Initiative & Referendum Institute v. Jaeger , 241 F.3d 614 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3434
___________
Initiative & Referendum Institute; *
John Michael; Ralph Muecke; *
Progressive Campaigns; Americans *
for Sound Public Policy; US Term *
Limits, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Alvin Jaeger, Secretary of State *
of the State of North Dakota, *
*
Appellee. *
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Submitted: October 18, 2000
Filed: February 15, 2001
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Before MURPHY, HEANEY and BYE, Circuit Judges.
___________
HEANEY, Circuit Judge.
The appellants S Initiative & Referendum Institute, John Michael, Ralph
Muecke, Progressive Campaigns, Americans for Sound Public Policy, and U.S. Term
Limits, Inc. S sought a declaratory judgment to have two provisions of the North
Dakota initiated measure and referendum laws declared unconstitutional as violating
the First and Fourteenth Amendments. The appellants challenge the requirement that
all those who circulate petitions must be North Dakota residents and the prohibition of
payment of petitions circulators on a "per signature," or commission, basis. The district
court denied the appellants' motion for summary judgment and dismissed their
complaint for declaratory relief. Because these two regulations are designed to protect
the integrity of signature gathering, do not unduly hinder the circulation of petitions,
and comport with the recent Supreme Court decision in Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), we affirm.
I. BACKGROUND
Over half the states provide for an initiative or referendum process. Many states
adopted initiative measures in the early 1900s, as part of the Progressive Movement's
efforts to remove corruption and special interest money from politics. See generally
David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money
(2000) (describing history of initiative process and critiquing recent involvement of
special interest money in initiative process).
In 1914, North Dakota's Constitution was amended, reserving the right of the
people to initiate legislation. In the last two decades, certain measures have been
enacted regarding the North Dakota initiative process. In 1979, the North Dakota
Constitution was amended to provide that only "qualified electors" could circulate
initiative petitions. The North Dakota statutes define a "qualified elector" as “a citizen
of the United States who is 18 years of age or older [and] a resident of this state" who
has resided in the precinct for 30 days. N.D.Cent. Code § 16.1-01-04 (1) (1997).
Further, in 1987 the North Dakota legislature enacted a statute, which allowed petition
circulators to be paid, but prohibited payment "on a basis related to the number of
signatures obtained." N.D.Cent. Code § 16.1-01-12 (11) (1997).
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In 1998, the appellants brought this action, seeking to have both the residency
requirement and the prohibition on commission payments declared unconstitutional.
The appellants are non-profits involved in the initiative process; a for-profit business
involved in qualifying proposed initiatives for the ballot; a non-resident who would like
to circulate petitions in North Dakota; and a North Dakota resident who would prefer
to pay petition circulators on a per signature basis.
II. ANALYSIS
The Supreme Court has stated that "'no litmus- paper test' will separate valid
ballot-access provisions from invalid interactive speech restrictions” because there is
"'no substitute for the hard judgments that must be made.'" Buckley, 525 U.S. at 192(quoted case omitted). While states have “considerable leeway to protect the integrity
and reliability of the initiative process,” at the same time, the First Amendment requires
vigilance “to guard against undue hindrances to political conversations and the
exchange of ideas.” Id. at 191-92. The Supreme Court has developed a sliding
standard of review to balance these two interests. 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 level of review. See Timmons
v. Twin Cities Area New Party, 520 U.S. 351, 358-59 (1997) (laying out flexible
standard); But cf. Buckley, 525 U.S. at 208 (Thomas, J., concurring) (questioning
whether serious and lesser burdens can be adequately distinguished).
A. Residency Requirement
In Buckley, the Supreme Court, while striking down a voter registration
requirement for petition circulators, assumed without deciding that state residency
requirements for petition circulators were permissible. The court concluded, however,
that Colorado's registered voter requirement was not narrowly tailored to the state's
objective of preventing signature fraud and establishing that a petition had grassroots
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support in the state. See 525 U.S. at 194-97; See also Bernbeck v. Moore, 126 F.3d
1114, 1117 (8th Cir. 1997) (holding that voter registration requirement violated First
Amendment). The Supreme Court assumed that a residency requirement would serve
the state's goals better, and in a less restrictive way, because a residency requirement
would allow the state to locate and subpoena circulators. See Buckley, 525 U.S. at
196. However, the Supreme Court never squarely confronted the issue because it had
not been properly raised. We therefore conduct an independent analysis as to the
residency requirement's constitutionality.
As the State has a compelling interest in preventing fraud and the regulation does
not unduly restrict speech, we conclude that the residency requirement is constitutional.
The residency requirement allows North Dakota's Secretary of State to protect the
petition process from fraud and abuse by ensuring that circulators answer to the
Secretary's subpoena power. The State contends that by having circulators available
to answer questions regarding fraud and abuse, it will be able to police the petition
process more easily. In terms of empirical evidence, the State points to a 1994 incident
in which over 17,000 signatures had to be invalidated. Two Utah residents who were
involved in petition irregularities left the State, and the matter was never fully resolved.
Second, the State argues that requiring circulators to be state residents ensures that a
provision has grass-roots support in North Dakota and that the initiative process is not
completely taken over by moneyed, out-of-state special interest groups.
