Nathan Pierce v. Christi Jacobsen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHAN PIERCE; MONTANA No. 21-35173
COALITION FOR RIGHTS;
MONTANANS FOR CITIZEN VOTING; D.C. No.
SHERRI FERRELL; LIBERTY 6:18-cv-00063-
INITIATIVE FUND, CCL
Plaintiffs-Appellants,
v. OPINION
CHRISTI JACOBSEN, in her official
capacity as the Secretary of State for
the State of Montana; AUSTIN
KNUDSEN, in his official capacity as
the Attorney General of the State of
Montana; JEFF MANGAN, in his
official capacity as the
Commissioner of the Montana
Commission on Political Practices,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted February 9, 2022
Portland, Oregon
Filed August 10, 2022
2 PIERCE V. JACOBSEN
Before: Richard A. Paez and Jacqueline H. Nguyen,
Circuit Judges, and John R. Tunheim, * District Judge.
Opinion by Judge Tunheim
SUMMARY **
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment for defendants in an
action brought pursuant to 42 U.S.C. § 1983 challenging
Montana’s initiative petitioning process, which requires that
signature gatherers seeking to gather sufficient signatures to
place a measure before voters on a ballot must be Montana
residents and may not be paid based upon the number of
signatures obtained. Mont. Code Ann. § 13-27-102(2)
(2021).
Plaintiffs—a collection of organizations and individuals
interested in petitioning in Montana—alleged that both of
these restrictions violated their speech and association rights
under the First Amendment. In upholding both restrictions,
the district court held that strict scrutiny did not apply
because plaintiffs failed to demonstrate that either restriction
imposed a severe burden on their rights. It went on to find
*
The Honorable John R. Tunheim, United States District Judge for
the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PIERCE V. JACOBSEN 3
that both restrictions sufficiently furthered Montana’s
important regulatory interest to survive less exacting review.
The panel reversed the district court’s holding with
regards to the residency requirement because it (1) imposed
a severe burden on the exercise of First Amendment rights
and therefore was subject to strict scrutiny; and (2) was not
narrowly tailored to further Montana’s compelling interest.
The panel noted that just as in Nader v. Brewer, 531 F.3d
1028, 1034 (9th Cir. 2008), the restriction at issue here
entirely precluded out-of-state residents from exercising a
form of core political speech, reduced the pool of available
circulators, and imposed a severe burden. Although the state
had a compelling interest in preventing fraud, it had failed to
demonstrate that this ban was narrowly tailored to serve this
interest when other, narrower options were available. The
panel therefore reversed the judgment of the district court
and remanded with instructions to enter partial summary
judgment in favor of plaintiffs on this issue.
The panel affirmed the district court’s holding with
regards to the pay-per-signature restriction because it
concluded that (1) on the basis of the record produced here,
plaintiffs had not demonstrated that the pay-per-signature
ban imposed a severe burden on First Amendment rights and
therefore less exacting review applied; and (2) the state had
established that an important regulatory interest was
furthered by this restriction. The panel noted that the pay-
per-signature restriction did not categorically limit the pool
of circulators, did not impose a complete prohibition on any
form of payment, and rationally reduced the incentive to
forge signatures and commit fraud.
4 PIERCE V. JACOBSEN
COUNSEL
Paul A. Rossi (argued), IMPG Advocates, Mountville,
Pennsylvania, for Plaintiffs-Appellants.
Christian Corrigan (argued), Associate Solicitor; Hannah E.
Tokerud, and Patrick M. Risken, Assistant Attorneys
General; Austin Knudsen, Attorney General; Office of the
Attorney General, Helena, Montana; for Defendants-
Appellees.
OPINION
TUNHEIM, District Judge:
The Montana State Constitution gives Montanans the
power to enact laws, amend the constitution, and call a
constitutional convention through an initiative petition
process. The process requires gathering sufficient signatures
on petitions in order to place a measure before voters on the
ballot. Montana law, however, limits signature gathering to
Montana residents and bars paying signature gatherers based
upon the number of signatures obtained.
Plaintiffs—a collection of organizations and individuals
interested in petitioning in Montana—allege that both of
these restrictions violate their speech and association rights
under the First Amendment. The district court granted
summary judgment to Defendants, upholding both
restrictions. It held that strict scrutiny did not apply because
Plaintiffs failed to demonstrate either restriction imposed a
severe burden on their rights. It went on to find that both
restrictions sufficiently furthered Montana’s important
regulatory interest to survive less exacting review.
