We The People PAC v. Bellows ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1149
WE THE PEOPLE PAC; BILLY BOB FAULKINGHAM, State Representative;
LIBERTY INITIATIVE FUND; NICHOLAS KOWALSKI,
Plaintiffs, Appellees,
v.
SHENNA BELLOWS,* in her official capacity as the Secretary of
State of Maine, JULIE FLYNN, in her official capacity as the
Deputy Secretary of State of Maine for the Bureau of
Corporations, Elections and Commissions,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Barron, Chief Judge,
Kayatta, Circuit Judge,
and Saris,** District Judge.
Jason Anton, Assistant Attorney General, with whom Aaron
M. Frey, Attorney General, Thomas A. Knowlton, Deputy Attorney
General, and Jonathan Bolton, Assistant Attorney General, were on
* Pursuant to Federal Rule of Appellate
Procedure 43(c)(2), Shenna Bellows was substituted for Matthew
Dunlap on February 23, 2021.
**Of the United States District Court for the District
of Massachusetts, sitting by designation.
brief, for appellants.
Paul A. Rossi, with whom IMPG Advocates was on brief,
for appellees.
July 7, 2022
BARRON, Chief Judge. Maine allows for direct popular
participation in the state's lawmaking process through two
distinct means: a "people's veto," as it is commonly known, and
a "direct initiative." Me. Const. art. IV, pt. 3, §§ 17-18. To
place either type of measure on the state ballot, a "written
petition" that contains a minimum number of signatures from those
who are "qualified to vote for Governor" in Maine must be filed
with the Secretary of State of Maine. Id. § 20.
Maine law refers to a person who "solicits signatures
for the petition by presenting the petition to the voter, asking
the voter to sign the petition and personally witnessing the voter
affixing the voter's signature to the petition" as a "circulator."
Me. Stat. tit. 21-A, § 903-A. Maine law further provides that the
"circulator" must be a Maine resident who is also registered to
vote in Maine. Id.
This appeal arises from a suit that challenges both the
residency and the voter-registration requirements. The suit
alleges that each requirement, by restricting who may be a
circulator, violates the First Amendment to the United States
Constitution as incorporated against the states by the Due Process
Clause of the Fourteenth Amendment. See Grosjean v. Am. Press
Co., 297 U.S. 233, 245 (1936).
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The suit was brought in 2020 in the United States
District Court for the District of Maine by a nonprofit
organization, a political action committee, a Maine State
Representative, and a professional collector of signatures for
petitions who resides in Michigan. The plaintiffs named as the
defendants the Secretary of State of Maine in his official capacity
and the Deputy Secretary of State of Maine for the Bureau of
Corporations in hers.
On the same day that the plaintiffs filed their suit,
they also moved for a temporary restraining order and/or a
preliminary injunction to prevent the residency requirement and
the voter-registration requirement from being enforced. The
District Court denied the request for the temporary restraining
order but ultimately granted the motion for the preliminary
injunction. The defendants now appeal from that latter ruling.
We affirm.
I.
A.
The portions of the Maine Constitution that pertain to
the "people's veto" provide that "[t]he effect of any Act, bill,
resolve or resolution or part or parts thereof" that the Maine
Legislature passes "shall be suspended upon the filing" of a
"written petition," and that the measure thereafter must be "voted
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on by the people." Me. Const. art. IV, pt. 3, § 17 (emphasis
added); see also Me. Senate v. Sec'y of State, 183 A.3d 749, 753
(Me. 2018) (describing the "people's veto"). The portions of the
Maine Constitution that pertain to "direct initiative[s]" state
that "[t]he electors may propose to the Legislature for its
consideration any bill, resolve or resolution," though "not an
amendment of the State Constitution, by written petition." Me.
Const. art. IV, pt. 3, § 18(1) (emphasis added). These provisions
also state that, unless the proposed direct initiative is "enacted
without change by the Legislature," it must be "submitted to the
electors together with any amended form, substitute, or
recommendation of the Legislature," who then may "choose between
the competing measures or reject both." Id. § 18(2).
Under the Maine Constitution, the "written petition"
referred to in the provisions quoted above must contain a specified
number of valid signatures of eligible Maine voters and be filed
with the Maine Secretary of State ("the Secretary"). The total
number of signatures "shall not be less than 10% of the total vote
for Governor cast in the last gubernatorial election." Id.
§§ 17(1), 18(2).
The Maine Constitution defines a "circulator" as "a
person who solicits signatures for written petitions." Id. § 20.
It states that a circulator "must be a resident of [Maine] and
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whose name must appear on the voting list of the city, town or
plantation of the circulator's residence as qualified to vote for
Governor." Id. A Maine statute provides that the "written
petition" referenced in these provisions of the Maine Constitution
"may be circulated by any Maine resident who is a registered voter
acting as a circulator of" such a petition. Me. Stat. tit. 21-A,
§ 903-A.
At the time that the written petition is filed with the
Secretary, the circulator "must sign the petition." Id. § 902.
The circulator also must "verify by oath or affirmation" that she
"personally witnessed all of the signatures" collected "and that
to the best of the circulator's knowledge and belief each signature
is the signature of the person whose name it purports to be." Id.
The circulator must file alongside the written petition
an executed affidavit that includes "[t]he circulator's printed
name, the physical address at which the circulator resides and the
date the circulator signed the affidavit." Id. § 903-A(4)(A).
The affidavit must include attestations that "the circulator was
a resident of [Maine] and a registered voter in [Maine] at the
time of circulating the petition." Id. § 903-A(4)(C). If the
circulator "[k]nowingly fails to truthfully execute and timely
file" an affidavit, that individual "commits a Class E crime."
Id. § 904(6).
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The Secretary must "determine the validity of the
petition . . . within 30 days from the date" that the petition is
filed with her. Id. § 905(1). In undertaking that review, the
Secretary may invalidate signatures that are obtained from
individuals who are not residents of Maine or that are collected
by circulators who were not in compliance with the residency and
voter-registration requirements. See, e.g., Hart v. Sec'y of
State, 715 A.2d 165, 166 (Me. 1998); Jones v. Sec'y of State, 238
A.3d 982, 985 (Me. 2020).
Additional provisions of the Maine Constitution concern
the duration of the petition circulation process. See Me. Const.
art. IV, pt. 3, §§ 17(1), 18(1). They require that the requisite
number of signatures for a written petition must be secured within
a specified period after the circulation process begins for a
direct initiative petition, and after the legislative session at
which the challenged action occurred for a people's veto petition.
Id.
B.
Except where noted otherwise, the following facts are
not in dispute in this appeal. In 2019, the We the People PAC
("We the People"), a political action committee registered in the
State of Maine, and state Representative Billy Bob Faulkingham,
who represents the 136th district in the Maine State House of
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Representatives and is a member of We the People, sought to
sponsor, and also circulated a petition in support of, a direct
initiative entitled, "An Act to Clarify the Eligibility of Voters."
The proposed direct initiative sought to "force the state
legislature to adopt verbatim [a] proposed ban on all non-citizen
voting in the State of Maine or place the question on the next
general election ballot . . . to be decided by the voters of
Maine."1
For the initiative to be placed on the ballot, the
Secretary first must "furnish[]" or "approve[]" a "form[]" that is
then circulated for signatures by qualified voters. Me. Const.
art. IV, pt. 3, § 20. This form, once approved, is the "written
petition." See id.
Maine law provides, however, that "the written petition"
for a direct initiative "may not be filed in the office of the
Secretary of State later than 18 months after the date the petition
form was furnished or approved by the Secretary of State." Id.
§ 18(1). Maine law further provides that only those signatures
collected within the year leading up to the date on which the
1Maine law already limits the franchise in state and
local elections to United States citizens who are or will be at
least eighteen years of age at the time of the upcoming general
election. Me. Const. art. II, § 1; Me. Stat. tit. 21-A, §§ 111(1),
111-A. The proposed initiative would have "amend[ed] the voter
qualification statute to emphasize" these requirements to be a
voter "in an election in a municipality."
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petition is filed with the Secretary count as valid. See Id.
§ 18(2) ("A signature is not valid if it is dated more than one
year prior to the date that the petition was filed in the office
of the Secretary of State."). Moreover, Maine law provides that
the signed petition must be filed with municipal authorities or
state election officials "for determination of whether the"
signatures are of "qualified voters" by the tenth day before the
signed petition is filed with the Secretary. Id. § 20.
In light of these provisions, the proponents, to have
placed their proposed direct initiative on the November 2020 ballot
would have to have filed their signed petition with the Secretary
by February 3, 2020 (and for municipal or election official
certification ten days before that); to have placed their proposed
direct initiative on the November 2021 ballot, the proponents would
have to have filed their signed petition with the Secretary by
January 21, 2021 (and for municipal or election official
certification ten days before that); and to have placed their
proposed direct initiative on the November 2022 ballot, the
proponents would have to have filed their signed petition with the
Secretary by February 26, 2021 (and for municipal or election
official certification ten days before that). See id. §§ 18, 20.
