Appendix — Ohio v. Citizens for Tax Reform (No. 08-151)

Supreme Court, U.S.

(5) Smences*

08-151 AUG 4- 2008

No. 08-

OFFICE OF THE CLERK ©

In the Hupreme Court of the Anited States

STATE OF OHIO,

Petitioner,

Vv.

CITIZENS FOR TAX REFORM, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

APPENDIX

WILLIAM P. MARSHALL NANCY H. ROGERS

6 Heather Court Attorney General of Ohio

Chapel Hill, NC 27517 BENJAMIN C. MIZER*

Special Counsel for the Solicitor General

Attorney General of Ohio *Counsel of Record

MICHAEL DOMINIC

MEUTI

KIMBERLY A. OLSON

Deputy Solicitors

SHARON A. JENNINGS

Assistant Solicitor

30 East Broad St., 17th Fl.

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel! for Petitioner

State of Ohio

TASLE OF CONTENTS

Page

Appendix A: Opinion, United States Court of

Appeals for the Sixth Circuit, March 5, 2008 .......... la

Appendix B: Order, United States District

Court for the Southern District of Ohio,

Western Division, November 27, 2006 ................... 28a

Appendix C: Temporary Restraining Order,

United States District Court for the

Southern District of Ohio, Western Division,

Pets BO, BBD ac nncsiccsciscencerecisesssateeealee 50a

la

APPENDIX A

RECOMMENDED FOR FULL-TEXT

PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0104p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CITIZENS FOR TAX REFORM and

JEFFREY P. LEDBETTER,

Plaintiffs-Appellees,

Vv.

JOSEPH DETERS et al..

Defendants,

STATE OF OHIO,

Intervenor Defendant-Appellant.

No. 07-3031

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 05-00212—Susan J. Dlott, District Judge.

Argued: November 30, 2007

Decided and Filed: March 5, 2008

Before: SILER, GIBBONS, and McKEAGUE,

Circuit Judges.

2a

COUNSEL

ARGUED: William P. Marshall, OFFICE OF THE

ATTORNEY GENERAL OF OHIO, Columbus, Ohio,

for Appellant. David R. Langdon, LANGDON &

HARTMAN, Cincinnati, Ohio, for Appellees. ON

BRIEF: William P. Marshall, Sharon A. Jennings,

OFFICE OF THE ATTORNEY GENERAL OF

OHIO, Columbus, Ohio, for Appellant. David R.

Langdon, Curt C. Hartman, LANGDON &

HARTMAN, Cincinnati, Ohio, for Appellees. Todd P.

Graves, GRAVES, BARTLE & MARCUS, Kansas

City, Missouri, for Amicus Curiae.

OPINION

McKEAGUE, Circuit Judge. As with the law

in general,' the First Amendment is a jealous

mistress. It enables the people to exchange ideas

(popular and unpopular alike), to assemble with the

hope of changing minds, and to alter or preserve how

we govern ourselves. But in return, it demands that

sometimes seemingly reasonable measures enacted

by our governments give way.

The State of Ohio enacted a provision making

it a felony to pay anyone for gathering signatures on

election-related petitions on any basis other than the

time worked. It did so for the sensible purpose of

reducing fraudulent signatures. The provision,

however, runs afoul of the First Amendment because

1 See Joseph Story, Inaugural Address as Dane Professor of Law

at Harvard University, on the Subject of the Value &

Importance of Legal Studies (Aug. 5, 1829).

3a

it creates a significant burden on a core political

speech right that is not narrowly tailored.

Accordingly, we affirm the district court’s grant of

summary judgment against the State.

I

The district court set forth the background of

this case:

Ohio Revised Code (“O.R.C.”) § 3599.111 (“the

Statute”) states in relevant part as follows:

(B) No person shall receive compensation

on a fee per signature or fee per volume

basis for circulating any declaration of

candidacy, nominating petition, initiative

petition, referendum petition, recall

petition, or any other election-related

petition that is filed with or transmitted

to a board of elections, the office of the

secretary of state, or other appropriate

public office.

