May 20th, 2014

Measure #1 on the June 2014 ballot was placed there by the state legislature, and represents the first of two measures designed to curtail citizen initiated measures

Background**

Not many people are talking about Measure #1 on the June ballot, but voters will decide whether to move the deadline for signature collection from 90-days prior the election to 120-days prior to the election.

Now, that may not seem like a big deal, but when you consider that will eliminate the ability for petition circulators to use the State Fair of an election year to collect signatures and get a measure on the ballot that November, it is a pretty big deal. It will also eliminate the Winter Show in Valley City as a large venue to stage final pushes to place measures on June primary ballots. Generally speaking, a ballot measure gets 25-40% of its signatures during the State Fair of election years.

And since most petitions don’t start circulating until after the State Fair of non-election years – it is very clear this constitutional amendment is designed to make it that much more difficult to get signatures in time.

In November 2014, Measure #4 will ask voters to decide on whether to ban constitutional measures that appropriate state funds. While many conservatives will support this measure on its face-value, it is yet to be determined whether “appropriation” will include tax cuts.

While common sense says that reductions in revenue are not appropriations, measures that reduce revenue are issued fiscal notes just as if they were appropriations.

Measure #4 on the November 2014 is simply not clear enough as to whether it will apply to tax cuts as well as new spending. While there is a good case for not putting spending in the constitution, there is not a good case for treating tax cuts like appropriations.

The Legislature Is Wrong

The trouble with these attempts by the legislature to restrict the initiated measure process is two-fold:

First, Article III of the North Dakota Constitution, which creates the process is titled “Powers Reserved To The People” – it does not say “Powers Reserved To The People (Unless The Legislature Thinks It Knows Better)”.

Second, Article III Section 1 explicitly states “While the legislative power of this state shall be vested in a legislative assembly consisting of a senate and a house of representatives, the people reserve the power to propose and enact laws by the initiative, including the call for a constitutional convention; to approve or reject legislative Acts, or parts thereof, by the referendum; to propose and adopt constitutional amendments by the initiative; and to recall certain elected officials. This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers."

While the legislators supporting these measures will say that the people have the choice as to whether to restrict their rights, the legislature should not be in the business of finding ways to let the public limit its own rights.

Solution In Search Of A Problem

During the legislative session, with regard to Measure #1 on the June ballot, Secretary of State Al Jaeger testified in support of the constitutional change saying it would eliminate issues related to the measure approval process.

However, when asked a series of questions via email (see below) the only real conclusion that can be made is that there really haven't been any situations serious enough where the 90 day deadline (which has been in force for over 30 years) has had a real negative affect on anyone.

---------- Forwarded message ----------
From: Jaeger, Al A. ajaeger@nd.gov
Date: Wed, Jul 31, 2013 at 6:14 PM
Subject: Answers to a Couple of Questions regarding the Initiative Process
To: "dgawrylow@watchingnd.com" dgawrylow@watchingnd.com
Cc: "Silrum, Jim" jsilrum@nd.gov, "Oliver, Lee Ann M." loliver@nd.gov, "Arnold, John" jarnold@ndaco.org, "Anderson, Justin S." jsanderson@nd.gov

Dustin, the following is the response to your questions. If you have any others, do not hesitate to contact this office. Al Jaeger

///////////////////////////////////////////////////

1. Can you tell me when the 90-day rule was put in place?

From 1919 until the election of November 1978, the timeline was 120 days before the election. It was changed in 1978 to 90 days before the election when a comprehensive rewrite of the constitution’s initiative provisions was placed on the ballot for a vote. Rep. Kretschmar was the prime sponsor of the resolution in the 1997 legislative session that was placed on the ballot. He also was the prime sponsor of the resolution in the 2013 session to change it back to 120 days.

2. What measures have had problems with the 90-day rule?

On several occasions during my tenure in office, petitions have been submitted just prior to the 90 day deadline. Most often, it was not a “problem,” because either they were approved for the ballot or the sponsoring committee did not challenge the reasons they were not qualified for the ballot. By state law, I have 35 days in which to review the petitions, which coincides with the 55th day before the election when I have to certify the ballot. Here are two exceptions when challenges were taken to the Supreme Court.

In 2010, the sponsoring committee for the pharmacy measure submitted petitions on August 4, which was the 90 day deadline before the November election. On August 5, I determined the petitions were insufficient. On August 20, the sponsoring committee filed with the Supreme Court. The 55 day deadline for me to certify the ballot was September 8. The Supreme Court heard the case on September 1 and issued its ruling on September 7, a day before the deadline for certification of the ballot.

