# Petition for Writ of Certiorari — Hart v. Gwadosky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1139

## Text

s

Court, U.
FILED

“ «9B «B76 0cT2 31098

No. QFFICE OF THE CLERK
In The

October Term, 1998
STEPHANIE HART, et al.

Petitioners,
VS.

DANIEL GWADOSKY
Respondent.

On Petition for a Writ of Certiorari to the Maine
Supreme Judicial Court

PETITION FOR A WRIT OF CERTIORARI

James T. Kilbreth

Counsel of Record
Christopher B. McLaughlin
VERRILL & DANA, LLP
Attorneys for Petitioner
One Portland Square

P.O. Box 586

Portland, ME 04112-0586
(207) 774-4000

II.

i

QUESTIONS PRESENTED

Does the requirement that persons who
circulate petitions in support of a citizen’s
initiative petition be registered to vote in the
State of Maine unreasonably restrict the
political speech of the petition’s sponsors in
violation of the First Amendment of the
United States Constitution?

Does the requirement that persons who
circulate petitions in support of a citizen’s
initiative petition be legal residents of the State
of Maine unreasonably restrict the political
speech of the petition’s sponsors in violation
of the First Amendment of the United States
Constitution?

il
LIST OF PARTIES

Pursuant to Rule 14.1(b) of the Supreme
Court Rules, the parties to the proceedings below
whose judgment is sought to be reviewed are:

Stephanie Hart and Mainers for Medical Rights,
Plaintiffs/Petitioners

Daniel Gwadosky, in his capacity of Secretary of
State for the State of Maine,
Defendant/Respondent

iil

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ............. a
LIST GP PARTIES occ cree c ces ecenass il
TABLE OF CONTENTS ...........--.+---: ili
TABLE OF CITATIONS ..............+.--. Vv
OPINIONS BELOW .......cccccececcces: l
STATEMENT OF JURISDICTION .......... l
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ........... 2
STATEMENT OF THE CASE .............. 4
FACTUAL AND PROCEDURAL
PRAM ARUPUOD so nc tee cccccccccasss 7

REASONS FOR GRANTING THE WRIT ... 14

I. THE COURT BELOW’S DECISION
UPHOLDING THE REQUIREMENT
THAT PERSONS WHO CIRCULATE
A CITIZEN’S INITIATIVE PETITION
MUST BE REGISTERED VOTERS
UNREASONABLY RESTRICTS THE
“CORE POLITICAL SPEECH” OF
THE PETITION’S SPONSORS AND

iV

CONFLICTS WITH THE DECISIONS
OF TWO UNITED STATES COURTS
OP APRUD sr ecck es vee este ei acs 14

Il. THE REQUIREMENT THAT
PERSONS WHO CIRCULATE
CITIZEN’S INITIATIVE PETITIONS
BE LEGAL RESIDENTS OF THE _—
STATE OF MAINE
UNCONSTITUTIONALLY
RESTRICTS THE SPONSOR’S
Pgh Pug ty.) o , See enariea 26

CH so kl ok ee vole a kas eet 30

Vv

TABLE OF CITATIONS
Page
CASES

American Const. L. Foundation, Inc., et al.
v. Meyer, et al., 120 F.3d 1092
(10th Cir. 1997), cert. asap
Buckley v
Foundation, Inc., 118 S. & 1033
el and cert. denied, American
_ Foundati _v. Buckl
rig S. Ce 1045 C1998)... oe ee 16, 19

Bernbeck v. Moore, 126 F.3d 1114
(8th Cir. 1997) .......------+- 15, 19, 24

First National Bank of Boston v. Bellotti,
435 U.S. 765 C(A9TS) |. 0 ee cee eee 12

Meyer v. Grant, 486 U.S. 414 (1988) ... 17, 18, 23

Murphy v. Hunt, 455 U.S. 478 es bie ee 12

Term Limits Leadership, Inc. v. Clark,
984 F. Supp. 470 (S.D. Miss. 1997) .... 28

STATUTES

SEGA I oie 21

vi
SA IRD A NE i ce 21
Muh ME 33 o> 5 ee 21
ee ee Weer rer rene e 23
2A MRE A es ce 1

Me. Const. Art. 4, Pt. 3, §20 ............. a

APPENDIX

Page
Appendix A - Opinion of the Maine Supreme
Judicial Court, Dated July 28,1998 .......... la
Appendix B - Order of the Kennebec County
Superior Court, Dated May 15, 1998 ........ 16a

Appendix C - Order of the Kennebec County
Superior Court, Dated June 29,1998 ........ 42a

l

Petitioners respectfully petition for a writ of
certiorari to review the judgment of the Maine
Supreme Judicial court entered in the above-entitled
proceeding on July 28, 1998.

OPINIONS BELOW

The opinion of the Maine Supreme Judicial
Court, dated July 28, 1998, is reported at 1998 Me.
189. A copy is reproduced as Appendix A. The
unreported order and decision of the Maine Superior
Court, Kennebec County (Kravchuk, J.), dated May
15, 1998, is reproduced as Appendix B. Justice
Kravchuk’s July 1, 1998, unreported order affirming
her earlier order is reproduced as Appendix C.

STATEMENT OF JURISDICTION

Petitioners invoke the jurisdiction of this

Court under 28 U.S.C. § 1257 and seek review of a

2

judgment of the Maine Supreme Judicial Court
entered on July 28, 1998.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The constitutional and statutory provisions
implicated by this lawsuit are as follows:
First Amendment

Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof; or
abridging the freedom of speech, or the
press; or the right of the people
peaceably to assemble, and to petition
the government for a redress of
grievances.

42 U.S.C. § 1983

Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any state or territory or the
District of Columbia, subjects, or causes
to be subjected, any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws
shall be liable to the party injured in an

3

action at law, suit in equity or other
proper proceeding for redress. For the
purposes of this section an act of
Congress applicable exclusively to the
District of Columbia shall be considered
to be a statute of the District of
Columbia.

21-A M.R.S.A. § 903-A

Petitions issued under this chapter may
be circulated by any registered voter.

Maine Constitution, Art. 4, § 20 (in part)

_.. “circulator” means a person who

solicits signatures for written petitions,

and who must 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.

Petitioners raised federal questions regarding
the constitutionality of 21-A M.R.S.A. 903-A and
the Maine Constitution, Art. 4, § 20 at the outset of
the proceedings. The decisions of the Maine

Superior Court (Appendices B and C) and the Maine

Supreme Judicial Court (Appendix A) clearly refer

4
to the federal questions raised by Petitioners and
demonstrate that the federal questions were timely
and properly raised by Petitioners.
STATEMENT OF THE CASE

Petitioners Stephanie Hart and Mainers For
Medical Rights ask the Court to strike down two
state requirements that unconstitutionally limit the
methods by which a Maine registered voter and
Maine resident such as Ms. Hart may proinote
political speech and collect signatures in support of a
citizen’s initiative petition. Although the state may
have a legitimate interest in allowing only Maine
residents to sponsor legislation through the citizen’s
initiative process, the state cannot justify laws that
prohibit a Maine voter from enlisting non-residents

or non-voters to promote political discourse

regarding proposed legislation through the

5

circulation of an initiative petition. This Court has
struck down similar restrictions on political speech
after applying strict scrutiny to the justifications
offered by the different states. Two United States
courts of appeals have struck down as
unconstitutional voter registration requirements
identical to those challenged by Petitioners.