(D) No person shall pay any other person

for collecting signatures on_ election-

related petitions or for registering voters

except on the basis of time worked.

Plaintiffs Citizens for Tax Reform (“CTR”) and

Jeffrey P. Ledbetter, a former Treasurer of CTR,?

filed a Verified Complaint on April 1, 2005

2 Collectively referred to herein as “CTR.”

4a

challenging the constitutionality of the O.R.C. §

3599.111 on the grounds that the prohibition of

payment to petition circulators on a per-signature or

per-volume basis violated their core political speech

rights. (Doc. 1.) Plaintiffs named as defendants

Joseph T. Deters, the Hamilton County, Ohio

prosecutor, and Mathias H. Heck, ur., the

Montgomery County, Ohio prosecutor, both in their

official capacities only, as persons responsible for the

enforcement of the Statute. (/d.)

Prior to the effective date of the Statute, CTR

had engaged a political consulting firm on the basis

of a fixed fee contract to secure the necessary

signatures to qualify a proposed constitutional

amendment for the November 2005 Ohio general

election. Pursuant to the contract, CTR was to pay

the firm $1.70 per signature for a _ total of

approximately 450,000 signatures. After the Statute

became effective, CTR was not permitted to pay

circulators on a per-signature or on any per-volume.

basis. The political consulting firm was no longer

willing to collect signatures pursuant to the agreed-

upon fixed-fee contract and it estimated that the cost

for gathering the signatures would increase by more

than $300,000. Plaintiffs asserted that the Statute

increased the cost of qualifying their proposed

amendment, made it more difficult to raise money

necessary to fund the initiative effort, and that they

had refrained from attempting to qualify the

proposed amendment for the ballot so long as the

Statute was in force. (/d.)

The Ohio Attorney General moved _ to

intervene as a defendant in this action on March 11,

2005 in order to defend the constitutionality of §

3599.111 and the Court issued a Notation Order

5a

permitting the intervention on March 12, 2005. (Doc.

¥0

On March 19, 2005, Chief Judge Sandra

Beckwith issued a Temporary Restraining Order

enjoining the enforcement of O.R.C. § 3599.111. (Doc.

16.) Chief Judge Beckwith found that Plaintiffs

“have introduced actual evidence that tends to show

that the restriction on payment of petition

circulators on a per-signature basis limits their

ability to retain effective circulators and reduces the

likelihood that they will succeed in placing their

initiative on the November 2005 ballot.” Ud. at 9.)

She further found that the State of Ohio did not

adduce evidence of the necessity of the law to

prevent fraud. She stated that the State’s evidence

that fraud occurred when circulators were paid on a

per-signature basis in Ohio was not sufficient to

establish that the per-signature basis was cause of or

an incentive to the fraud. (/d.) The State had not

proven “that compensation on a per-signature basis

generates fraud at a greater rate than other forms of

compensation.” (/d.)

On May 4, 2005, March 22, 2006, and April 16,

2006, the Court issued Agreed Orders extending the

temporary restraining order until October 15, 2005,

extending it to cover the amendments to the law that

took effect on May 2, 2005, and extending it pending

a final disposition in this case. (Docs. 20, 42, 46.)

Citizens for Tax Reform v. Deters, 462 F. Supp. 2d

827, 828-30 (S.D. Ohio 2006) (“CTR”) (footnotes in

original omitted).

Deters and Heck moved for summary

judgment based on the intervention in the case by

6a

the State of Ohio. As CTR did not oppose the motion,

the district court granted them summary judgment

and dismissed them from the case. Id. at 830.

CTR and the State of Ohio filed cross motions

for summary judgment. The State also filed a motion

to dismiss based on mootness. The district court

denied the State’s motion to dismiss, concluding that

the State had not proven that CTR had disbanded

and, even if it had, CTR’s case was saved from

mootness under the exception for wrongs that are

“capable of repetition, yet evading review.” Citizens

for Tax Reform v. Deters, No. 05-212, 2006 WL

3420242, at *1 (S.D. Ohio Nov. 27, 2006).

