You’re Not from Here, Are You?

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

The American political scene is saturated with debates over restrictions on the right to vote or campaign finance reform during this election cycle. These debates touch on the fundamental right of freedom of speech and the debate on how to balance this fundamental right with the state’s interest in preserving integrity in our elections. The Supreme Court ruled “severe burdens on speech trigger an exacting standard in which regulations must be narrowly tailored to serve a compelling state interest, whereas lesser burdens receive a lower review”.[1] Several states, particularly in the 1900s, established initiative measures giving the electorate the ability to initiate legislation.[2] This movement was inspired by the perceived need to combat corruption and special interests that infested politics at the time.[3] One controversial regulation adopted in some states includes the ability of the state to exclude signatures because the petition circulators are not from the state. The rationale for this type of regulation is that it helps to combat fraud and ensures courts in the state can subpoena circulators in the event that signatures are contested by the state. Others argue such laws violate freedom of speech that is especially vital when it involves political speech. This issue has been confronted by the Tenth and Eight circuit courts but the courts have diverged on the constitutionality of these laws. The Tenth Circuit’s approach is the correct one because it better protects First Amendment liberties and better balances the freedom of speech with the state’s fraud concerns.

The Eighth Circuit Decision

The plaintiffs in Jaeger included non-profits, a non-resident who wished to collect signatures in the state, and a resident of the state who wanted to hire petition circulators. They all sought a declaratory judgment that North Dakota’s law against non-residents collecting signatures for ballot initiatives was unconstitutional. The Eighth Circuit ruled the law served a compelling state interest without establishing explicitly whether the law was in fact a severe burden on speech.[4] The primary reason for the Court’s decision was the law ensures circulators will be held answerable to the states’ subpoena power in the event of suspicious circumstances.[5] The Court noted an incident when South Dakota was unable to bring two circulators from Utah to answer questioning after 17,000 signatures had to be invalidated.[6] The Court also argued this law ensured the South Dakota petition process is not hijacked by out of state special interest groups.[7] The Court rejected that this law increased the costs of petitioners in collecting signatures and the law restricted the political speech of non-residents.[8] The Court noted the petitioners failed to show any evidence of the increased cost as a result of the law and stated seventy percent of petitions have made it to the ballot since 1985.[9] Finally, the Court detailed a variety of ways non-residents can utilize political speech in North Dakota short of personally collecting signatures.[10]

The Tenth Circuit Decision

The plaintiff in Savage, an Oklahoma organization dedicated to amending the Oklahoma constitution to include terms limits for state office holders, brought suit because it wished to utilize professional petition circulators to gather signatures for the organization’s initiative.[11] Unlike the Eighth Circuit in Jaeger, the Tenth Circuit conducted a detailed analysis to determine if the law was a substantial burden on speech. The Tenth Circuit did reach the same result as the Eighth circuit by ruling the law was a severe burden on speech because participation in this process was core political speech among other reasons.[12] Therefore, Oklahoma had to prove the law served a compelling state interest.[13] The Tenth Circuit ruled Oklahoma failed to demonstrate a compelling state interest.[14] First, the Court stated Oklahoma did not demonstrate out of state circulators, as a class, were more likely to commit fraud then resident circulators.[15] Additionally, the Court noted out of state professional circulators collect more valid signatures then in state volunteers.[16] Second, the Court ruled the law was not narrowly tailored to a stated purpose of ensuring out of state petitioners could be brought to court.[17] The court believed Oklahoma could require out of state circulators to provide contact information as well agreeing to return in the event of suspicious circumstances.[18] Oklahoma could even bring criminal penalties if the collector failed to return upon an order from the State of Oklahoma.[19]

Why the Tenth Circuit Decision Was the Correct One

The freedom of speech has been a foundational liberty of the United States since the ratification of the Constitution. Political speech has been valued as essential to the discourse of a free society. The Tenth Circuit’s decision better protects this fundamental liberty. For many ballot petitioners, it is easier and more efficient to hire out of state circulators rather than recruiting or training in state volunteers. Some may argue that using professional or volunteer circulators will overwhelm states with out of state agendas that hijacks the will of citizens in the state. This argument ignores the fact only citizens in these states can bring these petitions on the ballot and the signatures must be collected from state citizens. Both of these requirements ensure the petitions reflect the wishes of the state’s voters and counter balances any effect out of state influence may have. Furthermore, out of state residents should not be penalized for wanting to make a difference in other states and making limited efforts to effect those changes.

The Tenth Circuit also correctly disregards the fraud arguments discussed by the Eighth Circuit. There is no doubt that preventing electoral fraud should be of paramount importance to state governments. It is unclear how this restriction achieves this goal. There is no evidence that suggests out of state circulators are more likely to commit fraud than in state circulators. This seems especially true for professional organizations because any fraud allegations are likely to cause damaging results to the organization’s reputation. It is important to remember the laws that severely restrict speech must be narrowly tailored to accomplishing that goal. As previously noted, out of state circulators are more likely to gather valid signatures. This law deprives individuals and organizations the opportunity to conduct political speech in an effective and efficient manner. It is difficult to see how a state could narrowly tailor this law to a compelling state interest without evidence non-resident circulators are more likely to commit fraud then resident circulators.

The strongest argument for the residence restriction is the inability of the state to bring back a circulator in the event of a protest by the state government regarding the validity of a signature. One can easily imagine situations where out of state citizens gather signatures and then leave the state without responsibility for the validity of the signatures. States have every right to attempt to prevent carpet baggers from disrupting state politics with sleazy methods. Even the potential amended law touted by the Tenth Circuit does not solve the issue as circulators could just choose never to step foot in the particular state again. This scenario is less likely for professional circulators who have professional reputations to protect. For out of state individuals, the deterrent is likely not as strong. However, allowing out of state petitioners affects not only out of state citizens seeking to make their voices heard but also affects in state residents seeking the best way to communicate their message. States should make efforts to ensure jurisdiction over ballot petitioners but not at the cost of sacrificing the freedom of speech to out of state citizens as well as in state residents. Additionally, the courts can always punish in state organizations or individuals for using fraudulent circulators in the event state courts cannot compel out of state petitioners to discuss protestation of signatures.

Conclusion

The freedom of speech is of paramount importance to our nation and the residency restriction affects not only the speech of out of state residents but also the ability of in state residents to effectively communicate their particular message.  The Tenth Circuit reached the correct decision of protecting the right to speech without compromising in a meaningful way the legitimate state interest of fraud. Even the most compelling state argument of ensuring the ability of the state to bring in circulators in the event of a protest can be better addressed then simply banning out of state petitioners from collecting signatures. Therefore, other circuit courts should follow the Tenth Circuit’s lead and rule such residency restrictions as unconstitutional.

[1] See Initiative & Referendum Institute v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001).

[2] See Jaeger, 241 F.3d at 615.

[3] See id.

[4] See Jaeger, 241 F.3d at 616.

[5] See id.

[6] Id.

[7] Id.

[8] Id. at 617.

[9] Id. at 618.

[10] Jaeger, 241 F.3d at 618.

[11] Savage, 550 F. 3d at 1026.

[12]  See id. at 1028.

[13] Id.

[14] Id. at 1028-1029.

[15] See id. at 1029.

[16] Savage, 550 F. 3d at 1029.

[17] See id. at 1030.

[18] Id.

[19] Id.

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