The Secretary of State’s arguments justifying
the restrictions at issue ring particularly hollow in
light of the absence of similar restrictions in
analogous areas of the state legislative and electoral
process. Maine does not prohibit non-residents or
non-registered voters from working as lobbyists or
from circulating nominating petitions for aspiring
political candidates. If the state truly has a
compelling interest in preventing non-residents or

non-voters from participation in the legislative

6

process, then restrictions on non-residents and non-
voters must be enforced across the board. Because
they are not, the requirements that persons who
circulate citizen’s initiative petitions be both
registered voters and residents cannot pass
constitutional muster.

Petitioners do not argue that non-residents
should be permitted to sponsor legislation that cou!d
become the law of the state. A resident and
registered voter such as Ms. Hart, however, must be
permitted to exercise her First Amendment right to
spread her political message and garner support for
her proposed legislation without unreasonable
restrictions. The laws challenged by Petitioners
must be struck down to protect the constitutional

rights of all Maine voters who desire to sponsor

legislation through the citizen’s initiative process.

2

Fs

*
5

FACTUAL AND PROCEDURAL
BACKGROUND

The facts of this matter are not in dispute.
The right to submit proposed legislation to Maine
voters through the use of a citizen’s initiative
petition is created by 21-A M.R.S.A. §§ 901 et seq.
and the Maine Constitution, Article IV, Part Third,
§ 18. A sponsor must first submit the proposed
legislation to the Secretary of State of Maine for
review to determine that it conforms to certain
drafting requirements. After approval by the
Secretary of State, the sponsor must collect a certain
number of signatures (ten percent of the votes cast
in the most recent gubernatorial election) from
Maine registered voters in order to qualify the
petition for the ballot. Signatures collected in
support of a citizen’s initiative petition are reviewed

first by the local registrars and then again by the

8

Secretary of State. Once the Secretary of State
determines that the sponsor has submitted a
sufficient number of valid signatures, the proposed
legislation is submitted to the state legislature. If the
state legislature declines to enact the proposed
legislation in its unamended form, it is placed on the
ballot in the next general election for approval by the
electorate.

Beginning in late November of 1997,
Petitioners drganized a drive to collect and submit
petitions to the Secretary of State of Maine Daniel
Gwadosky (the "Secretary") containing numerous
certified signatures in support of the citizen’s
initiative petition entitled, "AN ACT to Permit the
Medical Use of Marijuana." The Secretary initially
rejected the initiative petition on February 8, 1998,

because Petitioner’s failed to submit the required

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9
number of signatures in support of their petition. In
making his initial determination, the Secretary
refused to consider over 3,200 signatures submitted
by Petitioners to the City of Portland before the
constitutional deadline but not certified by the City
of Portland in a timely fashion. Petitioners were
forced to obtain an injunction from the Kennebec
County Superior Court ordering that the City of
Portland certify immediately the 3,200 signatures
and that the Secretary credit Petitioners with all of
the signatures so certified by the City.

On March 31, 1998, the Secretary announced
that Petitioners’ citizen's initiative would not be
forwarded to the Maine Legislature or placed on the
November 1998 ballot because Petitioners failed to

submit the required number of signatures, even
counting the belatedly certified signatures. The

10

Secretary rejected 4,347 signatures submitted by
Petitioners because these signatures were collected
by persons not registered to vote in Maine. An
additional 1,033 signatures were initially reyected
because they were collected by persons who
allegedly were not Maine residents. The number of
signatures rejected on the basis of the circulators’
residency was subsequently reduced to 347
signatures after the Superior Court required the
Secretary to reopen his residency investigation.
(See Secretary’s Decision Dated March 31, 1998,
Appendix to Briefs (submitted to Maine Supreme
Judicial Court), Tab 2, p. 2). If these signatures had
been accepted (or are accepted on some later date),
Petitioners would (or will) have submitted a

sufficient number of signatures to qualify their

Citizen’s Initiative Petition to be forwarded to the

3
4
4
3
4
-

11

Maine State Legislature and to be placed on the
general ballot in either 1998 or 1999.

Pursuant to 21-A M.R.S.A. §905, Petitioners
appealed the Secretary’s decision to the Kennebec
County Superior Court on April 7, 1998. In their
appeal, Petitioners challenged the constitutionality of
the requirements that persons who collect signatures
in support of a citizen’s initiative ("circulators") be
Maine residents and registered voters. Petitioners
also challenged the Secretary's factual decision that
five of the circulators were not legal residents of the
state. If Petitioners had prevailed on these
challenges, they would have submitted enough valid
signatures to qualify their initiative for the

November 1998 ballot.’

' Petitioners are aware that the Court will not have the
opportunity to award relief to Petitioners prior to the
November 1998 election. Petitioners’ claims are not moot,
however, for two reasons. First, if Petitioners were to prevail

12 |
After an evidentiary hearing before the
Superior Court relating to the factual challenge
regarding the residency status of five of the
circulators, and subsequent briefing on Petitioners’
constitutional challenges, the court issued an order,
dated May 15, 1998, rejecting Petitioners’

constitutional challenges to the residency and voter

on either or both of their constitutional challenges, any
signatures unconstitutionally rejected by the Secretary would
citizen’s initiative for the November 1999 ballot or reduce the
number of additional signatures that they would need to
collect to qualify for that ballot. Second, the First
Amendment violations complained of by Petitioners fall
squarely within the “capable of repetition but avoiding
review” doctrine. As explained by the Court in Murphy y.
Hunt, 455 U.S. 478, 482 (1982), a claim is not moot if there
is a “reasonable expectation or a demonstrated probability
that the same controversy will recur.” Clearly that is the case
with any challenge to Maine's citizen's initiative laws: by the
time a particular challenge is resolved in court, the November
elections will have already occurred and any relief will be too
late to place the petition on the ballot. Lacking action by the
Court, Petitioners will face the same First Amendment harm
when they attempt to place their petition on the November
1999 ballot. See

First National Bank of Boston v. Bellotti,
435 U.S. 765, 774 (1978 (applying “capable of repetition, but
avoiding review” doctrine to corporation's constitutional

13

registration requirements and remanding the
residency determination for the five allegedly non-
resident circulators back to the Secretary for
additional investigation. (See Appendix B, Decision
and Order of the Superior Court, Kennebec County,
Dated May 15, 1998.) Petitioners abandoned their
appeal of the factual decisions made by the Secretary
regarding the residency status of the circulators
following additional investigation into these
questions by the Secretary.

Pursuant to 21-A M.R.S.A. §905, Petitioners
appealed the order of the Kennebec County Superior
Court to the Maine Supreme Judicial court, again
challenging the constitutionality of the requirements
that circulators be registered voters and legal
residents of Maine. On July 28, 1998, the Maine

Supreme Judicial Court rejected Petitioners’

14

constitutional challenges and affirmed the judgment

entered below. (See Appendix A, Decision of the

Maine Supreme Judicial Court, Dated July 28,

hi Nn att AE AEE CEA A MA ESD

1998.)

REASONS FOR GRANTING THE WRIT

I. |THE COURT BELOW’S DECISION
UPHOLDING THE REQUIREMENT TH AT 1
PERSONS WHO CIRCULATE A ;
CITIZEN’S INITIATIVE PETITION MUST
BE REGISTERED VOTERS
UNREASONABLY RESTRICTS THE
“CORE POLITICAL SPEECH” OF THE
PETITION’S SPONSORS AND
CONFLICTS WITH THE DECISIONS OF
TWO UNITED STATES COURTS OF
APPEALS.

