On December 8, the 9th circuit struck down Nevada’s law, requiring an initiative petition to contain 10% of the last vote cast in each of 13 counties (Nevada has 17 counties). The case is ACLU v Lomax, no. 04-17033.
The decision was not surprising, since in 2003 the 9th circuit had also struck down a similar distribution requirement for Idaho initiatives.
The basis for these decisions is highly theoretical, and depends on the Equal Protection portion of the 14th amendment. Counties vary in population. State laws that require any type of statewide petitions to contain a certain number of signatures in a certain number of counties discriminate in favor of voters who live in small-population counties, and against voters who live in large-population counties. For example, even if every voter in Nevada’s two largest counties wanted to sign a particular initiative petition, but no voters in any other counties wanted to sign it, that initiative could not get on the ballot under the Nevada law. Yet the two largest counties have 87% of Nevada’s population.
Yet, if the situation were reversed, and an initiative was wildly popular in Nevada’s 15 smallest-population counties, and had no support in the two largest counties, it could qualify.
The only state that still has a county-distribution requirement for statewide candidate petitions is Pennsylvania. Pennsylvania requires candidates seeking a place on a statewide primary ballot to collect 2,000 signatures, with a certain number of signatures in each of 10 counties. It is overwhelmingly likely that this law would be invalidated, if someone were to sue. Pennsylvania state courts have upheld the law in the past, but those decisions were erroneous. No federal court has upheld the Pennsylvania distribution requirement. The Pennsylvania requirement applies to state office only, not federal office, but that is no defense.
I’d take this decision to mean that the Ohio Constitution’s similar requirement (below) is also unconstitutional.
“Upon all initiative, supplementary, and referendum petitions provided for in any of the sections of this article, it shall be necessary to file from each of one-half of the counties of the state, petitions bearing the signatures of not less than one-half of the designated percentage of the electors of such county.” (Ohio Const Article 2, Section 1g)
There was a time when the Nevada state senate consisted of 17 members, one for each county (New Jersey had a similar scheme)!
Imagine that today when Clark County has 1.8 million population and the smallest county in Nevada, Esmeralda, has fewer than 1000.
I believe distribution requirements based on population weighted components pass constitutional muster (for example, x number of signatures from each congressional district, etc.).