To file a petition after February 26, 2021, its supporters would
have had to apply to the Secretary for a new petition form, which,
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once approved, would have restarted their eighteen-month approval
clock. See id. § 20. They then could have collected signatures
on that form and would have had to have filed a signed petition by
January 31, 2022 for placement of a proposed direct initiative on
that same November 2022 ballot.
Having obtained their approved petition form on
August 26, 2019, the supporters of the initiative could begin
gathering signatures. They claimed in an interrogatory response
that they used only circulators who were Maine residents. The
petition for the initiative would have needed a minimum of 63,067
signatures to have been placed on the November 2020, 2021, or 2022
ballots, given the number of votes cast in the prior gubernatorial
election, which was held in 2018. See id. § 18(2).
By October 16, 2019, only 2,000 people had signed the
petition after it had been approved for circulation nearly two
months before. The campaign to collect signatures then lay dormant
for the following year.
The plaintiffs resumed the petition drive in mid-
October 2020, this time with the aid of not only Maine residents
but also out-of-state residents who assisted in the process of
securing signatures for the petition. The out-of-state residents
worked with in-state "witnesses" but did not themselves purport to
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serve as circulators. Between mid-October 2020 and late January
2021, 38,000 signatures for the petition were collected.
C.
The plaintiffs are We the People, Representative
Faulkingham, and the Liberty Initiative Fund, a nonprofit
organization that has been involved in petition circulation
efforts, including the petition circulated for the direct
initiative at issue here, as well as Nicholas Kowalski, a
professional collector of signatures for petitions who resides in
Michigan. The plaintiffs filed suit in the United States District
Court for the District of Maine on December 31, 2020. They named
as defendants then-Secretary of State Matthew Dunlap and Deputy
Secretary of State for the Bureau of Corporations, Elections and
Commissioners Julie Flynn, in their official capacities.2
The plaintiffs brought claims under state and federal
law, including under the First Amendment to the federal
Constitution, that challenged both the residency and voter-
registration requirements to be a circulator.3 The same day that
On February 23, 2021, Dunlap was substituted by Shenna
2
Bellows, the current Secretary of State of Maine.
3 The plaintiffs' complaint also challenged other
provisions of Maine law that impose certain disclosure
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the plaintiffs filed their suit, they also moved for a temporary
restraining order and/or a preliminary injunction. The plaintiffs
in so moving requested that the District Court enjoin the
defendants from enforcing Maine Revised Statutes title 21-A,
§ 903-A, "to the extent it requires that petitions for a direct
initiative or people's veto may only be circulated by a registered
voter of Maine" and "may only be circulated by a resident of the
State of Maine, as applied to out-of-state circulators who first
submit to the jurisdiction of the State of Maine for any
investigation and/or prosecution of alleged violations of Maine's
election code with respect to" direct initiative or people's veto
petitions.
The District Court denied the plaintiffs' application
for a temporary restraining order on January 11, 2021. The
District Court concluded that "[e]ven though the plaintiffs raised
serious legal issues, because the caselaw in this area is nuanced,
because the plaintiffs failed to provide a sufficient uncontested
factual record, and because the plaintiffs delayed bringing this
lawsuit, they failed to sustain their burden to demonstrate that
requirements on circulators and proponents of direct initiative
and people's veto petitions. Those requirements are not before us
because the plaintiffs did not request that they be preliminarily
enjoined in their motion for a temporary restraining order and/or
preliminary injunction.
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they [were] likely to succeed on the merits of th[e] claim." We
the People PAC v. Bellows, 512 F. Supp. 3d 74, 77 (D. Me. 2021).
Then, on February 16, 2021 -- the day by which the
plaintiffs were required to submit their petition to local
officials to have their proposed direct initiative placed on the
November 2022 general election ballot -- the District Court ruled
on the motion for the preliminary injunction. See We the People
PAC v. Bellows, 519 F. Supp. 3d 13, 44 (D. Me. 2021). The District
Court noted that, in light of the defendants' argument that the
declarations that the plaintiffs had submitted in support of their
motion for a preliminary injunction lacked foundation, it would
"disregard[] any portions [of the declarations] that lack
foundation or consist of improper opinion." Id. at 17 n.2. But,
the District Court denied the defendants' additional objection to
the plaintiffs' responses to the defendants' interrogatories that
had been requested as part of the briefing on the motion for a
preliminary injunction. Id.The defendants' objection rested on the contention that
the plaintiffs' responses to the interrogatories were "extremely
problematic" because they were "not attributed to particular"
individuals, were "not sworn," were "filled with hearsay and
argument," and were "not even signed by" every plaintiff. Id.The District Court explained, however, that the plaintiffs'
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responses to the interrogatories had been signed by Representative
Faulkingham and by Liberty Initiative Fund's president, on behalf
of Liberty Initiative Fund, as well as by the plaintiffs' counsel.
Id. The District Court then added that there is "no requirement
that the interrogatory responses be signed by all the [p]laintiffs"
and that the plaintiffs had "represented" in response to an earlier
order of the District Court that they "w[ould] file sworn
interrogatory responses, curing the oath defect 'no later than
February 20, 2021.'" Id. (record citation omitted). The District
Court then ruled, "[b]ased on the [p]laintiffs' representation,"
that it "consider[ed] the [p]laintiffs' responses to the
[d]efendants' interrogatories as sworn." Id.4
Having made those rulings, the District Court assessed
whether the plaintiffs had met their burden with respect to the
The plaintiffs filed a sworn version of their
4
interrogatory responses on February 19, 2021. The defendants
nonetheless contend on appeal that the "sworn version of
[p]laintiffs' interrogatories" "still exhibited one of the flaws
identified by the Secretary, and one not addressed by the district
court: they were not attributed to particular [p]laintiffs." But,
Liberty Initiative Fund, as well as Representative Faulkingham, on
behalf of himself and We the People, each separately signed and
attested to "knowledge, information, and belief" concerning all of
the plaintiffs' responses to the interrogatories. Moreover,
Kowalski signed and attested to his knowledge concerning the
plaintiffs' response to "Interrogatory #16, the only interrogatory
response which requires [his] verification." We also see no basis
for crediting the defendants' conclusory assertion in their
briefing to us that "[n]ot every [p]laintiff can swear to the
entire contents of [p]laintiffs' wide-ranging interrogatory
responses." Thus, we consider the interrogatory responses here.
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four factors that must be weighed to determine whether to grant a
motion for a preliminary injunction. See id. at 37. Those factors
include:
the movant's likelihood of success on the
merits; whether and to what extent the movant
will suffer irreparable harm in the absence of
preliminary injunctive relief; the balance of
relative hardships, that is, the hardship to
the nonmovant if enjoined as opposed to the
hardship to the movant if no injunction
issues; and the effect, if any, that either a
preliminary injunction or the absence of one
will have on the public interest.
Ryan v. U.S. Immigr. & Customs Enf't, 974 F.3d 9, 18 (1st Cir.
2020). The District Court ruled that, with the benefit of "a more
substantial record including affidavits and declarations, as well
as interrogatories and statements of facts," preliminary
injunctive relief was appropriate. See We the People PAC, 519 F.
Supp. 3d at 37, 53.
The District Court determined that the plaintiffs
established that they were likely to succeed in showing that the
residency and voter-registration requirements were each subject to
strict scrutiny because each requirement imposed a "severe burden"
on the exercise of the plaintiffs' First Amendment rights. See
id. at 39, 41, 46, 50-51. The District Court further determined
that the plaintiffs established that they were likely to succeed
in showing that neither the residency requirement nor the voter-
registration requirement could survive such scrutiny because the
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defendants could not show that either requirement was narrowly
tailored to serve a compelling state interest. Id. at 46-48, 51.
The District Court next determined that the plaintiffs
had demonstrated that they were likely to suffer irreparable harm
absent a preliminary injunction. It noted that "even if the
[p]laintiffs d[id] not meet the February 16, 2021 deadline, they"
would be able to "renew their signature collection efforts to put
their initiative on the 2022 ballot." Id. at 52. Thus, the
District Court concluded that "while an injunction might make no
real difference for the current petition drive, th[e plaintiffs]
will continue to suffer harm in their next petition drive." Id.
As to the effect of any injunction on the public
interest, the District Court determined that while "the public has
strong competing interests on both sides" of the dispute, it "has
a greater interest in upholding its constitutionally protected
freedom of speech" than it does in "regulati[ng] . . . referendum
petitions and in protecting the integrity and grassroots nature of
the direct initiative and people's veto power." Id. at 52.
Finally, as to the "balance of equities," the District Court
recognized that the plaintiffs had "contributed to the urgent
nature of the preliminary injunction request" through "their
delay" in filing their lawsuit, but ultimately found their
"constitutional challenge both meritorious and important," such
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that the "balance of equities weigh[ed] in the [p]laintiffs'
favor." Id. at 52-53.
