# WE THE PEOPLE PAC v. DUNLAP

> District Court, D. Maine · February 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10211016

## Case

- **Court:** District Court, D. Maine
- **Decided:** February 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10211016

## How later opinions describe it (automated extraction)

- applying strict scrutiny, despite not using Anderson-Burdick test

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

WE THE PEOPLE PAC, et al., )
)
Plaintiffs, )
)
v. ) 1:20-cv-00489-JAW
)
SHENNA BELLOWS, in her official )
capacity as the Secretary of State of )
Maine, et al., )
)
Defendants. )

ORDER ON MOTION FOR PRELIMINARY INJUNCTION
In 1988, the United States Supreme Court ruled that the circulation of an
initiative petition represents core political speech where the protections of the First
Amendment are at their zenith. To control the impact of out-of-state influence on
ballot initiatives, the people of Maine through their Constitution and statutes have
required petition circulators to be Maine residents and registered to vote in Maine.
Based on a paper evidentiary record, the Court concludes that the First Amendment’s
free speech protections trump the state’s regulatory authority and it enjoins the
operation of these constitutional and statutory restrictions on petition circulation.
The exercise of federal judicial power to enjoin state regulation of its ballot initiative
process should be subject to an evidentiary hearing, if the parties desire it, and to
appellate review, if they wish to pursue it. The Court framed its opinion as a prelude
to a challenge to the Court of Appeals for the First Circuit for a more authoritative
ruling.
I. PROCEDURAL HISTORY
On December 31, 2020, We the People PAC, State Representative Billy Bob
Faulkingham, Liberty Initiative Fund, and Nicholas Kowalski (Plaintiffs) filed a

complaint against Shenna Bellows,1 in her official capacity as the Secretary of State
of Maine, and Julie Flynn, in her official capacity as the Deputy Secretary of State of
Maine for the Bureau of Corporations, Elections and Commissions (Defendants),
seeking declaratory and injunctive relief prohibiting the Secretary of State from
enforcing certain Maine State laws that regulate the circulation of ballot initiative
petitions. Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl.). That

same day, the Plaintiffs moved for a temporary restraining order (TRO) and/or
preliminary injunction, seeking to prohibit enforcement of laws that require petition
circulators to be Maine residents and be registered to vote in Maine. Pls.’ Mot. for
Emergency TRO and/or Prelim. Inj. (ECF No. 3) (Pls.’ Mot.); id., Attach. 1, Pls.’ Mem.
of Law in Supp. of Their Mot. for TRO and/or Prelim. Inj. (Pls.’ Mem.). On January 8,
2021, the Defendants filed their response. Defs.’ Opp’n to Pls.’ Mot. for Emergency
TRO (ECF No. 15) (Defs.’ Opp’n). The next day, the Plaintiffs filed a reply. Pls.’ Reply

to Defs.’ Br. in Opp’n to Pls.’ Mot. for TRO (ECF No. 17) (Pls.’ Reply).
On January 11, 2021, the Court dismissed the Plaintiffs’ motion for temporary
restraining order, concluding the Plaintiffs had failed to demonstrate that they were

1 The Plaintiffs initiated their Complaint against Matthew Dunlap, who was Maine Secretary
of State at the time. Compl. ¶ 20 (ECF No. 1). As the Court pointed out in its order on the motion for
temporary restraining order, on January 4, 2021, Shenna Bellows succeeded Mr. Dunlap as Maine
Secretary of State. Order on Mot. for TRO at 2 n.1 (ECF No. 18). In its January 11, 2021 order, the
Court automatically substituted Ms. Bellows for Mr. Dunlap pursuant to Federal Rule of Civil
Procedure 25(d). Id.
likely to succeed on the merits, in large part due to the lack of a sufficient factual
record. Order on Mot. for TRO (ECF No. 18) (TRO Order). Notably, the Court’s order
“addresse[d] only the Plaintiffs’ motion for TRO, not their motion for preliminary

injunction.” Id. at 46 n.7. On January 14, 2021, the Court held a telephone
conference with counsel, setting the deadlines for the parties’ declarations,
interrogatories, and briefing. Min. Entry (ECF No. 20).
On January 21, 2021, the Plaintiffs filed their declarations, as well as a
supplemental document production attaching an article and a YouTube link. See
First Decl. of Christopher Arps (ECF No. 21) (Arps Decl.); First Decl. of Michael Dane

Waters (ECF No. 22) (Waters Decl.); First Decl. of Alex Isada (ECF No. 23) (Isada
Decl.); The Second Decl. of Paul Jacob (ECF No. 24) (Second Jacob Decl.); First Decl.
of Timothy F. Mooney (ECF No. 25) (Mooney Decl.); Second Decl. of James J. Tracey,
Jr. (ECF No. 26) (Second Tracey Decl.); First Decl. of Trenton Donn Pool (ECF No. 27)
(Pool Decl.); Suppl. Doc. Produc. (ECF No. 28).
On January 23, 2021, the Defendants filed their declarations. See Decl. of
Jonathan Wayne in Supp. of Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. (pursuant to 28

U.S.C. § 1746) (ECF No. 30) (Wayne Decl.); Decl. of Ann Luther in Supp. of Defs.’
Opp’n to Pls.’ Mot. for Prelim. Inj. (pursuant to 28 U.S.C. § 1746) (ECF No. 31) (Luther
Decl.); Decl. of Eric McCabe Johnson in Supp. of Defs.’ Opp’n to Pls.’ Mot. for Prelim.
Inj. (pursuant to 28 U.S.C. § 1746) (ECF No. 32) (Johnson Decl.); Suppl. Decl. of Julie
Flynn in Supp. of Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. (pursuant to 28 U.S.C.
§ 1746) (ECF No. 33) (Suppl. Flynn Decl.).
On February 2, 2021, the parties simultaneously filed their briefing regarding
the Plaintiffs’ motion for preliminary injunction, attaching their responses to
interrogatories. Pls.’ Suppl. Brief in Supp. of Pls.’ Mot. for Prelim. Inj. (ECF No. 36)

(Pls.’ Prelim. Inj. Br.); id., Attach. 2, Pls.’ Am./Corrected Answer to Defs.’ First Set of
Interrogs. (Pls.’ Interrog. Resp.); Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. (ECF No. 35)
(Defs.’ Prelim. Inj. Opp’n); id., Attach. 2, Def. Julie Flynn’s Resps. to Pls.’ First Set of
Interrogs. (Flynn’s Interrog. Resp.). Attached to their brief, the Plaintiffs filed a
document titled “Plaintiffs’ Statement of Undisputed Facts.” Pls.’ Prelim. Inj. Br.,
Attach. 1, Pls.’ Statement of Undisputed Facts (PSUF). On February 4, 2021, the

Defendants filed an objection to the Plaintiffs’ statement of undisputed facts. Defs.’
Obj. to Pls.’ Statement of Undisputed Facts (ECF No. 37).
On February 5, 2021, the Court held a telephonic conference of counsel
regarding how the Court should consider the proffered facts. Min. Entry (ECF
No. 39). On February 8, 2021, the Court held another conference of counsel and the
parties agreed upon a process similar to the District of Maine’s summary judgment
process, whereby each side would submit statements of undisputed facts and then

each side would have the opportunity to admit or deny each fact, with the Court
resolving any disputed facts. Min. Entry (ECF No. 40). During the call, the Plaintiffs
stated that they would proceed on their previously filed statement of undisputed
facts. See PSUF. The Defendants filed their response to the Plaintiffs’ statement of
undisputed facts on February 9, 2021. Defs.’ Resp. to Pls.’ Statement of Undisputed
Facts (ECF No. 41) (DRPSUF). The same day, the Defendants filed their own
statement of undisputed facts. Defs.’ Statement of Undisputed Facts (ECF No. 42)
(DSUF). On February 10, 2021, the Plaintiffs filed their response to the Defendants’
statement of undisputed facts. Pls.’ Resp. to Defs.’ Statement of Undisputed Facts

(ECF No. 43) (PRDSUF).
II. FACTUAL BACKGROUND
The Court recites this factual background from the Plaintiffs’ and the
Defendants’ statements of undisputed facts, as well as their declarations and
responses to interrogatories.2 While both parties submitted statements of undisputed
facts, many facts are very much in dispute. The Court reviewed the statements of

undisputed facts and responses and resolved any disputes.3

2 In their opposition to the Plaintiffs’ motion for preliminary injunction, the Defendants make
two objections to the evidence submitted by the Plaintiffs. First, the Defendants argue that “while
Plaintiffs have submitted a host of declarations in support of their effort to establish a severe burden,
much of their content consists of lay opinion without adequate foundation—most declarants, for
example, have little to no experience in Maine—or improper expert testimony.” Defs.’ Prelim. Inj.
Opp’n at 4-5. The Court has reviewed all declarations and disregards any portions that lack foundation
or consist of improper opinion.
Second, the Defendants find the Plaintiffs’ interrogatory responses “extremely problematic”
and “ask the Court to reject or discount these improper responses, particularly where they consist of
more than mere factual replies to Defendants’ straightforward, factual interrogatories.” Id. at 5.
Specifically, the Defendants contend the Plaintiffs’ responses are “not attributed to particular
Plaintiffs,” are “not sworn,” are “filled with hearsay and argument,” and “indeed is not even signed by
all Plaintiffs.” Id. Federal Rule of Civil Procedure 33 requires interrogatories to be answered “by the
party to whom they are directed,” “separately and fully in writing under oath,” and “[t]he person who
makes the answers must sign them, and the attorney who objects must sign any objections.” FED. R.
CIV. P. 33(b). The Plaintiffs’ interrogatory responses are signed by Plaintiff Billy Bob Faulkingham
and Paul Jacob, on behalf of Plaintiff Liberty Initiative Fund, as well as the Plaintiffs’ counsel,
Attorney Paul Rossi. There is no requirement that the interrogatory responses be signed by all the
Plaintiffs. Furthermore, in response to the Court’s February 13, 2021 order, Order (ECF No. 44), the
Plaintiffs represented that they will file sworn interrogatory responses, curing the oath defect “no later
than noon on February 20, 2021.” Pls.’ Representation that Pls.’ Answer to Defs.’ First Set of Interrogs.
are Submitted Under Oath and Penalty of Perjury (ECF No. 45). Based on the Plaintiffs’
representation, the Court considers the Plaintiffs’ responses to the Defendants’ interrogatories as
sworn.
3 On February 4, 2021, the Defendants objected to the Plaintiffs’ statement of undisputed facts,
arguing that the Defendants did not have a chance to review and the Court did not authorize the
parties to submit separate statements of undisputed facts. Defs.’ Obj. to Pls.’ Statement of Undisputed
Facts (ECF No. 37). In light of the Court’s recent conference of counsel, during which the Court
A. The Parties
We the People PAC is a political action committee registered in Maine and is
currently circulating a petition for an initiative of direct legislation prohibiting

anyone who is not a citizen of the United States from voting in any election held
within the state of Maine. PSUF ¶ 3; Compl. ¶ 16.
Liberty Initiative Fund is a 501(c)(4) nonprofit organization actively engaged
in organizing and contributing funds to We the People PAC to circulate petitions to
place the citizen-only voting initiative on the 2022 Maine general election ballot.
PSUF ¶ 5; DRPSUF ¶ 5. Liberty Initiative Fund is the original proponent of the

effort to institute bans on non-citizen voting through state ballot initiatives and
referenda and is supporting We the People PAC’s efforts to collect signatures for the
petition. Compl. ¶ 17.
State Representative Billy Bob Faulkingham is a Maine resident and member
of the Maine House of Representatives currently representing the 136th state house
district. PSUF ¶ 4; DRPSUF ¶ 4. He is a member of We the People PAC and a
proponent of We the People PAC’s proposed non-citizen voting referendum. Pls.’ Mot.,

Attach. 2, First Decl. of State Representative Billy Bob Faulkingham ¶¶ 3-4
(Faulkingham Decl.).
Nicholas Kowalski is a professional petition circulator who resides in the state
of Michigan and would like to help circulate We the People PAC’s petition in Maine.
PSUF ¶ 6; DRPSUF ¶ 6. Mr. Kowalski has circulated petitions in multiples states,

authorized the filing of statements of undisputed facts and gave each party the opportunity to respond,
the Court overrules the Defendants’ objection.
including Michigan, Massachusetts, and California, and claims to have acquired
unique skills, allowing him to “quickly screen-out unqualified signers, articulately
communicate the substance of the petition and efficiently direct the potential signer

on the correct method to properly sign the petition so that the signature will be
counted as a valid signature.” Pls.’ Mot., Attach. 3, First Decl. of Nicholas Kowalski
¶¶ 3, 5 (Kowalski Decl.). He states that he “routinely” collects signatures at a validity
rate of more than 70% and accepts compensation based on the number of signatures
he collects, guaranteeing that at least 70% of the signatures he collects will be
counted as valid. Id. ¶¶ 10-12. As a condition to being able to lawfully circulate

petitions in Maine, he is willing to consent to the personal jurisdiction of Maine for
the purpose of any subpoena or other judicial process. Id. ¶ 20. We the People PAC
intends to contract with Mr. Kowalski and other out-of-state professional circulators
to obtain the requisite number of signatures. Faulkingham Decl. ¶ 11.
The Maine Secretary of State is vested with authority to enforce the statutory
provisions challenged in this action. Defs.’ Opp’n, Attach. 1, Decl. of Julie Flynn in
Supp. of Defs.’ Opp’n to Pls.’ Mot. for TRO (pursuant to 28 U.S.C. § 1746) ¶ 4 (Flynn

Decl.). Although Matthew Dunlap was the Secretary of State at the time the
Plaintiffs filed their Complaint and motion for TRO, Shenna Bellows is now the
Maine Secretary of State and is automatically substituted for Mr. Dunlap. Compl.
¶ 20; see supra n.1.
Julie Flynn is the Maine Deputy Secretary of State in charge of the Bureau of
Corporations, Elections and Commissions—the office where the Plaintiffs are
required to file their petitions. Flynn Decl. ¶¶ 3-4. In her official capacity, Ms. Flynn
has supervisory responsibility for the review of all petitions for direct initiatives and
people’s veto referenda, as well as overseeing all statewide elections and

administering the Maine election laws. Flynn Decl. ¶ 4; Flynn Interrog. Resp. No. 1.
She has held the position of Deputy Secretary of State for the Bureau of Corporations,
Elections and Commissions since February 1999, and served as the Director of the
Bureau from March 1995 until she was appointed Deputy. Flynn Interrog. Resp.
No. 2.
B. The People’s Veto and Direct Initiative Process in Maine

1. The Maine Constitution
The Maine Constitution “establishes three separate branches of government”:
“the legislative, executive and judicial.” Avangrid Networks, Inc. v. Sec’y of State,
2020 ME 109, ¶ 24, 237 A.3d 882, 891 (quoting ME. CONST. art. III, § 1). “Legislative
power is, at its core, the ‘full power to make and establish all reasonable laws and
regulations for the defense and benefit of the people of this State, not repugnant to
this Constitution, nor to that of the United States.” Id. ¶ 27 (quoting ME. CONST. art.

