The special primary election for Tennessee House of Representatives District 29 is on July 27. DeAngelo Jelks is running unopposed in the Democratic primary, and Greg Vital is running unopposed in the Republican primary. The candidates will advance to the general election, scheduled for Sept. 14.
The special election was called after Mike Carter (R) died from cancer on May 15. Carter served from 2012 to 2021.
The filing deadline to run for the seat passed on June 17.
Tennessee has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. Republicans control the Tennessee House of Representatives by a margin of 73 to 26.
Colvin succeededHarold Melton, who retired on July 1. Chief Justice Melton joined the Georgia Supreme Court in 2005. He was appointed to the court by Gov. Sonny Perdue (R).
Prior to her appointment to the state supreme court, Colvin served as a judge of the Georgia Court of Appeals. Kemp appointed her to that court on March 27, 2020. Colvin was previously a judge with the Macon Circuit of the 3rd Superior Court District of Georgia. She was appointed to that court by Gov. Nathan Deal (R) on March 24, 2014. Prior to becoming a superior court judge, she was an attorney in the U.S. Attorney’s Office.
In 2021, there have been 14 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. The vacancies have been caused by retirements. To date, 11 of the vacancies have been filled.
New Mexico Gov. Michelle Lujan Grisham (D) appointed Briana Zamora to the New Mexico Supreme Court on July 16. The appointment filled a vacancy on the court caused by former Justice Barbara J. Vigil’s retirement on June 30. Zamora is Gov. Lujan Grisham’s fourth nominee to the five-member supreme court.
Under New Mexico law, midterm state supreme court vacancies are filled through assisted gubernatorial appointments, where the governor selects a nominee based on recommendations from a judicial nominating commission. Appointees serve until the next general election, in which they must participate in a partisan election to remain on the bench for the remainder of the unexpired term.
Briana Zamora previously served as a judge on the New Mexico Court of Appeals from 2018 until her appointment to the state supreme court. She served as a district court judge from 2013 to 2018 and as a metro court judge from 2009 to 2013. Prior to becoming a judge, Zamora worked as an attorney in private practice, as an assistant state attorney general, and as an assistant district attorney. She earned an undergraduate degree in government and psychology from New Mexico State University and a J.D., with honors, from the University of New Mexico School of Law.
In 2021, there have been 14 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. To date, 10 of those 14 vacancies have been filled.
Candidates for governor of Virginia filed campaign finance reports on July 15, 2021, providing new totals in the race. The major-party candidates—Terry McAuliffe (D) and Glenn Youngkin (R)—have both raised roughly $20 million for their respective campaigns, according to the most recent reports.
A closer look at the sources of those campaign contributions shows that 94% of McAuliffe’s contributions—$19.2 million—have come from direct, itemized donations totaling more than $100. Youngkin lent his campaign $12 million, which makes up 61% of his total campaign contributions.
Itemized donations are those where information about the donor is provided in the campaign finance report including his or her name and address. Using the state data provided by the candidates’ reports, Ballotpedia found that a majority of McAuliffe’s itemized contributions—$11.2 million—came from donors outside of Virginia. The majority of Youngkin’s itemized contributions—$5.0 million—came from zip codes in Virginia. For both candidates, the largest single source of donations outside of Virginia is Washington, D.C.
An analysis of the zip codes for itemized Virginian donations shows that four of McAuliffe’s five largest sources are located in Fairfax County, in the state’s northeast, and one is located in Albemarle County, which surrounds the University of Virginia. To date, McAuliffe’s largest source of itemized donations—$1.5 million—is located in Alexandria, Va.
Three of Youngkin’s five largest sources of itemized Virginia donations are located in the independent city of Virginia Beach, in the state’s southeast. The remaining two zip codes are located in Fairfax County, and Henrico County, which includes the region surrounding the state’s capital: Richmond. Youngkin’s largest source of itemized donations—$547,675—is located in Virginia Beach, Va.
