Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review
The Sixth Circuit recently reviewed a case regarding an Ohio statute that required initiative-petition circulators to reside in the state of Ohio.[1] The district court declared the law unconstitutional, and the issue of a residency requirement for circulators was not challenged on appeal.[2] Although not challenged by Ohio’s Secretary of State in Citizens in Charge, Inc. v. Husted, the court does analyze the issue of residency requirements and acknowledges that a circuit split still exists regarding whether they are constitutional.[3] Currently, the Second, Eighth, and Tenth Circuits all have different standards to adjudicate the constitutionality of these residency requirements.[4] The inconsistent adjudications over residency requirements for initiative-petition circulators should be cured by a clear and uniform judicial standard to resolve this open constitutional question. The Tenth Circuit’s determination that residency requirements were unconstitutional should be adopted, as it does not infringe upon an individual’s right to political association.[5]
The Open Question of Residency Requirements: Buckley v. American Constitution Law Foundation Inc.
In Buckley v. American Constitutional Law Foundation Inc., the Court held that Colorado’s voter registration requirement for ballot initiative-petition circulators was an unconstitutional burden on the circulator’s speech.[6] Colorado argued that it intended to use the voter registration requirement as a way to facilitate the verification of the circulators’ state residence.[7] The Court determined that if Colorado’s goal was to ensure the residency of each circulator, then the voter registration requirement posed an additional requirement on circulators that unduly limited the petition circulator’s speech.[8] In sum, the Court held that states could not impose a voter registration requirement for ballot initiative-petition circulators.[9]
The American Constitutional Law Foundation did not challenge the state residency requirement.[10] Since the constitutionality of the residency requirement was not at issue, the Court could not decide whether a state can impose a residency requirement for initiative-petition circulators.[11] In Chief Justice Rehnquist’s dissent, he stressed that the Court’s “sphinx-like silence” on state residency requirements would result in litigation questioning the validity of future petition circulation regulations.[12] Rehnquist feared Buckley placed residency requirement regulations for petition circulators in serious constitutional jeopardy.[13]
Today, Rehnquist’s warning in Buckley has come to fruition. Numerous circuit courts have adjudicated the issue, but there is not a consensus on the constitutionality of a residency requirement for initiative-petition circulators.
Residency Requirements: Three Different Outcomes
The Tenth, Second, and Eighth Circuits have all attempted to determine the constitutionality of residency requirements for petition circulators with varied outcomes. In Yes On Term Limits, Inc. v. Savage, the Tenth Circuit determined that Oklahoma’s ban on non-resident initiative-petition circulators violated the First Amendment.[14] In Lerman v. Board of Elections of New York, the Second Circuit determined a statute that imposed a political-subdivision residency requirement as facially unconstitutional.[15] While the Tenth Circuit and Second Circuit both agreed on the unconstitutionality of residency requirements for petition circulators, the facts of each case posed unique problems and, thus, required unique analysis. The Eighth Circuit, in Initiative & Referendum Inst. v. Jaeger, disagreed with the other circuit courts and held that a residency requirement for petition circulators did not violate the Constitution.[16]
In Savage, the Tenth Circuit dealt with a challenge to an Oklahoma state law that did not count the signatures collected by non-resident petition circulators.[17] Oklahoma asserted that it had two state interests to protect: (1) to prevent out-of-state circulators from violating the integrity of Oklahoma state law; and (2) to ensure that circulators could be located if signatures are in question.[18] The court applied the strict scrutiny standard to both interests; strict scrutiny is the proper legal standard for these residency requirements as the case involves core political speech.[19] Oklahoma could not provide evidence that either interest was a compelling state interest or narrowly tailored. For the first issue, Oklahoma could only show that individual out-of-state residents did not respect Oklahoma state law, rather than the entire class of out-of-state circulators, thus the Court did not find the interest compelling and did not find the residency restriction as narrowly tailored to achieve the interest.[20] As for the second interest, the court did not find the interest compelling and proposed that a better solution would be to create a criminal statute for circulators that do not return when a signature is in question.[21] In sum, the Tenth Circuit held that a ban on non-resident circulators violated the First Amendment.[22]
The New York statute challenged in Lerman required that petition circulators be a “resident of the political subdivision in which the office or position is to be voted for.”[23] This means that the court was not dealing with a state residency requirement, but instead a small political subdivision residency requirement. Even though the Second Circuit did not determine the constitutionality of a state residency requirement, its analysis does provide a framework to understand residence requirements in general.