PIERCE V. JACOBSEN 5
We reverse the district court’s holding with regards to
the residency requirement because it (1) imposes a severe
burden on the exercise of First Amendment rights and (2) is
not narrowly tailored to further Montana’s compelling
interest. We affirm the district court’s holding with regards
to the pay-per-signature restriction because we conclude that
(1) on the basis of the record produced here, Plaintiffs have
not demonstrated that the pay-per-signature ban imposes a
severe burden on First Amendment rights and (2) the state
has established that an important regulatory interest is
furthered by this restriction.
I. Background
Montanans may enact laws, amend the Montana
Constitution, and call for a state constitutional convention
through an initiative process that culminates in a statewide
vote on whether to approve the proposal. Mont. Const. art.
III, § 4; id. art. XIV, §§ 2, 9. To qualify an initiative for the
ballot, an initiative’s proponent must gather sufficient valid
signatures from Montana voters, among other steps. Id. art.
III, § 4; id. art. XIV, §§ 2, 9. After the election is held with
the initiative on the ballot, “[t]he sufficiency of the initiative
petition shall not be questioned.” Id. art. III, § 4, cl. 3.
In 2006, state officials found that the signature gathering
process for three initiatives “was permeated by a pervasive
and general pattern and practice of fraud.” Montanans for
Justice v. Montana ex rel. McGrath, 146 P.3d 759, 770
(Mont. 2006). The proponents of the 2006 initiatives relied
primarily on out-of-state signature gatherers paid on a per-
signature basis. Id. at 764. These signature gatherers
routinely and falsely attested to personally gathering
signatures that they did not in fact personally gather,
provided false addresses on affidavits, and employed
deceitful “bait and switch” tactics to induce Montana voters
6 PIERCE V. JACOBSEN
to unknowingly sign petitions for multiple initiatives. Id.
at 770. The initiatives were disqualified from the ballot to
protect the viability and integrity of the initiative process. Id.at 777–78.
In 2007, the Montana legislature amended the initiative
petitioning process to require that signature gatherers
(1) must be Montana residents and (2) “may not be paid
anything of value based upon the number of signatures
gathered.” Mont. Code Ann. § 13-27-102(2) (2021). These
requirements do not apply to signature gatherers for
candidates for office. See id; see also id. §§ 13-10-201,
203(2). In the seven election cycles since these requirements
have been in effect, fourteen initiatives have qualified for the
ballot.
In 2018, plaintiffs Montanans for Citizen Voting
(“MCV”) and Montana Coalition for Rights (“MCR”) began
the process of qualifying initiatives for placement on the
ballot. MCV solicited bids from petition circulation firms to
gather the required signatures. It received a bid from
Advanced Micro Targeting (“AMT”)—a firm with
experience in Montana—for $500,000. AMT noted that it
does not pay by the signature because it encourages fraud. It
also received a bid from Silver Bullet for $469,000. Silver
Bullet’s bid noted that if the residency requirement and pay-
per-signature restriction were eliminated, the estimated cost
would be $1 less per signature—about $80,000 less in total.
MCV and MCR claim they determined that using out-of-
state gatherers and paying by the signature would increase
the likelihood of gathering sufficient signatures, increase
efficiency, and decrease the cost of the petition drive. They
did not attempt to gather signatures for the 2018 or 2020
election cycles.
PIERCE V. JACOBSEN 7
MCV and MCR, joined by plaintiffs Nathan Pierce,
Liberty Initiative Fund, and Sherri Ferrell 1 (collectively,
“Plaintiffs”), brought this action in federal district court
against the Montana Secretary of State, the Montana
Attorney General, and the Commissioner of the Montana
Commission on Political Practices (collectively, “Montana”)
alleging the restrictions violated the First Amendment.
Plaintiffs sought declaratory and injunctive relief. 2 The
parties filed cross motions for summary judgment.
