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Colorado Judge Rules Circulator Residency Requirement Violates First Amendment; Case Signals IM 24 Also Unconstitutional

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.

15 Comments

  1. JLB 2018-05-03

    The Eighth Circuit has ruled residency requirements are constitutional for petition circulators. Unlike Colorado, South Dakota is in the Eighth Circuit. The only way to successfully challenge the requirement here would almost certainly require an appeal to the US Supreme Court. I don’t see that likely any time soon.

  2. JLB 2018-05-03

    See Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir.2001)

  3. Porter Lansing 2018-05-03

    JLB … Because no one gives a darn about little old South Dakota enough to take it to court, that makes suppression of free speech proper? Fat chance, amigo.

  4. JLB 2018-05-03

    City’s post seemed to me to be about the viability of a lawsuit, not whether the policy is good or bad. I am simply saying a lawsuit here is problematic.

  5. Porter Lansing 2018-05-03

    A lawsuit will be brought by the corporations who hire signature collectors and send them nationwide. There’s so much money in politics flowing to these corporations from PAC’s that a lawsuit is a certainty.
    Money and ideas are fungible. When an unconstitutional law in South Dakota stinks, the rest of USA smells it. There are powerful people that want to help the underprivileged and suppressed minorities up there level the playing field and these people have the money to put issues before the voters for validation.

  6. JLB 2018-05-03

    I don’t dispute that powerful out of state interests want to bring ballot measures in South Dakota. I disagree with the “why” you espouse, but no doubt those interest have money and influence. Their motivations are irrelevant, and they have the resources to bring it to court. However, they would almost certainly lose at the district court level because 8th Circuit precedent controls in South Dakota District Courts. Unless the 8th Circuit hears it en banc, they would also almost certainly lose the battle at the 8th Circuit.

    From a practical perspective, these things are usually challenged regarding a specific ballot initiative or candidate. I have a hard time thinking there would be enough time to justify the expense knowing one would lose at the district court level. Long story short, there isn’t enough time to get through the steps to overrule Jaeger for any practical purpose for a specific candidate or ballot measure.

  7. Porter Lansing 2018-05-03

    Why do you think outsiders want to tell South Dakota what to do? Outsiders want to tell South Dakota Republicans to stop assaulting the rights of minorities. Of course it will have to lose once on the way to Washington.

  8. Donald Pay 2018-05-03

    I think it is reasonable to require that circulators be “residents” of the state, but that HB 1196 is just ridiculous. First of all, there is the difference of “residents” and “residence.” Whoever wrote HB1196 didn’t bother much with consistency between statutes. It’s patently unconstitutional when applied to “residents,” so I wonder if the idiots who wrote this thought they could get around the Supreme Court by purposely misspelling “residents” as “residence.”

    On the other hand, courts have never really understood petition circulation involving candidates and ballot measures is NOT simply a free speech issue for the circulator, but a legally-based administrative route through which the free speech rights of the petitioners can be legally exercised. It is the petitioners’ free speech rights that matter most in this. They, and not the circulator, are the one’s signing, and it is the petitioners who exercise their free speech rights in signing a petition that results in action. The circulators provide the administrative means through which those rights are exercised.

    Those administrative means also involve duties that serve as the first line of defense against fraud. Now maybe the court is right that new technology makes those administrative duties less important, and that circulation is now more about getting numbers of signatures, than of making sure everything is filled in correctly by law. But then discussion should also apply to much of the bureaucracy added in South Dakota since 2000. All of that seems to be simply an obstruction to circulation of petitions, an unconstitutional hindrance to free speech rights of everyone involved.

    I have always stood in the middle on this issue. If the free speech rights of circulators are paramount, why can’t they simply sign a lot of names to the petition. They could sign “Mickey Mouse” and “Donald Duck” over an over again, submit the petition and you could all have a vote on Dippy Dippy, candidate for Governor on the Republican ticket?

    Why not? Because circulators’ free speech rights are not the main issue. Circulators are the administrative means through which a candidate or a ballot measure gets on the ballot. Circulators are servants of the petititoners’ free speech rights, primarily, and not their own. That is an awesome responsibility, and I think it is right for states to have reasonable requirements for circulators. But HB 1196 is ridiculous.

    I think what the court decisions might be pointing toward down the line is this: do we really need representative government if we can now simply use technology to vote on issues ourselves? The irresponsibility of our present state and federal governments seem to indicate a need to move from voting for candidates to represent us and a few ballot issues to abolishing the Legislature and having people vote directly on issues.

  9. JLB 2018-05-03

    This certainly isn’t true for every ballot measure, but, I think some “outsiders” come to South Dakota because the media market is cheap and we have low signature requirements, making ballot access really inexpensive. The organizers then use the fact that it is on the ballot here as a way to fundraise for their organization nationally. It is a lot easier to ask for money if you are saying we have something on the ballot to change the nation one state at a time, than it is to say we have an idea and we want your money. In short, I submit it is a business model to fund the organizations they run.

  10. Cory Allen Heidelberger Post author | 2018-05-04

    If we want to carve out some residents-only space for petition circulation, as Donald and I both wish (because I really do agree that the people centrally involved in campaigns should be the people who will have to live under the laws passed), perhaps we need to draw a distinction between free speech and managing election paperwork. Anyone can come to South Dakota and say, “I like Amendment W!” but only residents can mark petitions to place it on the ballot. Holding a clipboard and witnessing a signature is not a free-speech act. Could South Dakota’s statutes narrowly define circulation as those activities and thus require that, at the very least, the mercenary out-of-state circulators must follow the practice they used in 2015, having their professional hawkers doing all the talking on the sidewalk but then having a South Dakota resident on hand to hold the clipboard and watch the signatures?

  11. Cory Allen Heidelberger Post author | 2018-05-04

    That distinction appears to be the basis of the Jaeger ruling to which JLB refers:

    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 [Michael et al. v Jaeger, 2001].

  12. Jason 2018-05-04

    Porter wrote:
    Outsiders want to tell South Dakota Republicans to stop assaulting the rights of minorities.

    Please give examples of your charge Porter.

  13. Lori Stacey 2018-05-05

    I pointed this out years ago. Numerous states have had to repeal their unconstitutional enactments and once again allow circulators from other states to help get issues on the ballot.

    The fact is that these new statutes along with the terrible ones passed the session before will kill issues from ever being able to have the manpower needed to get them on the ballot again unless it is a very hot button issue that has caused absolute outrage such as SB69 did.

    In my opinion, the initiative process has been effectively killed in South Dakota, ironically, in the very first state that started them.

    Earth to Republican legislature:. The 1st Amendment right of petition doesn’t stop when a circulator crosses the SD state line, or at least it wasn’t supposed to anyway!!!

    They were way in the dark on this one or just don’t care about the Constitution or what numerous courts have overturned years ago.

    We now have the most eggregiously unconstitutional statutes in the nation on this issue. They are so jaw-dropping that nobody will ever want to come to our state to help get initiatives on the ballot for the voters of SD again. Demonize them all you want but that is a fact, the initiative process is now dead for South Dakotans. They will go to other states to help instead.

  14. Jason 2018-05-05

    Lori,

    Earth to Republican legislature:. The 1st Amendment right of petition doesn’t stop when a circulator crosses the SD state line, or at least it wasn’t supposed to anyway!!!

    Please link to where the US Constitution backs up your opinion?

    If South Dakotan’s want an initiative on the ballot, we can do it ourselves. We don’t need help from somebody outside of the State.

  15. Cory Allen Heidelberger Post author | 2018-05-05

    For constitutional support for Lori’s statement, see Judge Brimmer’s ruling, linked in the original post.

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