United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 21-1149
`
`WE THE PEOPLE PAC; BILLY BOB FAULKINGHAM, State Representative;
`LIBERTY INITIATIVE FUND; NICHOLAS KOWALSKI,
`
`Plaintiffs, Appellees,
`
`v.
`
`SHENNA BELLOWS,* in her official capacity as the Secretary of
`State of Maine, JULIE FLYNN, in her official capacity as the
`Deputy Secretary of State of Maine for the Bureau of
`Corporations, Elections and Commissions,
`
`Defendants, Appellants.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
`
`[Hon. John A. Woodcock, Jr., U.S. District Judge]
`
`
`
`Before
`
`Barron, Chief Judge,
`Kayatta, Circuit Judge,
`and Saris,** District Judge.
`
`
`Jason Anton, Assistant Attorney General, with whom Aaron
`M. Frey, Attorney General, Thomas A. Knowlton, Deputy Attorney
`General, and Jonathan Bolton, Assistant Attorney General, were on
`
`
`* Pursuant
`Appellate
`of
`Rule
`Federal
`to
`Procedure 43(c)(2), Shenna Bellows was substituted for Matthew
`Dunlap on February 23, 2021.
`
`** Of the United States District Court for the District
`of Massachusetts, sitting by designation.
`
`
`
`
`For the First Circuit
`
`
`
`
`No. 21-1149
`
`WE THE PEOPLE PAC; BILLY BOB FAULKINGHAM, State Representative;
`LIBERTY INITIATIVE FUND; NICHOLAS KOWALSKI,
`
`Plaintiffs, Appellees,
`
`v.
`
`SHENNA BELLOWS,* in her official capacity as the Secretary of
`State of Maine, JULIE FLYNN, in her official capacity as the
`Deputy Secretary of State of Maine for the Bureau of
`Corporations, Elections and Commissions,
`
`Defendants, Appellants.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
`
`[Hon. John A. Woodcock, Jr., U.S. District Judge]
`
`
`
`Before
`
`Barron, Chief Judge,
`Kayatta, Circuit Judge,
`and Saris,** District Judge.
`
`
`Jason Anton, Assistant Attorney General, with whom Aaron
`M. Frey, Attorney General, Thomas A. Knowlton, Deputy Attorney
`General, and Jonathan Bolton, Assistant Attorney General, were on
`
`
`* Pursuant
`Appellate
`of
`Rule
`Federal
`to
`Procedure 43(c)(2), Shenna Bellows was substituted for Matthew
`Dunlap on February 23, 2021.
`
`** Of the United States District Court for the District
`of Massachusetts, sitting by designation.
`
`
`
`
`
`brief, for appellants.
`Paul A. Rossi, with whom IMPG Advocates was on brief,
`for appellees.
`
`
`
`July 7, 2022
`
`
`
`
`
`
`
`BARRON, Chief Judge. Maine allows for direct popular
`
`participation in the state's lawmaking process through two
`
`distinct means: a "people's veto," as it is commonly known, and
`
`a "direct initiative." Me. Const. art. IV, pt. 3, §§ 17-18. To
`
`place either type of measure on the state ballot, a "written
`
`petition" that contains a minimum number of signatures from those
`
`who are "qualified to vote for Governor" in Maine must be filed
`
`with the Secretary of State of Maine. Id. § 20.
`
`Maine law refers to a person who "solicits signatures
`
`for the petition by presenting the petition to the voter, asking
`
`the voter to sign the petition and personally witnessing the voter
`
`affixing the voter's signature to the petition" as a "circulator."
`
`Me. Stat. tit. 21-A, § 903-A. Maine law further provides that the
`
`"circulator" must be a Maine resident who is also registered to
`
`vote in Maine. Id.
`
`This appeal arises from a suit that challenges both the
`
`residency and the voter-registration requirements. The suit
`
`alleges that each requirement, by restricting who may be a
`
`circulator, violates the First Amendment to the United States
`
`Constitution as incorporated against the states by the Due Process
`
`Clause of the Fourteenth Amendment. See Grosjean v. Am. Press
`
`Co., 297 U.S. 233, 245 (1936).