Virginians will elect a new governor in the Nov. 2 general election. Democrats have won four of the five most recent gubernatorial elections and all thirteen statewide elections since 2012. Two recent polls have shown the race about even with McAuliffe and Youngkin receiving support within the respective margins of errors. In addition to the major-party candidates, Princess Blanding, the Liberation Party candidate, will also appear on the general election ballot. She has raised $20,604 as of June 30 and has $7,739 on hand according to the most recent campaign finance reports.
To learn more about the Virginia gubernatorial election, click here.
California initiative requiring state to adopt regulations on plastic waste certified for 2022 ballot
News
On July 19, a citizen-initiated measure to require California to adopt regulations designed to reduce the use of single-use plastic packaging was certified for the ballot on November 8, 2022. The ballot initiative would also enact a maximum one-cent per item fee on single-use plastic packaging and foodware, with revenue from the fee distributed to CalRecycle, the California Natural Resources Agency, and local governments.
The California Department of Resources, Recycling, and Recovery (CalRecycle) would be responsible for implementing the regulations, including:
requiring producers to ensure that single-use plastic packaging and foodware is recyclable, reusable, refillable, or compostable by 2030;
requiring producers to reduce or eliminate single-use plastic packaging or foodware that CalRecycle determines is unnecessary for product or food item delivery;
requiring producers to reduce the amount of single-use plastic packaging and foodware sold in California by at least 25 percent by 2030; and
prohibiting food vendors from distributing expanded polystyrene food service containers.
Clean Coasts, Clean Water, Clean Streets, also known as Plastics Free California, is leading the campaign in support of the ballot initiative. Through March 31, 2021, the campaign has raised $4.19 million. Recology, Inc. was the largest contributor, providing $3.76 million. Recology, Inc. is a business that provides commercial and residential waste, recycling, and composting services. Linda Escalante, action fund advisor for the Natural Resources Defense Council, said, “Plastics Free California is an opportunity to increase pressure on the plastics industry to rein in the harmful environmental impacts of their single-use products, and to rebuild and support California’s recycling system.” As of July 20, Ballotpedia has not identified a campaign opposing the ballot initiative.
The campaign filed the ballot initiative in November 2019 and originally intended to place the proposal on the 2020 ballot. Eric Potashner, vice president of Recology, said the campaign had collected more than 800,000 signatures for the ballot initiative before the suggested deadline of April 21, 2020, but wanted to collect between 900,000 to 950,000. Citing the coronavirus pandemic, Potashner said, “Even if I had a million signatures, I don’t know if we’d be submitting this thing till after June anyway. I don’t know if this is the right climate for this measure right now.” Potashner also noted that the ballot initiative’s provisions would not take effect until 2030, “so pushing this issue… to 2022 doesn’t have any practical implications in what we’re trying to do.”
On August 11, 2020, the campaign filed 871,940 signatures. Counties were not required to report the number of valid signatures according to the random sample until March 9, 2021, due to a coronavirus-related executive order. On March 9, the random sample of signatures did not project that 110% or more of the signatures were valid. Therefore, a full check of the signatures was required. The deadline for completing the full check was set as April 22, 2021, but was later extended to July 19, 2021. The full count of signatures showed that 666,664 signatures were valid, exceeding the requirement of 623,212.
The ballot initiative is the fourth citizen-initiated measure certified for the ballot in California for 2022. Others include an initiative to legalize sports betting at American Indian gaming casinos and licensed racetracks in California; an initiative to increase the cap on noneconomic damages in medical malpractice lawsuits; and a veto referendum to repeal the ban on flavored tobacco sales. The signature verification deadline for the 2022 ballot is 131 days before the general election, which is around June 30, 2022.
California Secretary of State Shirley Weber (D) announced on July 17 that 41 candidates had qualified to run in the recall election of Gov. Gavin Newsom (D). The list of candidates includes eight Democrats and 21 Republicans, among which are former San Diego Mayor Kevin Faulconer (R), 2018 gubernatorial candidate John Cox (R), former U.S. Rep. Doug Ose (R), and Caitlyn Jenner (R).
Before the July 16 filing deadline, 76 candidates had filed paperwork with Weber’s office stating their intention to run in the election. In the successful 2003 recall of Gov. Gray Davis (D), 135 candidates ran in the election. Mackenzie Mays of Politico speculated that the reduction in the number of candidates could be due both to the requirement that candidates share five years’ worth of tax returns and stabilization of Newsom’s political standing.