The appellants argue that having to use state residents as circulators burdens
their First Amendment rights by making it more costly and time consuming to collect
signatures. There is no evidence in the record, however, regarding what the additional
cost to the appellants would be. Further, all 476,000 of North Dakota's eligible voters
may circulate petitions, unlike the situation in Buckley, where many Colorado residents
would have been unable to engage in petition circulation. Since the Secretary of State
began keeping statistics on the success rate of signature campaigns in 1985, it appears
that approximately 70% of the of the petitions circulated have qualified to be placed on
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the ballot. This high success rate demonstrates that no severe burden has been placed
on those wishing to circulate petitions.
Appellants assert that the residency requirement prevents non-North Dakota
residents from engaging in political speech by forbidding them from circulating
petitions. However, many alternative means remain to non-residents who wish to
communicate their views on initiative measures. Non-residents are still free to speak
to voters regarding particular measures; they certainly may train residents on the issues
involved and may instruct them on the best way to collect signatures; and they may
even accompany circulators. See Attorney General Nicholas J. Spaeth to Wayne Goter
(Oct. 2, 1991) (State's App. 3-4). The one restriction is that out-of-state residents
cannot personally collect and verify the signatures, and that restriction is justified by
the State's interest in preventing fraud.
Since the Buckley decision, two district courts have considered the
constitutionality of residency requirements. In Kean v. Clark, 56 F. Supp. 2d 719, 728-
29, 732-34 (S.D.Miss. 1999), the district court concluded that although a voter
registration requirement would be unconstitutional, a residency requirement was
permissible. The district court applied strict scrutiny to the residency requirement and
concluded that the residency requirement was narrowly tailored and backed by a
compelling interest in preventing fraud. A district court in Maine came to the same
conclusion in Initiative & Referendum Institute v. Secretary of State of Maine, No. Civ.
98-104-B-C, 1999 WL 33117172, at *16 (D. Me. April 23, 1999).
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B. Commission Payments
In Meyer v. Grant, 486 U.S. 414, 428 (1988), the Supreme Court held that
Colorado's statute banning the payment of petition circulators was unconstitutional.
The Court stated that there was no evidence that paid professional circulators would
have any more incentive to commit fraud than volunteers who were eager to have an
initiative placed on the ballot. See id. at 426. Further, the Court held that the flat ban
on paid circulators restricted political expression because it limited the number of
people who could convey a political message and made it less likely that a measure
would garner the necessary signatures to be placed on the ballot. See id. at 422-23.
The Court has not discussed the extent to which a state can permissibly regulate the
payment structure for petition circulators.
The statute at issue in this case only regulates the way in which circulators may
be paid. The statute does not involve the complete prohibition of payment that the
Supreme Court ruled unconstitutional. Since Meyer, two district courts have
considered the question of commission payments, each reaching different results based
on the evidence that the state and the circulators put forth. In Initiative & Referendum
Institute, 1999 WL 33117172, at *8-*9, the plaintiffs introduced evidence that some
circulators would not work on a flat fee basis. Therefore, the district court ruled that
a trial was necessary to determine whether the prohibition on commission payments
would severely burden the initiative process. If the burden were found to be severe,
strict scrutiny would apply and then the court would need to examine the State's
evidence that increased fraud would result. In LIMIT v. Maleng, 874 F. Supp. 1138,
1140 (W.D.Wash. 1994), the state did not produce any evidence to support its
contention that paying circulators on a per signature basis would encourage fraud.
Therefore, the district court found that the prohibition on payment per signature was an
unconstitutional infringement on freedom of political speech.
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Examining the record in this case, we conclude that the State has produced
sufficient evidence that the regulation is necessary to insure the integrity of the initiative
process. In 1987, the Legislature passed § 16.1-01-12(11) in response to problems that
occurred with an initiative that had been placed on the ballot in November 1986. State
Representative Linderman stated, in regard to a 1986 signature campaign, that
"students were being paid 25¢/signature. There were reported irregularities--taking
names out of the phone book, etc." The limited legislative history available shows that
the legislators were aware of, and contemplated, the bill's effect on the circulation of
petitions, but that they were more concerned with the testimony they had heard
regarding signature fraud.
Furthermore, as mentioned in the previous section on the residency requirement,
in 1994 approximately 17,000 petition signatures were invalidated. A subsequent
investigation revealed that payment per signature was an issue in the 1994 incident.
The appellants have produced no evidence that payment by the hour, rather than
on commission, would in any way burden their ability to collect signatures. The
appellants have only offered bare assertions on this point. While it may be argued that
such assertions may establish an unacceptable burden on signature-gathering where the
state cannot offer any evidence demonstrating the need to prohibit commission
payments, C.f. Meyer, 486 U.S. at 424, 426, when the state introduces evidence
justifying the ban on commission payments as a necessary means to prevent fraud and
abuse (as the state has in this case), initiative sponsors may not rest on bare assertions
alone.
The appellants also claim a violation of the Equal Protection Clause, arguing that
they are being treated and regulated differently from lobbyists. However, there has
been no showing that appellants are a protected class. Moreover, there are a number
of similar regulations that have been imposed on lobbyists. See N.D.Cent. Code § 54-
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05.1-06 (1989) (making it illegal for lobbyists to work on contingency that measure
would be passed or defeated).
In light of the State's important interest in preventing signature fraud, the
evidence of fraud the State has produced, and the lack of any evidence from the
appellants showing that the ban on commissioned payment burdens their ability to
collect signatures, this case is distinguishable from both the Maleng and Initiative
cases. The record reveals sufficient evidence regarding signature fraud to justify the
State's prohibition on commission payments.
III. CONCLUSION
For the foregoing reasons, there are no constitutional infirmities with the North
Dakota laws requiring petition circulators to be state residents and prohibiting payment
of circulators on commission. We therefore affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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