The district court granted summary judgment to
Montana and denied it to Plaintiffs. The court found that
Plaintiffs offered only conclusory speculation about the
burden the restrictions created, noting that they did not try to
gain ballot access and so were unable to adequately
demonstrate whether the restrictions limited the number of
voices available or whether a reasonably diligent campaign
would have been able to secure ballot access. Therefore, the
court concluded that the restrictions did not impose a severe
burden on speech and that less exacting review—not strict
scrutiny—applied. Applying less exacting review, the court
upheld both restrictions, finding that any burdens imposed
on Plaintiffs’ rights were justified by the state’s interests in
protecting the integrity of the initiative process and
preventing fraud. Plaintiffs filed a motion to amend or alter
1
Pierce is a Montana resident and a member of MCR with
experience seeking to qualify initiatives for the ballot in Montana. The
Liberty Initiative Fund is a national organization that supports state
initiative campaigns. Ferrell is a resident of Florida and a professional
petition circulator who works in many states.
2
Plaintiffs initially sought a temporary restraining order or a
preliminary injunction but withdrew their motions for preliminary relief.
8 PIERCE V. JACOBSEN
the judgment, but the court denied the motion. Plaintiffs
timely appealed.
On appeal, Plaintiffs argue the district court should have
applied strict scrutiny to both restrictions because each
severely burdens free speech rights, and that under strict
scrutiny, neither restriction is narrowly tailored to further a
compelling state interest.
II. Standard of Review and Jurisdiction
We review de novo the district court’s grant of summary
judgment. Courthouse News Serv. v. Planet, 947 F.3d 581,
589 (9th Cir. 2020). In a First Amendment case, we
independently review factual findings. Id. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
III. Discussion
The First Amendment, as made applicable to the states
by the Fourteenth Amendment, prohibits states from
enacting laws “abridging the freedom of speech.” McIntyre
v. Ohio Elections Comm'n, 514 U.S. 334, 336 & n.1 (1995).
Although there is no constitutional right to enact state laws
or constitutional amendments through an initiative process,
if a state allows for initiatives through a petitioning process,
the gathering of signatures and circulating of initiative
petitions are protected by the First Amendment. Meyer v.
Grant, 486 U.S. 414, 424–25 (1988). The solicitation of
signatures on an initiative petition is “core political speech”
involving “interactive communication concerning political
change.” Id. at 422.
The First Amendment does not, however, bar all
restrictions on circulating petitions, and states have
“considerable leeway to protect the integrity and reliability
PIERCE V. JACOBSEN 9
of the initiative process, as they have with respect to election
processes generally.” Buckley v. Am. Const. L. Found., Inc.,
525 U.S. 182, 191 (1999). Indeed, “States may, and
inevitably must, enact reasonable regulations of parties,
elections, and ballots to reduce election- and campaign-
related disorder.” Timmons v. Twin Cities Area New Party,
520 U.S. 351, 358 (1997).
When an election law is challenged, the severity of the
burden the law imposes on the exercise of constitutional
rights is weighed against the strength of the state interests
the law serves. Nader v. Brewer, 531 F.3d 1028, 1034 (9th
Cir. 2008). “Regulations imposing severe burdens on
plaintiffs’ rights must be narrowly tailored and advance a
compelling state interest. Lesser burdens, however, trigger
less exacting review, and a State’s important regulatory
interests will usually be enough to justify reasonable,
nondiscriminatory restrictions.” Timmons, 520 U.S. at 358(internal quotation marks and citation omitted). There is no
bright-line test to distinguish between valid and invalid
restrictions on petition circulation; instead, we must weigh
the facts and make our own “hard judgments.” Prete v.
Bradbury, 438 F.3d 949, 961 (9th Cir. 2006) (quoting
Buckley, 525 U.S. at 192). The party challenging the law
bears the initial burden of making a factual showing of the
specific burden caused by the law. Mont. Green Party v.
Jacobsen, 17 F.4th 919, 925 (9th Cir. 2021); Ariz. Green
Party v. Reagan, 838 F.3d 983, 989 (9th Cir. 2016).
In Meyer v. Grant, the Supreme Court identified two
non-exhaustive considerations that aid in determining
whether a regulation of the initiative process imposes such a
severe burden on core political speech that it triggers strict
scrutiny. See Angle v. Miller, 673 F.3d 1122, 1132 (9th Cir.