The recall election will present voters with two questions. The first will ask whether Newsom should be recalled from the office of governor. The second will ask who should succeed Newsom if he is recalled. A majority vote is required on the first question for the governor to be recalled. The candidate with the most votes on the second question would win the election, no majority required.
Newsom was elected as California’s governor in 2018 with 61.9% of the vote. Since 1911, there have been 55 attempts to recall an incumbent California governor. The only successful recall campaign was in 2003 when voters recalled Davis and chose Arnold Schwarzenegger (R) as Davis’ replacement.
William Penterman (R) was elected to District 37 of the Wisconsin State Assembly in a special election held on July 13. Penterman earned 54.1% of the vote, defeating Democrat Pete Adams and independent candidate Stephen Ratzlaff Jr. Once the results are certified, Penterman will be sworn in for a term that ends in January 2023.
The seat became vacant on April 23 after John Jagler (R) was sworn into the Wisconsin State Senate. He won a special election for state Senate District 13 on April 6. Jagler had represented District 37 since 2013. He won re-election in 2020 with 56% of the vote.
Republicans will have a 61-38 majority in the Wisconsin Assembly after Penterman is sworn in. Wisconsin has a divided government, and no political party holds a state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers.
As of July, 46 state legislative special elections have been scheduled for 2021 in 18 states. Between 2011 and 2020, an average of 75 special elections took place each year. Wisconsin held 19 state legislative special elections from 2011 to 2020.
The Wisconsin Supreme Court on July 8 issued decisions in two environmental cases that had pitted the state legislature against the state Department of Natural Resources (DNR) in a disagreement over which government entity has the authority to regulate water pollution and irrigation practices. In both cases, the court held 4-2 that the DNR is authorized to restrict permits in order to protect the state’s water resources.
The pair of cases, both initiated by Clean Wisconsin Inc. and Pleasant Lake Management District, centered on Wisconsin Act 21—a 2011 law that limits state agency authority by prohibiting state agencies from taking actions not specifically authorized by the state legislature.
The first case concerned an administrative law judge’s (ALJ) order that the DNR limit the size of a dairy herd causing nearby groundwater contamination. The DNR under then-Governor Scott Walker (R) did not enforce the ALJ’s directive, arguing that Act 21 prohibited the agency from carrying out the order.
A Dane County Circuit Court judge in 2016 affirmed the DNR’s authority to limit the size of the dairy herd to address water pollution. The DNR appealed the decision to the Wisconsin Supreme Court. The current DNR under Governor Tony Evers (D) changed its position and had since claimed regulatory authority in the case.
The Wisconsin Supreme Court upheld the circuit court’s decision. Writing for the majority, Justice Jill Karofsky stated, “we conclude that an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with [Act 21].”
In the second case, challengers sued the DNR seeking stricter enforcement of regulations regarding large-scale water withdrawals for irrigation. Challengers claimed that the agency failed to consider the cumulative negative impact on water levels in nearby lakes and streams when it issued permits for nine high-capacity wells. As in the previous case, the DNR argued that Act 21 prevented the agency from considering the cumulative impact of the new wells.
The Wisconsin Supreme Court again affirmed the circuit court’s decision in the case, holding that the DNR erroneously claimed that it lacked regulatory authority. Writing for the majority, Justice Rebecca Dallet stated, “The DNR’s authority to consider the environmental effects of proposed high capacity wells, while broad, is nevertheless explicitly permitted by statute.”
Chief Justice Annette Ziegler joined Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky in both majority opinions. Justice Brian Hagedorn did not participate in the case.
Justices Rebecca Bradley and Patience Roggensack dissented, arguing in part: “Elevating its environmental policy preferences over the legislature’s prerogative to reclaim its constitutional authority, the majority distorts the plain language of [Act 21] to achieve its own ends.”
The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.