The District Court issued an order on February 16, 2021,
that preliminarily enjoined Maine Revised Statutes title 21-A, §
903-A "to the extent it requires that petitions for a direct
initiative or people's veto may only be circulated by a registered
voter of Maine" and "to the extent it requires" that such petitions
"may only be circulated by a resident of the state of Maine, as
applied to out-of-state circulators who first submit to the
jurisdiction of the state of Maine for any investigation and/or
prosecution of alleged violations of Maine's election code with
respect to Referendum and/or People's Veto petitions filed with"
the defendants. Id. In a separate oral order, the District Court
stayed the plaintiffs' motion for a permanent injunction.
The defendants filed an interlocutory appeal of the
District Court's order issuing the preliminary injunction on
February 22, 2021. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1). We review a district court's decision to issue a
preliminary injunction for an abuse of discretion, examining its
"findings of fact for clear error and its conclusions of law de
novo." Comcast of Me./N.H., Inc. v. Mills, 988 F.3d 607, 611 (1st
Cir. 2021).
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II.
Before diving into our analysis, it is first useful to
review the only two precedents of the Supreme Court of the United
States that address First Amendment challenges to a state's
restriction on who may act as a "circulator" in the petition
circulation process for a ballot initiative. The two precedents
are Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182 (1999).
A.
In Meyer, the Court addressed a First Amendment
challenge to a Colorado state law that prohibited the use of paid
circulators. 486 U.S. at 417. The Court found merit to the
challenge.
In explaining why, the Court first determined that the
prohibition implicated the First Amendment because it restricted
"'core political speech.'" Id. at 422. The Court explained that
the prohibition did so because "[t]he circulation of an initiative
petition of necessity involves both the expression of a desire for
political change and a discussion of the merits of the proposed
change." Id. at 421. Indeed, the Court elaborated, "to
capture . . . signatures, [a circulator] will at least have to
persuade [potential signatories] that the matter is one deserving
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of the public scrutiny and debate that would attend its
consideration by the whole electorate." Id.The Court then addressed the nature of the burden on
core political speech that Colorado's ban on paid circulators
imposed. The Court determined that the ban "restrict[ed] [the
initiative proponents'] political expression in two ways." Id.
at 422. First, such a prohibition "limits the number of voices
who will convey [the proponents'] message and the hours they can
speak and, therefore, limits the size of the audience they can
reach." Id. at 422-23. Second, the prohibition "makes it less
likely that [proponents] will garner the number of signatures
necessary to place the matter on the ballot." Id. at 423. In
consequence, the Court explained that a ban on paid circulators
"has the inevitable effect of reducing the total quantum of speech
on a public issue." Id.The Court acknowledged that the plaintiffs in Meyer
"remain[ed] free to employ other means to disseminate their ideas."
Id. at 424. But, the Court emphasized, that fact did not
meaningfully diminish the burdensome nature of the ban's
restriction on core political speech, because the "prohibition of
paid petition circulators restrict[ed] access to the most
effective, fundamental, and perhaps economical avenue of political
discourse, direct one-on-one communication." Id. "The First
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Amendment," the Court explained, protects the proponents' "right
not only to advocate their cause but also to select what they
believe to be the most effective means for so doing." Id.Based on this analysis of the burden that the ban imposed
on core political speech, the Court determined that the ban had to
survive "exacting scrutiny" to comport with the First Amendment.
Id. at 420. The Court fleshed out the "exacting" nature of that
scrutiny by observing that, because "the statute trenches upon an
area in which the importance of First Amendment protections is at
its zenith," the "burden that Colorado must overcome to justify
this criminal law is well-nigh insurmountable." Id. at 425(internal quotation marks omitted).
The Court then moved on to the question of whether the
ban could survive such "exacting" scrutiny. The Court determined
that the fit between the interests that Colorado had put forth in
support of its ban and the means that the State had selected to
further that interest was too loose for the ban to pass that
"exacting scrutiny." Id. at 425-28.
Colorado asserted two interests: first, an "interest in
making sure that an initiative has sufficient grass roots support
to be placed on the ballot," and second, an "interest in protecting
the integrity of the initiative process." Id. at 425. The Court
dispatched with the asserted interest in ensuring "grass roots
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support" by explaining that this interest was "adequately
protected by [Colorado's] requirement that no initiative proposal
may be placed on the ballot unless the required number of
signatures has been obtained." Id. at 425-26. It then addressed
the interest in "protecting the integrity of the initiative
process." Id. at 426.
To support the contention that the ban on paid
circulators was properly designed to serve the "integrity"
interest, Colorado asserted "that compensation [for a circulator]
might provide the circulator with a temptation to disregard" the
"duty to verify the authenticity of signatures on the petition."
Id. at 426. But, the Court concluded, Colorado had offered "[n]o
evidence" to substantiate that contention and observed that a
"professional circulator['s] . . . qualifications for similar
future assignments may well depend on a reputation for competence
and integrity." Id. The Court also noted that Colorado had other
mechanisms in place to prevent signature fraud -- such as
provisions that criminalized forging signatures on a petition and
criminalized paying people to sign it -- that "seem[ed] adequate
to the task of minimizing the risk of improper conduct." Id. at
426-27. Accordingly, the Court held that the ban could not survive
the exacting scrutiny that applied because the ban was not
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"necessary" to serve the state's asserted interest in preserving
the integrity of the initiative process. Id. at 426.
B.
Buckley was decided a little over a decade after Meyer.
It concerned a First Amendment challenge to other restrictions
that Colorado had imposed with respect to circulating a petition
for the state's direct initiative process. Buckley, 525 U.S.
at 186. Among the restrictions was a requirement that a circulator
be a registered voter in the state. Id. at 192-93.
The voter-registration requirement necessarily
required a circulator to be a resident of that state. Id. at 188
& n.3. However, no challenge to the residency requirement had
been brought. Id. The Court thus addressed only the portion of
the voter-registration requirement that required a circulator to
be not only eligible to vote in Colorado but also registered to do
so. Id. at 197.
In determining the type of First Amendment scrutiny to
apply to the voter-registration requirement, the Court emphasized
that "[s]tates allowing ballot initiatives have considerable
leeway to protect the integrity and reliability of the initiative
process, as they have with respect to election processes
generally." Id. at 191. The Court also emphasized that there is
"'no litmus-paper test'" that "separate[s] valid ballot-access
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provisions from invalid interactive speech restrictions." Id.
at 192 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)); see
also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359
(1997). Instead, the Court explained, there is "no substitute for
the hard judgments that must be made." Buckley, 525 U.S. at 192(quoting Storer, 415 U.S. at 730).
At the same time, the Court reaffirmed Meyer's
recognition that "[p]etition circulation . . . is 'core political
speech,' because it involves 'interactive communication concerning
political change,'" and that "First Amendment protection for such
interaction . . . is 'at its zenith.'" Id. at 186-87 (quoting
Meyer, 486 U.S. at 425). Thus, the Court made a point of stating
that "the First Amendment requires . . . vigilan[ce] in making
those judgments" about what distinguishes a valid ballot-access
restriction from an impermissible speech restriction. Id. at 192.
The Court then determined that a most demanding form of
scrutiny applied to the state restriction at issue. The Court
concluded in that regard that the voter-registration requirement
"produces a speech diminution of the very kind produced by the ban
on paid circulators at issue in Meyer," id. at 194, which, the
Court had pointed out there, was subject to a form of scrutiny
that was "well-nigh insurmountable," Meyer, 486 U.S. at 425. The
Court in Buckley stated that this means of scrutinizing the
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restriction at issue was "entirely in keeping with" what the Court
described as "the 'now-settled approach' that state regulations
'impos[ing] "severe burdens" on speech . . . [must] be narrowly
tailored to serve a compelling state interest.'" Buckley, 525
U.S. at 192 n.12 (alterations and ellipsis in original) (quoting
id. at 206 (Thomas, J., concurring in the judgment)).
To support the application of that kind of scrutiny to
the voter-registration requirement, the Court stated that it was
"[b]eyond question" that the voter-registration requirement
"drastically reduces the number of persons, both volunteer and
paid, available to circulate petitions." Id. at 193. Indeed, the
Court noted, the record in that case showed that the requirement
rendered at least 400,000 Coloradans -- who were otherwise eligible
to vote in Colorado but were not registered to do so -- unable to
serve as petition circulators. Id. The Court also highlighted
testimony that the "'natural support'" for a petition comes in
part from "'[l]arge numbers'" of people not registered to vote.
Id. at 194.
