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.