Lerman also did not deal with an initiative-petition circulator, instead the case centered on a candidate-petition circulator.[24] However, the court believed that the distinction drawn between the two types of circulators was strained, as there is no reason to believe that one type of circulator engages in more speech than the other.[25] The court then used strict scrutiny to analyze the state’s three asserted interests for a residency requirement, these included: (1) preventing fraud in the electoral process; (2) ensuring that candidates demonstrate sufficient support; and (3) ensuring that non-residents do not impose the cost of a primary on the district.[26] For the first interest, the court declared that the state must show that the residency restriction limits fraud.[27] The court went through a lengthy discussion and ultimately determined that the state did not prove that the residency requirement was narrowly tailored to limit fraud.[28] The court determined that the state’s arguments with regard to the other two proposed interests were weak and were also not narrowly tailored.[29] In sum, the Second Circuit refused to make a distinction between initiative-petition circulators and candidate-petition circulators, and additionally held that the political subdivision residency requirement was facially unconstitutional.[30]
In Jaeger, the Eighth Circuit upheld a North Dakota state residency requirement for initiative-petition circulators.[31] North Dakota asserted that it had a state interest to prevent signature fraud and that the residency requirement was a narrowly tailored means to achieve that interest.[32] The court reasoned that the interest was constitutionally permissible as it was a way for the Secretary of State to ensure that it could use its subpoena power to question circulators when necessary.[33] The court determined that the non-resident class’ limitation on speech was not severely burdened, as it did not prevent non-residents from training circulators or discussing initiative issues with the North Dakota electorate.[34]
Sixth Circuit Buckley Analysis: Nader v. Blackwell
The Sixth Circuit has already held that a residency requirement for candidate-petition circulators (circulators that gather signatures for a presidential candidate) was unconstitutional because the requirement violates a candidate’s First Amendment rights.[35] In Nader v. Blackwell, the court determined that restricting Nader’s ability to use non-residents of Ohio as petition circulators severely limited Nader’s ability to convey his political message in Ohio.[36]
The court applied Buckley to extend the invalidation of voter registration requirements for initiative-petition circulators to candidate-petition circulators.[37] The court refused to create a categorical distinction between initiative-petition and candidate-petition circulators before it applied Buckley’s analysis of voter registration requirements.[38] After refusing to create a categorical distinction between the two types of petition circulators for the voter registration requirement, the court then invalidated the residency requirement for candidate-petition circulators as the court could not find evidence of a compelling state interest to exclude non-residents from petition circulation.[39]
The plaintiff in Husted argued that Nader should have prevented Ohio’s Secretary of State from enforcing residency requirements for initiative-petition circulators.[40] However, the court in Husted disagreed as Nader only challenged the residency requirement for candidate-petition circulators.[41] Husted argued that the court in Nader only declared that initiative-petition and candidate-petition circulators are similar, not identical, and thus, not necessarily subject to the same First Amendment analysis.[42]
The Husted court’s analysis seems to contradict the analysis done in Nader, which indicates that there was not a categorical distinction between the two types of petition circulators for the voter registration requirement. The court in Nader did not declare that a different analysis regarding the constitutionality of residency requirements for initiative-petition and candidate-petition should occur. Moreover, the Nader court acknowledged that Buckley did not clearly invalidate residency requirements for petition circulators, but ultimately held that residency requirements for petition circulators are unconstitutional.[43]
Husted primarily focused on the qualified immunity doctrine, so the court’s aim was to determine whether Husted’s enforcement of the residency requirement was reasonable rather than if Husted’s interpretation of Nader was constitutionally correct.[44] Admittedly, the decision in Nader is not explicitly clear on whether or not Ohio can impose a residency requirement against initiative-petition circulators. Additionally, the confusion created in other circuit courts has caused further murkiness for a residency requirement analysis.[45] Unfortunately, the Husted case did not have the opportunity to create clarity within the Sixth Circuit, as the issue was not appealed.
