BOSTON (CN) — The First Circuit was skeptical Tuesday of a provision in the Maine Constitution that says people who gather signatures for ballot initiatives must be Maine residents who are registered to vote there.
Attorneys for the state came to the oral arguments in Boston this morning prepared to claim that its requirement didn’t violate the First Amendment rights of a political action committee that supported a ballot question. But the judges surprised everyone by focusing instead on the First Amendment rights of individual er non-Mainers who want to “carpetbag” into the state and make money by collecting signatures.
“There’s no reason why First Amendment rights only belong to Mainers,” said U.S. Circuit Court Judge David Barron. “What’s wrong with thinking about it that way? It’s the right to participate in the election.”
“It’s the right of the campaign,” insisted Maine Assistant Attorney General Jason Anton.
“Why isn’t it the right of the individual circulator?” Barron shot back. “I thought it was the First Amendment right of all citizens. I can speak in Massachusetts even if I’m not a citizen. Are you saying out-of-staters have no First Amendment rights?”
“I’m saying it’s not a severe burden,” Anton answered. “States have considerable leeway to regulate out-of-state participation in their elections.”
But U.S. Circuit Court Judge William Kayatta piled on. “Can people in Massachusetts write letters and urge Mainers to vote a certain way?”
“Yes,” said Anton.
But “circulating a petition is core political speech” as well, Kayatta said.
And U.S. District Court Judge Patti Saris, sitting by designation, added that “it doesn’t seem under the trend of the case law that it’s that hard a burden to find in favor of the circulators.”
The case was brought by the political action committee We the People, which wants to use out-of-state signature collectors to gather enough names to put a question on the ballot. Such grassroots-level initiatives are a mainstay of Maine politics, with 11 such questions having been put before Maine voters in just the last five years.
We the People’s lawsuit represents a significant irony in that the particular initiative the group wants to promote would ban nonresidents from voting in Maine — and yet the group wants to push the question forward with the help of people who aren’t Maine citizens.
A lower court granted a preliminary injunction in favor of We the People in February.
The Supreme Court has never addressed this precise question, although in 1988 it said that the circulation of initiative petitions is “an area in which the importance of First Amendment protections is at its zenith.”
Residency requirements for petition circulators have been struck down by the Third, Fourth, Sixth, Seventh, Ninth and 10th Circuits. Only the Eighth Circuit has disagreed.
According to We the People, there are only six professional petition circulators in Maine, whereas there are 135 out-of-state groups that are willing to travel to Maine to work.
Matthew Dunlap, a former Maine secretary of state, commented that circulating a petition is specialized work that not everyone can do.
It’s “very difficult to get volunteers to really engage with people and get them to sign petitions,” Dunlap explained. “Socially it’s not normal to walk up to perfect strangers and say, ‘Excuse me, are you a registered voter, would you like to sign this petition?’”
It takes “a particular type of personality to be able to do this,” Dunlap said.
In the lower court, Maine officials claimed the rule should be upheld to prevent fraud and protect “the initiative’s grassroots nature.”
But the lower court commented that “simply because a circulator is a Maine resident does not mean they will be less likely to commit fraud.” It also said that initiatives would still have a grassroots nature because, “regardless of who circulates the petition, the petitions must be signed by Maine citizens and approved by Maine voters.”
But Barron, who like Kayatta was appointed by President Obama, kept returning to the rights of non-Mainers. Under the provision here, “you can’t speak at all unless you move to Maine,” he complained.
Anton’s response was that out-of-staters could still come to Maine and urge people to sign a petition. They just have to be accompanied by a Mainer who will hold the petition, ask for a signature and witness that the signer is qualified.
But that’s a severe burden, argued We the People’s attorney, Paul Rossi of IMPG Advocates in Mountville, Pennsylvania.
“An out-of-state circulator can’t work unless there’s an in-state witness available, and they can only go where the witness is willing to go and they’ll get paid less because they’re slowed down,” Rossi said.
“Circulators can’t hold the petition and make the ask, and that’s their whole skill set,” Rossi noted. He said the Maine rule was “the most severe restriction in the U.S.” and “complete hogwash.”
Saris, a Clinton appointee, added that it wasn’t clear to her under the law that out-of-staters could advocate even if they were accompanied by an in-state witness.
Although the court seemed to lean toward We the People, it could still punt the case on the grounds that We the People hadn’t shown sufficient harm in this specific situation. The preliminary injunction wasn’t issued until the last day allowed for collecting signatures, and We the People hasn’t taken formal steps to try again in the next election cycle.
The court spent considerable time trying to decide if it should make a constitutional ruling or simply vacate the injunction and have the lower court decide the issue in the first instance.
Rossi told the court that upholding the injunction was “absolutely necessary” for We the People to renew the initiative. “If this injunction is in place, they can pull the trigger,” he said. “Without it, they can’t get on the ballot in 2022.”
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