Equally notably, the Court did not at any point in
assessing the degree of the burden imposed on core political speech
by the voter-registration requirement attempt to quantify the
number of persons that requirement excluded from the pool of
otherwise available circulators who would be likely to serve as
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circulators. See id. at 194-95. Nor did the Court attempt to
assess whether permitting those excluded from the pool to serve as
circulators would have increased the likelihood that the petition
drive in which the plaintiffs were engaged would have secured the
requisite number of signatures. See id. Instead, the Court
highlighted the fact that the voter-registration requirement at
issue "decrease[d] the pool of potential circulators as certainly
as that pool [was] decreased by the prohibition of payment to
circulators" without separately analyzing whether initiative
proponents nonetheless could qualify their initiative for the
ballot. Id.In that respect, Buckley followed Meyer. There, the
Court noted the fact that the record showed that if initiative
proponents could pay circulators, more individuals would be "'able
and willing' to circulate petitions," Meyer, 486 U.S. at 423 n.6
(record citation omitted), and focused on the proposition that
proponents who are precluded from hiring circulators are forced to
either "'find a large number of volunteers . . . or abandon the
project,'" id. at 423 (quoting Urevich v. Woodard, 667 P.2d 760,
763 (Colo. 1983) (en banc)). The Court did not, however, attempt
to assess with any specificity the actual number of persons that
would apply to circulate the petition that the plaintiffs intended
to circulate. See id. at 422-23. Nor did the Court attempt to
- 25 -
assess whether any of those individuals would be either necessary
to gathering the number of signatures required for a petition to
be successful or more effective at gathering that number of
signatures than those who had not been excluded from being
circulators by the voter-registration requirement. See id.5
The Court in Buckley turned next, as it had in Meyer, to
the question of whether the state's restriction on who may be a
circulator could survive the demanding form of scrutiny that
applied. And, the Court concluded, as in Meyer, that the
restriction could not. Buckley, 525 U.S. at 197.
The Court explained that it found wanting the fit between
the challenged law and Colorado's "dominant justification" for the
limitation, which "appear[ed] to be its strong interest in policing
lawbreakers among petition circulators" for the sake of ensuring
the integrity of the petition process. Id. at 196. The Court
concluded that, although Colorado stressed that the applicable
subpoena power of Colorado's Secretary of State "d[id] not extend
beyond the State's borders," the State's "interest in reaching law
5We understand Meyer, and the part of Buckley that
assessed Colorado's voter-registration requirement which we
discuss here, to have been identifying the requirements there to
have imposed a severe burden on core political speech only in the
context of reviewing a restriction on who may be a circulator. We
thus do not understand either case to address a First Amendment
challenge to any other kind of restriction that a state may impose
that may make it more difficult to place a petition on the ballot.
See Meyer, 486 U.S. at 421-23; Buckley, 525 U.S. at 194-96.
- 26 -
violators . . . [was] served by the requirement . . . that each
circulator submit an affidavit setting out, among several
particulars, the 'address at which he or she resides.'" Id.(quoting Colo. Rev. Stat. § 1-40-111(2) (1998)). The Court also
explained that provisions of Colorado law that criminalized
forging signatures on a petition, that voided certain sections of
petitions, and that "require[d] sponsors of ballot initiatives to
disclose who pays petition circulators, and how much," adequately
served the state's integrity interest. Id. at 205. Thus, the
Court held that, even "assuming that a residence requirement would
be upheld," the "registration requirement [was] not warranted."
Id. at 197.
Although the Court did not identify Colorado's interest
in "ensur[ing] grass roots support" as its "dominant
justification" for the voter-registration requirement we discuss
here, id. at 196, 205, the Court did explain at the close of its
opinion that Colorado had enacted other, "less problematic
measures" to "meet the State's substantial interests in regulating
the ballot-initiative process," including "ensur[ing] grass roots
support." Id. at 204-05. "To ensure grass roots support," the
Court explained, Colorado required that petitions be signed by a
certain percentage of the state's electorate. Id. at 205.
- 27 -
III.
We begin with an analysis of the plaintiffs' "likelihood
of success on the merits," which "weighs most heavily in the
preliminary injunction calculus." Ryan, 974 F.3d at 18. The
defendants do not take issue with the District Court's conclusion
that if a state law "'impos[es] severe burdens'" on plaintiffs'
core political speech, then it "'must be narrowly tailored and
advance a compelling state interest,' while '[l]esser
burdens . . . trigger less exacting review.'" We the People PAC,
519 F. Supp. 3d at 39 (quoting Timmons, 520 U.S. at 358). They
also recognize the need to explain why Meyer and Buckley -- despite
their invalidation of the restrictions at issue in them -- do not
support the District Court's ruling granting the motion for the
preliminary injunction. Nonetheless, the defendants contend that
Meyer and Buckley are distinguishable and that the District Court
erred in concluding that the plaintiffs are likely to succeed in
their challenges to the two requirements at issue. We begin our
analysis by addressing the plaintiffs' challenge to the residency
requirement.6
6 We note that Meyer described the "'core political
speech'" as "the expression of a desire for political change and
a discussion of the merits of the proposed change" by a circulator
- 28 -
A.
As we will explain, we agree with the District Court
that the plaintiffs are likely to succeed in showing that the
residency requirement does impose a severe burden on core political
speech, such that it may survive First Amendment review only if it
is narrowly tailored to serve a compelling state interest. We
then will explain why we also conclude that the District Court was
right to rule that the plaintiffs have met their burden to show
that they are likely to succeed in showing that the residency
requirement does violate the First Amendment, insofar as the
defendants must show that the residency requirement is narrowly
tailored to serve a compelling state interest.
1.
The residency requirement bars all but Maine residents
from being "circulator[s]." Me. Stat. tit. 21-A, § 903-A. The
requirement thus would appear to bar the petition proponents from
reaching into a pool of more than 250 million people of voting age
in her efforts to "persuade potential signatories." Meyer, 486
U.S. at 421-22. Moreover, in Buckley, the Court did not
distinguish in assessing the burden on core political speech that
the restriction there at issue imposed on those plaintiffs who
themselves sought to circulate petitions from the burden that the
restriction imposed on those plaintiffs who were proponents of the
initiative itself. See Buckley, 525 U.S. at 187 n.1, 193-95. We
follow suit and make no such distinction in assessing the burden
on "core political speech" that the requirement at issue here
imposes.
- 29 -
to assist in the collection of signatures -- and to engage in the
face-to-face, interactive communication designed to bring about
political change that accompanies that collection of signatures -
- that the Supreme Court has deemed core political speech. See
Estimates of the Total Resident Population and Resident Population
Age 18 Years and Older for the United States, States, and Puerto
Rico: July 1, 2019, Population Estimates by Age (18+): July 1,
2019, U.S. Census Bureau, https://www.census.gov/data/tables/tim
e-series/demo/popest/2010s-state-detail.html (last visited
June 24, 2022).7
7 At oral argument, the defendants did suggest that the
challenged statutes might be read to permit out-of-staters to
advocate for a petition so long as there is an in-state resident
who may witness the petition and certify its authenticity to the
Secretary. But, this late-breaking contention appears to be in
some tension with arguments that the defendants made below. See
We the People PAC, 519 F. Supp. 3d at 43 (describing defendants'
prior position in interrogatories and testimony). We note as well
that Maine law defines the "circulator" as an individual who
"solicits signatures for the petition by presenting the petition
to the voter" and "asking the voter to sign the petition." Me.
Stat. tit. 21-A, § 903-A; see also We the People PAC, 519 F. Supp.
3d at 29 ("The legality of using in-state witnesses is unclear.").
Finally, the defendants do not develop an argument in their
briefing to us that the relevant state statute, insofar as it may
be construed to permit the use of in-state witnesses along with
out-of-state advocates for the petition, would not severely burden
core political speech. They instead merely state that "the same
arguments apply" that they have made about why Maine law would not
severely burden such speech if the statute could not be so
construed. Thus, any argument that the statute does not severely
- 30 -
That is not to say that Maine lacks a compelling interest
in limiting that pool of potential speakers in the way that the
residency requirement does. Nor is it to say that Maine cannot
show that such a limitation is narrowly tailored to serve that
interest. But, at this juncture of the analysis, our concern is
solely with the threshold question of whether the requirement
severely burdens core political speech, not whether the burden
that requirement imposes on such speech is, though severe,
justifiable because it is narrowly tailored to serve a compelling
interest. See Buckley, 525 U.S. at 192 n.12. And, with respect
to that threshold determination concerning the nature of the burden
that the requirement imposes, it is "[b]eyond question" that the
residency requirement imposes a restriction on the available pool
of circulators that is at least as "drastic[]" as the restrictions
at issue in either Meyer or Buckley. Buckley, 525 U.S. at 193(considering the burden of eliminating from the pool of potential
circulators "[a]t least 400,000 persons eligible to vote" who "were
not registered"); see also Meyer, 486 U.S. at 422-23 & n.6
(describing testimony that "compensation resulted in more people
burden core political speech because it may be construed to permit
the use of in-state witnesses along with out-of-state advocates
for the petition is waived for the purposes of this appeal. See
United States v. Kinsella, 622 F.3d 75, 87 (1st Cir. 2010).
- 31 -
being 'able and willing' to circulate petitions" (record citation
omitted)).
The defendants are right, of course, that Buckley was
"careful . . . to differentiate between registration requirements,
which were before the Court, and residency requirements, which
were not," Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010) (Roberts,
C.J., in chambers). And it is the latter type of requirement that
is at issue here. But, it remains the case that Maine's ban on
the use of out-of-state circulators "drastically reduces the
number of persons, both volunteer and paid, available to circulate
petitions" and "decreases the pool of potential circulators as
certainly as that pool is decreased by the prohibition of payment
to circulators" just as the Court in Buckley found that the voter-
registration requirement there at issue did. Buckley, 525 U.S.
at 193-94.