`
`
`
`- 3 -
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`
`
`The suit was brought in 2020 in the United States
`
`District Court for the District of Maine by a nonprofit
`
`organization, a political action committee, a Maine State
`
`Representative, and a professional collector of signatures for
`
`petitions who resides in Michigan. The plaintiffs named as the
`
`defendants the Secretary of State of Maine in his official capacity
`
`and the Deputy Secretary of State of Maine for the Bureau of
`
`Corporations in hers.
`
`On the same day that the plaintiffs filed their suit,
`
`they also moved for a temporary restraining order and/or a
`
`preliminary injunction to prevent the residency requirement and
`
`the voter-registration requirement from being enforced. The
`
`District Court denied the request for the temporary restraining
`
`order but ultimately granted the motion for the preliminary
`
`injunction. The defendants now appeal from that latter ruling.
`
`We affirm.
`
`I.
`
`A.
`
`The portions of the Maine Constitution that pertain to
`
`the "people's veto" provide that "[t]he effect of any Act, bill,
`
`resolve or resolution or part or parts thereof" that the Maine
`
`Legislature passes "shall be suspended upon the filing" of a
`
`"written petition," and that the measure thereafter must be "voted
`
`
`
`- 4 -
`
`
`
`on by the people." Me. Const. art. IV, pt. 3, § 17 (emphasis
`
`added); see also Me. Senate v. Sec'y of State, 183 A.3d 749, 753
`
`(Me. 2018) (describing the "people's veto"). The portions of the
`
`Maine Constitution that pertain to "direct initiative[s]" state
`
`that "[t]he electors may propose to the Legislature for its
`
`consideration any bill, resolve or resolution," though "not an
`
`amendment of the State Constitution, by written petition." Me.
`
`Const. art. IV, pt. 3, § 18(1) (emphasis added). These provisions
`
`also state that, unless the proposed direct initiative is "enacted
`
`without change by the Legislature," it must be "submitted to the
`
`electors together with any amended form, substitute, or
`
`recommendation of the Legislature," who then may "choose between
`
`the competing measures or reject both." Id. § 18(2).
`
`Under the Maine Constitution, the "written petition"
`
`referred to in the provisions quoted above must contain a specified
`
`number of valid signatures of eligible Maine voters and be filed
`
`with the Maine Secretary of State ("the Secretary"). The total
`
`number of signatures "shall not be less than 10% of the total vote
`
`for Governor cast in the last gubernatorial election." Id.
`
`§§ 17(1), 18(2).
`
`The Maine Constitution defines a "circulator" as "a
`
`person who solicits signatures for written petitions." Id. § 20.
`
`It states that a circulator "must be a resident of [Maine] and
`
`
`
`- 5 -
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`
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`whose name must appear on the voting list of the city, town or
`
`plantation of the circulator's residence as qualified to vote for
`
`Governor." Id. A Maine statute provides that the "written
`
`petition" referenced in these provisions of the Maine Constitution
`
`"may be circulated by any Maine resident who is a registered voter
`
`acting as a circulator of" such a petition. Me. Stat. tit. 21-A,
`
`§ 903-A.
`
`At the time that the written petition is filed with the
`
`Secretary, the circulator "must sign the petition." Id. § 902.
`
`The circulator also must "verify by oath or affirmation" that she
`
`"personally witnessed all of the signatures" collected "and that
`
`to the best of the circulator's knowledge and belief each signature
`
`is the signature of the person whose name it purports to be." Id.
`
`The circulator must file alongside the written petition
`
`an executed affidavit that includes "[t]he circulator's printed
`
`name, the physical address at which the circulator resides and the
`
`date the circulator signed the affidavit." Id. § 903-A(4)(A).
`
`The affidavit must include attestations that "the circulator was
`
`a resident of [Maine] and a registered voter in [Maine] at the
`
`time of circulating the petition." Id. § 903-A(4)(C). If the
`
`circulator "[k]nowingly fails to truthfully execute and timely
`
`file" an affidavit, that individual "commits a Class E crime."
`
`Id. § 904(6).
