Qualifying an Initiative or Referendum During the COVID Crisis – April 2020

In addition to the human toll and economic hardship caused by the COVID crisis, initiative and referendum efforts have come to a virtual standstill.  With people unable to visit grocery stores, farmers markets, street fairs or other places where petition circulators typically gather signatures, the stay-at-home orders have made it effectively impossible to gather signatures on initiative and referendum petitions in the usual ways.

Nevertheless, there are certain options which initiative and referendum supporters may still be able to use in order to qualify for the November 2020 ballot – as long as proponents are willing to try new approaches.  The creative options described below should pass legal muster, so long as all petitions satisfy the “full text” and formatting requirements,  and so long as the “Declaration of Circulator” is properly completed.

One option is mailing petitions to likely supporters.  The mailing would include detailed instructions about how to complete and return the petition, as well as a pre-addressed stamped return envelope.  Similarly, volunteers or paid signature gatherers could leave petitions on voters’ doorsteps (of course while wearing masks and gloves, and keeping proper distance between themselves and other people).  Voters could then leave the signed petitions on their doorsteps, or mail them back to the proponents.  Direct mail and door-to-door qualification efforts (as opposed to on-line efforts, discussed below) have the advantage of being able to include a return envelope, which may lead to higher return rate, as well as enabling the proponents to properly format the petition themselves, rather than having to rely on voters to properly print out, complete and staple the pages together.

Another option is emailing the petition to likely supporters, or directing supporters to a website on which the petition is posted.  Supporters could download, print and staple the petition pages together, sign it (and ask other members of their household to do the same), and then mail it back to the proponents.  Very detailed instructions would need to be provided so that the petition – including the Declaration of Circulator – is accurately printed and completed.

Campaigns have traditionally avoided using on-line petitions due to concerns that the petition might not print properly (e.g., perhaps on 8 ½ x 11 rather than 8 ½ x 14 paper), that voters might only return the signature page, or that the petition might otherwise not comply with legal requirements.  The COVID crisis has changed this cost-benefit analysis.  Given the extraordinary limitations on our movements and in-person contact, and the overriding constitutional right to place public policy matters on the ballot, creative solutions are the order of the day – though we cannot predict how a Registrar of Voters’ office, the Secretary of State, or opponents would respond to petitions which were distributed via email or posted on a website.

Regardless of the method used, timing is of the essence.  Various deadlines for the November 2020 election are fast-approaching.  Given that cities and counties need at least 30 working days to verify signatures, that many city councils and boards of supervisors do not meet for much of July or August, and that the deadline for legislative bodies to place local initiatives and referenda on the November ballot is August 7, the window of opportunity to qualify measures for the November 2020 ballot is rapidly closing.  We recommend that anyone trying to qualify a local initiative or referendum for the November ballot submit their petitions as soon as possible.

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     Feel free to contact a Sutton Law Firm attorney or Political Compliance Specialist if you have any questions regarding reports, questionnaires, or any other political or election law concerns, especially with regard to the stay-at-home order.