionality of Nevada’s initiative deadlines during the COVID-19 pandemic, the initiative proponents in Sangiacomo and Macarro were able to demonstrate that they had been “reasonably diligent” in their signature-gathering efforts and that the state’s COVID-19 restrictions were subject to strict scrutiny review. In such cases, “[t]o survive strict scrutiny, the restrictions must advance an overriding state interest and must be narrowly drawn to avoid unnecessary intrusion on First Amendment rights.” (Final Ruling in Sangiacomo at 6; Final Ruling in Macarro at 5-6; see also Planning Conservation League, Inc. v. Lundgren (1995) 38 Cal.App.4th 497, 507.)
Following the federal district court’s application of Angle in Fair Maps, Judge Arguelles held that the state had not articulated a compelling interest to strictly enforce the statutory 180-day circulation deadline; ultimately, the deadline was not constitutionally required and, at most, an extension would inconvenience elections officials trying to prepare for the upcoming election—interests that were not sufficient to prevent proponents from qualifying their initiatives for the ballot.
The court further held that the restrictions were not narrowly tailored because elections officials had the ability to perform their pre-election duties even if an extension were granted and they were required to simultaneously verify signatures on proponents' initiative petitions. (Final Ruling in Sangiacomo at 6-7; Final Ruling in Macarro at 6; see Fair Maps Nev., supra, 463 F.Supp.3d at pp. 1146-1147.) Consequently, Judge Arguelles, like the court in Fair Maps earlier, granted the initiative proponents extensions of time to file their initiative petitions. Both initiatives ultimately obtained a sufficient number of signatures to qualify, and are currently slated to appear on the November 8, General Election ballot.
IV. DOES THE ENFORCEMENT OF A STATUTORY DEADLINE DURING A PANDEMIC OR SIMILAR EMERGENCY BY ITSELF WARRANT FIRST AMENDMENT STRICT SCRUTINY REVIEW?
The Sangiacomo and Macarro cases—as well as the Nevada federal court case—involved situations in which the state imposed stay-at-home orders, social distancing requirements, and similar mandatory restrictions that clearly constituted state action. The courts did not focus on whether the existence of the COVID-19 pandemic itself—or, for that matter, some other potential naturally occurring disaster—could provide a basis for extending the statutory deadlines absent some additional state action. A subsequent Sacramento Superior Court case also involving Judge Arguelles may provide some insight into this question.
In Heatlie v. Padilla (Super. Ct. Sacramento County, 2020, No. 34-2020-80003499), Judge Arguelles considered a writ petition filed by the proponents of the recall effort against Governor Newsom seeking an extension of the applicable 160-day deadline for filing statewide recall petitions. In that case, Judge Arguelles stated that the “[e]nforcement of the 160-day deadline to present circumstances, including Covid-19, is itself state action.” (Final Ruling in Heatlie at 8.) Consequently, the judge extended the deadline by 120 days. In making his ruling, Judge Arguelles cited Bond v. Dunlop (D. Maine, July 24, 2020) 2020 U.S. Dist. LEXIS 131389, *19, fn. 7, which stated, “[a]lthough COVID-19 itself does not constitute state action, Maine’s decision to enforce its ballot restriction is state action, and the reasonableness of such restrictions must be considered against the altered landscape during the pandemic, which includes actions taken by the State in its response.”
Under this line of reasoning, the existence of a serious pandemic or other natural disaster does not itself provide a basis for extending statutory petition circulation deadlines. However, the continued enforcement of statutory initiative or recall petition filing deadlines during a serious emergency situation arguably constitutes state action that may warrant the application of First Amendment strict scrutiny.
V. LOOKING AHEAD
While it is not known how long the current COVID-19 pandemic conditions will continue to exist or whether conditions will improve or worsen, these court cases suggest that actions taken by state (and, presumably, local) officials to protect public health and safety may result in court actions extending deadlines for proponents to circulate initiative, referendum, and recall petitions. At this time, the state has removed the more extreme types of restrictions on public gathering and social distancing that the Sangiacomo, Macarro, and Heatlie proponents faced, and it is unclear whether we will experience such dramatic measures again.
However, if the pandemic persists and public officials are forced to impose similar restrictions, we might again expect to see proponents turning to the courts, particularly in light of the dozens of initiatives that are currently trying to qualify for the November 8, 2022, General Election. Proponents would be wise to proceed with diligence in their efforts to collect signatures if they expect to obtain any relief from the courts.
Finally, even without the re-imposition of strong mandatory stay-at-home or social distancing orders, recent litigation suggests that the continued enforcement of statutory filing deadlines by public officials in the face of an ongoing pandemic might itself warrant strict scrutiny consideration. Whether courts would extend these First Amendment considerations beyond the circumstances caused by a once-in-a-lifetime pandemic remains to be seen.
Stephen J. Kaufman is the founding partner of Kaufman Legal Group, a boutique political law firm in Los Angeles and Sacramento. He advises candidates, ballot measure campaigns, and other political organizations on election procedures, campaign finance laws, and governmental ethics matters. George M. Yin is a partner at Kaufman Legal Group, focusing on the drafting, submission and qualification of state and local ballot measures. www.kaufmanlegalgroup.com.