`
`
`
`- 6 -
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`
`
`The Secretary must "determine the validity of the
`
`petition . . . within 30 days from the date" that the petition is
`
`filed with her. Id. § 905(1). In undertaking that review, the
`
`Secretary may invalidate signatures that are obtained from
`
`individuals who are not residents of Maine or that are collected
`
`by circulators who were not in compliance with the residency and
`
`voter-registration requirements. See, e.g., Hart v. Sec'y of
`
`State, 715 A.2d 165, 166 (Me. 1998); Jones v. Sec'y of State, 238
`
`A.3d 982, 985 (Me. 2020).
`
`Additional provisions of the Maine Constitution concern
`
`the duration of the petition circulation process. See Me. Const.
`
`art. IV, pt. 3, §§ 17(1), 18(1). They require that the requisite
`
`number of signatures for a written petition must be secured within
`
`a specified period after the circulation process begins for a
`
`direct initiative petition, and after the legislative session at
`
`which the challenged action occurred for a people's veto petition.
`
`Id.
`
`B.
`
`Except where noted otherwise, the following facts are
`
`not in dispute in this appeal. In 2019, the We the People PAC
`
`("We the People"), a political action committee registered in the
`
`State of Maine, and state Representative Billy Bob Faulkingham,
`
`who represents the 136th district in the Maine State House of
`
`
`
`- 7 -
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`
`
`Representatives and is a member of We the People, sought to
`
`sponsor, and also circulated a petition in support of, a direct
`
`initiative entitled, "An Act to Clarify the Eligibility of Voters."
`
`The proposed direct initiative sought to "force the state
`
`legislature to adopt verbatim [a] proposed ban on all non-citizen
`
`voting in the State of Maine or place the question on the next
`
`general election ballot . . . to be decided by the voters of
`
`Maine."1
`
`For the initiative to be placed on the ballot, the
`
`Secretary first must "furnish[]" or "approve[]" a "form[]" that is
`
`then circulated for signatures by qualified voters. Me. Const.
`
`art. IV, pt. 3, § 20. This form, once approved, is the "written
`
`petition." See id.
`
`Maine law provides, however, that "the written petition"
`
`for a direct initiative "may not be filed in the office of the
`
`Secretary of State later than 18 months after the date the petition
`
`form was furnished or approved by the Secretary of State." Id.
`
`§ 18(1). Maine law further provides that only those signatures
`
`collected within the year leading up to the date on which the
`
`
`1 Maine law already limits the franchise in state and
`local elections to United States citizens who are or will be at
`least eighteen years of age at the time of the upcoming general
`election. Me. Const. art. II, § 1; Me. Stat. tit. 21-A, §§ 111(1),
`111-A. The proposed initiative would have "amend[ed] the voter
`qualification statute to emphasize" these requirements to be a
`voter "in an election in a municipality."
`
`
`
`- 8 -
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`
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`petition is filed with the Secretary count as valid. See Id.
`
`§ 18(2) ("A signature is not valid if it is dated more than one
`
`year prior to the date that the petition was filed in the office
`
`of the Secretary of State."). Moreover, Maine law provides that
`
`the signed petition must be filed with municipal authorities or
`
`state election officials "for determination of whether the"
`
`signatures are of "qualified voters" by the tenth day before the
`
`signed petition is filed with the Secretary. Id. § 20.
`
`In light of these provisions, the proponents, to have
`
`placed their proposed direct initiative on the November 2020 ballot
`
`would have to have filed their signed petition with the Secretary
`
`by February 3, 2020 (and for municipal or election official
`
`certification ten days before that); to have placed their proposed
`
`direct initiative on the November 2021 ballot, the proponents would
`
`have to have filed their signed petition with the Secretary by
`
`January 21, 2021 (and for municipal or election official
`
`certification ten days before that); and to have placed their
`
`proposed direct initiative on the November 2022 ballot, the
`
`proponents would have to have filed their signed petition with the
`
`Secretary by February 26, 2021 (and for municipal or election
`
`official certification ten days before that). See id. §§ 18, 20.