IV, pt. 3, § 1).
The Maine Constitution contains two provisions that limit the Maine
Legislature’s authority to legislate. See McGee v. Sec’y of State, 2006 ME 50, ¶ 21,
896 A.2d 933, 940 (“[T]he Legislature is authorized to enact implementing legislation,
but cannot do so in any way that is inconsistent with the Constitution or that abridges
directly or indirectly the people’s right of initiative”); Farris ex rel. Dorsky v. Goss,
143 Me. 227, 231, 60 A.2d 908, 910 (“The right of the people, as provided by Article
XXXI of the constitution, to enact legislation and approve or disapprove legislations
enacted by the legislature is an absolute one and cannot be abridged directly or

indirectly by any action of the legislature”). The first is the so-called “people’s veto,”
ME. CONST., art. IV, pt. 3, § 17, and the second the so-called “direct initiative,” ME.
CONST., art. IV, pt. 3, § 18. The “people’s veto” provides Maine citizens with a means
to veto laws passed upon the conclusion of a legislative session. ME. CONST., art. IV,
pt.3, § 17. The “direct initiative” process empowers Maine citizens with the right to
directly propose legislation which, if the Maine Legislature does not adopt verbatim

by the next legislative session, is placed on the general election ballot as a referendum
to be considered by the voters for adoption. ME. CONST., art. IV, pt. 3, § 18. See
McGee, 2006 ME 50, ¶ 25 (“[S]ection 18 cannot be said merely to permit the direct
initiative of legislation upon certain conditions. Rather, it reserves to the people the
right to legislate by direct initiative if the constitutional conditions are satisfied”)
(emphasis in original).
To exercise the people’s veto or direct initiative powers, a Maine citizen must

file a valid petition with a sufficient number of signatures with the Secretary of State.
Under the Maine Constitution, the number of signatures shall not be less than 10%
of the total vote for Governor cast in the last gubernatorial election. ME. CONST., art.
IV, pt. 3, §§ 17-18. For a direct initiative, the petition must be addressed to the
Legislature and filed in the office of the Secretary of State by 5:00 p.m. on or before
the fiftieth day after convening of the Legislature in the first regular session, or on or
before the twenty-fifth day after the date of convening of the Legislature in the second
regular session. ME. CONST., art. IV, pt. 3, § 18. The petitions must also be submitted
to municipal officials for certification at least ten days prior to that date. ME. CONST.,

art. IV, pt. 3, § 20. From the issuance of the approved petition form, petitioners have
eighteen months to collect the requisite number of signatures, but signatures are only
valid if they are dated within one year from the date the petition is filed with the
Secretary of State. ME. CONST., art. IV, pt. 3, § 18.
The Maine Constitution defines a “circulator” as “a person who solicits
signatures for written petitions.” ME. CONST., art. IV, pt. 3, § 20. Not just anyone

can circulate a petition in Maine. The Maine Constitution requires a circulator be “a
resident of this State and 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.
2. Maine Statutory Law
In addition to these constitutional provisions, the Maine Legislature has
enacted statutes regulating petition circulation. See 21-A M.R.S. §§ 901 et seq.
Echoing the Maine constitutional provision, 21-A M.R.S. § 903-A states “[p]etitions

issued under this chapter may be circulated by any Maine resident who is a registered
voter acting as a circulator of a petition.” Section 903-A further defines the role of a
petition circulator as someone 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.” Id. This is in
contrast with circulators of candidate nominating petitions, who are not required to
be registered voters in Maine. See 21-A M.R.S. §§ 331-357.
To enforce the residency and voter registration restrictions, Maine law

requires the circulator to sign and file with the Secretary of State an affidavit
attesting that “the circulator was a resident of the State and a registered voter in the
State at the time of circulating the petition.” 21-A M.R.S. § 903-A(4). Failing to
truthfully execute and file a circulator affidavit is a Class E crime. 21-A M.R.S.
§ 904(6).
Under § 903-A, a petition circulator “must comply with the provisions of section

902,” which require the circulator to “sign the petition and verify by oath or
affirmation before a notary public or other person authorized by law to administer
oaths or affirmations that the circulator personally witnessed all of the signatures to
the petition 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 and that each
signature . . . was made by the authorized signer in the presence and at the direction
of the voter.” 21-A M.R.S. § 902. Furthermore, Maine statutes require that petition

sponsors provide a list of paid circulators and that circulators publicly identify
themselves on each page of the petition. 21-A M.R.S. §§ 903-A(5), 903-C(1)(D),
901-A(2). These requirements are included in the instructions provided by the
Secretary of State to organizers for initiative petitions. See Flynn Interrog. Resp. at
22-26 (Exhibit B-1, Instruction to Petition Organizers for Initiative Petitions).
Once a petition is submitted to the Secretary of State’s office, the Secretary of
State has thirty days to review and determine the validity of each citizen initiative
or people’s veto referendum petition. 21-A M.R.S. § 905(1). Signatures may be

deemed invalid when they fail to comply with the Maine Constitution, article IV,
part 3, §§ 18-20 and 21-A M.R.S. §§ 901-904-B, copies of which are provided by the
Secretary of State’s office to the petition applicants when the Secretary of State
approves the form of the petition to be circulated. DSUF ¶ 30; PRDSUF ¶ 30. Petition
filings generally include anywhere from 7,000 to 20,000 separate petition forms and
contain 70,000 to 90,000 voter signatures that must be reviewed by the Secretary of

State’s staff. DSUF ¶ 21. A legal challenge to the validity of the petition must be
filed within five business days and the Superior Court must issue a decision within
forty days of the Secretary of State’s validity determination. 21-A M.R.S. § 905(2).
C. We the People PAC’s Petition
The Plaintiffs seek to exercise their direct initiative power by sponsoring and
circulating a petition to propose to the Maine Legislature for its consideration their
proposed ban on all non-citizen voting in the state of Maine, and if not adopted

verbatim by the Legislature, to place the question on the next general election ballot
as a direct initiative question to be decided by Maine voters. Compl. ¶ 30.
Specifically, the Plaintiffs seek to amend the language of 21-A M.R.S. § 111, which
lists the general qualifications to vote in a municipal election, to read: “A Only a
person who meets the following requirements may vote in any election in a
municipality, including a biennial municipal caucus held pursuant to section 311.”
Defs.’ Opp’n, Attach. 2, Petition Form (alterations in original). One of the
requirements is that “[t]he person must be a citizen of the United States.” Id.
Representative Faulkingham believes that “[l]ocal jurisdictions across the country

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.” Faulkingham Decl. ¶ 5. The Secretary
of State approved the Plaintiffs’ form of a citizen initiative petition entitled “An Act
to Clarify the Eligibility of Voters” on August 26, 2019, in accordance with 21-A
M.R.S. § 901. DSUF ¶ 1; PRDSUF ¶ 1; see Petition Form. Representative

Faulkingham was the lead applicant. Flynn Decl. ¶ 5.
To qualify their initiative for the ballot, the Plaintiffs must collect and file a
minimum of 63,067 signatures of registered voters within one year prior to filing
those signatures with the Secretary of State. DRPSUF ¶10. They must file the
petitions with the Secretary of State by 5:00 p.m. on February 26, 2021, and must
submit the petitions to municipal officials for certification by 5:00 p.m. on
February 16, 2021. Id.

D. The History of Citizen Initiatives and People’s Veto Referenda
in Maine

During the past five years, the Secretary of State’s office has received and
reviewed petitions for nine citizen initiatives and three people’s veto referenda.
DSUF ¶ 15. Each petition drive involved hundreds of circulators who were Maine
residents and registered voters, and all but one had enough valid signatures to qualify
for the ballot. Id. The recent petition drives are: initiative entitled “Resolve, to Reject
the New England Clean Energy Connect Transmission Project” filed on February 3,
2020 – 563 circulators; people’s veto of “An Act to Implement Ranked-choice Voting
for Presidential Primary and General Elections in Maine” filed on June 16, 2020 –

543 circulators; people’s veto of “An Act to Protect Maine Children and Students from
Preventable Diseases by Repealing Certain Exemptions from the Laws Governing
Immunization Requirements” filed on September 18, 2019 – 734 circulators; initiative
entitled “An Act to Establish Universal Home Care for Seniors and Persons with
Disabilities” filed on January 29, 2018 – 262 circulators; people’s veto of “An Act to
Implement Ranked-choice Voting in 2021” filed on February 2, 2018 – 894 circulators;

initiative entitled “An Act to Enhance Access to Affordable Health Care” filed on
January 26, 2017 – 445 circulators; initiative entitled “An Act to Allow Slot Machines
or a Casino in York County” filed on February 1, 2016 – 549 circulators; initiative
entitled “An Act to Establish the Fund to Advance Public Kindergarten to Grade 12
Education” filed on February 1, 2016 – 548 circulators; initiative entitled “An Act to
Legalize Marijuana” filed on February 1, 2016 – 549 circulators; initiative entitled
“An Act to Require Background Checks for Gun Sales” filed on January 19, 2016 –

339 circulators; initiative entitled “An Act to Raise the Minimum Wage” filed on
January 14, 2016 – 473 circulators; and initiative entitled “An Act to Establish
Ranked-choice Voting” filed on October 19, 2015 – 392 circulators.4 Id.

4 The Plaintiffs neither admit nor deny these numbers but argue that the “Defendants have
provided no documents to establish this fact.” PRDSUF ¶ 15. The Defendants have, however,
previously provided these statistics in a sworn declaration by Julie Flynn. See Flynn Decl. ¶ 10. The
Plaintiffs have given the Court no reason to question the Defendants’ representation and thus accepts
these numbers.
The Plaintiffs also argue that the “Defendants fail to establish how many of the circulators . . .
were Maine residents who actually collected signatures or were just Maine residents who witnessed
Recently on January 21, 2021, proponents of a citizen initiative petition related
to the CMP transmission line project submitted to the Secretary of State petitions
circulated by 616 circulators who attested to being Maine residents and registered

voters, and the petitions appeared to contain over 100,000 signatures collected since
October 30, 2020. DSUF ¶ 16.5 Revolution Field Strategies, Inc. of Washington,
D.C.—the petition organizing company hired to run the CMP transmission line
petition drive—reported to the Secretary of State, pursuant to 21-A M.R.S.
§§ 903-A(5) and 903-C, that it paid 349 individuals to work on this petition drive.
DSUF ¶ 17.