By affirming the judgment rendered below by
the Superior Court, the Maine Supreme Judicial

Court upheld the constitutionality of the requirement

that persons who serve as circulators of a citizen’s

15

initiative be Maine registered voters.’ Identical
requirements enforced by Nebraska and Colorado
have been struck down as unconstitutional by the
United States Courts of Appeals for the Eighth and
Tenth Circuits, because such requirements
unreasonably restrict the political speech of the
petition’s sponsors. See Bernbeck v. Moore, 126
F.3d 1114, 1116 (8th Cir. 1997)(applying strict
scrutiny to strike down Nebraska registered-voter

requirement on First Amendment grounds),

' Although the Maine Supreme Judicial Court stated
that it did not rule on Petitioners’ voter registration challenge,
its decision of July 28, 1998, affirmed the May 15, 1998,
order and decision of the Maine Superior Court in all
respects. See Appendix A. The Maine Supreme Judicial
Court thereby affirmed the lower court’s ruling that it was
constitutional for the Secretary to reject the signatures of over
4,000 registered Maine voters that were collected by
circulators who were not registered to vote in Maine. As
discussed in Note 1, supra, the validity of these signatures
will! be crucial to Petitioner’s effort to place their citizen’s
initiative petition on next year’s ballot. Moreover, the
invalidity of the Maine Supreme Judicial Court’s ruling with
respect to the residency requirement, demonstrated in Part II
below, requires a review of this issue.

16
Ameri nst. L. Foundation, I v.
Meyer, et al., 120 F.3d 1092, 1100 (10th Cir. 1997),

cert. granted, Buckley v. American Const. L.
Foundation, Inc., 118 S. Ct. 1033 (1998), and cert.

denied, American Const. L. Foundation, Inc. v.

Buckley, 118 S. Ct. 1045 (1998)(applying strict
scrutiny to strike down Colorado registered-voter
requirement on First Amendment grounds).

The constitutional challenges raised by
Petitioners in this petition are identical to those
raised in American Const, L. Foundation, Inc.
(“ACLF”), for which the Court has granted
certiorari to review the decision of the Court of
Appeals for the Tenth Circuit. Petitioners
respectfully request that their petition for certiorari

be granted so that Petitioners’ constitutional

challenges may be resolved by the Court

<a

=
‘

17

concurrently with the constitutional challenges
raised in the Tenth Circuit case.

Both the Eighth and Tenth Circuits struck
down registered-voter requirements to protect the
First Amendment right of the sponsor of a citizen's
initiative petition to garner support for and promote
political discussion about his or her proposed

legislation. Bernbeck and ACLF rely on a

unanimous 1988 opinion of this Court, Meyer v.
Grant, 486 U.S. 414 (1988), which held that
restrictions on the method of distributing citizen’s
initiative petitions must satisfy “strict scrutiny” to
pass constitutional muster. Meyer explicitly stated
that the right to circulate citizen’s initiative petitions
and encourage and participate in related political
discussion is a right “at the core of our electoral

process and of the First Amendment freedoms, an

18

area of public policy where protection of robust
political discussion is at its zenith.” Meyer, 486 U.S.
at 425 (citations omitted).

Although Meyer dealt with a statute that
prohibited the payment of circulators, both Bernbeck
and ACLF involved constitutional challenges to
statutes that were identical to the Maine statutory
and constitutional provisions chalienged by
Petitioners. As the Court of Appeals for the Eighth
Circuit observed,

The concerns raised by the prohibition
of paid circulators in Meyer are identical
to the effect of the voter-registration
requirement on the initiative process in
the present case. In both instances, the
laws "limit the number of voices who
will convey the appellees message and
the hours they can speak and, therefore,
limit the size of the audience they can
reach." Moreover, the laws at issue in
both Meyer and the present case "make
it less likely that appellees will garner
the number of signatures necessary to
place the matter on the ballot, thus

SS eee

19

limiting their ability to make the matter

the focus of statewide discussion" . . .

The effect, therefore, of these [voter-

registration] statutes is a restriction of

the people's constitutional right to

express core political speech.
Bernbeck, 126 F.3d at 116 (citations omitted).
Similarly, the Court of Appeals for the Tenth Circuit
concluded that “exacting scrutiny" is the appropriate
level of review for a First Amendment equal

protection analysis of regulations limiting the

number of eligible circulators. ACLF, 120 F.3d at

1100.

As in Meyer, Bernbeck and ACLF, the State
cannot demonstrate that the circulator restrictions at
issue are narrowly tailored to support a compelling
government interest. The primary compelling

interest identified by the Secretary to support the

circulator restrictions challenged by Petitioners is the

need for the State “to restrict participation in the

eel

20

process of self-government to members of its own
political community.” Brief of Appellee to the Maine
Supreme Judicial Court, p. 9. Petitioners concede
that the State has a compelling interest in limiting
the ability to sponsor legislation, either as a member
of the state legislature or through the citizen’s
initiative process, to state residents. But the State
cannot demonstrate any compelling interest in
limiting the number of voices permitted to convey a
sponsor’s message by preventing him or her from
enlisting non-registered voters to circulate petitions
and promote political discourse.

Moreover, the state’s asserted compelling
interest -- “to restrict participation in the process of
self-government to members of its own political

community” -- applies with equal force to lobbying

activities and to the election of legislators, yet no

bidiiiienicies sii

21

coriparable restrictions are imposed in those areas.
If Ms. Hart chose to lobby directly the State
legislature to pass a bill permitting the medical use
of marijuana, Ms. Hart would be free to hire as
many non-voters to lobby the legislature as she
could afford. See 3 M.R.S.A. 4311 et seq. (creating
reporting requirements for lobbyists but no residency
or voter registration requirements). If Ms. Hart
desired to run for the state legislature or to support
a particular candidate in order to sponsor a bill
permitting the medical use of marijuana, she would
be free to hire non-voters to circulate the required
nominating petitions. See 21-A M.R.S.A. §§335,
354 (creating no residency or voter registration
requirements for the circulation of nominating
petitions). It is only when Ms. Hart chooses to rely

on the citizen's initiative process that the State limits

22

the voices who may convey her message to
registered voters. The state’s failure to impose the
challenged restrictions in comparable areas of
political activity demonstrates a clear lack of the
compelling state interest necessary for the
restrictions to survive strict scrutiny.’