This edition:
In this month’s edition of Checks and Balances, we review the latest administrative law activity from the U.S. Supreme Court, including a decision calling for increased supervision of administrative patent judges (APJs) and a holding that the structure of the Federal Housing and Finance Agency (FHFA) is unconstitutional; three Congressional Review Act resolutions that, for the first time, repealed regulations issued under a Republican administration; and a closer look at the Biden administration’s first Unified Public Agenda of Regulatory and Deregulatory actions.
At the state level, we take a look at an effective ban on judicial deference by the Mississippi Supreme Court and a new Maryland law that shifts agency responsibilities to state administrative law judges (ALJs).
We also highlight new commentary that questions whether Congress granted the Centers for Disease Control and Prevention (CDC) more authority than the president. As always, we wrap up with our Regulatory Tally, which features information about the 170 proposed rules and 319 final rules added to the Federal Register in June and OIRA’s regulatory review activity.
In Washington
SCOTUS finds Federal Housing Finance Agency structure unconstitutional
What’s the story? The United States Supreme Court issued decisions in two administrative law cases since our last edition concerning oversight of administrative patent judges (APJs) and the structure of the Federal Housing Finance Agency (FHFA).
In United States v. Arthrex, the court held 5-4 that the U.S. Constitution’s Appointments Clause does not allow administrative patent judges (APJs) to resolve patent disputes without increased supervision from higher-level agency officials. In its June 21 decision, the court decided to sever the parts of the patent statute that prevented the director of the Patent and Trademark Office (PTO) from unilaterally reviewing APJ decisions.
Chief Justice John Roberts delivered the opinion of the court, writing that the PTO director’s lack of review power over APJ decisions gave APJs power that conflicted with the “design of the Appointments Clause ‘to preserve political accountability.’”
The court’s ruling preserved the authority of the secretary of commerce to appoint APJs while increasing the supervision powers of the director of the Patent and Trademark Office.
In Collins v. Yellen, the court held that restrictions on the president’s authority to remove the director of the FHFA violated the separation of powers. In its June 23 decision, the court also rejected the argument that the FHFA actions at issue in the case went beyond the agency’s legal authority.
Justice Samuel Alito delivered the opinion of the court, writing that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.”
The court’s decision to hold the structure of the FHFA unconstitutional articulated limits on the types of administrative agencies Congress may create and reaffirmed the court’s 2020 decision in Seila Law v. Consumer Financial Protection Bureau (CFPB), which held that the CFPB director’s removal protections unconstitutionally insulated the agency from presidential control.
Biden signs three Congressional Review Act resolutions repealing Trump-era rules
What’s the story? President Joe Biden (D) on June 30 signed three Congressional Review Act (CRA) resolutions that, for the first time, reversed regulatory actions taken by a Republican administration. All three resolutions passed both chambers of Congress largely along party lines with Democrats in favor and Republicans opposed.
The first resolution, S.J.Res.13, reversed an Equal Employment Opportunity Commission (EEOC) rule issued under the Trump administration that changed the agency’s information-sharing requirements with companies accused of discrimination.
The second resolution, S.J.Res.14, reversed an Environmental Protection Agency (EPA) methane rule issued under the Trump administration and restored methane emissions standards set under the Obama administration.
The third resolution, S.J.Res.15, reversed a Comptroller of the Currency (OCC) rule issued under the Trump administration that changed regulations governing third-party lending.
The CRA is a federal law passed in 1996 that creates a 60-day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a federal agency rule issued in the final months of a presidential administration. Since the law’s creation in 1996, Congress has used the CRA to successfully repeal 20 agency rules.
Biden administration releases first Unified Agenda
What’s the story? The Biden administration on June 11 released the Spring 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions–a semiannual publication of recently completed, ongoing, and anticipated federal regulatory actions.
A White House press release announcing the new agenda outlined the following priority regulatory categories: “protect health and safety,” “support a robust economic recovery that strengthens the middle class,” “advance equity,” “confront the climate crisis,” and “build a fair, orderly, and humane immigration system.”
The agenda features 3,959 rules in the active, completed, and long-term stages.
The agenda’s searchable interface on reginfo.gov (the website for the Office of Information and Regulatory Affairs) no longer includes distinctions between regulatory and deregulatory actions. Those distinctions were previously prompted by President Donald Trump’s (R) Executive Order 13771, which required federal agencies to eliminate two old regulations for each new regulation issued. President Joe Biden (D) revoked E.O. 13771 on January 20, 2021.