2012) (citing Meyer, 486 U.S. at 422–23). The first
10 PIERCE V. JACOBSEN
consideration is the extent to which a restriction limits the
number of voices carrying the initiative proponent’s
message and the size of the audience the proponent can
reach. Meyer, 486 U.S. at 422–23. The second
consideration is the extent to which a restriction makes it less
likely a proponent will get enough signatures to place the
issue on the ballot, thereby limiting the ability to make the
issue “the focus of statewide discussion.” Id. at 423. We
assume that a restriction is a severe burden when it
“significantly inhibit[s] the ability of initiative proponents to
place initiatives on the ballot.” Angle, 673 F.3d at 1133. As
we have recognized, this is similar to the standard applied to
candidate ballot access restrictions where we consider
whether “in light of the entire statutory scheme regulating
ballot access, ‘reasonably diligent’ candidates can normally
gain a place on the ballot, or whether they will rarely succeed
in doing so.” Id. (quoting Nader, 531 F.3d at 1035).
A. Residency Requirement
The first restriction at issue is the requirement that
initiative petition signature gatherers be residents of
Montana. Mont. Code Ann. § 13-27-102(2)(a).
1. Severe or Lesser Burden
Plaintiffs argue that the residency requirement imposes a
severe burden on speech because it necessarily reduces the
pool of available gatherers and completely bars all non-
Montanans from engaging in this form of core political
speech. They further argue it imposes a severe burden by
limiting the number of professional circulator firms
available for hire and driving up the cost of gathering
signatures.
PIERCE V. JACOBSEN 11
The residency requirement fully excludes all persons
who support a particular initiative but are not Montana
residents from engaging in petition circulation—a form of
core political speech. While Montanans can still act as
circulators, the requirement necessarily reduces the number
of circulators available to carry initiative proponents’
messages, thereby limiting the size of the audience an
initiative proponent can reach. See Buckley, 525 U.S.
at 194–95; Nader, 531 F.3d at 1035. It also limits the
associational rights of Montanans, who cannot associate
with non-resident signature gatherers. Because of the total
number people barred from gathering signatures—the vast
majority of individuals in this country—“it is scarcely
debatable” that the pool of circulators and the audience
reached is diminished by the residency requirement.
Buckley, 525 U.S. at 194–95.
The extent to which the residency requirement makes it
less likely that reasonably diligent initiative proponents can
gain ballot access in light of the entire regulatory scheme is
a closer question. 3 Plaintiffs provide little beyond their own
bare speculation and speculation offered by their consultants
and supporters. Moreover, fourteen initiatives have
3
We note that the district court here seemingly required the
challengers themselves to act with reasonable diligence to provide
evidence that their efforts to gain ballot access were frustrated. The
question, however, is not whether the challengers or even any other
proponents have been reasonably diligent but rather the severity of the
burden on a hypothetical reasonably diligent initiative proponent. To
hold otherwise would preclude using the second Meyer consideration as
a basis for pre-enforcement review. Of course, a challenger’s or others’
past efforts will be helpful in analyzing the question of reasonable
diligence. See Storer v. Brown, 415 U.S. 724, 742 (“Past experience will
be a helpful, if not always an unerring, guide . . . .”). The lack of past
efforts, however, is not dispositive when evaluating this question.
12 PIERCE V. JACOBSEN
qualified for the ballot since the residency requirement went
into effect. Ultimately, there is little evidence in the record
showing that the residency requirement makes it less likely
that initiative proponents will successfully gain ballot
access.
Meyer, however, did not create a two-part test, but rather
identified certain considerations to help guide our review.
Therefore, Plaintiffs’ lack of evidence on the second Meyer
consideration is not dispositive of the severity of the
burden—at least under the circumstances here. Instead, we
must weigh all the effects of the regulation to determine
whether, on the whole, it severely burdens core political
speech. Plaintiffs have shown that the residency
requirement imposes an outright ban on a form of core
political speech for all non-residents and necessarily
diminishes the pool of circulators. 4 We thus hold that the
residency requirement here imposes a severe burden on the
First Amendment rights of both out-of-state residents and in-
state proponents and is therefore subject to strict scrutiny.
This conclusion is in line with our holding in Nader.
There, we determined that an Arizona residency requirement
for candidate petition circulators imposed a severe burden on
First Amendment rights. Nader, 531 F.3d at 1036. We
explained that our conclusion was “mandated” by the
Supreme Court’s holding in Buckley that “significantly
4
In addition to the considerations named in Meyer, the residency
requirement may also limit the type of voices available. An initiative’s
proponents cannot use out-of-state circulators who may be able to testify
to the impact in their states if their states have enacted similar laws. This
limits the type of people with whom Montana residents supporting an
initiative may associate, decreases the free flow of ideas, and slows the
introduction of novel ideas, which are all counter to the First
Amendment. See Krislov v. Rednour, 226 F.3d 851, 866 (7th Cir. 2000).