In the past ten years, the Secretary of State has reviewed eighteen direct
initiative or people’s veto petitions. Flynn Interrog. Resp. at 30-63 (Exhibit C,
Determinations of the Validity of a Petition for Initiated Legislation). All but two of
them had a sufficient number of valid signatures. Id. In total, 261,694 petitions
containing 1,475,486 signatures were submitted, and the Secretary of State
determined 259,688 of those signatures to be invalid. Id. Of the 259,688 invalid
signatures, 134,341 were invalidated because “they were not certified by the registrar

the collection of signatures and, thereafter, executed the circulator affidavit/oath as the circulator.”
PRDSUF ¶ 15. The Court accepts this qualification and considers these “circulators” to be people who
both actually collected signatures and who witnessed and executed the circulator affidavit.
5 The Plaintiffs neither admit nor deny these numbers but argue that the “Defendants have
provided no documents to establish this fact.” PRDSUF ¶ 16. The Defendants have, however,
previously provided these statistics in a sworn declaration by Julie Flynn. See Suppl. Flynn Decl.
¶¶ 4-5. The Plaintiffs have given the Court no reason to question the Defendants’ representations and
thus accepts these results.
The Plaintiffs also argue that the “Defendants fail to establish how many of the circulators . . .
were Maine residents who actually collected signatures or were just Maine residents who witnessed
the collection of signatures and, thereafter, executed the circulator affidavit/oath as the circulator.”
PRDSUF ¶ 16. The Court accepts this qualification and considers these “circulators” to be people who
both actually collected signatures and who witnessed and executed the circulator affidavit.
as belonging to a registered voter in that municipality.” Id.; see Flynn Interrog. Resp.
No. 11.6
There have been some instances of fraud.7 For example, of the 259,688 invalid

signatures, 1,291 signatures were invalidated because “the registered voter’s
signature was made by another.” Id.; see Flynn Interrog. Resp. No. 17. Instances of
fraud were detected on petitions for the initiative “Resolve to Reject the New England
Clean Energy Connect Transmission Project” and on nominating petitions for U.S.
Senate candidate Max Patrick Linn, as reflected in the Secretary of State’s decisions
issued in 2018, in response to a challenge to the validity of those petitions. DSUF

¶ 23; PRDSUF ¶ 23; see Flynn Interrog. Resp. at 64-72 (Am. Determination of the
Validity of a Petition for Initiated Legislation); id. at 77-89 (Exhibit D, Ruling of the
Secretary of State). The Secretary of State’s office does not track whether identified
instances of potential fraud are prosecuted. Flynn Interrog. Resp. No. 18.
Out-of-state petition organizations have been involved in some of the petition
drives, according to registration forms filed with the Maine Secretary of State’s office
pursuant to 21-A M.R.S. § 903-C, as well as campaign finance reports filed with the

Maine Commission on Governmental Ethics and Election Practices by political action
committees and ballot question committees. Flynn Decl. ¶ 11. Petition organizations

6 The Court made these calculations by adding the numbers contained in the validity
determination documents provided by the Defendants in their interrogatory responses.
7 The Plaintiffs argue that “[b]ased on current law, all instances of petition fraud since 1974
filed with Defendants were committed by Maine residents, not out-of-state professional circulators.”
PRDSUF ¶ 23. The Court gathers that the Plaintiffs make this assertion because under Maine law
only Maine residents and registered voters are allowed to circulate petitions. However, without any
evidence, the Court cannot make a blanket assumption regarding the residency of all petition
fraudsters since 1974, and so the Court does not consider it.
based in Maine have also hired and supervised circulators in several recent petition
drives as well. Id. These petition organizations hire, train, and oversee Maine
circulators and manage the petition drive, and in some campaigns, they have brought

staff from out-of-state to work alongside Maine circulators. DSUF ¶ 20; PRDSUF
¶ 20.
E. The Plaintiffs’ Petition Circulation Efforts
Prior to Election Day 2019, Plaintiffs began recruiting Maine resident voters
to collect the required number of signatures for their initiative. PSUF ¶ 67. Plaintiffs
hired Curtis Ayotte to mobilize, organize and manage volunteers. PSUF ¶ 17.

Representatives of the Plaintiffs’ campaign met with every Republican Party county
committee in the state to publicize their issue and ask for volunteers, and through
those efforts, the Plaintiffs recruited fifty volunteer circulators. PSUF ¶ 18. The
campaign also paid a petition circulation company located in Maine, 4DC
Augusta LC, to manage a Maine resident paid petition effort. PSUF ¶¶ 19, 67;
DRPSUF ¶ 19. While 4DC Augusta LC reportedly engaged six Maine paid residents
for the effort, it never produced any petition signatures for the campaign. PSUF ¶ 68.

By October 16, 2019, the Plaintiffs had used fifty Maine resident volunteers who
collected only 2,000 petition signatures. Id. Because these signatures are more than
one year old, they cannot be used to qualify the Plaintiffs’ initiative. PSUF ¶ 74;
DRPSUF ¶ 74.
The lack of signature production caused the Plaintiffs to suspend the petition
drive on October 16, 2019, and reevaluate the best method to collect the minimum
63,067 signatures within the permitted one-year window before filing.8 PSUF ¶¶ 68-
69; DRPSUF ¶ 68. The campaign reevaluation resulted in the Plaintiffs’ belief that
they needed to hire better and more experienced professional circulators who were

out-of-state residents.9 PSUF ¶¶ 70, 73. The Plaintiffs secured the $300,000 funding
from Liberty Initiative Fund and restarted their petition drive on October 13, 2020.10
PSUF ¶ 75. As of January 9, 2021, Liberty Initiative Fund had contributed over
$200,000 to support the citizen-only voting initiative petition. Pls.’ Reply, Attach. 1,
Decl. of Paul Jacob ¶ 2 (First Jacob Decl.). As of January 21, 2021, Liberty Initiative
Fund contributed over $350,000 to support the petition drive. Second Jacob Decl. ¶ 2.

Starting in October 2020, Ballot Access LLC and James Tracey began
advertising for petition circulators on Craigslist and Facebook, and those advertising
efforts cost the campaign about $40,000. PSUF ¶ 20. Mr. Tracey also printed and
distributed flyers in Portland, Lewiston, and Auburn seeking paid Maine petition
circulators. Id. The campaign initially lost Maine circulators to the Central Maine
Power (CMP) petition effort, but Mr. Tracey contacted some of the circulators working

8 The Defendants “deny that the campaign was merely ‘paused,’ given at that time a large
portion of contributions were returned, and most of the remainder of the campaign’s funds were spent
to support political candidates.” DRPSUF ¶ 69. Regardless of whether the campaign was “merely
‘paused,’” the Court finds that the Plaintiffs at least suspended their campaign on October 16, 2019.
9 The Defendants “deny that the campaign had to hire circulators from outside Maine in order
to gather sufficient signatures.” DRPSUF ¶ 73. Notwithstanding whether they actually needed to
hire out-of-state circulators, the Court accepts that the Plaintiffs believed they had to do so.
10 The Defendants object, arguing that “Mr. Jacob’s declaration does not indicate when the
campaign restarted, though other evidence shows that Plaintiffs’ first petitioning expenditure was
made on October 26, 2020.” DRPSUF ¶ 75. The Court agrees that Mr. Jacob’s declarations do not say
when the campaign restarted. However, the Plaintiffs’ answer to the Defendants’ interrogatory
number fourteen states that “[o]n October 13, Rep. Faulkingham announced that the petition drive
was re-starting.” Pls.’ Interrog. Resp. No. 14. Absent any evidence to the contrary, the Court accepts
the Plaintiffs’ representation that the campaign restarted on October 13, 2020.
for the CMP petition drive after that drive ended.11 PSUF ¶ 21. Other efforts
included promotion by Representative Faulkingham, who called for volunteers on the
We the People PAC Facebook page, which has 1,474 followers, as well as on his own

Representative Faulkingham Facebook page, which has 2,450 followers. PSUF ¶ 22.
Representatives of the campaign held a second round of meetings with every
Republican Party county committee in Maine requesting they help recruit volunteer
help in circulating their petition. PSUF ¶ 23.
The results of the Plaintiffs’ campaign efforts are recounted below. From the
start of the campaign to the October 16, 2019 petition drive, the Plaintiffs recruited

fifty volunteer Maine residents for the signature collection drive, and by November
6, 2019 they had collected 2,000 signatures. PSUF ¶¶ 25, 68; DRPSUF ¶ 68. For
Election Day 2020, Plaintiffs recruited forty-two paid and twenty-four volunteer
Maine resident circulators, and by November 4, 2020 had collected 12,000 signatures,
not including the 2,000 signatures from the previous year, which fell outside the one-
year window. PSUF ¶ 25. Between Election Day 2020 and December 31, 2020, the
Plaintiffs used seven professional out-of-state circulators to work with two paid and

twelve volunteer Maine resident circulators, and by December 31, 2020 had collected
25,000 signatures. Id. Since January 1, 2021, Plaintiffs recruited fifty-five
professional circulators, consisting of forty-nine out-of-state and six Maine resident

11 The Plaintiffs also claim that the CMP petition effort was “reportedly paying circulators $25.00
per hour.” PSUF ¶ 21. The Defendants object, arguing that the “Plaintiffs’ representations as to
payments made by the CMP petition effort are inadmissible hearsay.” DRPSUF ¶ 21. The Court
agrees with the Defendants. The Plaintiffs have not provided any support for their statement and any
claims as to what CMP reportedly paid its circulators is hearsay.
professional circulators, and twelve volunteer Maine resident circulators. Id. Most
of the out-of-state professional circulators were recruited after January 5, 2021.
PSUF ¶ 27; DRPSUF ¶ 27. As of January 25, 2021, Plaintiffs had collected 38,000

signatures. PSUF ¶ 76; DRPSUF ¶ 76.
Prior to and on Election Day 2020, the Plaintiffs paid their professional
circulators $2.00 per signature. Pls.’ Interrog. Resp. No. 4. After November 3, 2020,
the Plaintiffs increased the pay rate to $2.50 per signature and in December 2020,
the rate was increased to $3.00 per signature. Id. In addition to the $3.00 per
signature compensation, the Plaintiffs reimburse out-of-state professional petition

circulators for their accommodations if they collect at least three hundred signatures
per week, in lieu of the $.50 per signature bonus paid to Maine resident professional
circulators who do not have accommodation costs. Id.12
According to the Maine Commission on Governmental Ethics and Election
Practices’ campaign finance records, three committees have registered with the
stated purpose of supporting Plaintiffs’ citizen initiative: We the People PAC, Liberty
Initiative Fund-Maine PAC, and the Maine Citizen Elections Committee PAC.

Wayne Decl. ¶ 7.
Maine Citizen Elections Committee registered as a PAC to support this
initiative petition on September 12, 2019, and terminated its existence in January

12 In their responses to the Defendants’ interrogatories four and nine, the Plaintiffs state that
out-of-state circulators have their expenses reimbursed if they collect at least three hundred
signatures, but in answer number ten, they state the requirement is at least five hundred signatures.
The Court resolves this conflict by accepting the three hundred number that the Plaintiffs represent
in two of their interrogatory responses.
2020, after returning most of its contributions following the suspension of the petition
drive in October 2019. DSUF ¶ 3; PRDSUF ¶ 3. Maine Citizen Elections Committee
spent $2,408 on “petition consulting,” as reported on October 21, 2019. Wayne Decl.

¶ 8.
We the People PAC registered as a PAC on April 21, 2020, but did not begin
spending funds for petition signature gathering until November 15, 2020, when it
began paying a Maine-based organization, James Tracey Initiative Source, for this
purpose. DSUF ¶ 4; PRDSUF ¶ 4. We the People PAC reported three expenditures
for the purpose of collecting signatures on petitions: $12,000 to James Tracey

Initiative Source on November 15, 2020 for “petitioning”; $10,000 to James Tracey
Initiative Source on November 25, 2020 for “petitioning”; and $10,714.50 to James
Tracey Initiative Source on December 27, 2020 for “signature collection.” Wayne Decl.
¶ 9.
Liberty Initiative Fund registered a PAC named Liberty Initiative Fund-
Maine PAC, for the purpose of supporting the initiative on October 22, 2020, after
receiving a contribution of $300,000 from a single donor on October 16, 2020. DSUF

¶ 5; PRDSUF ¶ 5. Liberty Initiative Fund-Maine PAC contributed $30,000 to James
Tracey on October 13, 2020 and $6,500 to James Tracey on October 14, 2020 to assist
in the initiative petition. PRDSUF ¶ 5. Beginning on October 26, 2020, Liberty
Initiative Fund-Maine PAC also began paying Ballot Access LLC, a North Carolina
company whose principal is a resident of Maine and former state representative, for
signature-gathering. DSUF ¶ 6; PRDSUF ¶ 6. Liberty Initiative Fund-Maine PAC
has reported seven different direct expenditures to Ballot Access LLC and James
Tracey for petitioning between October 26, 2020 and December 28, 2020, totaling
$129,965.16. Wayne Decl. ¶ 10.

F. Opportunities to Collect Signatures
Signature gathering at the polls on election day is allowed by law and is a
method commonly used by petitioners in initiative and referendum petition drives.
DSUF ¶ 11; PRDSUF ¶ 11. Four statewide elections were held in Maine during the
Plaintiffs’ eighteen-month window to collect signatures, with the following numbers
of voters voting in-person at the polls: November 5, 2019 referendum – 158,959 voters;

March 3, 2020 presidential primary – 335,891 voters; July 14, 2020 primary – 133,771
voters; and the November 3, 2020 general election – 313,876 voters. DSUF ¶ 10. In
the Plaintiffs’ experience, most volunteers limited their willingness to collect
signatures at more comfortable locations such as the polls on Election Day 2020,
which was itself impaired due to the prohibition on collecting signatures inside
polling locations as a result of the COVID-19 pandemic. DSUF ¶ 12; PRDSUF ¶ 12;
see Flynn Interrog. Resp. at 92, 96 (Exhibits E-1 and E-2, Guidance on Election

Procedures).13 For example, during the July 2020 primary and November 2020
general elections, signature gathering was restricted to areas outside the building for
public health reasons due to the COVID-19 pandemic. DSUF ¶ 12; PRDSUF ¶ 12.