`
`To file a petition after February 26, 2021, its supporters would
`
`have had to apply to the Secretary for a new petition form, which,
`
`
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`- 9 -
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`
`
`once approved, would have restarted their eighteen-month approval
`
`clock. See id. § 20. They then could have collected signatures
`
`on that form and would have had to have filed a signed petition by
`
`January 31, 2022 for placement of a proposed direct initiative on
`
`that same November 2022 ballot.
`
`Having obtained their approved petition form on
`
`August 26, 2019, the supporters of the initiative could begin
`
`gathering signatures. They claimed in an interrogatory response
`
`that they used only circulators who were Maine residents. The
`
`petition for the initiative would have needed a minimum of 63,067
`
`signatures to have been placed on the November 2020, 2021, or 2022
`
`ballots, given the number of votes cast in the prior gubernatorial
`
`election, which was held in 2018. See id. § 18(2).
`
`By October 16, 2019, only 2,000 people had signed the
`
`petition after it had been approved for circulation nearly two
`
`months before. The campaign to collect signatures then lay dormant
`
`for the following year.
`
`The plaintiffs resumed the petition drive in mid-
`
`October 2020, this time with the aid of not only Maine residents
`
`but also out-of-state residents who assisted in the process of
`
`securing signatures for the petition. The out-of-state residents
`
`worked with in-state "witnesses" but did not themselves purport to
`
`
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`- 10 -
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`
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`serve as circulators. Between mid-October 2020 and late January
`
`2021, 38,000 signatures for the petition were collected.
`
`C.
`
`The plaintiffs are We the People, Representative
`
`Faulkingham, and the Liberty Initiative Fund, a nonprofit
`
`organization that has been involved in petition circulation
`
`efforts, including the petition circulated for the direct
`
`initiative at issue here, as well as Nicholas Kowalski, a
`
`professional collector of signatures for petitions who resides in
`
`Michigan. The plaintiffs filed suit in the United States District
`
`Court for the District of Maine on December 31, 2020. They named
`
`as defendants then-Secretary of State Matthew Dunlap and Deputy
`
`Secretary of State for the Bureau of Corporations, Elections and
`
`Commissioners Julie Flynn, in their official capacities.2
`
`The plaintiffs brought claims under state and federal
`
`law, including under the First Amendment to the federal
`
`Constitution, that challenged both the residency and voter-
`
`registration requirements to be a circulator.3 The same day that
`
`
`2 On February 23, 2021, Dunlap was substituted by Shenna
`Bellows, the current Secretary of State of Maine.
`
`3 The plaintiffs' complaint also challenged other
`provisions of Maine law that impose certain disclosure
`
`
`
`
`
`
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`- 11 -
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`
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`the plaintiffs filed their suit, they also moved for a temporary
`
`restraining order and/or a preliminary injunction. The plaintiffs
`
`in so moving requested that the District Court enjoin the
`
`defendants from enforcing Maine Revised Statutes title 21-A,
`
`§ 903-A, "to the extent it requires that petitions for a direct
`
`initiative or people's veto may only be circulated by a registered
`
`voter of Maine" and "may only be circulated by a resident of the
`
`State of Maine, as applied to out-of-state circulators who first
`
`submit to the jurisdiction of the State of Maine for any
`
`investigation and/or prosecution of alleged violations of Maine's
`
`election code with respect to" direct initiative or people's veto
`
`petitions.
`
`The District Court denied the plaintiffs' application
`
`for a temporary restraining order on January 11, 2021. The
`
`District Court concluded that "[e]ven though the plaintiffs raised
`
`serious legal issues, because the caselaw in this area is nuanced,
`
`because the plaintiffs failed to provide a sufficient uncontested
`
`factual record, and because the plaintiffs delayed bringing this
`
`lawsuit, they failed to sustain their burden to demonstrate that
`
`
`requirements on circulators and proponents of direct initiative
`and people's veto petitions. Those requirements are not before us
`because the plaintiffs did not request that they be preliminarily
`enjoined in their motion for a temporary restraining order and/or
`preliminary injunction.
`
`
`
`- 12 -
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`
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`they [were] likely to succeed on the merits of th[e] claim." We
`
`the People PAC v. Bellows, 512 F. Supp. 3d 74, 77 (D. Me. 2021).