PIERCE V. JACOBSEN 13
reducing the number of potential circulators imposed a
severe burden on rights of political expression.” Id. (citing
Buckley, 525 U.S. at 194–95). Because the residency
requirement here has the same effect, we reach the same
conclusion in this case. Although Nader involved candidate
petitions, initiative petitions and candidate petitions are
treated similarly. See Angle, 673 F.3d at 1133. And while it
is true that fourteen initiatives have qualified for the ballot
under the scheme here whereas no independent presidential
candidate had qualified under Arizona’s restrictions, the
evidence of interference with ballot access was mixed in
Nader because other statewide independent candidates had
qualified for the ballot. 531 F.3d at 1033. Importantly, just
as in Nader, the restriction at issue here entirely precludes
out-of-state residents from exercising a form of core political
speech, reduces the pool of available circulators, and
imposes a severe burden. 5
5
The conclusion that a residency requirement imposes a severe
burden is also in line with the majority of the other circuits that have
considered residency requirements for petition circulators. The Third,
Fourth, Sixth, Seventh, and Tenth Circuits have all determined that
residency requirements impose a severe burden. Wilmoth v. Sec’y of
N.J., 731 F. App’x 97, 103 (3d Cir. 2018) (candidate petition residency
requirement); Libertarian Party of Va. v. Judd, 718 F.3d 308, 317 (4th
Cir. 2013) (candidate petition residency requirement); Yes On Term
Limits, Inc. v. Savage, 550 F.3d 1023, 1028 (10th Cir. 2008) (initiative
petition residency requirement); Nader v. Blackwell, 545 F.3d 459, 475–
76 (6th Cir. 2008) (candidate petition residency requirement); Chandler
v. City of Arvada, 292 F.3d 1236, 1241 (10th Cir. 2002) (city initiative
petition residency requirement); Krislov, 226 F.3d at 866 (candidate
petition residency requirement in the 7th Cir.). Only the Eighth Circuit
has concluded otherwise. Initiative & Referendum Inst. v. Jaeger,
241 F.3d 614, 617 (8th Cir. 2001). Nader already registered our
disagreement with the Eighth Circuit’s reasoning on this issue. 531 F.3d
at 1036–37.
14 PIERCE V. JACOBSEN
Because the ban on out-of-state circulators at issue here
imposes a severe burden on core political speech, strict
scrutiny applies.
2. Validity of Residency Requirement
To survive strict scrutiny, the residency requirement
“must be narrowly tailored and advance a compelling state
interest.” Angle, 673 F.3d at 1132 (quoting Prete, 438 F.3d
at 961). Montana bears the burden of proving the
requirement meets this standard. See Nader, 531 F.3d
at 1037. It contends that it does because the requirement is
narrowly tailored to prevent fraud and to advance self-
government.
First, Montana argues the residency requirement is
justified by its compelling interest in preventing fraud and
protecting the integrity of the initiative process, pointing to
Montana’s actual experience with fraud in 2006. Plaintiffs
concede this is a valid and compelling state interest. We also
already recognized in Nader that preventing election fraud
in the petition signature gathering process is a compelling
interest. Id.Montana contends that the statute is narrowly tailored to
target the specific fraud Montana experienced just before it
passed this law, as the 2006 fraud was perpetrated
predominantly by out-of-state residents. It argues the law
helps the state engage in proactive fraud prevention, which
is necessary because there are short timelines around
elections and Montana state law bars challenging the
sufficiency of a petition after the election. Plaintiffs contend
that requiring circulators to submit to the jurisdiction of
Montana for any investigation would more narrowly
accomplish the same goals, and they point out that Montana
has provided no evidence to prove that it would not.
PIERCE V. JACOBSEN 15
Based on the record in Nader, we determined that
requiring petition circulators to consent to the state’s
jurisdiction was a more narrowly tailored means of
accomplishing the same interest as residency requirements.