Buckley did arguably also address whether the reduction
in the pool of potential circulators, even though drastic, was in
effect a material one. 525 U.S. at 193-94. Buckley highlighted
testimony in the record that indicated that the pool of otherwise
eligible voters who were not registered was a pool from which there
was reason to think circulators would be drawn, because that
testimony identified such unregistered voters as providing
- 32 -
"natural support" for petition drives. Id. at 194 (record citation
omitted).
But, there is evidence of that sort here as well. The
District Court found that there were a significant number of
"professional petition circulators" residing outside of Maine and
that the plaintiffs had identified only six professional
circulators who were Maine residents. We the People PAC, 519 F.
Supp. 3d at 42. The District Court further found that, as common
sense would suggest, professional circulators would enhance the
capacity of proponents of a petition drive to secure signatures.
See id. at 43. Indeed, record evidence concerning the plaintiffs'
experience with the petition drive that they did conduct supported
that conclusion. See id. at 42-44.
The defendants do contend that the District Court should
not have credited the plaintiffs' assertion that only six
professional circulators could be identified in Maine, see We the
People PAC, 519 F. Supp. 3d at 42, on the ground that the
plaintiffs "offered few specifics as to how they settled on this
figure" beyond "inadmissible hearsay." But, the District Court
considered that argument, along with the defendants' evidence that
the number could be much higher. See id. at 28 nn.16-17. And,
the District Court credited the plaintiffs' "assertion that they
could only identify six professional petition circulators in
- 33 -
Maine," while excluding as hearsay only some evidence supporting
that conclusion. Id. at 28 n.17.
The District Court did not clearly err in making this
finding. The record includes the declaration of the plaintiffs'
initiative campaign manager, who attested to having "personal
knowledge" concerning the attitudes of what he described as "the
few professional petition circulators who are residents" of Maine.
The defendants also contend that "there are likely
thousands" of Maine residents who may not "make a living
circulating petitions" as professional circulators but would be
willing to circulate petitions "for pay." They then further
contend that, for this reason, the District Court erred in ruling
that the residency requirement likely imposes a severe burden on
core political speech.
The relevant question, though, is not how many Maine
residents might be willing to circulate a petition if paid to do
so. The relevant question is whether the residency requirement
excludes from the pool of potential circulators a sufficiently
significant number of individuals -- including professional
circulators that could enhance the reach of the campaign -- who
may reside outside of Maine.
The defendants do also argue that the plaintiffs are not
likely to succeed in showing that the requirement imposes a severe
- 34 -
burden on core political speech because "the record is replete
with evidence of successful citizen initiative and people's veto
campaigns in Maine." For example, they point to the fact that
"one recent campaign collected approximately 100,000 signatures
using 616 Maine circulators during the same three-month period
that [the p]laintiffs' campaign was active."
We are not persuaded by this argument. We have no reason
to doubt that, despite the residency requirement, petition drives
may employ Maine residents as circulators and may even succeed by
doing so. But, Meyer and Buckley each rejected a contention that
the existence of an alternative means of securing the requisite
number of signatures for a petition in and of itself "lift[s] the
burden on speech at petition circulation time." Buckley, 525 U.S.
at 195; see also Meyer, 486 U.S. at 424. Indeed, the Court
concluded in Meyer that the "burden on First Amendment expression"
was not mitigated "because other avenues of expression remain[ed]
open" to the proponents; it explained that the Constitution
protects the right "not only to advocate the[] cause but also to
select what [the proponent] believe[s] to be the most effective
means for so doing." 486 U.S. at 424; see also We the People PAC,
519 F. Supp. at 42-43.
Nor are we persuaded by the defendants' argument that
the District Court erred in concluding that the requirement likely
- 35 -
imposed a severe burden on political speech by relying on the
mistaken (or, at least, unsupported) premise that out-of-state
circulators -- and especially out-of-state professional
circulators -- are more effective than in-state circulators when
the plaintiffs had made no showing to substantiate it. The
District Court did not point to the burden that the residency
requirement placed on the use of "out-of-state professional
petition circulators" to make the point that out-of-state
residents would, as a general matter, make for better circulators
than in-state circulators. The District Court pointed to that
burden instead to make the separate point that Maine's residency
requirement drained from the "pool" of potential circulators those
who were professionals in the work of circulating petitions -- and
may therefore be more efficient than non-professional circulators
-- and who also resided outside Maine. We the People PAC, 519 F.
Supp. 3d at 42-43.
The defendants next assert that the District Court erred
in concluding that strict scrutiny likely applied because "[t]here
is also no record evidence that Maine's residency requirement
unconstitutionally increased the cost" of the plaintiffs' petition
drive. But, even assuming that the defendants are right that out-
of-state circulators cost "a premium," the fact that the plaintiffs
may be willing to pay such a premium only highlights the severity
- 36 -
of Maine's "limit[ation]" on "the number of voices who will convey
[the plaintiffs'] message and the hours that they can speak and,
therefore, . . . [on] the size of the audience they can reach,"
Meyer, 486 U.S. at 422-23.
Finally, we observe, as the District Court did, that the
conclusion that the plaintiffs are likely to succeed in showing
that the residency requirement must be subjected to strict scrutiny
draws substantial support from lower court precedent. We the
People PAC, 519 F. Supp. 3d at 40-41. See Yes On Term Limits,
Inc. v. Savage, 550 F.3d 1023, 1025, 1028 (10th Cir. 2008)
(applying "strict scrutiny" to a "ban on non-resident [initiative]
petition circulators"); Libertarian Party of Va. v. Judd, 718 F.3d
308, 311-12, 317 (4th Cir. 2013) (holding that "[s]trict scrutiny
is the proper standard" to apply to state-residency requirement to
circulate candidate-nominating petitions); Nader v. Brewer
(Brewer), 531 F.3d 1028, 1031-32, 1036 (9th Cir. 2008) (same);
Wilmoth v. Sec'y of N.J., 731 F. App'x 97, 99, 103 (3d Cir. 2018)
(same, as applied to circulator-plaintiffs); see also Nader v.
Blackwell (Blackwell), 545 F.3d 459, 462 (6th Cir. 2008); id.
at 478-79 (Moore, J., and Clay, J., each separately concurring in
part and in the judgment) ("hold[ing] that the residency
restriction" on circulators of candidate-nominating petitions
"severely limits political speech" of the plaintiff-candidate);
- 37 -
cf. Krislov v. Rednour, 226 F.3d 851, 855, 862 (7th Cir. 2000)
(applying "exacting scrutiny" to a voter-registration requirement
for circulators of candidate-nominating petitions that also
imposed a state-residency requirement).
The defendants are right that all but one of these
precedents addressed residency requirements for circulators of
candidate-nominating petitions. See Libertarian Party of Va., 718
F.3d at 311-12; Brewer, 531 F.3d at 1031; Blackwell, 545 F.3d at
462; Wilmoth, 731 F. App'x at 99; Krislov, 226 F.3d at 856. But,
the defendants do not explain why that feature of those cases
renders those precedents off point in evaluating a functionally
analogous restriction on who may circulate a petition for a direct
initiative. Indeed, all but one of the candidate-nominating
precedents apply or rely on cases that apply the Meyer-Buckley
framework to analyze the level of scrutiny that applies. See
Libertarian Party of Va., 718 F.3d at 316-17; Brewer, 531 F.3d
at 1035-36; Wilmoth, 731 F. App'x at 102-03; Krislov, 226 F.3d
at 859-62. The one precedent that arguably may be read to not so
hold, moreover, provides no basis for concluding that the Meyer-
Buckley framework is inapplicable or leads to a different result
here simply because a candidate-nominating petition is not
involved. See Blackwell, 545 F.3d at 459, 474-75 (lead opinion of
- 38 -
Boggs, C.J.); id. at 478 (Moore, J., and Clay, J., each separately
concurring in part and in the judgment).
The defendants do cite to Initiative & Referendum
Institute v. Jaeger, an Eighth Circuit decision that upheld a
state-residency requirement for circulators of initiative
petitions. 241 F.3d 614, 615 (8th Cir. 2001). That case does
state that certain evidence in the record there "demonstrates that
no severe burden has been placed on those wishing to circulate
petitions." Id. at 617. But, even if the Eighth Circuit may be
read to hold that the residency requirement was not subject to
strict scrutiny because it imposed no severe burden on core
political speech, see id. at 616 (explaining that "the State ha[d]
a compelling interest in preventing fraud and the regulation [did]
not unduly restrict speech" and thus "conclud[ing] that the
residency requirement [was] constitutional."); Wilmoth, 731 F.
App'x at 102 (describing Jaeger as having "appl[ied] strict
scrutiny review"), it invoked the "high success rate" of signature
campaigns as "demonstrat[ing] that no severe burden has been placed
on those wishing to circulate petitions." Jaeger, 241 F.3d at 617.
Such reasoning conflicts, however, with Meyer, which applied
exacting scrutiny after pointing to "the possibility that even
more petitions would have been successful if paid circulators had
been available." Meyer, 486 U.S. at 418 n.3, 420.