13 The parties dispute whether there was bad weather in Maine on Election Day 2020. The
Plaintiffs argue that severe weather hampered their signature collection efforts. PSUF ¶ 28. The
Defendants respond by denying that there was severe weather in many parts of Maine on Election
Day 2020, including the Portland area. DRPSUF ¶ 28. Neither party has provided evidence for the
Court to conclude one way or the other, but either way, the Court does not find the weather to be a
material fact in this case and thus does not consider it for purposes of this motion.
G. The Role of Professional Petition Circulators
The Plaintiffs define a “professional petition circulator” as “an individual who
earns a significant portion of their annual income from the circulation of election

petitions, such as candidate nominating petitions, initiative and referendum
petitions, recall petitions and legislative veto petitions.”14 PSUF ¶ 35. Professional
petition circulators are also sometimes “hired to collect signatures on issue-based
petitions used to lobby elected officials to advance a particular policy agenda.” Id.
They are “routinely engaged in the circulation of election petitions and, as a result of
their experience, have acquired the skills necessary to engage a stranger on the street

or at an event and quickly communicate the purpose of the petition, ascertain if the
targeted stranger is legally qualified to provide a valid signature and to instruct the
stranger on how to properly execute his/her signature on the petition.” PSUF ¶ 36.
The best professional petition circulators are well known and have a good reputation
within the industry of petition management firms. PSUF ¶ 39.
Matthew Dunlap, the former Maine Secretary of State, has acknowledged the
difficulty of obtaining signatures using volunteers. In an interview with the

Sportsman’s Alliance of Maine (SAM), which aired on January 8, 2021, Mr. Dunlap

14 The Defendants object to this definition, arguing that the Plaintiffs “offer no source for their
invented definition of ‘professional petition circulator,’ and at least one of their declarants defined a
professional circulator as simply ‘an individual hired by a candidate or proponent of a proposed
initiative or referendum.” DRPSUF ¶ 35 (citing Pool Decl. ¶ 9). The Court qualifies the Plaintiffs’
definition by stating that it is just that—the Plaintiffs’ definition. The Court does not, however, think
“professional petition circulator” is a technical term that requires a source, and for the purposes of the
Plaintiffs’ motion it will accept the Plaintiffs’ definition. Even if one of the Plaintiffs’ declarants
proposed a different definition, that proposed definition is broader than the narrower definition the
Plaintiffs propose and does not contradict it. To the extent one of the Plaintiffs’ declarants defined the
term differently, the Court accepts the definition in the Plaintiffs’ statement of undisputed facts.
stated that it is “very difficult to get volunteers to really engage with people and get
them to sign petitions.” Sportsman’s Alliance of Maine, Conserving the Maine
Outdoors, air date 1/8/2021, YOUTUBE (Jan. 10, 2021),

https://www.youtube.com/watch?v=LoQnPyZrXqc&feature=youtu.be, at 17:44-18:44
(SAM Interview).15 He explained that “it’s not normal, 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,’” and so “it takes . . . a particular type of personality to be able
to do this.” Id. It is this difficulty that drives groups to hire out-of-state professional
circulators to gather signatures. Id.

For the Plaintiffs’ campaign, the forty-nine out-of-state professional circulators
have collected 90% of the 38,000 signatures collected within the last year of the
campaign. PSUF ¶ 76. 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. PSUF ¶ 29. That means seventy-two Maine circulators
collected 3,800 signatures, whereas forty-nine out-of-state professional petition
circulators have collected 34,200 signatures. Id. Based on these numbers, each out-

of-state professional petition circulator has, on average, collected six hundred ninety-
seven signatures, versus, on average, fifty-three signatures collected by each Maine
resident circulator (professional, paid and volunteer). PSUF ¶ 26.

15 The parties stipulated to the video’s authenticity. PSUF ¶ 15; DRPSUF ¶ 15.
The Plaintiffs have only identified six professional petition circulators in the
state of Maine.16 PSUF ¶ 40. Through conversations with Tim Mooney, Edee
Baggett—CEO and president of National Ballot Access, one of the largest petition

management firms in the country—and other professional petition managers,
Plaintiffs were unable to identify any additional professional petition circulators in
Maine.17 PSUF ¶ 42.
Use of professional petition circulators is not, however, required to collect a
sufficient number of signatures. The Defendants identified one successful all-
volunteer initiative effort. PSUF ¶ 34; DRPSUF ¶ 34; DSUF ¶ 19; PRDSUF ¶ 19; see

Johnson Decl. ¶¶ 5, 8, 11. On Election Day 1995, the initiative petition drive for the
Maine Clean Elections Act collected over 65,000 valid signatures using over one
thousand volunteer circulators and no paid signature collectors. Johnson Decl. ¶ 8.

16 The Defendants object, arguing that the “Defendants have presented evidence that there are
thousands of individuals in Maine who have experience as petition circulators, and many of them have
circulated petitions for pay.” DRPSUF ¶ 40 (citing Flynn’s Interrog. Resp. at 8-9). They also assert
that “there are likely thousands of Maine resident and registered voters who have circulated petitions
for pay since October 2015.” DSUF ¶ 18. However, the Defendants also admit that “our office does
not record or consider which circulators are paid and which ones are not, nor do we know which
circulators do this work regularly as their occupation.” Flynn Interrog. Resp. No. 14. Without further
information, the Court cannot conclude how many “professional circulators” reside in Maine, nor can
it conclude how many Maine residents have been paid to circulate petitions. However, the Court
accepts the Plaintiffs’ assertion that they could only identify six professional petition circulators in
Maine.
17 The Plaintiffs further contend that “[d]iscssions with Edee Baggett, CEO and president of
National Ballot Access, also one of the largest petition management firms in the United States (they
managed President Trump’s 2016 ballot access campaign), also confirmed that she was not aware of
any other professional petition circulator who was a resident of the State of Maine other than those on
the list of 6 professional petition circulators identified by James Tracey.” PSUF ¶ 42. The Plaintiffs
also claim that “[o]f the six known Maine professional petition circulators, none of them are considered
by Edee Baggett or Tim Mooney as being on a list of those considered to be among the best in the
industry.” PSUF ¶ 43. The Defendants object, claiming that the Plaintiffs’ “representations as to how
many professional petition circulators they were told by others are in Maine are inadmissible hearsay.”
DRPSUF ¶¶ 42-43. The Court agrees the information as to what Ms. Baggett or Mr. Mooney said is
hearsay and does not consider it.
The Secretary of State determined that the petition had enough valid signatures to
qualify for the ballot, and the initiative was adopted by voters on Election Day 1996.
Id. Another campaign, to amend the Maine Clean Elections Act in 2015, obtained a

majority of signatures by volunteers and it turned out the number of signatures
collected by volunteers was sufficient to qualify for the ballot, and was adopted by
voters in November 2015. Luther Decl. ¶¶ 3-5.
H. Out-of-State Circulators Willing to Participate in the Plaintiffs’
Petition Campaign

In addition to the fifty-five professional petition circulators now working on the
Plaintiffs’ campaign (forty-nine out-of-state and six in-state), the Plaintiffs identified
one hundred thirty-five additional professional petition circulators who are available
to circulate the Plaintiffs’ petition in Maine under the current pay structure and are
willing to do so if they do not have to work with an in-state resident witness.18 PSUF
¶ 45. Plaintiff Nicholas Kowalski is one of these out-of-state circulators. Another is
Timothy Mooney, an independent political consultant residing in Arizona, who,
through his company Morning in America, is prepared to enter into a contract with
Liberty Initiative Fund to collect signatures during the last week of the collection
period if, and only if, the voter registration and residency requirements are enjoined
by this Court. Mooney Decl. ¶ 17. The Plaintiffs also specifically identified Trenton
Donn Pool as an experienced professional circulator who resides in Texas and would

18 The Defendants object to this statement, pointing out that the “Plaintiffs and their declarants
have made conflicting representations as to how many out-of-state circulators are available to the
campaign.” DRPSUF ¶ 45 (citing Pls.’ Reply at 8; Jacob Decl. ¶¶ 4-5; Second Jacob Decl. ¶ 4). Despite
the conflicting declarations, the Court accepts the one hundred thirty-five number in the Plaintiffs’
statement of undisputed facts as the most recent number of identified out-of-state circulators.
work on the Plaintiffs’ petition drive but for Maine’s voter registration and residency
requirements. Pool Decl. ¶¶ 3-5, 42.
The Plaintiffs also identified out-of-state volunteer petition circulators willing

to circulate the Plaintiffs’ petition in Maine. For example, Christopher Arps is the
president of Americans for Citizen Voting, which supports We the People PAC’s
initiative petition, and is a resident of Missouri who, if permitted to do so, would
travel to Maine to volunteer for the Plaintiffs’ campaign and would submit to the
jurisdiction of Maine for purpose of service of any subpoena. PSUF ¶¶ 48, 51-52;
DRPSUF ¶¶ 48, 51-52. Alex Isada is a resident of Ohio who attends college in Maine

but is unwilling to register to vote in Maine. PSUF ¶¶ 53, 55; DRPSUF ¶¶ 53, 55.
Like Mr. Arps, Mr. Isada would like to circulate the Plaintiffs’ petition and is willing
to submit to Maine’s jurisdiction. PSUF ¶¶ 54, 56; DRPSUF ¶¶ 54, 56.19
I. Use of Maine Resident Witnesses
While under Maine law petition circulators must be registered Maine voters,
out-of-state circulators can still participate by using Maine residents to witness the
signature collection so that the in-state witnesses can execute the required affidavit.

However, this process is more costly and increases inefficiencies. PSUF ¶¶ 58-59, 63;
DRPSUF ¶¶ 58-59, 63. The Plaintiffs currently pay in-state witnesses $100 for eight

19 The Plaintiffs assert that “[t]here is not a single recorded instance of an out-of-state circulator
failing to comply with a subpoena or other process of law after having submitted to the jurisdiction of
a state in order to be able to freely circulate election petition in the jurisdiction.” PSUF ¶ 2 (citing
Waters Decl. ¶¶ 52-53). The Defendants object, arguing that the Plaintiffs have not provided a
foundation for their declarant Dane Waters to “conclusively opine on subpoena compliance.” DRPSUF
¶ 2. The Court agrees with the Defendants. Not only does the Waters Declaration not provide support
for the Plaintiffs’ assertion, but the Plaintiffs have not provided any foundation for Mr. Waters to make
such a strong assertion. Thus, the Court cannot accept the Plaintiffs’ assertion.
hours of work, plus $50 if they provide transportation. PSUF ¶ 60. From
December 29, 2020 to January 4, 2021, We the People PAC spent $5,373.25 for 1,791
signatures—about $3.00 per signature—collected by out-of-state professional

circulators while spending $5,790.00 on in-state resident Maine registered voters—
an additional $3.23 per signature—to witness the collection of signatures by out-of-
state circulators. PSUF ¶ 61; DRPSUF ¶ 61. Therefore, there is a cost increase of
107% for using in-state witnesses. Id. In the professional petition circulation
industry, resident witnesses are referred to as “anchors” because they only slow down
the most efficient techniques to collect signatures in as short a time period as possible.

First Jacob Decl. ¶ 11; Pool Decl. ¶¶ 38-39.
The legality of using in-state witnesses is unclear. In their interrogatory
answers, the Defendants have taken the position that only Maine voters are allowed
to handle the petitions, so it is unclear to what extent out-of-state circulators can
participate in petition circulation. See Flynn Interrog. Resp. No. 21 (“21-A M.R.S.
§ 903-A provides that a circulator ‘present[s] the petition to the voter, ask[s] the voter
to sign the petition and personally witness[es] the voter affixing the voter’s signature

to the petition.’ Thus, only a Maine voter is authorized to engage in the listed
conduct”) (alterations in original).20 Furthermore, it appears the explicit purpose of

20 The Plaintiffs argue that the Defendants “refused to guarantee that the use of out-of-state
petition circulators working with a Maine resident as a witness who can execute the affidavit is lawful
and/or free from private challenge.” Second Jacob Decl. ¶ 6. The Defendants dispute this. Suppl.
Flynn Decl. ¶ 9. The Defendants claim they do not recall being asked to provide a “guarantee” and
state that the Secretary of State “certainly cannot guarantee what any private party will or will not
do with respect to challenging the validity of an initiative petition.” Id. The Defendants continue,
“However, the Secretary would not invalidate a petition (and has not invalidated any previous petition)
on the grounds that a person from out-of-state worked alongside a Maine resident and registered voter
who was circulating the petitions.” Id. The Court concludes that it is immaterial whether the
a 2015 amendment to 21-A M.R.S. § 903-A was to prohibit out-of-state circulators
from coming to Maine and participating in the petition circulation process. See
L.D. 176, Summary (127th Legis. 2015) (“This bill prohibits persons who are not

residents of the State from collecting signatures on a petition for the direct initiative
of legislation or a people’s veto referendum and from handling such a petition in any
manner”); see also An Act To Amend the Law Governing the Gathering of Signatures
for Direct Initiatives and People’s Veto Referenda: Hearing on L.D. 176 Before the J.
Standing Comm. on Veterans and Legal Affairs, 127th Legis. (2015) (testimony of
Julie L. Flynn, Deputy Secretary of State) (“The bill also prohibits persons who are

not residents of the State from collecting signatures on a petition and from handling
a petition in any manner”). Some out-of-state circulators are refusing to work in
Maine as a result of the 2015 amendment. PSUF ¶ 44; DRPSUF ¶ 44. However, in
their statement of undisputed facts, the Defendants claim that “Maine law does not
forbid Maine registered voters from witnessing signature collection and executing the
circulator oath as it is currently written.” DRPSUF ¶ 62.
In a January 8, 2021 SAM interview, former Maine Secretary of State Matthew