Mississippi Supreme Court rejects Auer deference, ends judicial deference in state
What’s the story? The Mississippi Supreme Court on June 10 ruled 8-1 in Mississippi Methodist Hospital and Rehabilitation Center Inc. v. Mississippi Division of Medicaid to end the state practice of deferring to agency interpretations of regulations, a doctrine known as Auer deference at the federal level. The court’s decision, combined with its prior rejection of state-level Chevron deference, effectively banned judicial deference practices in the state, according to an analysis by Pacific Legal Foundation attorney Daniel Ortner.
Justice Leslie King wrote the opinion for the court, noting that the practice of “[d]eferring to agency interpretations of rules and regulations is inconsistent with the standard of review for statutory interpretation, causes confusion, causes inconsistencies in application and within our own caselaw, and violates article 1, section 2, of Mississippi’s Constitution.” The court’s decision institutes a new period of de novo review over agency regulatory interpretations.
The court ended the state-level Chevron deference doctrine, which requires courts to defer to agency interpretations of unclear statutes, in the 2018 case King v. Mississippi Military Department. The justices argued that the practice violated the separation of powers prescribed by the state constitution. The King decision instituted a new standard of de novo review over such agency interpretations, which the court later reaffirmed in a 2020 tax and gambling case.
What’s the story? A new Maryland law effective July 1 shifted the responsibility of determining compensation for individuals who served time in prison for crimes they did not commit from the Maryland Board of Public Works to state administrative law judges (ALJs).
Maryland Governor Larry Hogan (R) first proposed the change in September 2019. Hogan argued that state ALJs are more qualified than the members of the Board of Public Works to make compensation determinations because the board lacks the “expertise, capacity [and] personnel” to evaluate damages, pain, and suffering.
The Board of Public Works is made up of three elected officials: the governor, the state comptroller, and the state treasurer. State law previously authorized the board to compensate wrongly incarcerated individuals. However, the board had not done so since the last wrongly incarcerated individual received compensation in 2004.
Five wrongly incarcerated men had petitioned the board for compensation over the months leading up to Hogan’s proposal. Walter Lomax, for whom the new law is named, spent 39 years in prison for a crime he did not commit. Lawyers had asked the board to award $100,000 to each man for each year he spent behind bars for a total of roughly $12 million.
New commentary from Reason senior editor Jacob Sullum questions whether Congress granted the Centers for Disease Control and Prevention (CDC) more power than the president.
In “Did Congress Give the CDC More Authority Than the President?” Sullum claims that the agency’s legal defense of its eviction moratorium in Alabama Association of Realtors v. Department of Health and Human Services suggested that the agency has unlimited authority to take “reasonably necessary” actions in order to prevent the spread of communicable diseases. Sullum argues that the agency’s mandate could exceed the president’s authority:
“Nor is the power asserted by the CDC limited to overriding rental contracts. It clearly would authorize a national mask mandate of the sort that Joe Biden conceded was beyond his powers as president, not to mention nationwide business closures and home confinement of every American who is not engaged in activities the CDC’s director deems essential.
Transforming its recommendations into commands, the CDC could have legally required all of us to keep our distance from members of other households. It even could have forced us to ‘clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe,’ back when it thought that was a sensible safeguard against COVID-19. …
Where does the CDC get these vast powers, which somehow exceed even the president’s? It cites the Public Health Service Act, which authorizes the secretary of health and human services to issue regulations that ‘in his judgment are necessary’ to control ‘communicable diseases,’ and one of those regulations, which delegates that authority to the CDC’s director.”
Though the U.S. Supreme Court on June 29 declined to lift a stay on the CDC’s eviction moratorium (set to expire at the end of July), a concurring statement by Justice Brett Kavanaugh indicated that at least five of the justices considered the moratorium to be unlawful.
The Federal Register in June reached 34,904 pages.
The June Federal Register included 170 proposed rules and 319 final rules. These included updates to the Federal Deposit Insurance Corporation’s (FDIC) policies related to minority depository institutions and the U.S. Fish and Wildlife Service’s designation of the beardless chinchweed as an endangered species, among other regulations.