- 39 -
The defendants independently rely on an unpublished
decision from the federal District Court for the District of Maine,
see Initiative & Referendum Inst. v. Sec'y of State of Me., No.
Civ. 98–104, 1999 WL 33117172 (D. Me. Apr. 23, 1999), which the
Eighth Circuit cited approvingly, see Jaeger, 241 F.3d at 617-18.
The district court declined in that case to apply strict scrutiny
to Maine's state-residency requirement for circulators. See
Initiative & Referendum Inst., 1999 WL 33117172, at *16. But, the
district court there did not assess whether the residency
requirement would drastically reduce the available pool of
circulators, which is the relevant question here. Id. at *16 &
n.18.
The defendants are right that there are other circuit
court decisions that have not applied strict scrutiny to
restrictions that pertain to petition circulators. See
Libertarian Party of Ohio v. Husted, 751 F.3d 403, 413-18 (6th
Cir. 2014) (declining to apply strict scrutiny to state law
requiring "circulators of candidacy or nomination petitions to
disclose the name and address of" their employer); Prete v.
Bradbury, 438 F.3d 949, 963, 968 (9th Cir. 2006) (restriction on
specific payment scheme for circulators imposes only "lesser
burden" on speech). But, the nature of the restrictions in those
cases differs from that of the residency requirement at issue here.
- 40 -
Finally, the defendants highlight the fact that Maine's
highest court declined to apply strict scrutiny to the provisions
of the Maine Constitution that require circulators of direct
initiatives to be state residents. See Hart, 715 A.2d at 168.
But, significantly, Hart, which was decided before Buckley,
distinguished Meyer on the ground that the plaintiff in Hart "had
three years to gather the necessary signatures and failed to
demonstrate any necessity for employing nonresidents in
circulating the petitions." Id. (citation omitted). Yet, as we
have explained, it is clear after Meyer and Buckley that the
determination of whether a restriction on who may be a circulator
imposes a severe burden on core political speech is not dependent
on whether it is necessary for the ballot measure's proponents to
be able to enlist those who are subject to the restriction to
obtain the requisite number of signatures. See Meyer, 486 U.S.
at 418 n.3; Buckley, 525 U.S. at 195.
Thus, the record supports the conclusion that the sheer
"reduc[tion in] the number of persons . . . available to circulate
petitions" as a result of the residency requirement at issue here
is at least as "drastic[]" as it was as a result of the registration
requirement that the Court addressed in Buckley, 525 U.S. at 193
& n.15 (considering the exclusion of less than one million people
"eligible" but not "registered" to vote). Similarly, the record
- 41 -
supports the conclusion that the residency requirement imposes a
material limitation on the proponents' ability "to select what
they believe to be the most effective means" to "advocate their
cause" as in Meyer, 486 U.S. at 424. Accordingly, we are not
persuaded by the defendants' arguments that the District Court
erred in concluding that the plaintiffs are likely to succeed in
showing that strict scrutiny applies to the requirement because it
imposes a severe burden on core political speech.
2.
We move on, then, to the next stage of the inquiry, which
concerns whether the residency requirement serves a compelling
state interest in a narrowly tailored manner. The defendants
assert two compelling interests: "ensuring that circulators can be
located easily and efficiently" to combat petition fraud, and
"protecting the very means by which Mainers exercise their right
to legislate," by ensuring "that a power held by Mainers is
administered -- and policed -- by Mainers." We consider each
interest in turn, as well as the extent to which the residency
requirement is narrowly tailored to serve each one. We conclude,
as we will explain, that the District Court did not err in holding
that the plaintiffs are likely to succeed in their First Amendment
challenge to the residency requirement, notwithstanding the
- 42 -
defendants' arguments about why that requirement survives even
strict scrutiny.
a.
The District Court did not question the first of the
defendants' asserted compelling interests, which the District
Court described as Maine's "strong interest in protecting its
elections." We the People PAC, 519 F. Supp. 3d at 46. The District
Court concluded instead that, even if Maine's interest in
"monitor[ing] and prosecut[ing] petition fraud" is compelling, the
plaintiffs are likely to succeed in demonstrating that the
defendants cannot show that the residency requirement is narrowly
tailored to serve that interest. Id. We agree.
As we have seen, Meyer rejected the argument that
Colorado's ban on paid circulators was narrowly tailored to serve
a like interest. 486 U.S. at 426-27. Meyer pointed as support
for that conclusion to "[o]ther provisions" of Colorado law that
expressly imposed penalties for petition fraud as "adequate to the
task of minimizing the risk of improper conduct in the circulation
of a petition, especially since the risk of fraud or corruption,
or the appearance thereof, is more remote at the petition stage of
an initiative than at the time of balloting." Id. Those
provisions made it "a crime to forge a signature on a petition, to
- 43 -
make false or misleading statements relating to a petition, or to
pay someone to sign a petition." Id. at 427 (citations omitted).
Buckley is no different. It rejected an argument that
Colorado's voter-registration requirement was narrowly tailored to
serve the state's interest in preserving election integrity,
explaining that Colorado's "interest in reaching law violators"
was served by a requirement "that each circulator submit an
affidavit setting out, among several particulars, the 'address at
which he or she resides.'" 525 U.S. at 196 (quoting Colo. Rev.
Stat. § 1–40–111(2) (1998)).
Nothing indicates that there is a better fit here between
the interest in election integrity that Maine asserts and the
restriction on who can be a circulator that Maine has imposed
through its residency requirement, at least "as [that requirement
is] applied to out-of-state circulators who first submit to the
jurisdiction of the state of Maine" for alleged violations of Maine
law. We the People PAC, 519 F. Supp. 3d at 53; cf. Tenn. Wine &
Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2457, 2461-
62, 2475 (2019) (holding that state's residency requirement for
the issuance of a license to operate a liquor store could not
survive Twenty-First Amendment scrutiny, despite the state's
contention that the requirement ensured amenability to process in
state courts and state regulatory oversight, because
- 44 -
"alternatives" such as "requiring a nonresident to . . . consent
to suit" and "on-site inspections" remained available). Nor are
we persuaded by the defendants' arguments to the contrary.
The defendants contend that Maine's interest in the
integrity of its elections "is not limited to the ability to force
circulators to return to the state," because that interest also
extends to "being able to quickly and efficiently contact
circulators to, for example, investigate potential signature
fraud." For that reason, the defendants contend, even though Maine
could subpoena out-of-state circulators, that option "is hardly a
realistic" one for the Secretary to exercise during the thirty-
day petition review period.
But, Maine law already requires circulators to disclose
in an affidavit "the physical address" at which they reside. Me.
Stat. tit. 21-A, ch. 11, § 903-A(4)(A). Furthermore, a requirement
that circulators provide up-to-date contact information and submit
to legal process is, like the requirement that circulators provide
an "address attestation" identified in Buckley, an alternative
that "has an immediacy, and corresponding reliability" that a mere
requirement that the circulator be a Maine resident "lack[s]," 525
U.S. at 196.
The defendants also do not explain why -- in this day
and age -- resident circulators are so much easier to contact than
- 45 -
nonresident circulators that a flat-out ban on out-of-staters is
necessary. Nor have the defendants explained why Maine could not
further its interest on this score just as effectively by requiring
out-of-state circulators to provide up-to-date contact
information. See Buckley, 525 U.S. at 196.
A substantial body of out-of-circuit precedent accords
with this analysis, as the District Court pointed out. See We the
People PAC, 519 F. Supp. 3d at 46-47; see also Brewer, 531 F.3d at
1037 ("Federal courts have generally looked with favor on
requiring petition circulators to agree to submit to
jurisdiction . . . and the courts have viewed such a system to be
a more narrowly tailored means than a residency requirement to
achieve the same result."); Yes on Term Limits, Inc., 550 F.3d at
1029-30; Libertarian Party of Va., 718 F.3d at 318. Such contrary
precedent as there is, moreover, does not lead us to conclude that
the District Court's application of the narrow tailoring
requirement was mistaken.
The defendants are right that the Eighth Circuit held in
Jaeger that North Dakota's residency requirement for petition
circulators was constitutional because the state "ha[d] a
compelling interest in preventing fraud," and that the requirement
"allow[ed]" the state "to protect the petition process from fraud
and abuse by ensuring that circulators answer to [its] subpoena
- 46 -
power." 241 F.3d at 616. But, the plaintiffs in that case did
not propose, and the Eighth Circuit did not consider, the narrower
means of achieving that interest that we find available here:
requiring out-of-state circulators to provide up-to-date contact
information and to submit to legal process in the state. See id.;
Brief of Appellants at 38-42, Initiative & Referendum Institute v.
Jaeger, 241 F.3d 614 (8th Cir. 2001) (No. 99-3434).