Dunlap stated that the 2015 amendment to 21-A M.R.S. § 903-A was meant to help
“bring some accountability” to the “end around” where out-of-state circulators would
use in-state witnesses. SAM Interview at 18:35-44. In that same interview, David
Trahan, the Executive Director of SAM, claimed to have drafted the text of the 2015

Defendants refused to provide a guarantee, and thus does not consider the Plaintiffs’ assertion.
However, the Court finds that it is at the very least unclear precisely what role out-of-state residents
can legally play in the circulation process.
amendment and lamented that “states like Maine . . . are targeted by certain groups,
animal rights groups, gun control groups can’t get their bills through Congress or
through their legislatures come to Maine and think they can get on the ballot and

jam it through in a state like ours, and so we were really trying to get that under
control too,” to which Mr. Dunlap responded, “well in terms of political advertising
Maine’s a cheap date, right, you know it’s one of the reasons why they come here, and
that was a great change.”21 Id. at 16:41-17:12. Mr. Dunlap added that “once they get
a critical mass of states it seems to at least philosophically be less of a jump to get
Congress to take further action or . . . some of the states that don’t have initiatives to

keep things uniform, and that’s how they make these national changes in sort of an
incremental way.” Id. at 20:39-55. Mr. Trahan explained that after the 2015
amendment, “the person circulating had to be the one holding the petition, make the
ask and witness the signature” because “some of these out-of-state petition groups,
they were bringing up non-residents anyway.” Id. at 14:57-15:30.
The Defendants maintain, however, that other options exist for out-of-state
residents to participate in the petition circulation process. For example, the

Secretary of State’s office has never interpreted § 903-A to prohibit out-of-staters
“from working alongside a Maine circulator, engaging with voters to persuade them

21 The Defendants deny that Mr. Trahan wrote the text of the statute. DRPSUF ¶ 12. The Court
is unable to resolve this factual conflict on this record. It is not uncommon in Maine for an outside
group, such as a law firm or lobbying group, to write legislation, for a supporting legislator to propose
it in the form the outside group drafted it, and for the Maine Legislature to enact the legislation
substantially in the form the outside group wrote it. It is also true that the legislators and legislative
staff sometimes write legislation. The Court cannot know on this record what happened here, so the
Court included Mr. Trahan’s statement as a claim. At the same time, it is unclear how the Secretary
of State knows that Mr. Trahan did not do as he claimed to supply the language of the legislation that
was ultimately enacted.
to sign the petition, or otherwise assisting the circulation process.” Suppl. Flynn Decl.
¶ 7. The Secretary of State suggests out-of-staters can engage in “recruiting, hiring,
training and supervising Maine circulators; hiring notaries to administer the oaths

to circulators; collecting the signed petitions from the circulators or notaries and
distributing them to the town offices for certifications; and organizing and filing all
of the petitions with our office by the deadline.” Id. ¶ 8.
J. Registered Voters
Registering to vote in Maine requires an individual to complete and submit to
their city or town office a two-sided card, listing their legal name, physical address,

mailing address (if different), date of birth, driver’s license number (or, in the absence
of a driver’s license, a state identification number or the last four digits of a social
security number), signature, municipality and state where previously registered.
DSUF ¶ 25; PRDSUF ¶ 25. The voter can mail or deliver this form to the municipal
office in the city or town where they live. Id.
Before accepting a voter’s application form, the registrar must determine that
the voter is a resident of the municipality, applying the factors listed in 21-A M.R.S.

§ 112. Flynn Decl. ¶ 15. For voters who mail in their application without providing
documentation to prove residency, the registrar is required to send a voter
registration acknowledgment notice (VRAN) to the address on the application, and if
the VRAN is not returned undeliverable within fifteen days, the registrar will accept
the application and add the voter to the Central Voter Registration system. Id. A
voter may also register to vote in person at the municipal office and present proof of
identity and residency, pursuant to 21-A M.R.S. §§ 112, 112-A and 121(1-A). Id. The
Secretary of State’s Elections Division staff has access to the Central Voter
Registration system to see the registration status of any petition circulator. Id.

Any individual who wishes to verify their voter registration status may call the
town office where they live and ask the registrar to verify that information over the
phone. DSUF ¶ 26; PRDSUF ¶ 26. An individual may also obtain, free of charge—
either from the Secretary of State’s office or from their local town office—a copy of the
information contained in the individual’s voter record in Maine’s Central Voter
Registration System. Id. If the record shows that the voter is still registered in a

municipality where the voter no longer lives, the voter may update their registration
by downloading a voter registration form from the Secretary of State’s website,
completing the form with the voter’s new residence address, and returning the
completed form to their local town office. DSUF ¶ 27; PRDSUF ¶ 27.
Approximately 1,063,383 Maine citizens—97% of all eligible voters in Maine
and all but 32,000 eligible residents—were registered to vote as of July 14, 2020.22
DSUF ¶ 13; Flynn Decl. ¶ 8. However, it is unknown how many people are registered

22 The Defendants calculate this number by comparing the 1,063,383 active registered voters in
Maine to the estimated voting age population of Maine, as reported by the U.S. Census in July 2019,
which was 1,095,370. Flynn Decl. ¶ 8. The Secretary of State also notes that she is “not aware of any
method to determine precisely how many residents of Maine are eligible to vote but are not registered
to vote.” Suppl. Flynn Decl. ¶ 13. Plaintiffs argue that there are 146,997 eligible but unregistered
Maine citizens. Pls.’ Mem. at 6. For support, the Plaintiffs merely cite an article from WMTW, a local
ABC-affiliated television station in Maine. The Court resolves this dispute in the Defendants’ favor,
but qualifies the number as unprecise.
to vote at their current address,23 as required by Maine law.24 Under Maine law, a
circulator must be a Maine resident “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.” ME. CONST., art. IV, pt. 3, § 20. Therefore, the number of Maine residents
who are ineligible to circulate petitions due to the voter registration is some number
higher than 32,000, but the Court cannot quantify how many. PRDSUF ¶¶ 13-14.
K. The Plaintiffs’ Lawsuit
After Election Day 2020, the campaign realized it would not be able to collect
a sufficient number of signatures relying solely on Maine circulators. PSUF ¶ 78.

Initially, Liberty Initiative Fund lacked sufficient funds for the purpose of this
litigation, but the Plaintiffs were able to secure funding after the Christmas holiday.
PSUF ¶ 81. The Plaintiffs challenge 21-A M.R.S. § 903-A, and request preliminary
injunctive relief, to the extent it requires that petitions for a direct initiative may only
be circulated by registered voters of Maine and residents of Maine.25 PSUF ¶ 7;

23 The record is silent as to whether a crosstown move, as opposed to a move to another
municipality, would trigger a reregistration requirement. The Court assumes for purposes of this
motion that it would not.
24 The Plaintiffs provide evidence of an audit they performed on a sample of one hundred fifty
signatures of the Plaintiffs’ current initiative petitions. The audit showed that of the one hundred fifty
signatures, forty-one did not match a registered voter that the address had given. Based on this audit,
the Plaintiffs conclude that “27.33% of the Maine population is not qualified to circulate initiative and
people’s veto petitions because they are either not registered to vote, at all, or not registered to vote at
their current address.” PSUF ¶ 64-66. The Defendants object to the consideration of this sample
audit. DRPSUF ¶ 64-66. The Court agrees that the Plaintiffs have not shown how their sample audit
is representative of the 1,063,383 active registered voters in Maine, and thus does not consider it.
The Defendants admit, however, that “there is no statistic or method of determining how many
voters in Maine are registered at a different address than where they currently reside.” DRPSUF
¶ 64. Thus, for the purposes of this motion the Court concludes it is unknown how many voters are
registered at their current address. A statistician might well properly extrapolate a realistic number
from a smaller sample. But the Plaintiffs have not provided statistical evidence and the Court is
unwilling to perform its own extrapolation from a sample size of only one hundred and fifty voters.
25 The Plaintiffs also claim to “challenge and request preliminary injunctive relief [to] enjoin the
corresponding affidavit or oath to the extent it requires circulators of initiative petitions in Maine
DRPSUF ¶ 7. The Plaintiffs hope to gather enough signatures to meet the
February 16, 2021 deadline, but understand that if they do not meet the deadline,
they can immediately refile the initiative petition and still make the 2022 ballot if

they file signatures from a new petition drive with signatures collected from March
2021 to January 31, 2022. PSUF ¶ 83; DRPSUF ¶ 83; DSUF ¶ 9; PRDSUF ¶ 9.
III. THE PARTIES’ POSITIONS
The Court previously restated the parties’ positions in its order on the
Plaintiffs’ motion for a temporary restraining order. See TRO Order at 9-21. In this
order, the Court recounts only the parties’ most recent briefs concerning the motion

for preliminary injunction.
A. The Plaintiffs’ Brief in Support of Their Motion for
Preliminary Injunction

The Plaintiffs begin by restating their position that the United States Supreme
Court has established that “ballot access rules which reduce the pool of available
circulators of initiative petitions is a severe impairment” of First Amendment rights
and “must be reviewed under strict scrutiny analysis.” Pls.’ Prelim. Inj. Br. at 1-2.
Under a strict scrutiny analysis, the Plaintiffs say that the Court should enjoin the

attesting that the circulator was a resident and registered voter in the State of Maine at the time the
circulator circulated the petition.” PSUF ¶ 8 (citing 21-A M.R.S. § 903-a(4)(c)). The Defendants deny
this, arguing that the “Plaintiffs’ motion does not seek relief from this portion of Maine law.” DRPSUF
¶ 8. The Court agrees with the Defendants. In their Complaint, the Plaintiffs challenge “MRS Title
21-A, Chapter 11, Section 903-A(4)(c), to the extent it requires circulators to sign an affidavit attesting
that the circulator was a resident of the State and a registered voter in the State at the time of
circulating the petition.” Compl. at 2. In their brief in support of the preliminary injunction, the
Plaintiffs also state they are requesting “injunctive relief against the voter registration, residency, and
corresponding requirement of the circulator affidavit/oath for initiative petition circulators in the State
of Maine.” Pls.’ Prelim. Inj. Br. at 1. However, the Plaintiffs do not mention this provision in their
motion for temporary restraining order/preliminary injunction or their supporting memoranda. Thus,
the Court does not consider the Plaintiffs to be challenging that law in the instant motion. This
conclusion does not bar the Plaintiffs from clarifying their claim in future proceedings in this case.
challenged laws because “every court has held that requiring an out-of-state
circulator to submit to the jurisdiction of the state is more narrowly tailored to protect
the only recognized state interest of policing the integrity of the petition process.” Id.

at 2. The Plaintiffs argue that the Court denied their motion for TRO for lack of a
factual record, and point to the “extensive affidavits, evidence in documents, YouTube
video of an interview with former Secretary of State Dunlap and answers to
Defendants’ interrogatories” as establishing a “robust record.” Id. at 3. The Plaintiffs
then undertake a preliminary injunction analysis.
Regarding the likelihood of success on the merits, the Plaintiffs first assert that

“[i]t does not matter if Plaintiffs can, or cannot, qualify their initiative using Maine
volunteer or professional residents” because the relevant constitutional harm is
“whether or not the challenged restrictions prevent Plaintiffs from associating with
the petition circulators of their choice.” Id. at 4. The Plaintiffs cite On Our Terms
’97 PAC v. Secretary of State of Maine, 101 F. Supp. 2d 19 (D. Me. 1999), which
considered a pay-per-signature ban, and argue “the pool of available circulators is, in
fact, reduced both by the voter registration requirement and the independent

residency restrictions challenged in this action in the same way, and on the same
analysis, that this Court used to hold the pay-per-signature ban unconstitutional
back in 1999.” Id. at 7.
Turning to the record, the Plaintiffs assert there are only six known
professional circulators in Maine, but there are at least one hundred thirty-five
additional out-of-state professional petition circulators willing to travel to Maine to
circulate the Plaintiffs’ petition. Id. at 7-8. The Plaintiffs also claim that most of
their 38,000 signatures were collected by out-of-state circulators. Id. at 8. The
Plaintiffs argue that the reduction in pool of available circulators makes it less likely

that their initiative will qualify for the Maine ballot. Id. at 9. They contend that the
2015 amendments to the Maine laws may make it unlawful for out-of-state circulators
from even holding the petition or asking for a signature, and even if in-state witnesses
are permitted, they are an unsatisfactory option, as they greatly increase costs and
slow down the signature collection process. Id. at 9-12. Finally, the fact that some
petition drives successfully relied exclusively on volunteer efforts does not save the

laws because the “Plaintiffs have an absolute constitutional right to use professional
petition circulators under Meyer” and using volunteers is not as certain as
professional circulators who have a record of past efforts. Id. at 12-13.
Regarding voter registration, the Plaintiffs challenge the Defendants’ claim
that 97% of voter-eligible Maine citizens are registered to vote. Id. at 14. The
Plaintiffs argue that the Defendants “fail to provide any evidence as to the number of
registered voters who do not reside at their current residence,” which reduces the pool

of available circulators below the raw data. Id. Pointing to their own sample audit,
the Plaintiffs contend that the “Defendants[’] 96% registration rate is significantly
inflated and cannot be relied upon by this Court without some further evidence
presented by Defendants to defend their statistic.” Id. at 15. The Plaintiffs try to
qualify the Supreme Court’s findings in Buckley by contending that Colorado had a
bigger population and Buckley should be “considered in proportion to the Maine
population.” Id. at 15.
Next, the Plaintiffs consider the remaining preliminary injunction factors and

repeat their arguments from their previous briefs. The Plaintiffs argue that “[t]he
loss of First Amendment rights, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Id. (citing Elrod v. Burns, 427 U.S. 347, 353 (1976)).
They claim the balance of equities favors them because they will suffer irreparable
harm, while the Defendants will suffer no harm if the Maine laws are enjoined
because the “Plaintiffs must still file the requisite number of valid signatures and