On the cross motions, the district court held

that the Statute was unconstitutional. The district

court found that CTR had established that the

“Statute burdens their core political speech rights.”

CTR, 462 F. Supp. 2d at 832. Specifically, it agreed

with a prior district court judge’s issuance of a

temporary restraining order in the case based on

CTR’s showing “that the Statute limits [its] ability to

retain effective circulators and reduces the likelihood

that petition proponents will be able to place their

petitions on the ballot.” Id. The State countered that

the Statute was justified as a means to combat

irregularities and fraud in the election process. The

district court dismissed much of the State’s evidence,

however, as inconclusive or irrelevant. It concluded,

“[W]hile the State of Ohio’s evidence might show that

fraud has occurred when the payment per-signature

method is used, it has not isolated the form of

payment as being the cause of or an incentive to wide

spread petition signature fraud in Ohio.” Id. at 838.

Ta

The State timely appealed the district court’s

denial of its motion for summary judgment.

Il

A. Fed. R. Civ. P. 56

The court reviews de novo the district court's

grant of summary judgment. Bender v. Hecht’s Dep't

Stores, 455 F.3d 612, 619 (6th Cir. 2006), cert.

denied, 127 S. Ct. 2100 (2007). Summary judgment

should be granted when “the pleadings, the discovery

and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any

material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

To survive summary judgment, the non-movant must

provide evidence beyond the pleadings “set|ting] out

specific facts showing a genuine issue for trial.” Fed.

R. Civ. P. 56(e).

B. Balancing First Amendment Rights Against

the Regulation of Elections

1. In General

The First Amendment to the U.S. Constitution

reads 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.” The

Fourteenth Amendment extends these prohibitions

against the States. Thornhill v. Alabama, 310 U.S.

88, 95 (1940). One of the main interests embodied in

the First Amendment is that of a free, sovereign

people using the power of persuasion, rather than

force, to govern itself. Accordingly, the Supreme

8a

Court has held that the First Amendment places a

high value on: the right to engage freely “in

discussions concerning the need for [political]

change,” including change accomplished through

petitions and elections. Meyer v. Grant, 486 U.S. 414,

421 (1988).

First Amendment rights to free speech, to

assemble, and to petition the government are not, of

course, without boundary. With respect to elections,

Article I, Section 4 of the Constitution grants to

States the authority to determine “The Times, Places

and Manner of holding Elections.” As the Supreme

Court explained in Timmons v. Twin Cities Area New

Party, 520 U.S. 351 (1997), “[I]jt is . . . clear that

States may, and inevitably must, enact reasonable

regulations of parties, elections, and ballots to reduce

election- and campaign-related disorder,” id. at 358

(citing Burdick v. Takushi, 504 U.S. 428, 433 (1992)

(“[A]s a practical matter, there must be a substantial

regulation of elections if they are to be fair and

honest and if some sort of order, rather than chaos, is

to accompany the democratic process.” (internal

quotation marks omitted))). “States allowing ballot

initiatives have considerable leeway to protect the

integrity and reliability of the initiative process, as

they have with respect to election processes

generally.” Buckley v. Am. Constitutional L. Found.,

525 U.S. 182, 191 (1999) (citations omitted). When

the boundaries of First Amendment rights push up

against a State’s authority to regulate elections,

cases like the present one arise.

CTR asserts that Ohio’s requirement that

circulators be paid only on the basis of their time

worked (the “per-time-only” requirement) places a

severe burden on its First Amendment rights. The

9a

State counters that the burden is not severe and,

even if it is, the burden is justified by the need to

counter election fraud. In Timmons, the Supreme

Court set forth the following framework for resolving

these types of competing interests:

When deciding whether a state election

law violates First and Fourteenth

Amendment associational rights, we

weigh the character and magnitude of the

burden the State’s rule imposes on those

rights against the interests the State

contends justify that burden, and consider

the extent to which the State’s concerns

make the burden necessary. Regulations

imposing severe burdens on _ plaintiffs’

rights 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. No bright

line separates permissible election-related

regulation from unconstitutional

infringements on First Amendment

freedoms.

