I hate paid out-of-state petition circulators. The roving bands of mercenaries who make money traveling from state to state to carry petitions for state and local ballot measures pervert what should be a genuine, grassroots process. A law that’s worth a vote will already be on the minds of thousands of voters who are ready to sign and circulate petitions on their own. If nobody in the state is talking about an issue until a band of itinerant profiteers from Timbuktu pop up on our sidewalks and start shouting marketing points someone else wrote for them for $15 an hour and signature bonuses, the issue probably doesn’t deserve a vote.
Out-of-state circulators are even more abominable on nominating petitions. In South Dakota, any sufficiently motivated candidate for any local or district office should be able to collect all the signatures she needs to qualify for the ballot by herself on a couple of Saturdays. Statewide candidates may need some help to get their 706 (Dem), 1,955 (GOP), or 2,775 (indy) signatures, but, like ballot measures, a statewide candidate who can’t rouse her friends and neighbors statewide to sign and carry those petitions during three months of campaign events probably won’t mobilize the hundred times as many people she’ll need to vote for her in November.
However, as I have acknowledged during past petition drives, banning out-of-state circulators is probably unconstitutional. There is no judicial consensus, but residency requirements for petition circulators have been ruled by multiple courts to violate the First and Fourteenth Amendments.
Another such residency requirement is being challenged by Colorado Congressman Doug Lamborn. Last week, the Colorado Supreme Court kicked the six-term Republican off the June primary ballot because two of his circulators weren’t Colorado residents.* Rep. Lamborn is thus suing Colorado in federal court. Citing a 1999 case (Buckley v. American Constitutional Law Foundation) in which the U.S. Supreme Court overturned Colorado’s name, badge, and disclosure requirements for petition circulators, Lamborn and fellow plaintiffs contend that petition circulation is “core political speech, because it involves interactive communication concerning political change” and thus deserves the highest First Amendment protection. The plaintiffs also cite a New Jersey case in which the Third Circuit just last week said New Jersey’s requirement that circulators be registered voters arguably “infringes out-of-state circulators’ First Amendment rights.”
Only a compelling state interest can supersede those First Amendment rights. Colorado claims a compelling interest in preserving the integrity of its candidate nominating process, but the plaintiffs contend that interest “is already served, for example, by the minimum signature requirement and the independent verification by the Colorado Secretary of State of the voter registration, political party affiliation, and individual signatures of electors who actually sign a nominating petition for a major political party candidate.”
U.S. District Court Judge Philip Brimmer hears Lamborn’s case Monday morning in Denver. If the court buys Lamborn’s argument, it will add to the precedent just waiting to fall on South Dakota’s circulator residency requirements (see SDCL 2-1-1.3 and SDCL 12-1-3).
I don’t like out-of-staters mucking about in our politics, but I can’t constitutionally stop them from circulating petitions any more than G. Mark Mickelson and IM 24 can stop them from contributing to our ballot question committees. We should strike our residency requirement for circulators before some litigious mercenary petition crew gets a court to do it for us.
If we don’t like out-of-staters meddling in our elections, for principle or for profit, we’ll have to curb their influence ourselves. The next time petitioners hit the streets, ask circulators where they are from. Ask them why they are interested in putting measures on our ballot. If you’re not satisfied with the answers (and more so with the measures), don’t sign the petitions.
*Congressman Lamborn hired Colorado Springs firm Kennedy Enterprises to circulate his petition. Kennedy Enterprises says on its website, “We have never failed.”