James Madison Center

Court Strikes California Requirement of Initiative-Proponent Identification on Initiative Petitions

On June 16, the U.S. Court of Appeals for the Ninth Circuit held unconstitutional California’s requirement that ballot initiative petition forms identify the official initiative proponents. This follows court opinions allowing anonymity at the point of petition circulation. For example, a prior case held that government could not make petition circulators wear name tags because that risked chilling speech.

The case is important, among other things, for reasserting that government may not simply assert vague interests in "disclosure," "informing electors," "transparency," and "accountability" to overcome First Amendment protections against chilling political speech. Even assuming such an informational interest, the court held, California failed to prove the need for the challenged requirement, especially in light of the potential for chilled speech.

The court also upheld the requirement that official proponent of local ballot initiative be real persons, so that no association of qualified persons could be an official proponent.

James Bopp, Jr., lead attorney for Plaintiffs comments: "Those interested in imposing restrictions on core political speech have been waiving 'disclosure' around like a magical talisman that supposedly allows whatever government imposes. The court in this case joins other courts in rejecting that misguided approach by requiring the government to actually meets its First Amendment burden of trying to justify burdens that may chill core political speech. As usual, when the government is held to the burden of proof that the First Amendment requires, the government fails to justify burdens that might chill the people's speech."

The opinion is at http://cdn.ca9.uscourts.gov/datastore/opinions/2014/06/16/12-55726.pdf.

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