Defendants will secure more information about Referendum and People’s Veto
circulators Defendants can use to execute any subpoena.” Id. at 16. Finally, the
public interest is favored by the “Defendants conducting the Referendum and People’s
Veto petition process within the boundary lines of the federal constitution.” Id. (citing
OpenPittsburgh.Org v. Wolosik, 2:16-cv-1075, 2016 WL 7985286 (W.D. Pa. Aug. 9,
2016)).
B. The Defendants’ Brief in Opposition to the Plaintiffs’ Motion for
Preliminary Injunction

The Defendants oppose the Plaintiffs’ motion for preliminary injunction,
claiming that the Plaintiffs seek to “flood the state with out-of-state circulators in a
belated attempt to rescue their citizen initiative campaign,” but absent from the
record is “(1) evidence that Maine’s circulator requirements have hampered their
petition-gathering efforts, or the degree to which they have done so, and (2) evidence
demonstrating that the use of out-of-state circulators at this late stage will make a
meaningful difference to their efforts.” Defs.’ Prelim. Inj. Opp’n at 1. The Defendants
argue that the few times Maine’s voter registration and residency requirements have
been challenged, state and federal courts have upheld them, and this Court should

as well. Id. at 2. The Defendants urge the Court to reject the Plaintiffs’ “eleventh-
hour attempt to enjoin Maine’s longstanding circulator requirements.” Id.26
Turning to the merits, the Defendants first consider the residency
requirement. The Defendants argue that a reduction in the likelihood of successfully
gathering sufficient signatures is not a severe burden because it is “abundantly clear
from the record that there are ample in-state circulators, be they paid or volunteer,

to enable the collection of sufficient signatures within the 18-month timeframe
afforded by Maine’s Constitution.” Id. at 6-7. They state that in the past five years,
“all but one of nine citizen initiative campaigns and three people’s veto campaigns
have gathered enough signatures to qualify for the ballot.” Id. at 7. They claim the
Plaintiffs “have made little effort to mount a petition drive using Maine circulators”
and “conspicuously absent is any discussion of the likely thousands of Mainers who
do not make a living circulating petitions but would be more than willing to do so for

pay.” Id. at 8. Thus, the Plaintiffs “have not substantiated a meaningful decrease in
the pool of circulators available to their campaign.” Id. at 9. The Defendants further
argue that the Plaintiffs have not shown they can make up the gap in signatures in
a week by using out-of-state circulators. Id. at 9-10. In conclusion, the “Plaintiffs

26 The Defendants next argue that the Court should disregard the Plaintiffs’ declarations and
interrogatory responses. Defs.’ Prelim. Inj. Opp’n at 4-5. The Court already resolved those objections,
and thus does not recount them here. See supra n.2
have not substantiated how Maine’s residency requirement has made it any more
difficult for them to succeed in gathering sufficient signatures, nor have they
quantified a burden that justifies the application of strict scrutiny.” Id. at 11.

The Defendants briefly address the radio interview given by former Secretary
of State Matthew Dunlap to the Sportsman’s Alliance of Maine, arguing that the
video actually supports the Defendants’ position because the conversation
“underscore[s] the importance of citizen initiatives retaining their grassroots
character” and Mr. Dunlap states that the Republican Party was able to collect about
72,000 signatures on a people’s veto petition in ninety days largely during the

pandemic.” Id. at 10-11.
The Defendants next argue the added cost due to the residency restriction is
not a severe burden. Id. at 11. The Defendants state that “a marginal increase in
cost is not a severe First Amendment burden” and “[t]he State is not obligated to
adopt the lowest cost election regulations absent compelling reason to do otherwise.”
Id. Moreover, the Defendants claim that “the record does not substantiate any
increase in cost at all.” Id. at 12. The Defendants argue that in-state circulators are

no more expensive than out-of-staters, especially considering the transportation,
lodging and food costs of out-of-state circulators. Id.
The Defendants conclude their residency argument by arguing the restriction
has only prevented Mr. Kowalski from exercising his First Amendment rights, and
even he could still support the initiative petition “in a variety of ways, from training
and organizing to accompanying circulators and persuading voters to sign the
petition,” and they say that multiple courts have ruled this alternative means of
engaging in protected speech lessens the overall burden on First Amendment rights.
Id. at 13 (citing Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001);

Idaho Coal. United for Bears v. Cenarrusa, 234 F. Supp. 2d 1159 (D. Idaho 2001)).
Thus, “Mr. Kowalski’s rights have . . . not been meaningfully burdened by Maine’s
circulator residency requirement.” Id.
Turning to the voter registration requirement, the Defendants state the
requirement “exists as a means of enforcing the state’s residency requirement” and
“visits hardly any additional burden beyond that imposed by the residency

requirement.” Id. The Defendants distinguish Buckley by noting the 97% voter
registration rate in Maine and emphasizing that the Plaintiffs identified only one
individual who is eligible to vote in Maine but prefers not to register. Id. at 14.
Regarding the Plaintiffs’ contention that circulators be registered in their town of
residence, the Defendants argue “it is exceedingly simple to check the status of one’s
registration, just as it is easy to change that registration if need be,” and thus, “while
there is no easy way to identify just how many Maine residents are registered in

locations other than their residence, it is an easily correctable issue . . ..” Id. at 15.27
The Defendants next argue that no matter what the burden is, “the State’s
interests in its circulator residency and registration requirements are more than

27 The Defendants also discount the Plaintiffs’ sample audit, claiming that “[t]here is nothing
representative about this sample, which reflects less than two ten thousandths (0.0002%) of Maine’s
voting-age population” and any voter who wishes to circulate a petition can easily update their voter
registration. Defs.’ Prelim. Inj. Opp’n at 15. But, as noted above, the Court has not considered the
Plaintiffs’ sample audit for purposes of ruling on this motion. See supra n.24.
adequate to justify it.” Id. at 16. Those interests are “procedural integrity and
protecting the initiative’s grassroots nature.” Id. The Defendants contend procedural
integrity is compelling because the State needs to limit fraud and only has a thirty-

day period to review initiative petitions, which involves checking tens of thousands
of signatures. Id. The Defendants emphasize that the Plaintiffs will not require their
out-of-state circulators to remain in Maine for any period of time, and in-state
circulators “are far easier to contact” when the Secretary of State’s office inevitably
has questions about the petitions. Id. at 17. The Defendants also claim that
preserving the local character of citizen initiatives is important because “[w]hile out-

of-staters are free to voice their support for an initiative to their heart’s content, the
citizen initiative’s very essence is undermined when it is entrusted to a flood of out-
of-state circulators, as Plaintiffs contemplate.” Id. The voter registration
requirement similarly “ensures that each circulator has a vested interest in the
initiative they hope to pass, in that each can vote on that initiative itself.” Id. at 18.
The Defendants finally address the remaining preliminary injunction prongs.
They argue the Plaintiffs “have failed to demonstrate that it is Maine’s laws—rather

than Plaintiffs’ own lack of diligence or simply a lack of support for the campaign—
that stand in the way of them gathering sufficient signatures to qualify their petition
for the ballot.” Id. The Plaintiffs have not shown that they cannot gather sufficient
signatures legally and they “admit that if they fail to gather enough signatures by
the deadline, they can resubmit an application to the Secretary’s Office and collect
signatures between March 2021 and January 2022, thereby still qualifying for the
ballot in the very same election.” Id. at 18-19.
The Defendants next claim that the balance of equities and public interest

weigh in their favor. Id. at 19. They argue the Plaintiffs delayed in collecting
signatures and were late in filing this lawsuit, and thus cannot now claim injunctive
relief. Id. at 19-20. The public “has a strong interest in the efficient regulation and
processing of petitions, and the integrity and grassroots nature of the citizen
initiative process,” and the circulator requirements “directly serve these ends, with
minimal effect on the prospect of obtaining sufficient signatures to place an initiative

on the ballot, or First Amendment rights more generally.” Id. at 20.
IV. LEGAL STANDARD
“[Injunctive relief] is an extraordinary and drastic remedy that is never
awarded as of right.” Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-
9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc.,
645 F.3d 26, 32 (1st Cir. 2011)). A judge should use the authority to grant such
injunctive relief “sparingly.” Mass. Coal. of Citizens with Disabilities v. Civil Def.

Agency & Office of Emergency Preparedness, 649 F.2d 71, 76 n.7 (1st Cir. 1981).
To determine whether to issue a preliminary injunction a court must analyze
four factors:
(1) the likelihood of success on the merits; (2) the potential for
irreparable harm [to the movant] if the injunction is denied; (3) the
balance of relevant impositions, i.e., the hardship to the nonmovant if
enjoined as contrasted with the hardship to the movant if no injunction
issues; and (4) the effect (if any) of the court’s ruling on the public
interest.
Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 17-18 (1st Cir. 2006) (alteration
in original) (quoting Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 11 (1st Cir. 2004)).
“The party seeking [an injunction] bears the burden of establishing that these
four factors weigh in its favor.” Id. at 18. Ultimately, “trial courts have wide
discretion in making judgments regarding the appropriateness of such relief.”
Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2009).

V. DISCUSSION
The Court previously applied the four-factor analysis in its order denying the
Plaintiffs’ motion for temporary restraining order, determining that on the scant
factual record the Plaintiffs had not proven their entitlement to extraordinary
injunctive relief. The Court now reviews the Plaintiffs’ motion for preliminary
injunction on a more substantial record including affidavits and declarations, as well

as interrogatories and statements of facts. It is on this more complete factual record
that the Court analyzes the four factors Plaintiffs must establish.
A. Petition Circulation and the First Amendment
Before beginning its preliminary injunction analysis, the Court believes a brief
discussion of the relationship between circulating an initiative petition and the First
Amendment is instructive. The First Amendment provides that Congress “shall
make no law . . . abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government for a redress of
grievances.” The Fourteenth Amendment makes that prohibition applicable to the
state of Maine. “The freedom of speech and of the press, which are secured by the
First Amendment against abridgment by the United States, are among the
fundamental personal rights and liberties which are secured to all persons by the
Fourteenth Amendment against abridgment by a state.” Thornhill v. Alabama, 310

U.S. 88, 95 (1940). The First Amendment “was fashioned to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people.” Roth v. United States, 354 U.S. 476 (1957).
In Meyer v. Grant, 486 U.S. 414 (1988), the United States Supreme Court
explained how the First Amendment specifically relates to petition circulation. The
plaintiffs in Meyer, much like the Plaintiffs in this case, sought “by petition to achieve

political change in Colorado; their right freely to engage in discussions concerning the
need for that change is guarded by the First Amendment.” Meyer, 486 U.S. at 421.
The Court explained that “[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 change.” Id. “Although a petition circulator may not have to
persuade potential signatories that a particular proposal should prevail to capture
their signatures, he or she will at least have to persuade them that the matter is one

deserving of the public scrutiny and debate that would attend its consideration by the
whole electorate,” which “will in almost every case involve an explanation of the
nature of the proposal and why its advocates support it.” Id. Therefore, the Supreme
Court reasoned that “the circulation of a petition involves the type of interactive
communication concerning political change that is appropriately described as ‘core
political speech.’” Id. at 421-22. The Supreme Court determined that the circulation
of initiative petitions is “an area in which the importance of First Amendment
protections is ‘at its zenith.’” Id. at 425.
It is with that this important background in mind that the Court proceeds with

its preliminary injunction analysis.
B. Likelihood of Success on the Merits
“The sine qua non of this four-part inquiry is likelihood of success on the
merits: if the moving party cannot demonstrate that he is likely to succeed in his
quest, the remaining factors become matters of idle curiosity.” New Comm Wireless
Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); see also Sindicato

Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 7 (1st Cir. 2012) (confirming
that this factor is the “most important part of the preliminary injunction assessment”)
(quoting Jean v. Mass. State Police, 492 F.3d 24, 27 (1st Cir. 2007)). The Court
analyzes the Plaintiffs’ challenge to the residency requirement and voter registration
requirement in turn.
1. Level of Scrutiny
To properly evaluate the constitutionality of Maine’s voter registration

requirement, the Court must first determine the applicable standard of constitutional
scrutiny.28 In general, there are two possible standards to examine issues of this sort,

28 The challenged voter registration and residency requirements are found in both the Maine
Constitution and Maine statutory law. In its TRO Order, the Court noted that the parties had not
addressed whether the standard of review is the same for state constitutional provisions as it is for
state statutory provisions. See TRO Order at 24 n.4. The parties still have not addressed this
question., but the Court finds guidance from the United States Supreme Court. In Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), the Supreme Court considered a challenge
to Colorado’s voter registration requirement, which was included in both the Colorado Constitution as
well as corresponding statutory provisions. See Buckley, 525 U.S. at 192-93 (“By constitutional
amendment in 1980, and corresponding statutory change the next year, Colorado added to the
where a state has restricted core political speech: one is automatic application of strict
scrutiny and the other a more flexible, balancing approach. The Court concludes that
the proper standard is a balancing approach, not an automatic application of strict

scrutiny.29
In Meyer v. Grant, 486 U.S. 414 (1988), the Supreme Court concluded that “the
circulation of a petition involves the type of interactive communication concerning
political change that is appropriately described as ‘core political speech’” for which
First Amendment protection is “at its zenith.” Id. at 421-22, 425. The Supreme
Court, however, rejected an automatic application of strict scrutiny. See Burdick v.