Id. at 1037–38. At the time, we recognized that courts had
generally found the same. Id. at 1037. Other circuits have
adopted this holding since Nader. Indeed, none of the other
circuits that have squarely addressed this issue have found
that a residency restriction is narrowly tailored in light of the
fact that states could require consent to jurisdiction instead.6
Montana argues that despite this consensus among
circuits, we should reach a different conclusion here than we
did in Nader. It points out that it has offered evidence of
actual fraud perpetrated by non-residents, whereas Arizona
presented no such evidence. Although it is true that there is
more evidence of prior fraud by non-residents in this case
than was available in Nader, this history does not explain—
and Montana offers no evidence showing—why a consent to
jurisdiction system or another less restrictive system would
be unworkable or otherwise insufficient to vindicate its
compelling interest in addressing fraud. Montana therefore
has not met its burden. 7
6
The Fourth, Sixth, Seventh, and Tenth Circuits have all determined
that residency requirements are not narrowly tailored. Judd, 718 F.3d
at 318 (4th Cir.); Savage, 550 F.3d at 1030–31 (10th Cir.); Blackwell,
545 F.3d at 475 (6th Cir.); Chandler, 292 F.3d at 1244 (10th Cir.);
Krislov, 226 F.3d at 866 & n.7 (7th Cir.). The Third Circuit suggested
this may be the case but remanded the issue to the district court for
further development of the record. Wilmoth, 731 F. App’x at 104–05.
7
Just like in Nader, this holding is based on the record before us.
See Nader, 531 F.3d at 1038. If a state provided adequate evidence that
other methods, such as consenting to jurisdiction, would be insufficient
16 PIERCE V. JACOBSEN
Montana contends the residency restriction is also
narrowly tailored to protect another compelling interest: the
right of self-governance. The people’s right to self-
government is a compelling state interest. See Chula Vista
Citizens for Jobs & Fair Competition v. Norris, 782 F.3d
520, 531 (9th Cir. 2015) (en banc).
Montana has not met its burden of showing why this
restriction is narrowly tailored to advance the interest in self-
government. Montana offers no evidence or explanation for
why this interest would not be vindicated through a system
requiring that official proponents, petition signers, and
voters on initiatives be residents. These restrictions on who
may share in the legislative power at play in the initiative
process would more directly protect the interest in self-
government with only a minimal burden on political speech.
See id. at 533 (explaining that restrictions on who may
assume official roles in the initiative process only minimally
burden First Amendment rights). Based on the record here,
there is no evidence that a residency requirement for
signature gatherers is necessary to adequately serve
Montana’s self-government interest.
Montana’s residency requirement bans non-residents
from participating in a form of core political speech entirely
rather than confining the restriction to the narrower subset of
conduct unique to residents in self-government. While it is
one thing to limit carrying out the functions of self-
government to residents, limiting core political speech to
residents even on matters of state elections is a far broader
restriction, and that restriction is not narrowly tailored here.
to further its interest in fraud prevention, it is possible that a residency
requirement could survive.
PIERCE V. JACOBSEN 17
In sum, because the residency requirement severely
burdens core political speech and is not narrowly tailored to
further a compelling state interest, it violates the First
Amendment and cannot survive.
B. Pay-Per-Signature Restriction
The second restriction at issue is the prohibition on
paying signature gatherers “anything of value based upon the
number of signatures gathered.” Mont. Code Ann. § 13-27-
102(2)(b).
1. Severe or Lesser Burden
Plaintiffs argue this pay-per-signature restriction also
imposes a severe burden on speech. They contend that it
reduces the pool of available circulators, makes signature
gathering more expensive, limits the size of the audience
proponents can reach, and makes it less likely that an
initiative will gain ballot access.
Plaintiffs have not met their burden of showing that the
pay-per-signature restriction imposes a severe burden on
speech. The record provides little more than conclusory
assertions about the burden, not actual evidence. We agree
with the district court that the factual evidence Plaintiffs
have provided is insufficient to demonstrate the existence of
a severe burden. The main evidence, beyond conclusory
statements, consists of (1) Ferrell’s testimony that she does
not want to work where she cannot be paid by the signature;
(2) Silver Bullet’s bid indicating that lifting both restrictions
at issue here would save $1 per signature; and (3) Pierce’s
experience with a signature gatherer paid by the hour who
was not even attempting to gather signatures.
18 PIERCE V. JACOBSEN
This thin evidentiary record is insufficient to
demonstrate a severe burden. Ferrell’s testimony provides
evidence of what only one professional petition circulator
would do, not the effects on the entire pool of circulators.