The defendants also rely for their position on the Maine
Law Court's opinion in Hart, which they describe as having found
that the residency requirement "serves the Secretary's important
interest in making 'circulators easier to locate if there is a
question as to the validity of the signatures collected'" (quoting
Hart, 715 A.2d at 168). But, the plaintiffs in that case did not
argue in their brief to that court that Maine could instead require
circulators to submit to legal process or provide their contact
information to the state. See Hart, 715 A.2d at 168; Brief of
Appellants, Hart v. Sec'y of State, 715 A.2d 165 (Me. 1998), 1998
WL 35076164, at *16-18; see also Brief of Appellee, Hart v. Sec.
of State, 715 A.2d 168 (Me. 1998), 1998 WL 34501218, at *9-20.
Indeed, aside from the single sentence in its opinion in which the
Maine Law Court stated that the residency requirement "provide[d]
the State with jurisdiction over the circulators and ma[de] the
circulators easier to locate," the Law Court did not further
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explain its basis for concluding that interest was one that Maine's
residency requirement was narrowly tailored to serve. See Hart,
715 A.2d at 168.
The defendants also point to the role that circulators
play in what the Maine Law Court described in Hart as "preserving
the integrity of the law-making process." Hart, 715 A.2d at 168.
In Meyer, however, the Court was "not prepared to assume" that a
paid circulator was "any more likely to accept false signatures"
than a circulator who was "motivated entirely by an interest in
having the proposition placed on the ballot." 486 U.S. at 426.
We see no reason here to make the assumption that Meyer declined
to make simply because a paid circulator is not a Maine resident.
We thus reject the contention that the District Court
erred in ruling that the plaintiffs were likely to succeed in
showing that the residency requirement is not narrowly tailored to
serve the state's interest in protecting the integrity of its
elections. And that is so even if we account for Maine's asserted
interest in efficiently locating circulators.
b.
The defendants separately argue that Maine has a
compelling interest "in limiting participation in its political
process to its residents" (quoting Initiative & Referendum Inst.,
1999 WL 33117172 at *15). Here, the District Court rejected what
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it described as the defendants' "grassroots interest" argument.
See We the People PAC, 519 F. Supp. 3d at 47-48. It did so on the
ground that, as in Meyer, 486 U.S. at 425-26, and Buckley, 525
U.S. at 205, Maine already requires that successful initiative
petitions consist of a minimum number of signatures, and that it
further requires that the petition "be signed by Maine citizens
and approved by Maine voters on election day before becoming law."
We the People PAC, 519 F. Supp. 3d at 47-48. We agree.
The defendants argue otherwise based in part on Holt
Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68-69 (1978).
There, the Court explained that its precedents "have uniformly
recognized that a government unit may legitimately restrict the
right to participate in its political processes to those who reside
within its borders." Id. at 68-69. But, Holt concerned
participation in the political process through voting rather than
through the circulation of a petition. Id. at 61-63, 66-69. Thus,
the fact that Holt upheld a limitation on the voting rights of
non-residents does not show that a limitation on the right of non-
residents to circulate a petition is constitutional, as Buckley
itself makes clear. See Buckley, 525 U.S. at 196 n.17.
The defendants also rely on the unpublished opinion in
Initiative & Referendum Institute v. Secretary of State, in which
the District Court for the District of Maine stated that "Maine's
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interest in limiting participation in its political process to its
residents is compelling" and that Maine could permissibly require
petition circulators to be Maine residents due to the "vital role"
that circulators play "in the process of self-government." 1999
WL 33117172 at *15 (citing Holt, 439 U.S. at 68-69). Although the
defendants do not expand on this "self-government" argument, they
do advance the related contention that "[t]he initiative power is
a legislative right reserved in Maine's Constitution for Maine's
residents, and the exercise of that power is not limited to signing
a petition or voting for an initiative, but rather includes the
circulation of petitions."
But, in Meyer the Court rejected the argument "that
because the power of the initiative is a state-created right,
[Colorado] is free to impose limitations on the exercise of that
right." 486 U.S. at 424. The Court explained that "the power to
ban initiatives entirely" does not "include[] the power to limit
discussion of political issues raised in initiative petitions."
Id. at 425. Nor, as we have already explained, is this a case in
which either the state measures imposing the restrictions or the
defendants' interpretation of them provides any legal clarity as
to whether out-of-state circulators are permitted to engage in
petition circulation when accompanied by an in-state "witness,"
see We the People PAC, 519 F. Supp. 3d at 29-30, such that it is
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evident that the residency requirement does not severely burden
"core political speech," id. at 53.
The defendants relatedly contend that the residency
requirement is narrowly tailored to serve their interest in
"limiting the responsibility of circulation" to "those who possess
the right to advance and pass citizen legislation and must live
under any resulting law." They cite for this proposition to the
Maine Law Court's decision in Hart, which found that Maine's
residency requirement "enhances the integrity of the initiative
process by ensuring that citizens initiatives are brought by
citizens of Maine." 715 A.2d at 168.
But, in light of Meyer and Buckley, we fail to see why
banning non-resident circulators is narrowly tailored to serve
that interest. After all, only the individuals who must live under
any resulting law may sign the petition, see Me. Const. art. IV,
pt. 3, § 20, and only Maine voters may vote to approve any measure
that does reach the ballot by way of a successful petition. See
We the People PAC, 519 F. Supp. 3d at 47. In addition, as the
District Court noted, the defendants have not argued that Mainers
are "especially vulnerable to blandishments from out-of-state
circulators." Id. at 48.
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3.
Thus, on the record before us, the residency requirement
likely "inhibit[s] communication with voters about proposed
political change" and is likely "not warranted by the state
interests . . . alleged to justify [it]." Buckley, 525 U.S. at
192. We therefore agree with the District Court that the
plaintiffs have established that they are likely to succeed in
proving that the residency requirement violates the First
Amendment.
B.
We turn now to Maine's voter-registration requirement
for the circulation of petitions. We first conclude that the
District Court did not err in ruling that this requirement also
likely is subject to strict scrutiny. We then further conclude
that, given the interests that Maine has asserted, the plaintiffs
have met their burden to show that the requirement is not likely
to survive that level of scrutiny.
1.
With respect to the burden that the voter-registration
requirement imposes, it is problematic -- as the plaintiffs suggest
-- to consider only the portion of that requirement that concerns
the act of registering in the abstract. The requirement is not to
be a registered voter somewhere. It is a requirement to be
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registered to vote in Maine, Me. Stat. tit. 21-A, § 903-A, which
is possible only if one is otherwise eligible to vote in Maine,
see Me. Const. art. II, § 1, and which means that the requirement
necessarily excludes those not meeting the residency requirement.
In challenging the District Court's ruling as to the
registration requirement, the defendants begin by contending that
"if the residency requirement does not impose a severe burden,
then the registration requirement does not do so, either." But,
they develop no argument in favor of the converse -- namely, that
if the residency requirement does likely impose a severe burden,
the registration requirement does not. Instead, they merely argue
that the additional burden imposed by the registration requirement
beyond the residency requirement is minimal, such that it does not
result in the imposition of a severe burden on core political
speech insofar as the residency requirement itself does not.
To that point, the defendants contend that
"[r]egistering to vote in Maine is both easy and straightforward."
They also assert that only three percent of eligible Maine
residents are not registered to vote, which, by their own account,
excludes at least the 32,000 Maine residents who are eligible but
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not registered to vote from serving as circulators.8 And, in
support of that contention, the defendants point to two cases that
have upheld Maine's voter-registration requirement after
concluding that it did not impose a severe burden on core political
speech given the relatively small number of Mainers who were
excluded from serving as circulators. See Initiative & Referendum
Inst., 1999 WL 33117172, at *15; Jones, 238 A.3d at 992 ("[T]he
individual circulators whose petitions are in dispute here were
not opposed to registering to vote and indeed became registered
voters in their municipalities, albeit after they circulated the
disputed petitions.").
But, even if we were to assume that a restriction that
would exclude tens of thousands of possible circulators would not
for that reason alone severely burden core political speech, see
Buckley, 525 U.S. at 193, 194-95 (describing burden imposed by
voter-registration requirement that excluded 400,000 Coloradan
residents from serving as circulators (citing Meyer, 486 U.S.
at 422)), the residency requirement, as we have explained, does
8 As the District Court observed, that number may even
be higher, as Maine's Constitution requires not merely that
prospective circulators be registered to vote in Maine but also
that they be registered to vote in the specific "city, town or
plantation" in which they reside. Me. Const., art. IV, pt. 3,
§ 20; We the People PAC, 519 F. Supp. 3d at 32, 50, 51. Although
the defendants contend that the District Court did not rely on any
evidence for the proposition that the number therefore "must be"
higher, id. at 51, the inference that it would be is reasonable.
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likely impose a severe burden on core political speech. Thus, in
light of that ruling, we have no basis here, given the defendants'
own contentions, to conclude that the voter-registration
requirement does not likely do so as well.
2.
The defendants appear to acknowledge that, if the
residency requirement cannot survive strict scrutiny, then neither
can the voter-registration requirement insofar as it "serves the
residency requirement." Nonetheless, the defendants contend that
the registration requirement can survive such scrutiny even if the
residency requirement cannot, because it is a standalone means of
"serv[ing] the same integrity interest that residency does."