Takushi, 504 U.S. 428, 432-33 (1992) (rejecting notion that “a law that imposes any
burden upon the right to vote must be subject to strict scrutiny”). Rather, the
Supreme Court has held that “a more flexible standard applies.” Id. at 433 (citing
Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983)). “A court considering a challenge
to a state election law must weigh ‘the character and magnitude of the asserted injury
to the rights protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate’ against ‘the precise interests put forward by the State as

justifications for the burden imposed by its rule,’ taking into consideration ‘the extent
to which those interests make it necessary to burden the plaintiff’s rights.’” Id. at

requirement that petition circulators be residents, the further requirement that they be registered
voters”) (internal citations omitted). The Supreme Court concluded the voter registration requirement
was unconstitutional without any special deference to the Colorado Constitution or any distinction
between the Colorado Constitution and Colorado statutes. Without deciding the issue, this Court
proceeds without giving any special deference to the Maine Constitution as opposed to Maine statutory
law.
29 The Court came to the same conclusion in its order on the motion for TRO. TRO Order
at 24-27.
434 (quoting Anderson, 460 U.S. at 789). Thus, “[r]egulations imposing severe
burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling
state interest,” while “[l]esser burdens . . . trigger less exacting review, and a State’s

‘important regulatory interests’ will usually be enough to justify ‘reasonable,
nondiscriminatory restrictions.’” Timmons v. Twin Cities Area New Party, 520 U.S.
351, 358 (1997) (quoting Burdick, 504 U.S. at 434).
In Buckley, the Supreme Court confronted a requirement that circulators be
registered voters, but the majority opinion did not explicitly state the proper level of
constitutional scrutiny. However, the Buckley Court did explain that “‘no litmus-

paper test’ will separate valid ballot-access provisions from invalid interactive speech
restrictions; we have come upon ‘no substitute for the hard judgments that must be
made.’” Buckley, 525 U.S. at 192 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974),
and citing Timmons, 520 U.S. at 359, and Anderson, 460 U.S. at 789-90).
This more flexible approach is in line with First Circuit precedent, as well as
cases from this Court and the Maine Supreme Judicial Court. See Pérez-Guzmán v.
Gracia, 346 F.3d 229, 239 (1st Cir. 2003) (applying the Anderson-Burdick analysis

and explaining “[t]he rigorousness of the ensuing judicial inquiry depends upon the
extent to which the challenged regulation burdens First Amendment rights”); Bond
v. Dunlap, No. 1:20-cv-00216-NT, 2020 U.S. Dist. LEXIS 131389, at *20 (D. Me. July
24, 2020) (citing Libertarian Party of N.H. v. Gardner, 638 F.3d 6, 4 (1st Cir. 2011))
(stating that “courts review ballot access restrictions ‘under the sliding scale
approach announced by the Supreme Court’ in Anderson and Burdick”); Jones v. Sec’y
of State, 2020 ME 113, ¶ 21, 238 A.3d 982, 988-89 (“To ensure fairness and order, the
United States Supreme Court has . . . adopted a specific framework for cases
involving the regulation of ballot access that does not always require application of

the strict scrutiny standard,” and “[t]his approach is in contrast to mandatory
application of the strict scrutiny standard in reviewing restrictions on core political
speech—or content-based restrictions on speech—that do not regulate ballot access”).
2. Residency Requirement
a. Burden on the Plaintiffs
i. Caselaw from Other Courts

While the Supreme Court directly addressed voter registration requirements
in Buckley, the Court did not reach Colorado’s requirement that all petition
circulators be residents of the state because the parties did not contest that provision.
Buckley, 525 U.S. at 197. Justice Rehnquist, in dissent, specifically noted the
majority’s “sphinx-like silence” as to whether states may limit circulators to state
residents. Id. at 228 (Rehnquist, J., dissenting).
In the years that have passed, however, a consensus has emerged. A majority

of the federal appellate courts that has considered the question has found residency
restrictions to be severe burdens and unconstitutional under a strict scrutiny review.
See Wilmoth v. Sec’y of New Jersey, 731 F. App’x 97, 103 (3d Cir. 2018) (applying strict
scrutiny to New Jersey’s residency requirement for circulators); Libertarian Party of
Virginia v. Judd, 718 F.3d 308, 317 (4th Cir. 2013) (holding Virginia’s “residency
restrictions bearing on petition circulators and witnesses burden First Amendment
rights in a sufficiently severe fashion to merit the closest examination”); Nader v.
Blackwell, 545 F.3d 459, 478 (6th Cir. 2008) (Nelson Moore, J., concurring) (clarifying
the majority’s holding that Ohio’s residency restriction “severely limits political

speech and is not justified by a sufficient state interest”); Krislov v. Rednour, 226 F.3d
851, 860 (7th Cir. 2000) (finding a severe burden and concluding that “[b]y preventing
the candidates from employing millions of potential advocates to carry their political
message to the people of Illinois, the statute places a formidable burden on the
candidates’ right to disseminate their message”); Nader v. Brewer, 531 F.3d 1028,
1036 (9th Cir. 2008) (holding Arizona’s residency requirement poses a severe burden

on plaintiffs’ First Amendment rights, noting that “[w]hile the district court correctly
observed that there remain millions of potential Arizona circulators, the residency
requirement nevertheless excludes from eligibility all persons who support the
candidate but who, like Nader himself, live outside the state of Arizona”); Yes On
Term Limits, Inc. v. Savage, 550 F.3d 1023, 1028 (10th Cir. 2008) (applying strict
scrutiny, despite not using Anderson-Burdick test).
In fact, only the Eighth Circuit has found a residency requirement not to be a

severe burden. See Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir.
2001) (holding that North Dakota’s residency requirement was not a severe burden
and upholding its constitutionality). But see Citizens in Charge v. Gale, 810 F. Supp.
2d 916, 926 (D. Neb. 2011) (reviewing Nebraska’s residency requirement and
concluding that Jaeger did not control and was distinguishable, noting that Jaeger
specifically stated that there was “no evidence in the record” of the alleged burden
associated with the ban).
The Maine Law Court, however, upheld Maine’s residency requirement in Hart

v. Secretary of State, 1998 ME 189, 715 A.3d 165. The Hart Court stated that
“[a]lthough technically any restriction limits the ‘number of voices who will convey
the [proponents’] message,’ it does not follow that requiring circulators to be residents
will limit the size of the audience the proponents can reach or will make it less likely
that proponents ‘will garner the number of signatures necessary to place the matter
on the ballot.’” Id. ¶ 11 (quoting Meyer, 486 U.S. at 422-23) (alteration in original).

The Hart Court distinguished its case from Meyer, explaining that “[i]n Meyer, the
petitioners had only six months to gather the necessary signatures and they
demonstrated a need to pay circulators in order to obtain the necessary signatures
within the allotted time,” while the plaintiffs “had three years to gather the necessary
signatures and failed to demonstrate any necessity for employing nonresidents in
circulating the petitions.” Id. ¶ 12. See Maine Taxpayers Action Network v.
Gwadosky, No. Civ.A. AP-02-005, 2002 WL 747912, at *2 n.2 (Me. Super. Ct. Mar. 19,

2002) (declining to revisit Hart in light of Buckley).
The First Circuit has not addressed residency requirements, but Magistrate
Judge Cohen in Initiative & Referendum Institute v. Secretary of State, No. CIV. 98-
104-B-C, 1999 WL 33117172 (D. Me. Apr. 23, 1999), briefly considered the issue. The
Court made quick work of the plaintiffs’ challenge, noting that they “adduce[d] no
evidence that Maine’s residency requirement imposes any particular burden on the
initiative process.” Initiative & Referendum Inst., 1999 WL 33117172, at *16. The
Court also emphasized that the “plaintiffs offer[ed] no evidence in support of the basic
proposition that any one of them is a non-resident who wishes to work as a circulator

in Maine. For this reason alone the claim founders.” Id.
These cases demonstrate that the constitutional analysis here is fact-intensive.
In its TRO Order, the Court concluded that there were “too many unresolved and
contested facts to issue a TRO.” TRO Order at 39. The parties have since filed dozens
of declarations, interrogatory responses, and statements of facts. Based on this much
more substantial factual record, the Court proceeds to analyze the specific burdens

in this case.
ii. Evidence of Burden
The Court concludes that the Plaintiffs have proven a severe burden of their
First Amendment rights. In Meyer, the Supreme Court held that “the circulation of
a petition involves the type of interactive communication concerning political change
that is appropriately described as ‘core political speech.’” Meyer, 486 U.S. at 421-22.
The Court found that a prohibition on paying petition circulators restricted political

expression by “limit[ing] the number of voices who will convey appellees’ message and
the hours they can speak and, therefore, limits the size of the audience they can
reach,” and “mak[ing] it less likely that appellees will garner the number of
signatures necessary to place the matter on the ballot, thus limiting their ability to
make the matter the focus of statewide discussion.” Id. at 422-23.
The residency requirement imposes similar restrictions. 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 record shows that there are out-of-state professional
petition circulators, such as Plaintiff Nicholas Kowalski, Mr. Mooney, and Mr. Pool,
who are skilled at efficiently collecting signatures and ensuring that the signatures
collected are valid. Even Matthew Dunlap, the former Maine Secretary of State,
acknowledged that it’s difficult to collect signatures and it takes “a particular type of
personality to be able to do this,” which is why groups seek to hire out-of-state

professional circulators. Out of the 38,000 signatures the Plaintiffs collected, 90%
were gathered by forty-nine out-of-state professional petition circulators, while only
3,800 signatures were gathered by seventy-two Maine circulators. In other words,
each out-of-state professional petition circulator has collected, on average, six
hundred ninety-seven signatures, versus, on average, fifty-three signature collected
by each Maine resident, including professional, paid, and volunteer residents. This
is in spite of the fact that the out-of-state circulators were limited to using Maine

residents as witnesses, which slows down the process of signature collection. Despite
conversations with other professional petition managers, the Plaintiffs were only able
to identify six Maine professional petition circulators.
The Defendants argue that “it is abundantly clear from the record that there
are ample in-state circulators, be they paid or volunteer, to enable the collection of
sufficient signatures within the 18-month timeframe afforded by Maine’s
Constitution.” Defs.’ Prelim. Inj. Br. at 7. They contend that there are other options
available to collect signatures, such as paying Maine residents, hiring volunteers, or
pairing out-of-state circulators with Maine resident witnesses. This argument misses

the point.
The Supreme Court has clearly stated that “[t]he First Amendment protects
appellees’ right not only to advocate their cause but also to select what they believe
to be the most effective means for so doing.” Meyer, 486 U.S. at 424. The Meyer Court
explained that “Colorado’s prohibition on paid petition circulators restricts access to
the most effective, fundamental, and perhaps economical avenue of political

discourse, direct one-on-one communication. That it leaves open ‘more burdensome’
avenues of communication, does not relieve its burden on First Amendment
expression.” Id. See Nader, 531 F.3d at 1036 (“While the district court correctly
observed that there remain millions of potential Arizona circulators, the residency
requirement nevertheless excludes from eligibility all persons who support the
candidate but who, like Nader himself, live outside the state of Arizona. Such a
restriction creates a severe burden on Nader and his out-of-state supporters’ speech,

voting and associational rights”); Krislov, 226 F.3d at 862 (“To the extent the Illinois
law prevents candidates from using the people they consider to be the best means of
carrying their message to the public, it places a substantial burden on the candidates’
ability to convey their political ideas, even if it only restricts the candidate from using
a few circulators”); On Our Terms ’97 PAC v. Sec’y of State, 101 F. Supp. 2d 19, 26
(D. Me. 1999) (“The [restriction on payment-per-signature], like the Colorado
payment ban [in Meyer], did not completely stifle initiative and referendum activity
in Maine, leaving open the possibility of conducting successful signature-gathering
campaigns either via volunteers or employing ‘more burdensome’ forms of paying

professional circulators. That these avenues remained open does not alter the finding
that the Statute heavily burdened protected speech”).
While the Defendants contend that there are thousands of Maine residents
ready and willing to circulate petitions for pay, the record shows the Maine residents
the Plaintiffs have hired are not as efficient as professional out-of-state circulators.
The fact that in the past five years, there were twelve petition drives using thousands

of Maine residents and only one was unsuccessful does not change the conclusion.
This evidence merely shows that it is possible to have a successful petition drive,
despite the voter registration and residency restrictions. The fact that some petition
drives have been able to overcome the obstacles the state of Maine has imposed
against their success hardly justified the imposition of the obstacles in the first place.
The record here demonstrates that signature collection efforts that currently require
hundreds of Maine circulators can likely be done faster and more efficiently by a

smaller number of professional circulators.
The evidence regarding volunteers further proves the point. The record shows
only one successful all-volunteer petition drive from twenty-five years ago. While one
petition drive from five years ago did have enough volunteer-collected signatures to
qualify for the ballot, that fact was only apparent in retrospect and the petition drive
still employed paid circulators. Furthermore, former Secretary of State Dunlap
admitted that it is “very difficult to get volunteers to really engage with people and
get them to sign petitions.” Indeed, the Plaintiffs at first tried employing only Maine
volunteers, but were unable to get anywhere close to the required 63,067 signatures.

