Guide to a petition circulator's legal rights.

In a 6-3 decision, the U.S. Supreme Court affirmed a lower court ruling in Buckley v. American Constitutional Law Foundation, finding that certain disclosure and identification requirements for petition circulators inhibited political speech and violated the First Amendment.

Earlier this year, the U.S. Supreme Court gave a boost to initiative advocates and particularly to paid petition circulators, striking down three of Colorado's restrictions on the ballot-initiative process. In a 6-3 decision, the justices affirmed a lower court ruling in Buckley v. American Constitutional Law Foundation, finding that certain disclosure and identification requirements for circulators inhibited political speech and violated the First Amendment.

The court ruled that Colorado could not require petition circulators to wear name badges, be registered to vote, or report their addresses and the fees they were paid. Like other states concerned about the rapid surge of ballot-initiative proposals, Colorado had issued a series of restrictions on the referendum process designed to prevent fraud and corruption and limit the influence of out-of-state lobbying and petition-gathering firms. In 1988, the Supreme Court in Meyer v. Grant struck down Colorado's ban on paid circulators, claiming that law stymied "interactive communication concerning political change."

In 1993, the American Constitutional Law Foundation, a nonprofit public interest organization promoting referendum rights, challenged six additional restrictions on First Amendment grounds. By 1997, the controversy had reached the U.S. 10th Circuit Court of Appeals in Denver, which upheld three restrictions, and struck down all or parts of the other three.

The 10th Circuit Court allowed Colorado to require petition circulators to be 18 years old, to limit the petition circulation period to six months, and to require circulators to attach affidavits with their names and addresses to the petitions. These requirements were not argued before the Supreme Court. Colorado's secretary of state did ask the high court to review the voter-registration, name badge and disclosure requirements that were struck down by the Appellate Court.

In striking down Colorado's registered voter requirement, the U.S. Supreme Court claimed that the Colorado law would substantially reduce the number of persons able to spread a political message. In addition, it noted that many potential circulators refused to register to vote purely as a form of political thought, and should not be denied the right to express themselves through petitioning. Justice Ginsburg, delivering the majority opinion of the court, noted that since Colorado requires petitioners to be state residents and attach their addresses to the petition, the government had enough information to identify lawbreakers among petition circulators. Chief Justice Rehnquist, in a rare dissenting opinion, wrote, "State ballot initiatives are a matter of state concern, and a state should be able to limit the ability to circulate petitions to those who can ultimately vote on those initiatives at the polls." Justices O'Connor and Breyer joined in dissent, arguing that the registered voter requirement was, "vitally important to the integrity of the political process."

State Regulation of the Initiative Process

The following chart illustrates recent court actions regarding state
restrictions on the ballot-initiative process at issue in Buckley v.
American Constitutional Law Foundation.

STATE REQUIREMENTS
as defined in Buckley v. American              STRUCK
Constitutional Law Foundation                   DOWN      UPHELD

Age restrictions on circulators                              X

Time limits on circulation period                            X

Affidavits w/name and address
of circulator on petition                                    X

Monthly report with name of
proponents and ballot measure                                X

Disclose amount paid per signature                           X

ID badges w/ "paid" or "volunteer"                           X

ID badges with name and phone
number of employer if "paid"                                 X

ID badges with names                              X

Circulators must be registered
voters of the state                               X

Disclose name, address and county
of voter registration of circulators              X

Monthly reports w/ circulators
name and address                                  X

Monthly reports w/ money paid
and owed to circulators                           X

Eight of the nine Supreme Court justices (Rehnquist dissenting) agreed that Colorado could not require circulators to wear name badges while petitioning. The American Constitutional Law Foundation argued that compelling circulators to identify themselves needlessly discourages citizens from participating in the process.