End the Sphinx-Like Silence: The Open Question in Buckley Needs Resolved
The Supreme Court ought to review an initiative-petition circulation residency requirement case to clear up the ambiguity that Buckley has caused. The Court should adopt the Tenth Circuit’s holding in Savage and declare residency requirements as an unconstitutional limit on free speech.
While states may have an interest in insuring the validity of signatures on initiative-petitions, limiting non-residents from participating in this form of political speech is not the answer. If fraud and the ability to question a petition circulator is such a concern, the state should find a more narrowly tailored means to prevent such fraud. The Eighth Circuit’s explanation that a residency requirement is not narrowly tailored. The Eighth Circuit’s explanation that the state’s interest in having the Secretary of State’s subpoena power to prevent fraud should not outweigh the speech rights of non-residents.
The Tenth Circuit’s suggestion of adopting a criminal statute that punishes circulators that refuse to answer questions regarding the validity of a signature seems to be more narrowly tailored. A criminal statute would effectively hold all, both resident and non-resident, petition circulators more accountable for the signatures that they collect and promote the state interest of preventing electoral fraud. Such a criminal statute would permit states to police electoral fraud and enhance the integrity of their elections.
Alternatively, states could simply disregard questionable signatures if it cannot reach the non-resident petition circulator. If signatures appear fraudulent and the state has made an attempt to contact the petition circulator to no avail, then the state could create a policy to disregard suspicious signatures.
The residency requirement circuit split unfortunately means that in some states, non-residents cannot engage in petition circulation. Further, the hair-splitting decisions differentiating between candidate-petition circulators and initiative-petition circulators have resulted in different rules based on what sort of petition a circulator wishes to circulate within the same circuit. The Supreme Court needs to provide a ruling on this issue so that a uniform rule can emerge. Ultimately, a decision that determines the constitutionality of a residency requirement for petition circulators in general, would resolve this circuit split and eliminate the distinction between initiative and candidate based petition circulators.
A residency requirement does not prevent fraud in a narrowly tailored manner. Instead, the requirement limits the ability of non-residents from engaging in political discourse in other states. State borders should not place limitations on political speech. While preventing fraud is a compelling state interest, states must only adopt procedures that do not trample on an individual’s ability to spread political ideas or beliefs. When a state wants to limit electoral fraud, it must do so in a manner that does not severely limit the right to free speech. In effect, the residency requirement limitation limits speech more than it prevent frauds. In the United States, this type of political association and speech should not cease at state borders.
[1] Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 439 (6th Cir. 2016); See Ohio Rev. Code § 3503.06(C)(1)(a).
[2] Id. (Instead the case focused on qualified immunity for the Secretary of State who had enforced the statute).
[3] Id. at 444.
[4] Id. at 444-45.
[5] Yes On Term Limits, Inc. v. Savage, 550 F.3d 1023, 1031 (10th Cir. 2008).
[6] Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 197 (1999).
[7] Id. at 193.
[8] Id. at 197.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 228 (Rehnquist, C.J. dissenting).
[13] Id. at 232 (Rehnquist, C.J. dissenting).
[14] Savage, 550 F.3d at 1031.
[15] Lerman v. Board of Elections of New York, 232 F.3d 135, 145 (2nd Cir. 2000).
[16] Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 618 (8th Cir. 2001).
[17] Savage, 550 F.3d at 1025.
[18] Id. at 1029.
[19] Id.at 1028.
[20] Id. at 1029-31.
[21] Id. at 1030.
[22] Id. at 1031.
[23] Lerman, 232 F.3d at 139; see N.Y. ELEC. L. § 6–132(2)–(3) (McKinney 1998).
[24] Id.
[25] Id. at 148.
[26] Id. at 149.
[27] Id. at 150.
[28] Id. at 149-151.
[29] Id. at 152-53.
[30] Id. at 153.
[31] Jaeger, 241 F.3d at 616.
[32] Id.
[33] Id.
[34] Id. at 617.
[35] Nader v. Blackwell, 545 F.3d 439, 475 (6th Cir. 2008).
[36] Id.
[37] Id. at 475-76.
[38] Id. at 476.
[39] Id.
[40] Husted, 810 F.3d at 443.
[41] Id. at 444.
[42] Id.
[43] Nader, 545 F.3d at 477.
[44] Husted, 810 F.3d at 445.
[45] Id.at 444-445.