`
`Then, on February 16, 2021 -- the day by which the
`
`plaintiffs were required to submit their petition to local
`
`officials to have their proposed direct initiative placed on the
`
`November 2022 general election ballot -- the District Court ruled
`
`on the motion for the preliminary injunction. See We the People
`
`PAC v. Bellows, 519 F. Supp. 3d 13, 44 (D. Me. 2021). The District
`
`Court noted that, in light of the defendants' argument that the
`
`declarations that the plaintiffs had submitted in support of their
`
`motion for a preliminary injunction lacked foundation, it would
`
`"disregard[] any portions [of the declarations] that lack
`
`foundation or consist of improper opinion." Id. at 17 n.2. But,
`
`the District Court denied the defendants' additional objection to
`
`the plaintiffs' responses to the defendants' interrogatories that
`
`had been requested as part of the briefing on the motion for a
`
`preliminary injunction. Id.
`
`The defendants' objection rested on the contention that
`
`the plaintiffs' responses to the interrogatories were "extremely
`
`problematic" because they were "not attributed to particular"
`
`individuals, were "not sworn," were "filled with hearsay and
`
`argument," and were "not even signed by" every plaintiff. Id.
`
`The District Court explained, however, that the plaintiffs'
`
`
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`- 13 -
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`
`
`responses to the interrogatories had been signed by Representative
`
`Faulkingham and by Liberty Initiative Fund's president, on behalf
`
`of Liberty Initiative Fund, as well as by the plaintiffs' counsel.
`
`Id. The District Court then added that there is "no requirement
`
`that the interrogatory responses be signed by all the [p]laintiffs"
`
`and that the plaintiffs had "represented" in response to an earlier
`
`order of the District Court that they "w[ould] file sworn
`
`interrogatory responses, curing the oath defect 'no later than
`
`February 20, 2021.'" Id. (record citation omitted). The District
`
`Court then ruled, "[b]ased on the [p]laintiffs' representation,"
`
`that it "consider[ed] the [p]laintiffs' responses to the
`
`[d]efendants' interrogatories as sworn." Id.4
`
`Having made those rulings, the District Court assessed
`
`whether the plaintiffs had met their burden with respect to the
`
`
`4 The plaintiffs filed a sworn version of their
`interrogatory responses on February 19, 2021. The defendants
`nonetheless contend on appeal that the "sworn version of
`[p]laintiffs' interrogatories" "still exhibited one of the flaws
`identified by the Secretary, and one not addressed by the district
`court: they were not attributed to particular [p]laintiffs." But,
`Liberty Initiative Fund, as well as Representative Faulkingham, on
`behalf of himself and We the People, each separately signed and
`attested to "knowledge, information, and belief" concerning all of
`the plaintiffs' responses to the interrogatories. Moreover,
`Kowalski signed and attested to his knowledge concerning the
`plaintiffs' response to "Interrogatory #16, the only interrogatory
`response which requires [his] verification." We also see no basis
`for crediting the defendants' conclusory assertion in their
`briefing to us that "[n]ot every [p]laintiff can swear to the
`entire contents of [p]laintiffs' wide-ranging interrogatory
`responses." Thus, we consider the interrogatory responses here.
`
`
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`- 14 -
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`four factors that must be weighed to determine whether to grant a
`
`motion for a preliminary injunction. See id. at 37. Those factors
`
`include:
`
`the movant's likelihood of success on the
`merits; whether and to what extent the movant
`will suffer irreparable harm in the absence of
`preliminary injunctive relief; the balance of
`relative hardships, that is, the hardship to
`the nonmovant if enjoined as opposed to the
`hardship to the movant if no injunction
`issues; and the effect, if any, that either a
`preliminary injunction or the absence of one
`will have on the public interest.
`
`Ryan v. U.S. Immigr. & Customs Enf't, 974 F.3d 9, 18 (1st Cir.
`
`2020). The District Court ruled that, with the benefit of "a more
`
`substantial record including affidavits and declarations, as well
`
`as interrogatories and statements of facts," preliminary
`
`injunctive relief was appropriate. See We the People PAC, 519 F.