The defendants assert in support of that contention that
the registration requirement serves this integrity interest by
"limit[ing] participation" in the initiative process "to those who
are invested enough to take the trouble to register to vote"
(quoting Initiative & Referendum Inst., 1999 WL 33117172, at *15).
The requirement does so, they further assert, because it "ensures
that each circulator has a vested interest in the initiative they
hope to pass, in that each will be able to vote on that initiative
should it qualify for the ballot."
The defendants cite as support for this contention to
Initiative & Referendum Institute v. Secretary of State, 1999 WL
- 55 -
33117172, at *15. But, the court there did not apply strict
scrutiny to the voter-registration requirement. Id. It thus did
not assess whether that restriction was narrowly tailored to serve
the state's purported interest in limiting participation in the
initiative process. Id. Moreover, we see no basis in the record
for assuming that circulators who are not registered to vote in
Maine will be less likely to abide by an oath to verify the validity
of the signatures that they witness, or otherwise to go about the
petitioning business in accordance with Maine's laws, than those
who are not. Cf. Meyer, 486 U.S. at 426 ("[W]e are not prepared
to assume that a professional circulator . . . is any more likely
to accept false signatures than a volunteer . . . ."); Buckley,
525 U.S. at 203-04.
So, for these reasons, we agree with the District Court
that it is likely that the voter-registration requirement does not
appropriately fit the asserted integrity interest. And, to the
extent that the integrity interest the defendants advance here is
just a way of restating the interest in limiting the "initiative
power" to "Maine's residents" that they advance in defense of the
residency requirement, it is problematic for the same reason that
such a contention is in that context.
In the absence of a compelling state interest to which
the voter-registration requirement is narrowly tailored, we cannot
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conclude that it survives strict scrutiny. See Buckley, 525 U.S.
at 192 n.12. Thus, as is the case with the residency requirement,
we conclude that the District Court did not err in holding that
the plaintiffs are likely to succeed on the merits of their First
Amendment challenge to the voter-registration requirement. And,
we note that this decision is in accord with decisions of our
sister circuits, as none in the wake of Buckley has upheld such a
restriction after applying strict scrutiny. See Blackwell, 545
F.3d at 478 (Moore, J., concurring in part and in the judgment)
("We hold that the voter-registration requirement . . . is a
severe restriction on political speech which cannot survive strict
scrutiny."); Krislov, 226 F.3d at 856, 866 (striking requirement
that circulators "be registered to vote in the same political
subdivision for which the candidate is seeking office" as not
meeting "exacting scrutiny").
IV.
There remains to address the other factors in the
preliminary injunction analysis -- first, the potential for
"irreparable harm," second, "the balance of relative hardships,"
and third, the question whether an injunction would be in the
"public interest." See Ryan, 974 F.3d at 18. We begin with the
last two factors, as the analysis of them is straightforward. We
continue to review for abuse of discretion, mindful that "[a]part
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from error of law, an abuse of discretion occurs when the district
court considers improper criteria, ignores criteria that deserve
significant weight, or gauges only the appropriate criteria but
makes a clear error of judgment in assaying them." Rosario-
Urdaz v. Riviera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003).
A.
In arguing that the District Court erred in determining
that the "balance of relative hardships" and "public interest"
factors favored granting the preliminary injunction, Ryan, 974
F.3d at 18, the defendants contend that the plaintiffs unduly
delayed in filing their lawsuit and that the District Court should
not have permitted them "to manufacture a need for extraordinary
relief through their own lack of diligence." See Respect Maine
PAC, 622 F.3d at 16 (concluding "this 'emergency' is largely one
of [plaintiffs'] own making" where, "well aware of the requirements
of the election laws," they "chose" not to sue until approximately
three months prior to an election date). The defendants further
contend that "this case concerns a core right held by all Maine
residents" and that the preliminary injunction therefore harms the
"public -- namely, Mainers" and their "interest in protecting the
integrity of a legislative power reserved to them under their state
constitution."
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But, the District Court did not abuse its discretion in
ruling that, even though the plaintiffs' delay in filing their
lawsuit "put the Court in the undesirable position of considering
an important constitutional challenge on an expedited basis," the
"constitutional challenge" before it was "both meritorious and
important." We the People PAC, 519 F. Supp. 3d at 52. Moreover,
the District Court recognized the public's "strong competing
interests" in "the regulation of referendum petitions and in
protecting the integrity and grassroots nature of the direct
initiative and people's veto power" on the one hand, and in
"ensuring the freedom of speech and constitutionality of election
laws" on the other. Id. It then reasonably concluded that "the
public has a greater interest in upholding its constitutionally
protected freedom of speech." Id.
B.
That leaves only the defendants' arguments with respect
to "the potential for irreparable harm in the absence of an
injunction." González-Droz v. González-Colon, 573 F.3d 75, 79
(1st Cir. 2009). With respect to the plaintiffs' then-ongoing
campaign for which they had not gathered sufficient signatures,
the District Court concluded that the plaintiffs had "shown a
severe burden and [we]re not required to further prove that it is
impossible to gather enough signatures under the current law." We
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the People PAC, 519 F. Supp. 3d at 52; see also id. at 51 ("The
loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." (quoting Elrod v.
Burns, 427 U.S. 347, 373 (1976))). The defendants appear to agree
with that description of what the plaintiffs must show to satisfy
the irreparable harm requirement.
The District Court determined that the plaintiffs'
showing with respect to the likelihood of this "continuing
deprivation" of their First Amendment rights also shows that they
are likely to suffer "an irreparable harm." See id. The District
Court acknowledged in so ruling that it was issuing the preliminary
injunction on the day on which the plaintiffs' petition had to be
submitted to municipal officials for certification of signatures
so that it could be filed with the Secretary's office for placement
of that initiative on the November 2022 ballot. See id. at 44,
52. But, the District Court held that "while an injunction might
make no real difference for the [then-]current petition drive,"
the plaintiffs would "continue to suffer harm in their next
petition drive," and identified a "continuing deprivation" that
"acts as an irreparable harm" on that basis as well. Id. at 52.
The District Court then preliminarily enjoined the requirements as
to future drives. Id. at 53.
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The defendants argue to us that the District Court abused
its discretion in this regard by relying on "a hypothetical future
campaign" to conclude that the plaintiffs were at risk of
irreparable injury. They contend that the "contingency plan" to
initiate a new petition drive "cannot, as a matter of law . . .
establish a likelihood of irreparable harm" because it is too
uncertain. See In re Rare Coin Galleries, Inc., 862 F.2d 896, 902
(1st Cir. 1988) ("Speculation or unsubstantiated fears of what may
happen in the future cannot provide the basis for a preliminary
injunction.").
But, when asked in an interrogatory about the
implications of the timing of their lawsuit, the plaintiffs
explained that even if they did not make the February 2021
deadline, they would be able to "immediately refile the initiative
petition and still make the 2022 ballot if they file[d] signatures
from a new petition drive with signatures collected from March
2021 to January 2022." And while the defendants contend that this
statement did not constitute a "commitment to a new campaign" and
to apply for a new initiative petition form, but merely indicated
the plaintiffs' awareness of the relevant deadlines should they
choose to "'refile,'" the statement in context is fairly construed
as a representation that the plaintiffs' reasons for seeking a
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preliminary injunction would persist past the then-impending
February 16, 2021 deadline.9
We also are not persuaded by the defendants' challenge
to the finding of irreparable harm on the ground that, even if the
record does show that the plaintiffs intended to file future
petitions, "[t]he record does not touch upon preparations for any
future campaign, or predictions for how a new campaign, which could
be conducted during the summer of 2021 and in an improving pandemic
environment, would unfold." As we have explained in addressing
the "likelihood of success" prong of the analysis, the burden on
core political speech that the residency- and voter-registration
requirements each imposes arises from the drastic limitation on
the pool of out-of-state circulators that each inherently
imposes.10
The record also contains the signed declaration of the
9
President of plaintiff Liberty Initiative Fund stating that
Liberty Initiative Fund "seeks relief from these restrictions not
only so that [it] can reach enough people to place the Citizen
Voting initiative on the 2022 ballot, but so that [it] can, working
with We the People PAC and other Mainers, place other reform
measures . . . on the ballot in 2022 and 2024." The defendants do
not appear to have disputed this statement below, nor do they do
so on appeal.
The defendants separately contend that if the
10
plaintiffs truly "had premised their request for a preliminary
injunction on long-term harm to a future campaign," then "the
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V.
The order issuing the preliminary injunction is
Affirmed.
Secretary would . . . have insisted on the development of a full
preliminary injunction record and traditional sequential
briefing." But, the defendants do not identify any arguments that
they were unable to make or evidence that they were unable to
collect as a result of the District Court's docket management
practices. We also note that the defendants have not advanced any
separate argument that, even if there has been a showing of
irreparable harm with respect to the filing of future initiative
petitions, that showing cannot support a preliminary injunction
with respect to the petitioning process for any post-2022 ballot
measures or with respect to the restrictions on circulators of
petitions for a people's veto. The parties are free on remand to
address any issue in that regard.
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