The availability of in-state witnesses does not reduce the burden on the
Plaintiffs. First of all, after the 2015 amendment to 21-A M.R.S. § 903-A, it is unclear
to what extent the pairing of in-state witnesses with out-of-state circulators is legal.
The Defendants’ interrogatory responses suggest that only a Maine voter is
authorized to present the petition to the voter, ask the voter to sign the petition, and
personally witness the voter signing the petition. This is in line with Ms. Flynn’s

testimony that the 2015 amendment prohibited out-of-state persons “from handling
a petition in any manner.” Mr. Dunlap’s statements in the SAM interview confirm
that from the viewpoint of the then-Secretary of State, the purpose of the 2015
amendment was, in fact, to stop the in-state witness “end around.” Thus, while
theoretically the in-state witness scheme allows the Plaintiffs to use out-of-state
professional circulators, it is legally dubious. Indeed, some out-of-state professional
petition circulators are unwilling to come to Maine due to the 2015 amendment.30

30 In 2019, the Maine Legislature amended the violations and penalties section of the law, 21-A
M.R.S. § 904, to include a new subsection 6:
A person commits a Class E crime if that person:

6. Failure to truthfully execute and file circulator affidavit. Knowingly fails to
truthfully execute and timely file a circulator affidavit under section 903-A,
subsection 4.

See ME. LEG. 2019, ch. 456, §§ 3, 4, 5 (eff. Sept. 19, 2019). Under 21-A M.R.S. § 903-A, the circulator
affidavit requires the circulator to file an affidavit with the Secretary of State that must include:

B. That the circulator read the information provided by the Secretary of State
pursuant to subsection 3 and understands the laws governing the circulation of
petitions in the State;
Second, even if using in-state witnesses is legal—a question this Court need not
resolve—the record shows that the scheme more than doubles the cost of collecting
signatures and slows the signature collection process down. This is not simply a

“marginal increase in cost.” Defs.’ Prelim. Inj. Opp’n at 11.
The Defendants suggest that out-of-staters can still engage in “recruiting,
hiring, training and supervising Maine circulators; hiring notaries to administer the
oaths to circulators; collecting the signed petitions from the circulators or notaries
and distributing them to the town offices for certifications; and organizing and filing
all of the petitions with our office by the deadline.” Suppl. Flynn Decl. ¶ 8. These

alternatives do not sufficiently alleviate the burden on the Plaintiffs’ First
Amendment rights.
Two final arguments advanced by the Defendants warrant explanation. First,
the Plaintiffs must submit 63,067 signatures to the Maine Secretary of State by
5:00 p.m. on February 16, 2021. It is February 16, 2021. The Defendants argue that
it is impossible to make up the gap by using out-of-state circulators. Defs.’ Prelim.

C. That the circulator was a resident of the State and a registered voter in the State
at the time of circulating the petition;

D. That the circulator understands that the circulator can be prosecuted under section
904 for violating the laws governing the circulation of petitions, including that the
circulator truthfully executed the affidavit.

These provisions raise the stakes for the out-of-state professional circulator, who undertakes
circulation activity and is deemed to have stepped over the legal lines that the Secretary of State has
drawn. If that circulator is considered to have circulated the petition but failed to file the required
affidavit, the circulator could be exposed to prosecution for violation of a Class E crime. 21-A M.R.S.
§ 904. In Maine, conviction of a Class E crime subjects the person to a term of imprisonment not to
exceed six months, 17-A M.R.S. § 1604(1)(E), and a fine not to exceed $1,000. 17-A M.R.S. § 1704(5).
Inj. Opp’n at 9. The Court agrees. However, the parties have agreed that even if the
Plaintiffs do not gather enough signatures by February 16, 2021, they can
immediately start gathering signatures to put their initiative on the 2022 ballot.

Without a preliminary injunction, the Defendants will still be burdened by the
residency requirement. Thus, whether a preliminary injunction will enable the
Plaintiffs to gather enough signatures for the February deadline does not obviate
their need for injunctive relief.
Second, the Defendants claim that the Plaintiffs “appear to have made little
effort to mount a petition drive using Maine circulators.” Defs.’ Prelim Inj. Opp’n

at 8. This District addressed a similar argument in On Our Terms ’97 PAC. In that
case, Magistrate Judge Cohen found that “the plaintiffs made at best a modest effort
to collect signatures during the Pledge Drive in 1997, employing thirteen people for
a period of at most four weeks, foregoing a chance to collect signatures on Election
Day and expanding only a small fraction of their budget for payment to circulators.”
On Our Terms ’97 PAC, 101 F. Supp. 2d at 25. “Had the plaintiffs worked harder
and/or more creatively and invested more resources, the Pledge Drive might have

succeeded despite the existence of the Statute.” Id. The Magistrate Judge
nonetheless concluded that the prohibition on paying circulators was a severe burden,
noting that plaintiffs had begun the process of collecting signatures when they
realized the state regulation posed a significant problem for the campaign. Id. The
plaintiffs “judged that the ban on payment per signature would undermine estimates
of collection costs and time frames, threatening the success of the entire Pledge Drive
effort.” Id. The Magistrate Judge reasoned that there “was no need . . . for the
plaintiffs to press their campaigns to completion to demonstrate the burdensome
effect of the applicable state regulation.” Id.

As explained, the Plaintiffs have tried employing only Maine residents to
circulate their petitions. The Plaintiffs have hired out-of-state circulators to partner
with in-state residents. They have spent thousands of dollars, employed many in-
state and out-of-state individuals, and were still only able to gather 38,000
signatures. This is much more than the “modest effort” the Magistrate Judge found
sufficient in On Our Terms ’97 PAC. While the Defendants point out ways the

Plaintiffs could have collected more signatures, the Court is persuaded that the
residency requirement severely burdened the Plaintiffs’ attempts to mount its
petition drive.
What makes this case more difficult than other cases that have considered
residency restrictions is that this District and the Maine Supreme Judicial Court
have previously upheld Maine’s residency requirement. However, the Court views
these cases as distinguishable. In Initiative & Referendum Institute v. Secretary of

State, No. CIV. 98-104-B-C, 1999 WL 33117172 (D. Me. Apr. 23, 1999), Magistrate
Judge Cohen quickly dismissed a challenge to the residency requirement because
“[t]he plaintiffs adduce[d] no evidence that Maine’s residency requirement imposes
any particular burden on the initiative process” and they offered “no evidence in
support of the basic proposition that any one of them is a non-resident who wishes to
work as a circulator in Maine.” Initiative & Referendum Inst., 1999 WL 33117172, at
*16. Far from the complete lack of evidence put forth by plaintiffs in Initiative &
Referendum Institute, the Plaintiffs here have provided a substantial record detailing
the burden on the initiative process and the Plaintiffs specifically identify out-of-state

individuals who would like to work as circulators in Maine.
In Hart v. Secretary of State, 1998 ME 189, 715 A.2d 165, the Maine Supreme
Judicial Court upheld Maine’s residency requirement and distinguished Meyer by
noting that the Meyer plaintiffs had only six months to gather the necessary
signatures and demonstrated a need to pay the circulators in order to obtain the
necessary signatures within the allotted time. Hart, 1998 ME 189, ¶ 12. Meanwhile,

the Hart plaintiffs had three years to gather necessary signatures and “failed to
demonstrate any necessity for employing nonresidents in circulating the petitions.”
Id.
Here, by contrast, the Plaintiffs had eighteen months to gather signatures, but
by law, all the signatures have to be collected within a one-year window. Moreover,
as already explained, to the extent the Hart Court or the Defendants here argue that
the Plaintiffs have failed to show a necessity for employing nonresidents, this misses

the point. The proper constitutional inquiry is not a “but for” test, where the Plaintiffs
must prove but for the residency requirement they would collect sufficient signatures.
Indeed, it would be difficult to ever prove this counterfactual proposition. Regardless
whether the Plaintiffs here can collect sufficient signatures by using only Maine
residents, the Plaintiffs have shown the inability to use out-of-state petition
circulators is a severe burden.
On the record before it, the Court is satisfied that the Plaintiffs carried their
burden to show the inability to use out-of-state petition circulators is a severe burden
on the exercise of their First Amendment Rights.

b. The State’s Interests
The Court next considers whether the Defendants have shown sufficient
interests that justify the severe burden. Because the Plaintiffs demonstrated Maine’s
residency requirement severely burdens their First Amendment rights, the Court
applies strict scrutiny. See Timmons, 520 U.S. at 358 (“Regulations imposing severe
burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling

state interest”). Applying a strict scrutiny framework, it is the Defendants’ burden
to prove the residency requirement is narrowly tailored to serve a compelling interest.
Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222 (1989).
The Defendants put forth two interests: (1) “procedural integrity” and
(2) “protecting the initiative’s grassroots nature.” Defs.’ Prelim. Inj. Opp’n at 9. The
Defendants cite Hart for support:
Residence enhances the integrity of the initiative process by ensuring
that citizens initiatives are brought by citizens of Maine. Because the
circulators are the persons who verify that the signature and residence
of petitioners are accurate, the residency requirement provides the State
with jurisdiction over the circulators and makes the circulators easier to
locate if there is a question as to the validity of the signatures collected.
Thus, any interference with proponents’ right to unfettered political
expression is justified by the State’s compelling interest in protecting
the integrity of the initiative process, and the residency requirement set
forth in the Maine Constitution is narrowly tailored to serve that
interest.
Hart, 1998 ME 189, ¶ 13. The Plaintiffs counter, arguing that “a state can more
narrowly protect its interest in policing against petition fraud by requirement that
out-of-state circulators submit to the state’s jurisdiction. Pls.’ Mem. at 12.

The Court appreciates the State’s strong interest in protecting its elections.
The record shows that instances of fraud do occur, and limiting petition circulators to
Maine residents makes it easier to monitor and prosecute petition fraud. The
problem is the restriction is not narrowly tailored to the interest.
In Libertarian Party of Virginia v. Judd, the plaintiffs, like the Plaintiffs here,
argued that to combat fraud, Virginia “could compel nonresidents, as a condition of

witnessing signatures on nominating petitions, to enter into a binding legal
agreement with the Commonwealth to comply with any civil or criminal subpoena
that may issue.” Libertarian Party of Virginia, 718 F.3d at 318. The defendants
made very similar arguments as the Defendants here, claiming that “ostensible
consent to the extraterritorial reach of the Commonwealth’s subpoena power does not
guarantee the requisite access, because nonresident witnesses must yet be located
and retrieved, perhaps by extradition or rendition.” Id.

The Fourth Circuit agreed with the plaintiffs, noting that the defendants
“produced no concrete evidence of persuasive force explaining why the plaintiffs’
proposed solution, manifestly less restrictive of their First Amendment rights, would
be unworkable or impracticable.” Id. The Court reasoned that “[t]here are few
guarantees in life . . . and it is hardly an iron-clad proposition that a similarly situated
resident witness will be amenable to service and comply with a lawfully issued
subpoena.” Id. “Surely nonresidents with a stake in having the signatures they have
witnessed duly counted and credited—whether that stake be political, financial, or
otherwise—will possess the same incentive as their resident counterparts to appear

at the Commonwealth’s request and answer any questions concerning the petitioning
process.” Id. Thus, the Court found it had “scant choice but to conclude, as the
district court did, that the requirement fails strict scrutiny and is unconstitutional.”
Id. See also Yes On Term Limits, Inc., 550 F.3d at 1030 (“[R]equiring non-residents
to sign agreements providing their contact information and swearing to return in the
event of a protest is a more narrowly tailored option that Oklahoma has failed to

prove would be ineffective”).
The Court similarly finds that the Defendants here have failed to show how a
requirement that petition circulators enter into a binding agreement to submit to
Maine’s jurisdiction and comply with any subpoenas would be inadequate. Simply
because a circulator is a Maine resident does not mean they will be less likely to
commit fraud or more amenable to service in Maine. This is especially true with out-
of-state professional petition circulators, who have an incentive to maintain their

professional reputations and get paid for their valid signatures. The Court is not
convinced that in-state circulators are “far easier to contact,” especially if out-of-
staters are required to provide their contact information and sign a legally binding
agreement. Defs.’ Prelim. Inj. Br. at 17. While the Court appreciates the short thirty-
day window the Secretary of State has to review petition signatures, the Defendants
have not proven how the residency requirement is narrowly tailored.
The State residency requirement is similarly not tailored to the State’s
grassroots interest. It is clear to the Court that one of the purposes of the residency
requirement and the 2015 amendment is to keep out-of-state interest

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211016. Public record. Not legal advice.