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Maine can’t stop out-of-staters from collecting ballot petition signatures

The state’s requirement that only Mainers can collect support for ballot initiatives likely violates free speech rights, an appeals panel found.

BOSTON (CN) — Maine’s requirement that only people who live in the state and are registered to vote there can collect signatures for ballot initiatives likely infringes on the First Amendment, the First Circuit said Thursday in upholding a preliminary injunction.

The state law severely limits Mainers’ ability to put referenda on the ballot, given that there are apparently only six professional petition circulators in the entire state, the Boston-based appeals court said.

The statute prevents citizens who want to propose a law “from reaching into a pool of more than 250 million people of voting age to assist in the collection of signatures — and to engage in the face-to-face, interactive communication designed to bring about political change that accompanies that collection of signatures — that the Supreme Court has deemed core political speech,” Chief U.S. Circuit Judge David Barron wrote in a 63-page opinion.

The First Amendment likely doesn’t allow a state law that so "drastically reduces the number of persons, both volunteer and paid, available to circulate petitions," Barron, an Obama appointee, asserted.

The ruling is a win for the We the People PAC, which has been promoting a ballot initiative to prohibit anyone who is not a U.S. citizen from voting in any Maine election. Although Maine already bars non-citizens from voting, the PAC claims that some other states have “opened up their electoral process to illegal aliens” and the goal of the referendum is to “prevent that trend from making its way to the state of Maine,” according to a lower court ruling that granted the preliminary injunction.

To get the measure on the ballot, the PAC needed about 63,000 signatures, and its initial effort in 2019 resulted in only 2,000 signatures. The PAC tried again the following year, this time bringing in 49 professional out-of-state circulators and pairing them with registered voters; this new method produced some 38,000 signatures. The PAC thinks it could do even better if it didn’t have to laboriously pair out-of-staters with local residents.

The First Circuit said a preliminary injunction was appropriate because the PAC was likely to succeed on the merits and it would suffer irreparable harm if it couldn’t use the circulators it wanted.

The state argued that its requirements were necessary to keep its politics focused on the “grassroots” by “limiting participation in its political process to its residents." But the court said that Maine politics was already limited to Mainers because only Maine residents can sign a petition or vote on a ballot referendum.

The state also argued that the law was necessary to prevent fraud because it’s easier for state officials to contact a Maine resident if they have questions about the validity of a petition. But the court said this argument made no sense “in this day and age” since the state could simply require out-of-state circulators to provide updated contact information.

Finally, the state claimed that while there are only a handful of professional petition circulators in Maine, "there are likely thousands" of Mainers who would be willing to take on petition circulation as a side gig to make extra money. But Barron was unimpressed.

 “The relevant question,” he wrote, “is not how many Maine residents might be willing to circulate a petition if paid to do so. The relevant question is whether the residency requirement excludes from the pool of potential circulators a sufficiently significant number of individuals — including professional circulators that could enhance the reach of the campaign — who may reside outside of Maine.”

"The First Amendment," Barron said, “protects the proponents' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing."

Barron was joined on the unanimous panel by U.S. Circuit Judge William Kayatta Jr., an Obama appointee, and U.S. District Judge Patti Saris, a Clinton appointee sitting by designation from the District of Massachusetts.

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