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Ninth Circuit Overturns Montana Residency Requirement for Ballot Question Petition Circulators—Help for League of Women Voters’ South Dakota Lawsuit?

The League of Women Voters is challenging South Dakota’s residency requirement for ballot question petition circulators in court. Their case just got some support from a different federal jurisdiction.

On Wednesday, the Ninth Circuit Court of Appeals overturned a Montana law that requires petition circulators to be Montana residents. Writing for the panel in Pierce v. Jacobsen, Judge John R. Tunheim notes (with citations that I omit here) the well-established principle that circulating petitions is “core political speech” protected by the First Amendment. States may restrict core political speech to “protect the integrity and reliability of the initiative process, as they have with respect to election processes generally,” but states must narrowly tailor those restrictions to protect a compelling state interest.

The Ninth Circuit says (and this should sound familiar) that a state cannot bar non-residents from engaging in core political speech:

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.… 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 [Judge John R. Tunheim, opinion, Pierce v. Jacobsen, Ninth Circuit Court of Appeals, 2022.08.10, p. 11].

Montana premised its residency requirement on the contention that non-resident circulators were responsible for fraud and thus needed to be banned from gathering petition signatures. The Ninth Circuit disagreed, saying that state can check fraud by requiring out-of-state circulators to submit to the jurisdiction of Montana election laws rather than issuing a blanket ban on every non-resident’s participation in petition drives. The court also rejected as baseless Montana’s argument that out-of-state circulators somehow prevent Montana residents from governing themselves.

Tunheim writes that overturning this Montana residency requirement for initiative petition circulators is consistent with the Ninth Circuit’s 2008 overruling of Arizona’s residency requirement for candidate petition circulators as well as the principles of the U.S. Supreme Court’s Buckley 1999 ruling, which figures centrally in the League of Women Voters’ South Dakota lawsuit. Tunheim footnotes that the Third, Fourth, Sixth, Seventh, and Tenth Circuits have all rejected similar residency requirements for petition circulators. Only the Eighth Circuit has held otherwise… and unfortunately, South Dakota is in the Eighth Circuit. The League of Women Voters may thus want to cite this case in their argument before the U.S. District Court of South Dakota, as well a supportive ruling from the U.S. District Court of Maine last year related to circulator residency, but rulings from other circuits are not binding on the Eighth Circuit.

In this same ruling, the Ninth Circuit does uphold Montana’s restriction on paying circulators per signature. The court agrees with the state that pay per signature can motivate petition fraud—knowing they can get a certain amount of cash for each signature can lead honyockers to forge signatures. The court says the plaintiffs failed to provide evidence that restricting this one payment method, while still allowing a range of other schemes for paying circulators, significantly burdens the ability to collect signatures. South Dakota has a similar prohibition against paying circulators per signatures.



  1. Bob Newland 2022-08-12 17:33

    Barring non-residents from circulating a statewide (or even more-specific) ballot question petition is obviously overly-restrictive. It was an issue in the Meade County cannabis dispensary petition I was involved with in May and June.

    The restriction on paying circulators for showing evidence of circulation is pure loonytunes. There is no way to pay petition circulators without violation of the law. If the law is strictly-enforced, it is impossible to pay circulators to circulate a petition.

  2. Donald Pay 2022-08-12 21:33

    If you can’t organize South Dakotans and get enough interest for them to circulate for free, I’m not sure you have any business being involved in the initiative process. All the money and all the out-of-state circulators do is corrupt the system as badly as the South Dakota Legislative and Executive Branches have been corrupted since at least the 1980s. I do understand the initiative process has been corrupted by the Legislature since the time I participated in it during the 1980s and 1990s. I do understand, also, the federal courts have taken it upon themselves to violate the 10th Amendment, repeatedly on these matters.

    I see a way out, but it requires trusting the people of South Dakota by encouraging, rather than discouraging, the initiative process by grassroots groups who don’t use out-of-state and paid circulators. I have some ideas. Of course, the first is to vastly decrease the up-front bureaucracy.

  3. Bob Newland 2022-08-12 22:06

    I agree, Don. An initiative worth initiating should not need paid circulators. 20 years ago, the cannabis initiatives, some of which I organized and managed, in which I was involved got by on very little paid circulation. Then, along came G. Marky Mickelson, and the game was closed to any but well-financed players.

    I’m all for vastly decreasing the up-front bureaucracy.

  4. grudznick 2022-08-13 08:55

    The cops need to start enforcing the laws against the blaggards out there cooking up fake names to get measures, especially the heinous ones, initiated.

  5. larry kurtz 2022-08-13 09:07

    We all know cops’ lives suck because they reliably abuse the rule of law, their families, alcohol, drugs, food, power, detainees and occasionally murder their wives; but police unions are showered with cash while teachers’ unions get the shaft.

  6. Donald Pay 2022-08-13 09:09

    Grudz, do you have any evidence, or is that comment just your normal morning dump?

  7. Cory Allen Heidelberger Post author | 2022-08-14 13:10

    Donald, I see merit to your point: if the local grassroots lack the enthusiasm to put a measure on the ballot, maybe it shouldn’t be on the ballot. But if we are going to look for ways to prioritize grassroots petitioning over paid non-resident petitioning, we have to do it in a way the conforms with the First Amendment. The Ninth Circuit (and darned near every Circuit but ours, the Eighth, is saying we can’t legally bar non-residents from engaging in this core political speech. Is there any legal solution to the problem of big money corrupting the process and crowding out grassroots action that doesn’t infringe on non-residents’ First Amendment rights?

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