The additional state interest allegedly related
to the requirement of voter registration -- preventing
fraud and preserving the integrity of the electoral
process -- is aa:‘quately protected by other statutes
that criminalize fraudulent activity related to the

citizen’s initiative process and by individual review

° The state cannot discriminate against persons who

choose to express themselves politically through the use of the
citizen’s initiative process. The inconsistent application of
the restrictions challenged by Petitioners raises concerns that
the state favors other methods of political expression, perhaps
because of the content of some of the citizen's initiatives
sponsored in Maine in recent years. Similar First
Amendment “content” concerns were raised by Petitioners in
their successful court effort in February of 1998 to force the
City of Portland to comply with its constitutional mandate to
certify petition signatures in a timely fashion.

|

23
of signatures by municipalities and by the Secretary.
Maine enforces and publicizes criminal laws similar
to those identified in Meyer that deal expressly with
the danger that circulators might falsify petition
signatures or knowingly permit petition signatories
to commit fraud. See 21-A M.R:S.A. §904 (1)-

(4)(criminalizing false statements by circulators as to

the validity of petition signatures and the false
acknowledgment by a notary of a circulator's oath).
As the Supreme Court observed in Meyer, "These
provisions seem adequate to the task of minimizing
the risk of improper conduct in the circulation of a
petition." Meyer, 486 U.S. at 427. Moreover, the
Maine constitution requires that every signature
submitted in support of an initiative be verified by

the registrar of voters for the locality in which the

a

24
signatory resides.* In Bernbeck, the Court of
Appeals for the Eighth Circuit concluded that a
similar signature-by-signature verification process,
when combined with the other protections discussed
above, constituted "an adequate arsenal of
safeguards to protect against the danger of signature
fraud, and, accordingly, we conclude that the
requirement of voter registration is not narrowly-
tailored to serve the State's compelling interest."
126 F.3d at 1117. Finally, ifthe Secretary is not
convinced of the authenticity of a particular
signature, he has the authority to reject a signature
unilaterally without the need to locate and question

the circulator who obtained the signature. Several

* Me. Const. Art. 4, Pt. 3, §20 requires ihat "written
petitions for a direct initiative pursuant to Article IV, Part
Third, Section 18 must be submitted to the appropriate
officials of cities, towns or plantations for determination of
whether the petitioners are qualified voters . . . "

aaa aca

25

signatures submitted by Petitioners were, in fact,
rejected by the Secretary in this fashion. (See
Secretary’s Decision Dated March 31, 1998,
Appendix to Briefs (submitted to Maine Supreme
Judicial Court), Tab 2, p. 2). The ability of the
Secretary to reject any potentially fraudulent
signature without questioning circulators makes
clear that the registered voter requirement is not
necessary to prevent fraud.

As in Nebraska and Colorado, the state cannot

justify the unreasonable restrictions on Ms. Hart's

speech caused by the requirement that all circulators
be registered voters. Accordingly, the Court should
grant certiorari and overtum the decision of the

Maine Supreme Judicial Court.

26

ll. THE REQUIREMENT THAT PERSONS
WHO CIRCULATE CITIZEN’S
INITIATIVE PETITIONS BE LEGAL
RESIDENTS OF THE STATE OF MAINE
UNCONSTITUTIONALLY RESTRICTS
THE SPONSOR’S POLITICAL SPEECH.
For similar reasons, the prohibition against the

circulation of citizen’s initiative petitions by non-

residents also unreasonably restricts petitioner’s

First Amendment right to promote political speech

regarding proposed legislation. The Secretary

rejected the signatures from over 1,000 Maine
registered voters because the signatures were
collected by five circulators who initially were
determined by the Secretary not to be legal residents
of the state of Maine. (See Secretary’s Decision

Dated March 31, 1998, Appendix to Brefs

(submitted to Maine Supreme Judicial Court), Tab

2, p. 2). A court-ordered follow-up investigation by

the Secretary led him to conclude that two of these

27

circulators who had collected over 680 signatures
were, in fact, Maine residents. (See Secretary's
Revised Decision Dated June 23, 1998, Appendix to
Briefs (submitted to Maine Supreme Judicial Court),
Tab 4, p. 31). The Secretary’s Revised Decision
affirmed his earlier rejection of the 347 signatures
collected by the other three circulators in question,
based on the residency requirement for circulators.
The reasoning discussed in Meyer, Bernbeck,
and ACLF applies with equal force to a residency
requirement for circulators and renders such a
requirement unconstitutional. As with the voter-
registration requirement, the state’s need to limit the

ability to sponsor legislation to its own residents

cannot justify a requirement that persons who
circulate a citizen’s initiative petition be Maine

residents. In no other aspect of the legislative

iii

28

process does the state enforce similar restrictions on
political speech. The same arguments that
demonstrate the unconstitutionality of the voter-
registration intial also demonstrate the
unconstitutionality of the residency requirement.
Although this specific residency requirement
has not been reviewed by the Court, a United States
district court implicitly rejected circulator residency
under the strict scrutiny standard of review. In
Term Limits Leadership, Inc. v. Clark, 984 F. Supp.
470, 475 (S.D. Miss. 1997), the court struck down a
registered voter requirement for circulators in part
because the state could not demonstrate “actual
fraud or threat to citizen’s confidence in government
posed by out-of-state circulators.” (emphasis added)

As with the voter registration requirement, the

Secretary has made no showing that non-resident

29

circulators present a greater threat to the integrity of
the legislative process than do resident circulators,
much less a showing that the requirement furthers a
compelling state interest.

The residency requirement is intimately related
to the voter registration requirement that has been
challenged by Petitioners and that is the subject of a
writ to be reviewed by the Court this term.
Petitioners respectfully suggest that the residency
requirement for circulators at issue in this petition is
of equal national importance as are the voter
registration requirement and other restrictions at

issue in the ACLF appeal. Accordingly, Petitioners

request that the Court grant certiorari and overturn
the decision of the Maine Supreme Judicial Court

upholding the constitutionality of a residency

requirement for circulators.

30

NCLUSION
Requiring circulators of a citizen’s initiative
petition to be Maine residents and registered voters
unreasonably restricts the First Amendment right of
a petition’s sponsors to engage in political
discussion regarding the proposed legislation. The
Court has recognized the importance of these issues
in the writ of certiorari recently granted for a case
involving restrictions identical to one set of
requirements challenged by Petitioners. Petitioner’s
respectfully request that the Court grant a writ of
certiorari to review the decision of the Maine
Supreme Judicial Court.
Respectfully submitted,
James T. Kilbreth
Counsel of Record
Christopher B. McLaughlin
VERRILL & DANA, LLP
Attorneys for Petitioners
One Portland Square
P.O. Box 586

Portland, ME 04112-0586
(207) 774-4000

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APPENDIX A - OPINION OF THE MAINE
SUPREME JUDICIAL COURT,
DATED JULY 28, 1998

MAINE SUPREME Reporter of Decisions
JUDICIAL COURT

Decision: 1998 ME 189

Docket: Ken-98-280

Argued: July 20, 1998

Decided: July 28, 1998

Panel: WATHEN, C.J., and ROBERTS,
CLIFFORD, RUDMAN. and SAUFLEY, JJ.

STEPHANIE HART
and
MAINERS FOR MEDICAL RIGHTS

¥.

SECRETARY OF STATE

WATHEN, C.J.

1. Stephanie Hart and Mainers for Medical
Rights (the proponents) challenge the

constitutionality of a provision of the Maine

2a

Constitution. They appeal from a judgment entered
in the Superior Court (Kennebec County, Kravchuk,
C.J) affirming the decisions of the Secretary of
State rejecting a direct initiative petition. On appeal,
they argue that the Secretary of State, by
invalidating signatures on the basis that the
circulators failed to comply with the constitutional
requirements of residency and voter registration,
violated their right to free speech protected by the
first and fourteenth amendments of the United States
Constitution. Because the number of signatures
invalidated on the basis of the circulators’ residence
alone would prevent the initiative from being placed
on the November 1998 ballot, we affirm the
judgment without ruling on the voter registration

requirement.

a ee ere

3a

2. The relevant facts may be briefly
summarized as follows: On October 24, 1997,
Stephanie Hart applied for approval of a direct
initiative petition entitled "An Act to Permit the
Medical Use of Marijuana." The Secretary of State
approved the form of the petition for circulation on
November 21, 1997, and the proponents had three
years to circulate and gather the 51,131 signatures
(10% of votes cast in last gubernatorial election)
required to place the initiative on the ballot. See 21-
AMRS.A. § 903-A(1) (Supp. 1997). The
proponents submitted petitions with a combined
total of 68,330 signatures. The Secretary of State
reviewed the petitions and invalidated a total of
22,507 signatures, leaving the proponents with

5,308 signatures less than the number required.