`
`Supp. 3d at 37, 53.
`
`The District Court determined that the plaintiffs
`
`established that they were likely to succeed in showing that the
`
`residency and voter-registration requirements were each subject to
`
`strict scrutiny because each requirement imposed a "severe burden"
`
`on the exercise of the plaintiffs' First Amendment rights. See
`
`id. at 39, 41, 46, 50-51. The District Court further determined
`
`that the plaintiffs established that they were likely to succeed
`
`in showing that neither the residency requirement nor the voter-
`
`registration requirement could survive such scrutiny because the
`
`
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`- 15 -
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`
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`defendants could not show that either requirement was narrowly
`
`tailored to serve a compelling state interest. Id. at 46-48, 51.
`
`The District Court next determined that the plaintiffs
`
`had demonstrated that they were likely to suffer irreparable harm
`
`absent a preliminary injunction. It noted that "even if the
`
`[p]laintiffs d[id] not meet the February 16, 2021 deadline, they"
`
`would be able to "renew their signature collection efforts to put
`
`their initiative on the 2022 ballot." Id. at 52. Thus, the
`
`District Court concluded that "while an injunction might make no
`
`real difference for the current petition drive, th[e plaintiffs]
`
`will continue to suffer harm in their next petition drive." Id.
`
`As to the effect of any injunction on the public
`
`interest, the District Court determined that while "the public has
`
`strong competing interests on both sides" of the dispute, it "has
`
`a greater interest in upholding its constitutionally protected
`
`freedom of speech" than it does in "regulati[ng] . . . referendum
`
`petitions and in protecting the integrity and grassroots nature of
`
`the direct initiative and people's veto power." Id. at 52.
`
`Finally, as to the "balance of equities," the District Court
`
`recognized that the plaintiffs had "contributed to the urgent
`
`nature of the preliminary injunction request" through "their
`
`delay" in filing their lawsuit, but ultimately found their
`
`"constitutional challenge both meritorious and important," such
`
`
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`- 16 -
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`
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`that the "balance of equities weigh[ed] in the [p]laintiffs'
`
`favor." Id. at 52-53.
`
`The District Court issued an order on February 16, 2021,
`
`that preliminarily enjoined Maine Revised Statutes title 21-A, §
`
`903-A "to the extent it requires that petitions for a direct
`
`initiative or people's veto may only be circulated by a registered
`
`voter of Maine" and "to the extent it requires" that such petitions
`
`"may only be circulated by a resident of the state of Maine, as
`
`applied to out-of-state circulators who first submit to the
`
`jurisdiction of the state of Maine for any investigation and/or
`
`prosecution of alleged violations of Maine's election code with
`
`respect to Referendum and/or People's Veto petitions filed with"
`
`the defendants. Id. In a separate oral order, the District Court
`
`stayed the plaintiffs' motion for a permanent injunction.
`
`The defendants filed an interlocutory appeal of the
`
`District Court's order issuing the preliminary injunction on
`
`February 22, 2021. We have jurisdiction under 28 U.S.C.
`
`§ 1292(a)(1). We review a district court's decision to issue a
`
`preliminary injunction for an abuse of discretion, examining its
`
`"findings of fact for clear error and its conclusions of law de
`
`novo." Comcast of Me./N.H., Inc. v. Mills, 988 F.3d 607, 611 (1st
`
`Cir. 2021).
`
`
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`- 17 -
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`II.
`
`Before diving into our analysis, it is first useful to
`
`review the only two precedents of the Supreme Court of the United
`
`States that address First Amendment challenges to a state's
`
`restriction on who may act as a "circulator" in the petition
`
`circulation process for a ballot initiative. The two precedents
`
`are Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. American
`
`Constitutional Law Foundation, Inc., 525 U.S. 182 (1999).
`
`A.
`
`In Meyer, the Court addressed a First Amendment
`
`challenge to a Colorado state law that prohibited the use of paid
`
`circulators. 486 U.S. at 417. The Court found merit to the
`
`challenge.
