Why it matters: With land use issues and development projects increasingly the subject of local ballot initiatives, it is imperative to understand the procedural requirements for initiatives, including who may properly serve as an official proponent of a local measure.

Facts: Two activist associations sought to place an initiative on the ballot in the City of Chula Vista. As described in the initiative, the purpose of the proposed measure was to mandate that the City and the City’s Redevelopment Agency not fund or contract for public works projects where there was a requirement to use only union employees. Because the City of Chula Vista (a charter city) requires that initiative proponents be electors, two association members agreed to serve as proponents in place of the associations. Among other requirements, the City mandated that the proponents’ names appear on the face of the circulated petitions for the initiative, and in several other public documents. After the City Clerk rejected the submission of circulated petitions because the petitions failed to include the proponents’ signatures on the notice accompanying the petitions, the associations filed a lawsuit alleging that the elector and petition proponent disclosure requirements violate the First Amendment.

Decision: After resolving relevant jurisdiction issues, the Ninth Circuit Court of Appeals tackled the question of whether the elector requirement implicates the First Amendment. The associations – desirous of “official proponent” status — alleged that the elector requirement is an unconstitutional condition on their right to associate for purposes of political expression and that the requirement abridges the rights of speech, association, and petition. The Court determined the associations’ argument amounted to a claim that serving as an official proponent is a form of speech protected by the First Amendment and that by seeking the legal authority of official proponents, the associations were seeking the legislative power of setting the initiative process in motion. The Court rejected the associations’ challenge to the elector requirement, finding that First Amendment freedom of speech does not require the people to delegate legislative power to associations.

The Court also addressed the question of whether the requirement that individual proponents be identified on the initiative petition is Constitutional. Rejecting the State of California’s arguments that such disclosure was necessary to preserve the integrity of the electoral process and inform the electors of an official proponent’s identity, the Court found that the petition-proponent disclosure requirement was unconstitutional. As a result, sections 9202 and 9207 of the California Elections Code were declared invalid insofar as they require official initiative proponents to identify themselves on the face of the initiative petition.

Practice Pointers: Some suggested responses to this decision are the following:

  • Individual proponents have a right to be anonymous when they are acting in an advocacy role to persuade voters to sign initiative petitions. When you are approached by a signature gatherer in the future, the individual proponents’ names will no longer be on the petitions.
  • If a voter or interested individual is seeking information about who is financially backing a particular initiative, a review of campaign finance reports, which are available from County or City Clerks, will be important.
  • Strict compliance with the Elections Code procedural requirements is imperative for initiative proponents, and this case highlights how contentious compliance with the requirements can be.