Ballot Petition Circulators Win Injunction Against Maine

Maine’s law restricting who can circulate petitions for ballot initiatives violates the First Amendment, a federal judge ruled Tuesday.

Ballot boxes line the wall on the first floor of City Hall in Lewiston, Maine, Nov. 5, 2018. (Russ Dillingham/Sun Journal via AP)

(CN) — A federal judge in Maine Tuesday issued a preliminary injunction preventing the state from enforcing its law that allows only Maine residents and registered voters to circulate ballot initiative petitions.

The judge, however, effectively invited an appeal.

Maine state law requires that persons who circulate petitions seeking signatures for direct initiatives that propose state laws, or “people’s veto” of laws passed by the legislature, must be a resident of Maine and be a registered voter in the state.

We The People PAC, Republican state Representative Billy Bob Faulkingham, Liberty Initiative Fund, and Nicholas Kowalski filed a complaint in the U.S. District Court in Maine against Maine Secretary of State Shenna Bellow and Deputy Secretary of State of Maine Julie Flynn, arguing the residency and voter registration law violates the First Amendment.

U.S. District Judge John A. Woodcock Jr. agreed, and issued an injunction Tuesday enjoining the defendants from enforcing the state statute at issue.

“The Court has concluded that the plaintiffs are likely to succeed on the merits of their constitutional challenges to Maine’s residency and voter registration requirements,” Woodcock wrote. “The plaintiffs have shown a severe burden and are not required to further prove that it is impossible to gather enough signatures under the current law.”

Still, the judge concluded his 76-page order with what appears to be an invitation to an appeal.

“Abraham Lincoln reportedly said that judges are entitled to respect because they have the responsibility to make the ‘last guess’,” Woodcock wrote. “Here, the court’s last guess is also its best judgment. Fortunately, under the federal judicial system, a trial judge’s ruling may not be the last guess and in a case of this significance, and the court hopes and anticipates that its ruling will be subject to appellate review.”

The plaintiffs in this case are circulating petitions for a direct legislative initiative that would prohibit anyone who is not a citizen of the U.S. from voting in any election held within the state of Maine. Although non-citizens are not allowed to vote, the plaintiffs allege that some states have “opened up their electoral process to illegal aliens, permitting them to cast ballots in local elections” and “We The People PAC’s referendum seeks to prevent that trend from making its way to the State of Maine.”

They are seeking to use out-of-state petition “circulators” to help gather the number of signatures needed to get the required number of signatures – or at least 10% of the total vote for governor in the last election – in order to force the legislature to act or, failing that, to get the question on a general election ballot. The out-of-state circulators are paid for each valid signature collected.

In the plaintiffs’ current campaign, 49 professional out-of-state circulators collected 90% of the 38,000 signatures collected within the last year of the effort. “Only 3,800 signatures have been collected by the six Maine resident professional petition circulators, twenty-four volunteer and forty-two paid Maine resident circulators,” Woodcock Jr. wrote.

The Maine Secretary of State argued that the challenged statute is intended to protect the “initiative’s grassroots nature” and to limit fraud. The state argued that there are enough registered voters in the state to gather the required number of signatures without hiring non-residents from out of state to do the job.

But Woodcock said the requirement imposes a burden on the plaintiffs’ First Amendment rights. He cited the U.S. Supreme Court’s 1988 decision in Meyer v. Grant, in which the Supreme Court said that “the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech’,” and that the circulation of initiative petitions is “an area in which the importance of First Amendment protections is ‘at its zenith.’ ”

“By limiting the pool of available petition circulators to Maine residents, the challenged laws reduce the number of voices who can convey the plaintiffs’ message and make it less likely that their ballot will succeed,” the judge wrote. 

The Maine Secretary of State’s Office did not immediately respond to a request for comment Tuesday evening. 

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