Silver Bullet’s estimated cost savings included eliminating
both restrictions, and therefore it is unclear how much can
be attributed to the pay-per-signature restriction as opposed
to the residency requirement. Finally, a single example of a
worker shirking her responsibilities which could be resolved
through other means is inadequate to conclude the restriction
would constitute a severe burden.
The record thus does not support a conclusion that the
payment restriction imposes a severe burden under either
Meyer consideration. On the first Meyer consideration, the
pay-per-signature restriction, unlike the residency
requirement, does not categorically limit the pool of
circulators. Instead, if some signature gatherers will only
work on a per-signature basis, that is their choice. It is also
unclear to what extent the restriction would cause circulators
to refrain from working in Montana if they were otherwise
permitted to. Other factors might prevent circulators from
working in Montana. See Prete, 438 F.3d at 964. Increased
costs may in some circumstances decrease the size of the
audience reached, but the record does not substantiate how
much of any cost increase can be attributed to this restriction.
As to the second Meyer consideration, the evidentiary
support for Plaintiffs’ contention that this restriction makes
it less likely they will gain ballot access is also inadequate to
meet their burden. Evidence on this factor is derived from
conclusory statements, not empirical evidence. Moreover,
just as with cost increases, Plaintiffs’ evidence that the pay-
per-signature restriction will decrease the likelihood of
ballot access is also predicated on the residency requirement.
PIERCE V. JACOBSEN 19
Therefore, it is altogether unclear how much less likely, if at
all, proponents are to gain access because of the pay-per-
signature restriction. Further illustrating this, the bid from
AMT indicates that it does not pay per signature and yet it
has still successfully qualified initiatives in Montana. In
sum, the record here is insufficient to demonstrate that the
pay-per-signature restriction imposes a severe burden.
This conclusion aligns with our holding in Prete. There,
we concluded that the plaintiffs failed to demonstrate that a
similar pay-per-signature restriction imposed a severe
burden. Id. at 968. Although the record here and in Prete
are not identical, they contain similar gaps. Plaintiffs here
provide some evidence missing in Prete: testimony from
someone who has circulated petitions in the relevant state
and a bid that provides an estimate of the costs the restriction
imposes in connection with another restriction. Still, like in
Prete, this evidence is based primarily on conclusory
statements, and it is unclear to what extent other factors—
such as the residency requirement—are the cause of any
burdens. See id. at 964–65. Just as in Prete, the record here
is insufficient to establish the pay-per-signature restriction
imposes a severe burden. 8
To be sure, it is possible for payment restrictions to
impose a severe burden. For example, the Supreme Court
held in Meyer that a complete ban on paying petition
8
This conclusion is in line with the other circuits that have upheld
similar pay-per-signature prohibitions for petition circulators. See
Person v. N.Y. State Bd. of Elections, 467 F.3d 141, 143 (2d Cir. 2006)
(holding that the argument that per-signature payment is the best
incentive is not enough to show that restricting per-signature payments
is unduly burdensome); Jaeger, 241 F.3d at 618 (holding that offering
only bare assertions of a burden is insufficient to establish that a
restriction on per-signature payments imposes a severe burden).
20 PIERCE V. JACOBSEN
circulators imposes a severe burden. 486 U.S. at 422–24.9
Unlike Meyer, however, the restriction here is not a complete
prohibition on any form of payment. Instead, the restriction
only bars being “paid anything of value based upon the
number of signatures gathered.” Mont. Code Ann. § 13-27-
102(2)(b). In other words, it only prohibits one form of
payment. Proponents can pay based upon time. They also
can use compensation and employment schemes based on
other metrics—such as paying bonuses for quality, payment
based on signature validity rates, or terminating
unproductive circulators. Plaintiffs fail to even address why
their concerns about managing circulator performance
would not be resolved by adopting one of these other
available methods. This further underscores that Plaintiffs’
conclusory assertions are insufficient to show a severe
burden. See Prete, 438 F.3d at 968.
While it may be possible to demonstrate that a pay-per-
signature restriction—including this one—imposes a severe
burden, the record before us is insufficient to support such a
finding. Therefore, the district court properly refused to
apply strict scrutiny; this lesser burden is only subject to a
less exacting review.
9
At least one circuit has held that a ban on all forms of payment
other than on a per-time basis imposes a severe burden. See Citizens for
Tax Reform v. Deters, 518 F.3d 375, 386–87 (6th Cir. 2008). Deters
specifically distinguished Prete, because the law at issue in Deters
allowed payment only “on the basis of time worked.” Id. at 377, 385–
86. The Sixth Circuit noted that limiting compensation to only one form
barred schemes that considered productivity, longevity, and geography.