The Court noted that the state could identify inappropriate or illegal behavior by referring to the names and addresses in the affidavit required on each petition section. Name badges, however, the Supreme Court held, "force circulators to reveal their identities at the same time they deliver their political message" and may subject the messenger to an "intense, emotional and unreasoned" reaction. The court cited testimony from Paul Grant, a veteran petition organizer who said the name badge requirement "very definitely limited the number of people willing to work for us and the degree to which those who were willing to work would go out in public."

The Supreme Court offered no opinion on a Colorado requirement that petitioners state on their badges their status as "Volunteer" or "Paid." "Paid" badges were required to include the name and telephone number of the employer. Since this clause was not addressed in the earlier ruling, the court let this requirement stand for now, but expressly stated its uncertainty as to whether the clause "would pass constitutional muster standing alone."

The most complex ruling in the case concerned Colorado's disclosure requirement. The court struck down the state's requirement that initiative proponents provide, when they file their petitions, the name, address and county of voter registration of all paid circulators; but allowed the state to require disclosure of the amount of money paid per signature. Colorado had originally required proponents to file a detailed monthly report including the names of the proponents and the measure they were supporting, the name and address of each paid circulator, and the amount of money paid and owed to each. The court disallowed this monthly disclosure requirement, holding that only the proponent's names and the name of the ballot measure could be required to appear in a monthly report.

Noting the landmark 1976 campaign finance case Buckley v. Valeo, the Supreme Court reiterated that "exacting scrutiny" is demanded for disclosure of payment for political speech. The court felt that requiring personal information and fee disclosure from each circulator forced them to "surrender the anonymity enjoyed by their volunteer counterparts" and deterred their participation in the process. Colorado argued vigorously in favor of the disclosure requirements, stating as its justification, "There are increasingly more initiatives that are the product of large monied interests" and "Today the initiative and referendum process is dominated by money and professional firms." The court's majority opinion stated that disclosure of the names and spending patterns of initiative sponsors - not circulators - would appropriately respond to this state interest. However, all three dissenters, Connor, Rehnquist and Breyer, agreed with Colorado that disclosure requirements for circulators were legitimate in "... combating fraud and providing the public with information."

Unfortunately for referendum specialists seeking clarity on the permissibility of future restrictions, the court remains divided on the standards that should be used to judge constitutionality. The justices did not split on traditional liberal-conservative lines. Chief Justice Rehnquist decried the decision as "threaten(ing) to invalidate a whole host of historically established state regulations of the electoral process in general." Justice Thomas, a fellow conservative, took the opposing viewpoint, arguing that every one of Colorado's regulations were impermissible as they failed to meet the "strict scrutiny" standard for political speech. Justice Ginsburg stated clearly in the majority opinion that no simple guidelines exist for determining the constitutionality of a ballot-initiative regulation. "No litmus-paper test will separate valid provisions...from invalid...restrictions," she warned, inviting further debate on the specifics. "The First Amendment requires vigilance in making those judgements."

The decision is sure to have immediate ramifications for state regulators and ballot-initiative circulators, particularly professional petition and signature gathering firms in the 24 states that allow referendums. In addition to Colorado, 14 states and the District of Columbia require circulators be registered voters. Four others require them to wear identification. These states will have to immediately repeal or end enforcement of the statutes the court has ruled unconstitutional.

Colorado has a complex code of regulations governing ballot initiatives, and will likely drop only the requirements mandated by the court. Dave Kopel, research director at the conservative Independence Institute in Denver, noted that any state government sets requirements that appear to conflict with the ruling will be immediately challenged and liable for substantial court costs under federal civil rights protections embodied in Section 1983 of the U.S. Code.

