As court precedent elsewhere signaled was likely, a federal court has ruled that Colorado’s residency requirement for petition circulators likely violates the First Amendment and ordered Colorado’s Secretary of State to place Congressman Doug Lamborn back on that state’s June primary ballot. Citing precedent, U.S. District Court Judge Philip Brimmer said that circulating petitions is “core political speech” that demands the highest scrutiny and protection under the First Amendment. Judge Brimmer pointed to an Arizona case where the court found a residency requirement “exclude[d] from eligibility all persons who support[ed[ the candidate but who… live[d] outside the state.”
Judge Brimmer accepted the argument that the state has “a compelling interest in protecting the integrity and reliability of Colorado’s election process”; however, the state failed to present any evidence that non-resident circulators commit petition fraud at any greater rate than residents. The court held that Colorado’s new electronic signature verification system “largely obviate[s]” concerns about circulator fraud. The court also held that requiring a circulator to sign an affidavit and “agree to submit to the jurisdiction” of the state’s courts is “a more narrowly tailored means of ensuring a state’s ability to locate circulators than is a residency requirement.” In other words, there are plenty of regulations that can serve the state’s interest in election integrity without denying out-of-state supporters of a candidate their First Amendment rights.
Judge Brimmer’s ruling supports the arguments that the Koch Brothers and I will make against G. Mark Mickelson’s Initiated Measure 24, his unconstitutional ban on out-of-state contributions to ballot question committees. Money is speech, and spending money to express one’s opinion about a ballot measure is core political speech. The state may have some compelling interest in protecting South Dakotans from the opinions Minnesotans have about our laws (though that interest may be harder to prove than our interest in the integrity of petitions and ballots), but that debatable interest is served by more narrowly tailored measures like campaign finance disclosure rules that don’t outright deny Minnesotans their First Amendment rights.
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Colorado’s unconstitutional circulator residency requirement reads thus:
(1) No person shall circulate a petition to nominate a candidate unless the person is a resident of the state, a citizen of the United States, at least eighteen years of age, and, for partisan candidates, registered to vote and affiliated with the political party mentioned in the petition at the time the petition is circulated, as shown in the statewide voter registration system [Colorado Revised Statute 1-4-905(1)].
South Dakota’s apparently unconstitutional circulator residency requirement sits in two statutes:
“Petition circulator,” any resident of the State of South Dakota who is at least eighteen years of age and who circulates a nominating petition or other petition for the purpose of placing a candidate or issue on any election ballot [SDCL 2-1-1.3(1)];
(9) “Petition circulator,” a resident of the State of South Dakota who is at least eighteen years of age who circulates nominating petitions or other petitions for the purpose of placing candidates or issues on any election ballot [SDCL 12-1-3(9)].
This year’s oppressive House Bill 1196 will amend those definitions on July 1 to specify “residence” as defined in for voting purposes:
For the purposes of this title, the term, residence, means the place in which a person has fixed his or her habitation and to which the person, whenever absent, intends to return.
A person who has left home and gone into another state or territory or county of this state for a temporary purpose only has not changed his or her residence.
A person is considered to have gained a residence in any county or municipality of this state in which the person actually lives, if the person has no present intention of leaving.
If a person moves to another state, or to any of the other territories, with the intention of making it his or her permanent home, the person thereby loses residence in this state [SDCL 12-1-4].
Those South Dakota statutes may remain intact for some time. To trigger court review, someone would have to challenge a petition based on evidence that a circulator is from out of state. Challengers may not waste their time and legal fees on such a challenge, since Tuesday’s ruling in Lamborn’s case adds to the mountain of precedent saying that such challenges will fail and result in the overturning of residency requirements.