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Maine Ruling Bolsters Logic That State Can’t Force Paid Circulators to Register and Wear Badges

In my conversation with Amy Scott-Stoltz Sunday about how to circulate ballot question petitions, I emphasized that volunteer circulators do not have to register with the Secretary of State, wear a badge, or hand out their personal information to signers. The South Dakota Legislature tried to take that liberty away, but the federal courts gave it back, saying the state cannot place such burdens on your expression of core political speech.

But South Dakota law (brought to us by 2020 Senate Bill 180) still forces paid circulators to register before circulating petitions and wear badges while engaged in that core political speech. As I’ve said before, this continued burden on any petition circulator, even one receiving money for that challenging public service, invites another lawsuit against the state by any justice-minded circulator or ballot question sponsor.

Support for such a lawsuit is found in the recent ruling in We the People PAC v. Bellows from the U.S. District Court of Maine. That case didn’t involve a circulator registry or badges; it dealt with Maine’s requirement that ballot question petition circulators be registered to vote in Maine. Reasoning much as the federal court in South Dakota did in throwing out restrictions on donations to ballot question committees from non-resident donors, Judge John A. Woodcock Jr. said that the state imposes an unfair burden on both non-residents who would like to engage in that core political speech and the residents who would happily associate with those non-resident helpers.

Judge Woodcock then reasoned that if the residency requirement unfairly limits the number of eligible circulators, the voter registration requirement must also be unfair, as it narrows the field even further:

The Court easily determines that the voter registration requirement imposes a severe burden on the Plaintiffs’ First Amendment rights. The voter registration requirement is narrower than the residency requirement—one of the prerequisites to voting in Maine is living in Maine….

The Defendants contend that registering to vote imposes “hardly any additional burden beyond that imposed by the residency requirement.”… The Court agrees with the Defendants that registering to vote in Maine is easy, but the Supreme Court has held that “[t]he ease with which qualified voters may register to vote… does not lift the burden on speech at petition circulation time.” Buckley, 525 U.S. at 195 [link added; Judge John A. Woodcock, Jr., ruling, We the People PAC v. Bellows, U.S. District Court of Maine, 2021.02.16].

The registration process for paid circulators in South Dakota is more burdensome than the registration process for voters. Before they can go to work, paid circulators must provide the name of the petition sponsor for whom they are working and pay $20. Voters don’t have to name their employer or pay a poll tax to vote. Paid circulators must wait to engage in their First Amendment activities until the Secretary of State issues them ID numbers and badges. Voters don’t have to wait; the moment they hand their registration form to the county auditor, they are recognized as legitimate voters. Paid circulators must wear those badges any time they are doing their work or face criminal penalties. Voters don’t have to wear badges; we like getting those “I Voted” stickers and may proudly wear them, but the auditor doesn’t rip up our ballots if we decline to wear those stickers.

The logic is simple: If a residency requirement for petition circulators is unconstitutional, and if the narrower voter registration requirement for the same actors is unconstitutional, then the even narrower requirement that paid circulators pre-register, wait days to get badges and ID numbers from the Secretary of State, and wear badges whenever they are engaged in core political speech is unconstitutional.

I don’t know if either of the initiative petitions on the streets right now, for Medicaid expansion and for an independent redistricting commission, have reached beyond their eager volunteer base to engage paid circulators. But if they do, they’ll have ample ground to sue the state and overturn the unfair burdens placed on their efforts by the state’s unconstitutional registration and badging requirements for paid circulators.

Related Raspberries at Circulator Registration: On top of all that, don’t forget that making supporters of ballot questions register with the state before circulating petitions while letting opponents of ballot questions agitate against petition drives without any such registration constitutes viewpoint discrimination, which will also get the paid-circulator registry and badges overturned in court. 


  1. leslie 2021-03-10 08:04

    We need to fight every attempt by the extreme right to cut away our precious democracy.

    There is no type of background— “religious, cultural, or national tradition—that makes a country immune to fascism, once the conditions for its emergence are present. “At least as important [ar]e signs such as the spread of irrational ideas, racist views, and hatred of the democratic setup.

    Fascism is above all “a reform of market economy achieved at the price of the extirpation of all democratic institutions.”

    Achieving herd immunity to fascism, yes, fascism which Kristi and grdz expouse daily, “requires not only a political defeat of the most prominent []fascist movements and an uncompromising fight against their ideologies. It also requires, most crucially, a global shift away from the … paradigm [ ] that has been dominant over the past four decades.”

    There is a “clear and undeniable correlation between the …. onslaught that started in the 1980s, led by Margaret Thatcher and Ronald Reagan—an onslaught that made “deregulation” one of its main goals, along with privatization, reduction of social spending, and tax cuts for the rich—and the rise of “[]fascism and religious fundamentalism …. [The] Great Recession, triggered in 2007, gave a major wave of mostly Syrian refugees pouring into Europe in 2015. [A]nd the huge economic crisis that is presently gestating as a consequence of the Covid-19 pandemic can only severely aggravate … conditions globally (the far-right exploitation of anti-lockdown movements is an indication), unless it is countered by economic policies similar to those adopted after 1945.”

    “… [H]owever significant Donald Trump’s defeat in the latest US presidential election was, it was certainly not of a scope comparable to the defeat of fascist powers in the Second World War. His loss occurred not because of the disaffection of his supporters but despite a huge increase in their numbers (11 million more voters) at a time when, unlike 2016, there was no possible illusion about what Trump represents and, therefore, hardly any ambiguity in the sense of voting for him.”

    “[Trump supporters] … seek refuge in some type of identity group and … deploy their exasperation against other identities held responsible for the increasing [precariousness] of their social condition, primarily by way of racist and/or xenophobic logic. Thus, the rise of fascist-like ideologies and movements starting from the 1980s went along with the rise of other types of exclusive identity groups, of which religious fundamentalism is the most obvious.”

    BLM and Antifa and George Soros are routinely and falsely blamed for the all the right wing whining:)

    Kyle Rittenhouse is in court today. A fledgling Proud Boy both Trump and Kristi support. Watch this space. Stand your ground (SYG) is BS! So is “registration and badging requirements for paid circulators.”

    You go Cory!

  2. SD is 20 per cent nonwhite 2021-03-10 12:14

    Being a circulator is a First Amendment right which should never be abridged.

    The Fascist Republican Party wants to kill Initiative and Referendum and the right of any adult to circulate a petition.

    It clear Insurrectionist Repub Governors reject our marijuana ethics initiatives that We the people approved.

    Wipe out fascism and Trumpism. Get the Republican Party below 2% in State elections, then their Party would not exist any more.

    End Plantation rule!

  3. SD is 20 per cent nonwhite 2021-03-10 12:18

    Future elections-

    2022 race for Governor.

    Democrats. 60%. Richard Kneip 1972 level
    Greens and Center Left Parties. 38%
    Republicans. 2%

    Under God The People Rule

  4. Mark Anderson 2021-03-10 17:06

    What I really wonder about the small red states is why they vote for people who don’t represent them at all. It must be a failure of communication.

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