The decision may also give a boost to organizations fighting for broader petition rights on free speech grounds. Patrick O'Brien, chief counsel for Frontiers of Freedom, a conservative think tank supporting referendum rights added, "The decision has implications for state and local officials nationwide. It puts them on notice that they will be put under a microscope if they interfere with the democratic process." The Committee to Stop the Giveaway, a San Francisco organization that opposed construction of a San Francisco 49ers football stadium, plans to use the Supreme Court's language in an ongoing legal battle over freedom of speech in referendum cases. A local judge ruled that the group's signatures were inadmissible because of language on the petition that he found misleading. Chuck Bell, a lead attorney on this case said Buckley, "makes clear in a more direct way that ballot measure activity is a pre-eminent speech right" and that "there is no compelling governmental interest in arbitrarily limiting petition gathering activity." Doug Comstock, treasurer of Committee to Stop the Giveaway, said he was "heartened by the language of the court, which put the inviolability of petition rights on top of the free speech ladder. We felt we had been losing ground in previous years."

Galen Nelson of the progressive Ballot Initiative Strategy Center had a different take on the decision, "Although the high court correctly struck down Colorado's burdensome petitioning regulations, the case sheds much-needed light on the state's legitimate concern that 'more initiatives' ... are the product of large monied interests.'" He urged communities to, "be suspect of right-wing organizations that praise this ruling and pose as fair-weather friends of the First Amendment. The current, corrupt system allows national right-wing groups to dump largely unregulated, out-of-state money into states with hotly contested electoral races - affecting both initiative and candidate races with conservative voter GOTV efforts, for example." "The challenge for progressives," he added, "is to fashion constitutional remedies to address the corrosive effects that corporate and monied interests play in the initiative process and return the process to ordinary Americans."

Dane Waters of the Initiative and Referendum Institute, which supports easier public access to ballot measures, warned also of a backlash by state legislatures reacting to the decision. "It's important to realize how upset the legislatures are about this decision. Most that I have talked to are going to do everything they can to make petitioning more difficult. They are looking at adding restrictions like residency requirements to curtail the process. They are not going to sit by and let this slide." Waters viewed the case as a Pyrrhic victory for petition firms, "It will be easier for them to get measures on the ballot for now, because they will have a larger pool of circulators to choose from, but this decision may be adverse in the long term. Legislators have been infuriated by the process and this decision, and you will see them throwing up significant hurdles in the near future." Waters noted that officials in California, Maine and Washington have already reacted with hostility toward the decision.

Maine Secretary of State Dan Gwadosky will continue a legal right to keep the state's registered voter requirement, which is part of the state Constitution. John Michael, a former state representative and petition organizer noted that, in addition to defying the Supreme Court's ruling, Maine is attempting to increase the signature requirement permanently and categorize circulators as employees rather than independent contractors, which would greatly increase the costs of signature gathering. Bill Jones, California's secretary of state, called a press conference immediately after the Supreme Court decision and denounced its implications. Legislators in Washington state are advancing a distribution requirement that would require a large amount of petition signatures to be gathered from every congressional district. Several other states are considering adding a requirement that circulators be residents of the state, a restriction which was not contested in Buckley.

Rick Arnold of National Voter Outreach, a signature-gathering firm which submitted an amicus brief in Buckley, agreed that the state legislatures will try to sidestep the court's decision, but argued that additional restrictions will only drum up more business for circulation companies. "If they want to eliminate professional firms, they should make it easier for people to get issues on the ballot by themselves. As it stands now, we are the only ones who can figure out how to comply with all these restrictions. The regulators say they are targeting the circulation firms, but their real agenda is to halt the referendum process as a whole." Arnold also noted that the several state attorneys general encouraged the Supreme Court to reconsider permitting a ban on paid circulators, a request which the high court rebuffed.

Clearly the battle over petition rights is far from over. The court's decision in Buckley v. ACLF appears to have energized activists on both sides of the referendum debate. Although momentum appears to be on the side of initiative advocates, the court has yet to take a position on several restrictions being enforced or proposed by state legislators. Firms and activists with an interest in the initiative process should carefully monitor legislative and judicial activity in the states if they wish to remain ahead of the curve.

Earl Bender and Sean Tenner are with Avenel Associates, a Washington, DC-based full-service political consulting firm that provides a wide range of political management and training services.