520 U.S. at 358-59 (internal quotation marks and

citations omitted); see also Buckley, 525 U.S. at 192

(“We have several times said 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.” (internal quotation marks omitted)).

10a

2. Character and Magnitude of the

Burden

a. Prior Decisions

The State of Ohio argues that its per-time-only

requirement imposes, at most, only a moderate

burden on CTR’s rights. It faults CTR for failing to

show, in the State’s words, that the ban would cause

“a significant, quantitative decrease in the number of

circulators available” or that it “would decrease the

number of issues successfully placed on the ballot.”

Appellant’s Br. at 18. It asserts that we should apply

a “less exacting review’ and that, under this review,

the requirement meets the standard for a

“reasonable, nondiscriminatory restriction[].”

Timmons, 520 U.S. at 358. CTR argues, on the other

hand, that the cumulative effect of the Statute on the

petition process severely burdens CTR’s core political

speech rights.

The Supreme Court first addressed the issue

of payment to petition circulators in Meyer v. Grant.

The State of Colorado had banned proponents of

petitions from paying circulators, among other

restrictions. The Court subjected Colorado’s payment

ban to “exacting scrutiny.” Meyer, 486 U.S. at 420

(citations omitted). The Court determined that the

ban restricted’ political expression in two

fundamental ways: (1) it “limit[ed] the number of

voices who will convey [the petitioner’s] message and

the hours they can speak and, therefore, limits the

size of the audience they can reach”; and (2) “it

makes it less likely that [the petitioner] will garner

the number of signatures necessary to place the

matter on the ballot, thus limiting [the petitioner’s]

lla

ability to make the matter the focus of the statewide

discussion.” Id. at 422-23.

The State of Colorado defended the measure in

part by pointing out all of the other avenues of

expression left open to petitioners. The Court

rejected the argument, explaining that simply

because more-burdensome avenues of speech existed

did not mean that Colorado could simply shut down a

less-burdensome one: “Colorado’s prohibition of paid

petition circulators restricts access to the most

effective, fundamental, and perhaps economical

avenue of political discourse, direct one-on-one

communication.” Id. at 424. The Court concluded

that the burden Colorado had to overcome to justify

its ban was “well-nigh insurmountable.” Id. at 425.

Several years later the State of Colorado was

again before the Supreme Court to justify several

new petition regulations. In Buckley v. American

Constitutional Law Foundation, the Court looked at

three provisions: “(1) the requirement that initiative-

petition circulators be registered voters’; “(2) the

requirement that they wear an identification badge”;

and “(3) the requirement that proponents of an

initiative report the names and addresses of all paid

circulators and the amount paid to each circulator.”

525 U.S. at 186. Using again the “exacting scrutiny”

it applied in Meyer, id. at 204, the Court struck down

all three as too heavy a burden in comparison to the

State’s purported justifications of deterring fraud

and corruption, id. at 205.

Since the Meyer and Buckley decisions, three

circuits have considered whether bans on _ per-

signature payments meet constitutional muster. The

Eighth Circuit was the first when it considered

12a

North Dakota’s ban in Initiative & Referendum

Institute v. Jaeger, 241 F.3d 614 (8th Cir. 2001)

(‘IRI’). The court found the ban constitutional. It

based its holding on the respective strengths of the

proofs submitted:

Examining the record in this case, we

conclude that the State has produced

sufficient evidence that the regulation is

necessary to insure the integrity of the

initiative process. In 1987, the Legislature

passed § 16.1-01-12(11) in response to

problems that occurred with an initiative

that had been placed on the ballot in

November 1986. State Representative

Linderman stated, in regard to a 1986

signature campaign, that “students were

being paid 25¢/signature. There were

reported irregularities-taking names out

of the phone book, etc.” The limited

legislative history available shows that

the legislators were aware of, and

contemplated, the bill’s effect on the

circulation of petitions, but that they were

more concerned with the testimony they

had heard regarding signature fraud.