4a

3. | The proponents filed a complaint in the
Superior Court seeking a review of the Secretary of
State's decision pursuant to 21-A M.R.S.A. § 905
(1993 & Supp. 1997) and MLR. Civ. P. 80C. They
challenged the Secretary of State's action in
invalidating 1,033 signatures because the circulators
were not residents of the State of Maine and 4,347
signatures because the circulators did not meet voter
registration requirements.

4. Without the benefit of the guidance
provided by our recent decision in Palesky v.

Secretary of State, 1998 ME 103, A.2d 2

the court held two evidentiary hearings in April of
1998. After our decision in Palesky , the court
found the challenged provisions constitutional and

affirmed the Secretary of State's determination

concerning the 4,347 signatures collected by

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unregistered voters. With respect to the 1,033
signatures collected by alleged nonresident
circulators, the court vacated and remanded to the
Secretary of State for further factual findings.

5 After remand, the Secretary of State
issued an amended determination reducing the
number of signatures invalidated on the basis of the
circulators' residence from 1,033 to 347. The
Superior Court affirmed and the proponents, still
short by a total of 4,622 signatures, appealed.
Because the signatures invalidated on the basis of
the circulators’ residence leaves proponents short of
the required minimum, we address only that issue.

6. Proponents argue that Article IV, pt. 3,
§ 20 of the Maine Constitution (Supp. 1997)
requiring circulators to be residents violates their

fundamental rights to freedom of speech; freedom of

6a

expression and freedom of association afforded by
the first and fourteenth amendments to the United
States Constitution.’ The Secretary of State argues
that the requirement represents reasonable

regulation of the electoral process. We agree.

The first amendment provides in part:

Congress shall make no law ...
abridging the freedom of speech ... or
the right of the people peaceably to
assemble, and to petition the
Government for a redress of grievances.

U.S. Const. amend. I
The fourteenth amendment provides in part:

No State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United
States; nor shall any State deprive any
person of life, liberty, or property,
without due process of law; nor deny to
any person within its jurisdiction the
equal protection of the laws.

U.S. Const. amend. MV, § 1.

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7a

7. The direct initiative process, the exercise
of the legislative power by the electors, is authorized
by the Maine Constitution in the following terms:
"The electors may propose to the Legislature for its
consideration any bill, resolve or resolution,
including bills to amend or repeal emergency
legislation but not an amendment of the State
Constitution, by written petition addressed to the
Legislature or to either branch thereof and filed in
the office of the Secretary of State..." Me. Const.
art. IV, pt. 3, § 18 (Supp. 1997) (emphasis added).
“Written petition” is defined as:

one or more petitions written or printed,
or partly written and partly printed, with
the original signatures of the petitioners

attached, verified as to the authenticity
of the signatures by the oath of the
circulator that all of the signatures to the
petition were made in the presence of
the circulator and that to the best of the
circulatory knowledge and belief each

i i i rson

8a

whose name it purports to be, and
accompanied by the certificate of the

official authorized by law to maintain

the voting list of the city, town or

plantation in which the petitioners reside

that their names appear on the voting list

of the city, town or plantation of the

official as qualified to vote for

Governor.
Me. Const. art. IV, pt. 3, § 20 (Supp. 1997)
(emphasis added). "Circulator" is defined as "a
person who solicits signatures for written petitions,
and who must 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." Me. Const. art. IV, pt. 3, §
20 (Supp. 1997) (emphasis added).

8. | The proponents rely heavily on Meyer v.

Grant, 486 U.S. 414, 108 S. Ct. 1886 (1988) and

American Const. Law Found., Inc. v. Meyer, 120
F.3d 1092 (10th Cir. 1997), cert. granted sub nom.

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Buckley v. American Const. Law Found., Inc., 118
S. Ct. 1033 (Feb. 23, 1998), and cert. denied, 118 S.
Ct. 1045 (Feb. 23, 1998). In Meyer v. Grant, the
United States Supreme Court declared
unconstitutional a provision in Colorado's citizen
initiative statute making it a criminal offense to pay
circulators. 486 U.S. at 428. The Colorado statute
also required circulators to be registered voters, but
the constitutionality of that provision was not before
the court and therefore was not addressed. In
American Const. Law Found., Inc. v. Meyer, the
10th Circuit, following the United States Supreme
Court's analysis, found, inter alia, that the Colorado
statute requiring circulators to be registered voters
was unconstitutional. Although this issue is
presently before the United States Supreme Court, it

has not yet been decided.

10a

9. The proponents argue that, although
neither Meyer v. Grant nor American Const. is
controlling, the same strict scrutiny applies and the
Secretary of State has not demonstrated a
compelling state interest to justify the requirement of
residence. We have acknowledged that, in general,
"(t]he initiative petition process involves political
discourse that is protected by the first amendment of
the federal constitution." Wyman v. Secretary of
State, 625 A.2d 307, 311 (Me. 1993) (citing Meyer
vy. Grant, 486 U.S. 414, 421, 108 S.Ct. 1886, 1891
(1988)). Specifically, "[t]he circulation of an
initiative petition of necessity involves both the
expression of a desire of political change and a
discussion of the merits of the proposed change. . . .

Thus the circulation of a petition involves the type of

interactive communication concerning political

lla

change that is appropriately described as ‘core
political speech.”” Id. (quoting Meyer v. Grant, 486
US. at 421-22). “Although the right to invoke an
initiative is a state-created right, it does not follow
that the state is free to impose limitations on that
right without satisfying the dictates of the first
amendment.” Id, (citing Meyer v. Grant, 486 U.S.

; at 425). We find, however, that the requirement
does not impose the same burden on political

expression; and, further, that the State has

. demonstrated a compelling state interest in pressing
the integrity of the law-making process and that the
| provision is narrowly tailored to serve that interest.

10. Contrary to the proponents’ argument,

the restriction in Meyer is distinguishable from the

restriction in this case. Meyer involved a state

statute making paid circulation a criminal offense.

12a
Thus, the proponents were forced to rely on
volunteer circulators and were prohibited from
making any contribution to their expenses. The
Supreme Court found that the proponents’ political
expression was restricted in two ways:
First, it limits the number of voices who
will convey [proponents'] message and
the hours they can speak and, therefore,
limits the size of the audience they can
reach. Second, it makes it less likely

that [proponents] 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.
Meyer, 486 U.S. at 422-23 (footnotes omitted).

11. In this case, the requirement is that a
circulator be a Maine resident. Although technically
any restriction limits the "number of voices who will

convey the [proponents'] message," Meyer, 486 U.S.

at 422, it does not follow that requiring circulators

to be residents will limit the size of the audience the

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13a

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." Meyer,
486 U.S. at 423.

12. In 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. Here, the petitioners had three years to gather
the necessary signatures (21-A M.R.S.A. § 903-A
(Supp. 1997)) and failed to demonstrate any
necessity for employing nonresidents in circulating
the petitions.

13. We find persuasive the State's
justification for the residency requirement in the
citizens' law-making process. Residence enhances

the integrity of the initiative process by ensuring that

14a

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 state 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.

The entry is:

Judgment affirmed.

eth IOS BL als Pn ae RS

15a
Attorneys for plaintiffs:

Christopher B. McLaughlin, Esq., (orally)
James T. Kilbreth, Esq.