In November, voters in Maine will decide a ballot initiative designed to stop the New England Clean Energy Connect (NECEC), a 145-mile long, high-voltage transmission line project. NECEC would transmit around 1,200 megawatts from hydroelectric plants in Quebec to electric utilities in Massachusetts and Maine.
Since 2010, Ballotpedia has tracked campaign finance for ballot measures in Maine, and the transmission lines ballot initiative is the most expensive since then. Supporters and opponents of the initiative have raised more than $46 million raised June 30, 2021.
The second most expensive initiative was Question 1 (2017), an initiative to authorize slot machines or a casino in York County, Maine, which saw $10.16 million in contributions through the entire election cycle. In June 2017, the combined campaign contributions surrounding Question 1 were at $4.41 million—less than half of the final aggregate contributions. The next campaign finance deadline for the campaigns surrounding the transmission lines initiative is October 5, 2021.
The NECEC was proposed in response to Massachusetts soliciting for 9.45 million hydropower-derived megawatts in 2016. Hydro-Québec, a government-owned firm in Quebec, and Central Maine Power (CMP) submitted a joint proposal to deliver hydropower from Quebec to Massachusetts through Maine. Segment 1 of the NECEC required a new 53-mile corridor from the border with Quebec to The Forks, Maine, which began construction on May 13, 2021. Other segments were planned to use existing transmission line corridors.
Maine, in exchange for entering into a stipulation agreement for the project, was set to receive a benefits package worth $258 million, which included funds for low-income electric consumer projects, rural broadband internet, electric vehicle charging stations, electric heat pumps, education grants, workforce development, and business retention. Maine also secured 500 megawatt (MWh) hours per year from hydroelectric plants via NECEC.
Former Sen. Thomas Saviello (R-17), a member of the campaign No CMP Corridor, filed the ballot initiative in October 2020. He said, “Mainers know they’re being lied to by these two foreign corporations, and they know that this project will forever change our state’s character, environment and economy in ways that will not benefit us.” Besides aiming to halt the NECEC, the ballot initiative would prohibit the construction of electric transmission lines defined as high-impact in the Upper Kennebec Region, such as the NECEC, and require a two-thirds vote of each state legislative chamber to approve high-impact electric transmission line projects. The ballot initiative would define high-impact electric transmission lines as those that are (a) 50 miles in length or more, (b) outside of a statutory corridor or petitioned corridor, (c) not a generator interconnection transmission facility, or (d) not constructed to primarily provide electric reliability.
No CMP Corridor, together with the Mainers for Local Power PAC, raised $9.46 million, including $6.67 million from NextEra Energy Resources, LLC, which owns a natural gas-fired plant in Cumberland, Maine, and six solar fields or projects in southern and central Maine; $1.27 million from Vistra Energy Corp., which owns a natural gas-fired plant in Veazie, Maine; and $1.23 million from Calpine Corp., which owns a natural gas-fired plant in Westbrook, Maine.
Clean Energy Matters is leading the campaign in opposition to the ballot initiative. Jon Breed, executive director of Clean Energy Matters, stated, “It’s bad public policy and sets a bad precedent for our state if we take a project that has cleared every major regulatory milestone at the state and federal level, and then turn around and pull permits.” The PAC Hydro-Québec Maine Partnership is also registered to oppose the ballot initiative. Together, the PACs had raised $36.99 million, including $27.12 million from Central Maine Power (CMP), NECEC Transmission LLC, and the companies’ parent firm Avangrid; and $8.58 million from H.Q. Energy Services (U.S.) Inc., which is a subsidiary of Hydro-Québec.
The Maine State Legislature passed a bill in June 2021 that could have impacted Hydro-Québec’s abilities to make contributions. LD 194 was designed to prohibit corporations and other entities that are at least 10% owned by a foreign government from making contributions or expenditures for or against a citizen-initiated ballot measure. Gov. Janet Mills (D) vetoed the legislation, saying, “Government is rarely justified in restricting the kind of information to which the citizenry should have access in the context of an election, and particularly a ballot initiative.”
