Sign a Petition? Your Support May Not Count

Across the country, every election cycle, signatures of voters who support a proposed constitutional amendment are thrown out. That’s because the guidelines on what constitutes a valid signature to get a citizen-initiated measure on the ballot can be extremely strict — perhaps overly so.

Twenty-six states allow direct voter referendum on proposed statutes and state constitutional amendments, known as citizen-initiated ballot measures or ballot initiatives. These initiatives can be a powerful way for voters to enshrine their preferences into law. Since the U.S. Supreme Court overturned Roe v. Wade, for example, states have seen a deluge of proposed ballot measures to amend state constitutions to protect or limit abortion access. Many efforts to protect abortion rights have found bipartisan, widespread support when presented to the public. Michigan’s 2022 Proposal 3 and Ohio’s 2023 Issue 1, for example, both passed with more than 55 percent of their states’ votes. In other states, like Kansas, Kentucky, and Montana, voters have defeated anti-abortion constitutional amendments.

But before these initiatives can be put to voters, they first must qualify to make it onto the ballot. That process requires, among other steps, the collection of a certain number of voter signatures in support of the ballot initiative.

States have different formulas for calculating the number of signatures needed. In Arizona — where I have worked on multiple ballot initiative campaigns — a statutory initiative requires collection of signatures equal to 10 percent of the votes cast in the previous election, while a constitutional amendment needs 15 percent. In 2024, that means 255,949 or 383,923 valid signatures, respectively, must be submitted by July 3 for an initiative to qualify for this fall’s general election ballot.

The signature-gathering task is familiar nationwide: A petitioner equipped with a clipboard and a lot of enthusiasm stops a passerby and asks if they’re registered to vote in the state. If they are, the voter is given a summary of the ballot initiative and, if they are in favor, asked to provide a signature and some additional identifying information. After that, the voter goes about their day, likely assuming their indication of support for the measure will count.

But all too often, that assumption is wrong.

In Arizona, the signature review process is overseen by the secretary of state’s office, which develops guidelines on how signatures are reviewed. Every signature must include a first and last name, signature, residence address or description of residence location, and date. Each page must require the signature gather indicate whether they are paid or a volunteer, include their state mandated circulator ID on the front and back of each petition sheet. Each page must be notarized. And so on.

The secretary of state scrutinizes petitions at both the sheet and individual signature level. There are many reasons a signature might be declared invalid.

Some decisions to strike individual signatures are non-controversial, such as if the person is not registered to vote. Other disqualifications are more difficult to understand. A post office box does not count as an address for a ballot initiative or constitutional amendment, for example, but does when candidates for office are collecting signatures to qualify for the ballot.

Other errors get entire sheets thrown out. The full title and text of the text of the proposed ballot initiative must be attached to each sheet. If a page gets separated due to the elements? All signatures tossed out. A paid signature gatherer didn’t write their ID number to the front and back of the page? All signatures tossed out. The notary’s stamp indicated the wrong date of signing? All signatures tossed out. These are mistakes that are entirely outside of the control of the voter, but invalidation of a sheet because of circulator error leaves no way for the voter to ensure their individual support is counted.

By far the most sweeping method to remove ballot signatures, though, is by challenging the registration of signature gatherers, or circulators. In Arizona, circulators who are not Arizona residents or are paid to collect signatures must register with the secretary of state. A 2014 law allows for any person to challenge the registration of these circulators, without showing injury as typically required for standing. Every paid and out-of-state circulator who collected signatures for the ballot initiative in question — well over a thousand circulators in a typical ballot initiative campaign — could receive a subpoena to provide evidence. If a circulator who received a subpoena fails to show up in court, “all signatures collected by that circulator are deemed invalid,” the law says. The rule, known as the “strike out law,” has become a tool to target many signatures for removal with minimal effort.

The rule has caused initiatives to fail to qualify for the ballot. One example is the Arizona Supreme Court’s decision in Leach v. Hobbs upholding the disqualification of thousands of signatures after circulators did not respond to subpoenas. Roughly thirty percent of the circulators were served with subpoena summons, totaling tens of thousands of targeted signatures. As a result, the initiative missed the threshold target.

The rule has survived both state and federal constitutional challenges. In Stanwitz v. Reagan, after 15 circulators failed to respond to subpoenas left with a security guard at a multi-tenant building where a campaign had rented space — resulting in the disqualification of 8,824 signatures — the high court rejected claims that the law “unduly hinders and restricts the legislative authority of the people” in violation of the Arizona Constitution. A federal court similarly rejected claims that the law violated the First Amendment, burdened the fundamental right to vote, and ran afoul of the Equal Protection Clause.

Still — especially when considered alongside efforts to establish a geographic signature distribution requirement for ballot initiatives and increase the vote threshold to approve constitutional changes to 60 percent — the bar for direct democracy seems to be inching ever higher in Arizona.

One particularly troubling aspect of petition removal, from single lines to mass disqualifications, is that the voter is entirely locked out of these mechanisms. Unlike voting by mail where the voter can track their signature verification, there is no parallel for ballot initiative signatures. There is no ability for a voter to see if a signature they provided is being counted or if it got tossed out because a canvasser forgot to properly fill out an affidavit on the back. These stringent rules for evaluating ballot initiative signatures do not serve democracy.

Will Notelovitz is a law student at Tulane University Law School. Before law school, he worked as a campaign office director in multiple states, including Arizona, Florida, Nevada, Georgia, Michigan, and Washington.

Suggested Citation: Will Notelovitz, Sign a Petition?  Your Support May Not Count, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 24, 2024), https://statecourtreport.org/our-work/analysis-opinion/sign-petition-your-support-may-not-count.