William C. Knowles, Esq.

Verrill & Dana, LLP

P 0 Box 586

Portland, ME 04112-0586

Attorneys for defendant:

Andrew Ketterer, Attorney General
Andrew Hagler, Asst. Atty. Gen., (orally)
Phyllis Gardiner, Asst. Atty. Gen.

6 State House Station

Augusta, ME 04333-0006

16a

APPENDIX B - ORDER OF THE KENNEBEC
COUNTY SUPERIOR COURT,
DATED MAY 15, 1998

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. DOCKET NO. AP-98-30
STEPHANIE HART and )
MAINERS FOR MEDICAL )
RIGHTS, )
)
Plaintiffs )
)

Vv. ) ORDER

)
DANIEL A. GWADOSKY, )
in his capacity as Secretary )
of State for the State of )
Maine, )
)
Defendant )

This matter is before the Court on Petitioners'
M. R. Civ. P. 80C appeal from Respondent's finding
that they had failed to gather a sufficient number of
valid signatures to place initiated legislation

permitting the medical use of marijuana on the ballot

17a

in 1998. This appeal is brought pursuant to 21-A
M.R.S.A. 905(2).

Petitioners challenge on federal grounds the
constitutionality of Maine's constitutional
requirements that circulators of citizens’ initiative
petitions be residents and registered voters of this
State. They also contend that the Secretary of State
erred factually in finding five of the circulators to be
nonresidents. A total of 5,380 signatures were
invalidated on the basis that the circulators were not
residents and/or registered voters. Of that number
4,347 signatures were invalidated either because the
circulators collected signatures prior to becoming
registered to vote in the State of Maine or because
the circulators were not registered to vote at all in
the State of Maine. The remaining 1,033 contested

signatures were invalidated because the circulators

18a

were not residents of the State of Maine. Petitioners
need to regain validation of these signatures in order
to have their question placed on the ballot in
November 1998.

IL. RESIDENCY REQUIREMENT

This Court will first consider the issue of
whether Maine's residency requirement is
constitutional under the free speech guarantees of
the First and Fourteenth Amendments of the U.S.
Constitution.

Several U.S. Supreme Court and federal court
cases have dealt with issues concerning eligibility
restrictions on circulators of citizens’ initiative
petitions. The U.S. Supreme Court has held that the
communication engaged in by circulators is "core
political speech," and that the importance of First

Amendment protections is "at its zenith" with regard

19a

to this speech. Meyer v. Grant, 486 U.S. 414, 421,
425 (1988). Because core political speech was
implicated in Meyer, the Court held that the
statutory limitation on circulators in that case was
subject to strict scrutiny. Id. at 420. Under a strict
scrutiny analysis, this Court must determine whether
or not the burden placed on Petitioners’ speech is

narrowly tailored to a compelling state interest.’

2 ‘The constitutional analysis employed in the various
cases concerning free speech challenges to restrictions on
circulators and/or on election regulations appears to this
Court to be inconsistent. As Petitioners have relied on
cases utilizing different methods of analysis, this Court
has found it difficult to discern a step-by-step process to
follow and feels compelled to point out the discrepancies
in the case law.

The Meyer Court did not address whether or not
the extent to which a restriction burdens core political
speech affects the level of scrutiny to be applied. The
Court simply stated that the limitation in that case
required strict scrutiny. This Court notes that, deriving a
guideline from the facts in Meyer, limiting potential
circulators to volunteers by prohibiting the payment of
circulators translates into a substantial limitation on the
ability of proponents of a measure to find circulators.

As will be pointed out later in this opinion, other
courts have first measured the burden on speech in order

j
ee

20a
In Meyer, authority heavily relied upon by
Petitioners, the state of Colorado statutorily
prohibited the use of paid circulators. The Court
found that the prohibition limited political speech in
two ways:

[flirst it limits 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. Second, it makes 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. As is the present case, Colorado also

required that circulators be registered voters. Id. at

to determine if strict or less exacting scrutiny applies.
However, this Court would assum. .or purposes of
comparing a residency requirement to no residency
requirement as advocated by Petitioners, that the burden
placed on speech by a residency requirement is at least as
substantial as the burden in Meyer. Therefore, this Court
will apply strict scrutiny in that it will require that
Respondents prove that a compelling state interest exists.

ee ee *

Peas ee ee eee

2la
417. No separate residency requirement was
mentioned. The Meyer Court never reached the
issues of voter registration or residency. Thus, the
holding in Meyer provides no direct guidance with
regard to the residency restriction being challenged
in this case and whether such a requirement for
circulators is narrowly tailored to a compelling state
interest.

In addition, Respondents correctly point out
that Petitioners have not cited any case law which
holds that a residency requirement unconstitutionally
restricts protected speech. In fact, one case relied
on by Petitioners strongly suggests that a residency
requirement would be constitutional. American
Constitutional Law Foundation v. Meyer, 120 F.3d
1092, 1100 (10th Cir. 1997) (finding that the state's

interest in ensuring that circulators are residents

SS
————

22a

could be more precisely achieved by imposing a
residency requirement instead of a voter-registration
requirement).

By definition a residency requirement restricts
the number of potential circulators to the number of
residents within the State. Cases which have
rejected restrictions on circulators have consistently
done so on the theory that the number of voices
conveying the message would be limited and it
would be less likely that the requisite number of
signatures would be garnered. In essence, the only
way a residency requirement can violate Petitioners'
freedom of speech is if the potential group of
circulators is the entire population of the planet.
Then the number of voices conveying the message
would be limited and it may be marginally less likely

that the requisite number of signatures would be

Gis linet pret |

23a

garnered. However, if the state has a compelling
interest in limiting participation in the referendum
process to residents, then obviously a residency
requirement places no unconstitutional burden on
speech. Thus, the issue becomes whether residency
for circulators is a compelling state interest sufficient
to justify the imposition of a residency requirement
in a State's constitution.

The Maine Constitution provides that, "the
electors may propose to the Legislature for its
consideration any bill . . . [and] any measure thus
proposed by electors . . . shall be submitted to the
electors." Art. 4. pt. 3, § 18. "Electors" means the
electors of the State qualified to vote for governor.
Id. at § 20. "Circulator" means a person who
solicits signatures for written petitions, and who

must be a resident of this State and whose name

24a

must appear on the voting list of his town. Id. The
Maine Constitution clearly intended to ensure that
the direct initiative process was reserved for Maine
residents. No other case offered by either party
deals with a state's constitutionally mandated

residency requirement.

Maine is not obligated to afford its citizens an
initiative procedure. See Meyer, 486 U.S. at 420.
Surely, by choosing to do so in our Constitution, the
State is free to constitutiv<sily limit participation in
that process to its own citizens, thus "citizens'
initiative." In the general area of election law the
U.S. Supreme Court has "repeatedly upheld
reasonable, politically neutral regulations that have
the effect of channeling expressive activities at the
polls." Burdick v. Takushi, 504 U.S. 428, 119
L.Ed.2d 245, 112 S.Ct. 2059 (1992). It is

25a

incomprehensible to imagine that states can be
afforded wide latitude in regulating the election of
their legislators and statewide officers, but they
cannot impose a constitutional requirement that
participants in "citizens' initiative" procedure be
citizens of the state.