Id. at 385–86. The restriction in Deters may have even precluded
terminating unproductive circulators. Id. at 386. The law at issue here
contains no such restrictions.
PIERCE V. JACOBSEN 21
2. Validity of Pay-Per-Signature Restriction
Under less exacting review, Montana must only
demonstrate that the restriction “furthers ‘an important
regulatory interest.’” Angle, 673 F.3d at 1134–35 (quoting
Prete, 438 F.3d at 969). “In applying this standard, we bear
in mind that ‘States 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 1132 (quoting Buckley,
525 U.S. at 191).
As discussed above, it is undisputed that Montana has an
important interest—indeed a compelling interest—in
preventing fraud and protecting the integrity of the initiative
process.
Prete is once again instructive on this issue. There, we
held that a very similar pay-per-signature restriction furthers
an important state interest in preventing fraud. Prete,
438 F.3d at 970–71. We reach the same result here and
uphold the restriction. 10
Montana passed this law in response to fraud connected
with gatherers paid on a per-signature model, and the law
targets this fraud. The record also includes evidence that
per-signature payment arrangements encourage, and are
“regularly stung” by, fraud. Montana has explained that its
tight election timelines mean that it must adopt measures like
these to proactively prevent fraud, since the sufficiency of a
10
Indeed, every circuit to apply less exacting review to a similar
pay-per-signature restriction has found the restriction survives. See
Person, 467 F.3d at 143; Jaeger, 241 F.3d at 618; see also Voting for
Am., Inc. v. Steen, 732 F.3d 382, 398–99 (5th Cir. 2013) (upholding a
similar restriction applied to voter registration applications).
22 PIERCE V. JACOBSEN
petition cannot be examined after the election. See Mont.
Const. art. III, § 4, cl. 3. Moreover, the restriction rationally
reduces the incentive to forge signatures and commit fraud.
Plaintiffs propose other methods they assert would also
reduce fraud. Once a non-discriminatory restriction is
determined to impose a lesser burden, however, it is not our
duty “to determine whether the state’s chosen method for
prevention of fraud is the best imaginable.” Prete, 438 F.3d
at 971. We are limited to examining whether the restriction
is “reasonably related to the important regulatory interest.”
Id. As the district court determined, the pay-per-signature
restriction meets this test. 11
Based on the record produced here, we hold that
Montana’s pay-per-signature restriction is compatible with
the First Amendment.
IV. Conclusion
By flatly banning all non-residents from participating in
a form of core political speech, Montana’s residency
requirement for petition circulators imposes a severe burden
on First Amendment rights and thus it must withstand strict
scrutiny. Although the state has a compelling interest in
preventing fraud, the state has failed to demonstrate that this
ban is narrowly tailored to serve this interest when other,
narrower options are available. Therefore, on the record
11
To be clear, as in Prete, we do not hold that pay-per-signature
restrictions are per se constitutional. See Prete, 438 F.3d at 953 n.5.
Rather, we hold that Plaintiffs have failed to show that the payment
restriction at issue here imposes a severe burden under the First
Amendment and that it furthers Montana’s important regulatory interest
under less exacting review. Therefore, we express no opinion as to
whether the restriction would survive strict scrutiny.
PIERCE V. JACOBSEN 23
before us, Montana’s residency requirement is incompatible
with the First Amendment and cannot survive. The
judgment of the district court with regards to § 13-27-
102(2)(a) is REVERSED and REMANDED with
instructions to enter partial summary judgment in favor of
Plaintiffs on this issue.
Based on the record Plaintiffs produced here, Montana’s
restriction on paying petition circulators on a per-signature
basis imposes only a lesser burden by merely banning one
type of payment scheme while leaving numerous other
options available. Montana has sufficiently demonstrated
that prohibiting payment by the signature furthers its
important regulatory interest in preventing fraud in the
initiative process. Therefore, on the record before us,
Montana’s pay-per-signature restriction does not violate the
First Amendment. We AFFIRM the judgment of the district
court with regards to § 13-27-102(2)(b).
AFFIRMED IN PART; REVERSED IN PART AND
REMANDED FOR FURTHER PROCEEDINGS. THE
PARTIES SHALL BEAR THEIR OWN COSTS ON
APPEAL.