In 2012, the sponsoring committee for the marijuana measure submitted petitions on August 6, which was two days before the 90 day deadline of August 8. On September 4, I determined the petitions were insufficient. The 55 day deadline for me to certify the ballot was September 12. On September 14, after I already had certified the ballot, the sponsoring committee filed with the Supreme Court seeking relief. On September 19, the Supreme Court denied relief.

3. Has it ever had a substantive effect one way or another?

We do not know for sure. However, based on the many petitions that have come across my desk in 21 years, the potential certainly exists whereby the sponsoring committee or the voters may not have the safeguards to which they are entitled because of the current 90 day deadline.

4. What responsibility does the Supreme Court have to fast track such issues?

There is no timeline in the constitution or state law, as to when they must rule. However, according to Section 6 of Article III, “All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court. But if the sufficiency of such petition is being reviewed at the time the ballot is prepared, the secretary of state shall place the measure on the ballot and no subsequent decision shall invalidate such measure if it is at such election approved by a majority of the votes cast thereon.”

In other words, it is conceivable that a measure could be placed on the ballot even though it was clearly insufficient, but because it was under review, it had to be placed on the ballot regardless because of the constitutional provision. Fortunately, that has not happened during the past 21 years. However, a sponsoring committee did threaten to do so in order to force a clearly insufficient petition on the ballot, but decided to back off, which I think was because the potential backlash would have been devastating to their efforts.

The reasons for changing the deadline to 120 days are to ensure that all parties have adequate time to review the petitions for sufficiency, to challenge any decisions that are made, and for the court to act accordingly before the ballot certification deadline. It is to ensure the integrity of the process for everyone. See the attached testimony.

Attachment Text:

April 1, 2013
TO: Senator Hogue, Chairman, and Members of the Senate Judiciary Committee

FR: Al Jaeger, Secretary of State

RE: HCR 3034 – Initiated Measures – Constitutional Amendment – 120 day filing deadline

I appreciate Rep. Kretschmar’s sponsorship of this resolution because he has been a long-time observer of the initiative process. During the 1977 Legislative Assembly, he was the lead sponsor of HCR 3088 to create Article III of the state’s Constitution related to the initiative, referendum and recall process. That resolution was an update of language drafted in 1919.

HCR 3088 was ultimately approved by the voters in the general election held on November 7, 1978 by a vote of 102,182 to 75,413 (58% to 42%). Article III is titled, “Powers Reserved to the People.”

I believe Article III contains two rights. On one hand, it is the right of the people to pursue the initiative, referendum and recall process. On the other, it is the right of the people to know that the initiative, referendum, or recall process was followed in a lawful manner.

The intent of HCR 3034 is to place a Constitutional amendment on the June 2014 election ballot that, if passed by the voters, it would allow adequate time,
1. for the Secretary of State’s review of submitted petitions,
2. for the Sponsoring Committee to challenge in court any decisions made by the Secretary of State,
3. for the Supreme Court to decide the merits of any challenge, and
4. for the Secretary of State’s certification of the ballot before the fifty-fifth day prior to an election.

Section 6 of Article III states that if the sufficiency of a petition is still being reviewed by the time the ballot is certified, the measure must be placed on the ballot. The proposed timeline would hopefully provide adequate time to prevent that from happening.

For example, currently a petition must be submitted prior to midnight the 90th day before the election. By state law, the Secretary of State has 35 days to determine the sufficiency of the petition. Since the ballot must be certified 55 days before the election, no time might remain for the Supreme Court’s review.
If this resolution is approved for placement on the ballot by the legislature and ultimately approved by the voters, it would allow 35 days for review by the Secretary of State, 10 days for the sponsoring committee to file with the Supreme Court a challenge regarding any decisions made by the Secretary of State related to the petition and its placement on the ballot, and provide the Supreme Court 20 days in which to render a decision prior to the 55th day before an election.

Section 1, page 1, line 16: changes the filing deadline before an election from 90 days to 120 days

Section 2, page 2, lines 11 through 13: amends Section 6 of Article III that all challenges must be filed with the Supreme Court no later than 75 days before an election

Section 3, page 2, lines 17 through 19: amends Section 7 of Article III that all challenges must be filed with the Supreme Court no later than 75 days before an election

No Need To Amend The Constitution

One of the most common arguments used by legislators against initiated constitutional measures is that there is no need to make changes to the constitution permanent. That very argument holds very true when it comes to the legislature asking the people to curtail their own rights, and make it more difficult to do what the legislature does not want to do.

Legislators need to be sent the message: don’t touch the initiated measure process.