The 10th Circuit American Constitutional Law

Foundation case, also relied upon heavily by

Petitioners, noted that the "petition process is a
ballot access vehicle, as well as an avenue for
political expression. " 120 F.3d at 1097. The
Circuit Court further noted that to read Meyer as
prohibiting any regulated access to the ballot would
conflict with the general rule that states have the
power to regulate their elections. As previously
stated, in Mever the potential pool of circulators was

limited to Colorado residents only by virtue of

26a

having a voter-registration requirement. In
American ( ~onstitutional Law Foundation, the court
stated, "[e]ven if we assume the state's potentially
compelling interest in preserving the integrity of its
elections requires all circulators to be residents, a
question we need not decide, the registration
requirement is not narrowly tailored." 120 F.3d at
1100. The court acknowledged a potential
compelling interest in residency based merely on
Colorado's registration requirement. A much
stronger argument supporting a compelling interest
in residency is present in this case where a separate,
constitutional, residency requirement exists.

Furthermore, the case at hand can be

distinguished from Bernbeck v. Moore, 126 F.3d
1114, 1117 (8th Cir. 1997) (finding a voter-

registration requirement was not narrowly tailored

27a
and was unconstitutional), in which the court noted,
"the Nebraska Constitution gives the nght to
circulate petitions to the 'people,' without any
limitation on whether they are registered to vote or

residents of Nebraska. . .". The court then

acknowledged, as had the court in American Const.,
that even assuming that residency was a

compelling interest, the registration requirement

was not narrowly tailored. Id. Nebraska, unlike
Maine, did not choose to limit participation to its
own citizens.

Any state has a strong, often compelling,
interest in preserving the integrity of its electoral
system. American Const., 120 F.3d at 1099(citing

Timmons v, Twin Cities Area 7iew Party, 117 S.Ct.

1364, 1366 (1997)). By state constitutional

provision the citizens’ initiative has been made an

28a

integral part of Maine's electoral system. The State's
interest in preserving the integrity of its provided
process of direct democracy for its own citizens is a
compelling and fundamental state interest.
Accordingly, this Court finds that requiring
circulators to be residents of the State of Maine does
not impermissibly burden Petitioners' freedom of
speech.

Il. VOTER-REGISTRATION
REQUIREMENT

This Court must separately review the
constitutional requirement that circulators be
registered voters. At first glance, the case law
suggests that registration requirements do
impermissibly burden the protected speech at issue.
However, the fact that residency has been

determined above to be a compelling state interest,

and the fact that the reason for the residency

29a

requirement is to ensure that Maine residents are
responsible for bringing an issue directly to the
ballot, distinguish this case from others which have
struck down registration requirements.

The burden the registration requirement places
on Petitioners’ protected speech must be determined
in order to apply the proper level of scrutiny. In
determining the validity of an election regulation, the
Court in Timmons held:

regulations imposing severe burdens

must be narrowly tailored and advance a

compelling state interest. Lesser

burdens, however, trigger less exacting

review, and a State's important

regulatory interests will usually be

enough to justify reasonable,
nondiscriminatory restrictions.

30a

117 S.Ct. at 1366. This standard of review was
utilized in American Const. in reviewing the
registration requirement for circulators.?

Petitioners’ potential group of circulators is
comprised of the residents of Maine according to the
findings in Section I of this opinion. In American
Const., the court relied on Colorado's
acknowledgment that there were at least 400,000
qualified but unregistered voters in the state. Id. at
1100. Petitioners have not argued or presented any
evidence that Maine's registration requirement

severely limits or burdens the number of possible

* This standard of review which was not articulated
in Meyer, yet which was employed in American Const.,
demonstrates the perceived analytical difficulty referred
to in footnote 1. This Court recognizes that Timmons
deals with an election regulation and not a restriction on
circulators. However, as this standard was employed by
the Tenth Circuit in this context, and as Petitioners rely
on the Tenth Circuit case, this Court finds that it is an
applicable guideline for an analysis of this portion of the

case.

3la

circulators by demonstrating that there are a
substantial number of unregistered residents. On the
other hand, the State asserts that the estimated
voting population in Maine is 934,105 based on the
1990 census. In November, 1996, 953,368 persons
were registered to vote. The State explains that the
number of registered voters exceeds the number of
eligible voters because there is a delay in removing
people who move or pass away from the voting
rolls. [Respondent's Memorandum, p. 23]. There
has been no showing that the registration
requirement discriminates against a significant
portion of Maine residents nor has there been any
showing that the Maine voter registration
requirement was an impediment to Petitioners’

ability to obtain qualified circulators.

32a

Vdiihout some showing that the number of
unregistered Maine residents is substantial compared
to the number of residents eligible to vote, and
without some showing that Petitioners have been
limited in their ability to obtain registered residents
for purposes of circulating their petitions, this Court
must find that the voter-registration requirement
does not severely burden protected speech. In this
crucial respect the record in this case significantly
differs from the American Const. record. It follows
that the registration requirement is a reasonable
vegulatory measure and passes the "less exacting"
standard of scrutiny.

However, even if it is determined that strict
scrutiny applies, this Court finds that the

requirement is narrowly tailored to Maine's

compelling interest of ensuring that circulators are

33a

residerts. The evidentiary portion of this case
exemplifies the difficulty of determining one's
residency based on a person's intent to remain in the
state indefinitely. Registering to vote in the State of
Maine is a very simple and inexpensive task that can
be undertaken relatively quickly in the event that an
unregistered resident desires to be a circulator. Due
to the ease of registering to vote, the registration
requirement does not unreasonably burden
Petiticners' core political speech. As a narrowly
tailored regulatory device, it provides the State with
a quick and uniform procedure by which it can
ascertain circulators’ residence.

A registration requirement is much less

prohibitive than the ban on paid circulators in

34a

Meyer.‘ In addition, the arguments put forth by
states advocating restrictions, in Meyer and in other
federal court cases cited herein, regarding fraud and
the policing of the petition process are not the
compelling interests of the State in this case. Those
voter registration restrictions were found not to be
narrowly tailored because other methods of policing,
such as criminal prosecution, were available.

The compelling interest in this case is ensuring
that Maine residents will be responsible for bringing
an issue to a citizens' referendum. Ensuring that a
circulator is a resident is most easily accomplished
by requiring that the resident be a registered voter.

This Court cannot imagine how a democratic

* Contrary to Petitioners’ assertion that the Court in
Meyer explicitly stated that any limitation on political
expression is subject to strict scrutiny, the Court actually
stated that "this case," referring to the ban on paid
circulators, involved a limitation subject to strict scrutiny.
486 US. at 420.

35a

government could fashion a more narrowly tailored
nor less intrusive requirement for determining
residency. It ensures that, in the absence of fraud,
all parties, the State, the proponents of the measure,
and the potential circulators, know at the start of
the process that the circulators have met the
residency requirement.

Ii. FACTUAL DETERMINATIONS
OF RESIDENCY

The Law Court has recently decided a
question of first impression concerning the nature of
the review in an action appealing the findings of the
Secretary of State relating to the validity of petitions
for the direct initiative of legislation. Palesky v.
Secretary of State, 1998 ME 103 (May 8, 1998).

As this decision was issued subsequent to the two

hearings held in this case on April 15 and 24, 1998,

this Court finds that it is bound by Palesky.

36a

Accordingly, the agreement between the parties and
approved by this Court under which factual
determinations on residency would be issued
following a hearing allowing new evidence will not
control these proceedings.