`
`In explaining why, the Court first determined that the
`
`prohibition implicated the First Amendment because it restricted
`
`"'core political speech.'" Id. at 422. The Court explained that
`
`the prohibition did so because "[t]he circulation of an initiative
`
`petition of necessity involves both the expression of a desire for
`
`political change and a discussion of the merits of the proposed
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`change." Id. at 421. Indeed, the Court elaborated, "to
`
`capture . . . signatures, [a circulator] will at least have to
`
`persuade [potential signatories] that the matter is one deserving
`
`
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`- 18 -
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`
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`of the public scrutiny and debate that would attend its
`
`consideration by the whole electorate." Id.
`
`The Court then addressed the nature of the burden on
`
`core political speech that Colorado's ban on paid circulators
`
`imposed. The Court determined that the ban "restrict[ed] [the
`
`initiative proponents'] political expression in two ways." Id.
`
`at 422. First, such a prohibition "limits the number of voices
`
`who will convey [the proponents'] message and the hours they can
`
`speak and, therefore, limits the size of the audience they can
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`reach." Id. at 422-23. Second, the prohibition "makes it less
`
`likely that [proponents] will garner the number of signatures
`
`necessary to place the matter on the ballot." Id. at 423. In
`
`consequence, the Court explained that a ban on paid circulators
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`"has the inevitable effect of reducing the total quantum of speech
`
`on a public issue." Id.
`
`The Court acknowledged that the plaintiffs in Meyer
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`"remain[ed] free to employ other means to disseminate their ideas."
`
`Id. at 424. But, the Court emphasized, that fact did not
`
`meaningfully diminish the burdensome nature of the ban's
`
`restriction on core political speech, because the "prohibition of
`
`paid petition circulators restrict[ed] access to the most
`
`effective, fundamental, and perhaps economical avenue of political
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`discourse, direct one-on-one communication." Id. "The First
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`
`
`- 19 -
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`
`
`Amendment," the Court explained, 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." Id.
`
`Based on this analysis of the burden that the ban imposed
`
`on core political speech, the Court determined that the ban had to
`
`survive "exacting scrutiny" to comport with the First Amendment.
`
`Id. at 420. The Court fleshed out the "exacting" nature of that
`
`scrutiny by observing that, because "the statute trenches upon an
`
`area in which the importance of First Amendment protections is at
`
`its zenith," the "burden that Colorado must overcome to justify
`
`this criminal law is well-nigh insurmountable." Id. at 425
`
`(internal quotation marks omitted).
`
` The Court then moved on to the question of whether the
`
`ban could survive such "exacting" scrutiny. The Court determined
`
`that the fit between the interests that Colorado had put forth in
`
`support of its ban and the means that the State had selected to
`
`further that interest was too loose for the ban to pass that
`
`"exacting scrutiny." Id. at 425-28.
`
`Colorado asserted two interests: first, an "interest in
`
`making sure that an initiative has sufficient grass roots support
`
`to be placed on the ballot," and second, an "interest in protecting
`
`the integrity of the initiative process." Id. at 425. The Court
`
`dispatched with the asserted interest in ensuring "grass roots
`
`
`
`- 20 -
`
`
`
`support" by explaining that this interest was "adequately
`
`protected by [Colorado's] requirement that no initiative proposal
`
`may be placed on the ballot unless the required number of
`
`signatures has been obtained." Id. at 425-26. It then addressed
`
`the interest in "protecting the integrity of the initiative
`
`process." Id. at 426.
`
`To support the contention that the ban on paid
`
`circulators was properly designed to serve the "integrity"
`
`interest, Colorado asserted "that compensation [for a circulator]
`
`might provide the circulator with a temptation to disregard" the
`
`"duty to verify the authenticity of signatures on the petition."