Instead, Palesky requires this Court to act only
in an appellate capacity. Pursuant to M. R. Civ. P.
80C(e), Id. at 19, this Court is allowed to take
additional evidence, which occurred at a hearing
held on April 24, 1998. Although petitioners did not
technically comply with M. R. Civ. P. 80C(e), the
agreement of the parties and the Court's initial belief
that petitioners were entitled to a "trial" pursuant to
21-A M.R.S.A. § 905(2) (1993) excuses the

procedural defect and allows this Court to consider

the evidence for the purposes enumerated in 5

M.R.S.A. § 11006(1)(B) (1993). This Court finds

37a

that the additional evidence adduced at the hearing is
material to the issues presented in the petition for
review, and that it could not have been presented or
was erroneously disallowed in proceedings before
the agency. 5 M.R.S.A. § 11006(1)(B).

Separate from Petitioners’ request to present
additional evidence, they also urge this Court to
review the Secretary of State's decision based on the
agency record. The Secretary of State's decision
was based primarily on information received by a
detective with the Investigations Division of the
Department of the Attorney General, Richard
Fairfield, Jr. In light of the inaccuracies in Mr.
Fairfield's findings which surfaced at the evidentiary

hearing,° this Court does not find it necessary to

: The procedural predicament of the factual portion
of this case evidences the extreme difficulty that
determining residency without a voter registration

38a

requirement would present to the Secretary of State if the
requirement was struck down. For instance, the evidence
presented by Petitioners at the hearing showed the
inadequateness of the investigation relied on by the
Secretary of State in uncovering the circulators’ ties to
Maine. Testimony of circulators and family members
and/or friends of circulators is often necessary to make a
fair and accurate determination of whether or not an
individual intended to reside in Maine. Driver's licenses
are not determinative of residency, and it would be
discriminatory against non-licensed residents to determine
residency by such means. Likewise, a state identification
card is not indicative of residency because it can be
obtained by an out-of-stater for purposes of purchasing
alcohol. In addition, as the testimony of Rebecca Avrett
demonstrated, the place where one receives mail is not
always indicative of residency as people can have mail
sent to another address. Ms. Avrett had most of her
important papers sent to her father’s address in another
state for her convenience, yet she was nct residing in that
State.

In the absence of a voter registration requirement,
having the details of one's life investigated and/or
requiring proof of this nature to prove residency could be
very burdensome to residents who desire to be
circulators, to proponents of a measure who are trying to
ensure that their circulators are qualified, as well as to the
State of Maine. Registering to vote is a very simple
process with no associated costs which simply entails that
the resident complete a registration card. The card
requires that the registrant provide the minimum amount
of personal information identified in attached Exhibit A.
Petitioners cannot legitimately contend that requiring
residents to register to vote places the type of restrictions
on obtaining circulators that the ban on paying circulates

39a

reach a decision on this issue. More appropriately,
this matter is remanded for modifications of the
Secretary of State's findings in accordance with the
additional evidence presented.°

Based on the foregoing, entry will be:
The decision of the Secretary of State invalidating
4,347 signatures collected by unregistered voters is
AFFIRMED. The decision of the Secretary of

State invalidating 1,033 signatures because the

did in Meyer.

$ This Court notes that no evidence surfaced at the
hearing that any of the five circulators came to Maine for
the purpose of circulating petitions. Yet, Mr. Fairfield’s
affidavit purports this to be the case where it states that
"at least five circulators had no ties to the State of Maine
prior to coming to the State in order to circuiate
petitions in this initiative." (Fairfield Aff. 4 2). Where
the Secretary had no evidence that the company hiring
circulators encouraged these five individuals to come to
Maine, and given the evidence which surfaced at the
hearing regarding the individuals’ ties to this State, this
Court suggests that the Secretary's decision regarding
residency was made without a thorough investigation.

40a

circulators were not residents of the State of Maine
is VACATED and the matter is remanded to the
Secretary of State for further factual findings
consistent with the evidence adduced at the "trial"
before this Court and any additional evidence
introduced in proceedings before the agency. As to
the remaining counts of the complaint wherein
petitioners ask this Court to declare Me. Con. Art.
4, Pt. 3 § 20 unconstitutional, judgment is entered

for the respondent.

Dated: Friday, May 15, 1998

/s/

Margaret J. Kravchuk, Justice
Superior Court

4la

Attorneys for Petitioners:

James T. Kilbreth, Esq.
William C. Knowles, Esq.
Verrill & Dana, LLP

One Portland Square
P.O. Box 586

Portland, ME 04112

Attorneys for Respondent:

Andrew Ketterer, Attorney General
Phyllis Gardiner, Asst. Attorney General
Andrew S. Hagler, Asst. Attorney General
Six State House Station

Augusta, Maine 04333

42a

APPENDIX C - ORDER OF THE KENNEBEC

COUNTY SUPERIOR COURT,
DATED JUNE 29, 1998
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. DOCKET NO. AP-98-30
STEPHANIE HART and __sS?)
MAINERS FOR MEDICAL )
RIGHTS, )
)
Plaintiffs )
)
¥, ) ORDER
) ON APPEAL
DANIEL A. GWADOSKY, )
in his capacity as Secretary )
of State for the State of )
Maine, )
)
Defendant )

Pursuant to the Order of this Court dated
May 15, 1998, the Secretary of State has issued an
amended determination of the validity of a petition
- for initiated legislation entitled "An Act to Permit

‘he Medical Use of Marijuana". Upon remand the

43a

Secretary of State was ordered to incorporate
additional evidence, including the testimony
presented at a hearing before this Court, and to
make further ‘actual findings regardine the residency
status of five petition circulators. On June 23, 1998,
the Secretary of State filed with this Court his
amended findings wherein he concluded that two of
the five challenged circulators were indeed residents
of Maine and the other three were nonresidents.
Pursuant to the Order of the Chief Justice of
the Supreme Judicial Court, Sitting as the Law
Court, dated May 28, 1998, staying the apyeal of
this Court's May 15th Order, the petitioners have an
opportunity to seek judicial review of the Secretary's
June 23rd amended findings. Pursuant to their
Motion for Judicial Review, dated June 25, 1998,

petitioners have sought such judicial review. Both

44a

the petitioners and the Secretary agree that further
oral argument or memoranda of law would appear
to be redundant as the issue regarding residency was
previously thoroughly briefed and argued.

Upon remand the Secretary of State
concluded that Rebecca Avrett, Devon Salisbury,
and Alfred Thompson were not residents of the
State of Maine at the time they circulated petitions.
In making his determination the Secretary relied
upon the factors relevant to a determination of
residency as set forth in 21-A M.R.S.A. § 112(1)
(Supp. 1997). The Secretary's decisions regarding

Devon Salisbury and Alfred Thompson are so clearly

supported by evidence in the record that they do not
merit comment. The decision concerning Rebecca

Avrett's residence is one about which reasonable

minds might differ, but the Secretary's determination

45a

is clearly based upon evidence in the record,
including "objective facts" which the Secretary gave
greater weight than the testimony of Ms. Avrett.
His decision to do so was not arbitrary, capricious,
nor lacking in evidentiary basis.

Based on the foregoing, entry will be:
The Secretary of State's decision dated June 23,
1998, amending paragraph 2(D) of the decision
issued on March 31, 1998, is AFFIRMED and 347
signatures are found to be invalid because the
circulators were not residents of the State of Maine.

Dated: June 29, 1998

/s/

JUSTICE
SUPERIOR COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1070%3A1. Public record. Not legal advice.