`
`Id. at 426. But, the Court concluded, Colorado had offered "[n]o
`
`evidence" to substantiate that contention and observed that a
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`"professional circulator['s] . . . qualifications for similar
`
`future assignments may well depend on a reputation for competence
`
`and integrity." Id. The Court also noted that Colorado had other
`
`mechanisms in place to prevent signature fraud -- such as
`
`provisions that criminalized forging signatures on a petition and
`
`criminalized paying people to sign it -- that "seem[ed] adequate
`
`to the task of minimizing the risk of improper conduct." Id. at
`
`426-27. Accordingly, the Court held that the ban could not survive
`
`the exacting scrutiny that applied because the ban was not
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`
`
`- 21 -
`
`
`
`"necessary" to serve the state's asserted interest in preserving
`
`the integrity of the initiative process. Id. at 426.
`
`B.
`
`Buckley was decided a little over a decade after Meyer.
`
`It concerned a First Amendment challenge to other restrictions
`
`that Colorado had imposed with respect to circulating a petition
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`for the state's direct initiative process. Buckley, 525 U.S.
`
`at 186. Among the restrictions was a requirement that a circulator
`
`be a registered voter in the state. Id. at 192-93.
`
`
`
` The
`
`voter-registration
`
`requirement
`
`necessarily
`
`required a circulator to be a resident of that state. Id. at 188
`
`& n.3. However, no challenge to the residency requirement had
`
`been brought. Id. The Court thus addressed only the portion of
`
`the voter-registration requirement that required a circulator to
`
`be not only eligible to vote in Colorado but also registered to do
`
`so. Id. at 197.
`
`In determining the type of First Amendment scrutiny to
`
`apply to the voter-registration requirement, the Court emphasized
`
`that "[s]tates allowing ballot initiatives have considerable
`
`leeway to protect the integrity and reliability of the initiative
`
`process, as they have with respect to election processes
`
`generally." Id. at 191. The Court also emphasized that there is
`
`"'no litmus-paper test'" that "separate[s] valid ballot-access
`
`
`
`- 22 -
`
`
`
`provisions from invalid interactive speech restrictions." Id.
`
`at 192 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)); see
`
`also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359
`
`(1997). Instead, the Court explained, there is "no substitute for
`
`the hard judgments that must be made." Buckley, 525 U.S. at 192
`
`(quoting Storer, 415 U.S. at 730).
`
`At the same time, the Court reaffirmed Meyer's
`
`recognition that "[p]etition circulation . . . is 'core political
`
`speech,' because it involves 'interactive communication concerning
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`political change,'" and that "First Amendment protection for such
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`interaction . . . is 'at its zenith.'" Id. at 186-87 (quoting
`
`Meyer, 486 U.S. at 425). Thus, the Court made a point of stating
`
`that "the First Amendment requires . . . vigilan[ce] in making
`
`those judgments" about what distinguishes a valid ballot-access
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`restriction from an impermissible speech restriction. Id. at 192.
`
`The Court then determined that a most demanding form of
`
`scrutiny applied to the state restriction at issue. The Court
`
`concluded in that regard that the voter-registration requirement
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`"produces a speech diminution of the very kind produced by the ban
`
`on paid circulators at issue in Meyer," id. at 194, which, the
`
`Court had pointed out there, was subject to a form of scrutiny
`
`that was "well-nigh insurmountable," Meyer, 486 U.S. at 425. The
`
`Court in Buckley stated that this means of scrutinizing the
`
`
`
`- 23 -
`
`
`
`restriction at issue was "entirely in keeping with" what the Court
`
`described as "the 'now-settled approach' that state regulations
`
`'impos[ing] "severe burdens" on speech . . . [must] be narrowly
`
`tailored to serve a compelling state interest.'" Buckley, 525
`
`U.S. at 192 n.12 (alterations and ellipsis in original) (quoting
`
`id. at 206 (Thomas, J., concurring in the judgment)).
`
`To support the application of that kind of scrutiny to
`
`the voter-registration requirement, the Court stated that it was
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`"[b]eyond question" that the voter-registration requirement
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`"drastically reduces the number of persons, both volunteer and
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`paid, available to circulate petitions." Id. at 193. Indeed, the
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`Court noted, the record in that case showed that the requirement
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`rendered at least 400,000 Coloradans -- who were otherwise eligible
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`to vote in Colorado but were not registered to do so -- unable to
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`serve as petition circulators. Id. The Court also highlighted
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`testimony that the "'natural support'" for a peti
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