Furthermore, as mentioned in the

previous” section on_ the residency

requirement, in 1994 approximately

17,000 petition signatures were

invalidated. A subsequent investigation

revealed that payment per signature was

an issue in the 1994 incident.

13a

The appellants have produced no

evidence that payment by the hour, rather

than on commission, would in any way

burden their ability to collect signatures.

The appellants have only offered bare

assertions on this point. While it may be

argued that such assertions may establish

an unacceptable burden on signature-

gathering where the state cannot offer

any evidence demonstrating the need to

prohibit commission payments, Cf. Meyer,

486 U.S. at 424, 426, 108 S.Ct. 1886,

when the state introduces’ evidence

justifying the ban on commission

payments as a necessary means. to

prevent fraud and abuse (as the state has

in this case), initiative sponsors may not

rest on bare assertions alone.

Id. at 618.

The Ninth Circuit addressed a similar per-

signature ban passed by Oregon voters in Prete v.

Bradbury, 438 F.3d 949 (9th Cir. 2006). After an

abbreviated bench trial, the district court held that

Oregon’s ban did not unconstitutionally burden

petitioners’ core political speech rights. Id. at 953.

The Ninth Circuit affirmed. After reviewing the

standard set forth by the Supreme Court in Meyer

and Buckley, the court distinguished Oregon’s per-

signature ban from the total ban on payments in

Meyer. Id. at 962. It described Oregon’s ban as

simply “prohibit{ing] one method of payment.” 7d. It

also read Buckley as modifying Meyer:

l4a

To the extent Meyer may be read to

indicate that any resulting decrease in the

pool of available circulators is sufficient to

constitute a “severe burden” under the

First Amendment, in Buckley the Court

refined .ts analysis and made clear that

the degree of the decrease resulting from

the measure is properly considered in

determining the severity of the burden.

Id. at 962-63 (citation omitted, emphasis in original).

The court fownd that the district court did not clearly

err in_ rejecting the petitioners evidence of

circulators leaving or refusing to work in Oregon as

“unsupported speculation.” Id. at 964. The two

primary affiants, William Arno of Arno Political

Consultants (“APC”) and Tracy Taylor of Taylor

Petition Management, LLC, had little experience in

Cregon, and thus could not offer a reliable estimate

of the ban’s effect on the cost of signature gathering

in the state. Jd. at 965. Likewise, their assertions

regarding the effect the ban had on the validity rate

of signatures carried little weight with the court. Id.

at 966.

The court recognized that “from an economic

perspective, eliminating one method of payment (but

not every method, a la Meyer) for petition circulators

could result in some barriers to entry in _ the

signature procurement market.” Jd. at 967. Paying

circulators by the signature “can be more productive

of signatures than paying an hourly wage.” Id. The

court noted, however, that whether the measure

actually created any barriers to entry was “a

question of historical fact,” and it did not find clear

error with the district court's determination that no

15a

such barriers existed. Jd. Even had the petitioners

made the requisite showing, the barriers would have

established only a “lesser burden” under the First

Amendment. /d. at 968. This is because Oregon’s ban

was “quite limited in its proscription, barring only

payment of petition circulators on the basis of the

number of signatures gathered. It does not prohibit

adjusting salaries or paying bonuses according to

validity rates or productivity ... which could likely

counter any barriers to entry.” Jd. Thus, concluding

that the petitioners had established only a “lesser

burden” on thei rights, the court subjected the per-

signature ban to a “less exacting review” and

ultimately upheld the ban. Id.

Finally, the Second Circuit followed the

Eighth and Ninth Circuits in rejecting a petitioner's

claim that a _ per-signature ban violated the

Constitution. In Person v. New York State Board of

Elections, 467 F.3d 141 (2d Cir. 2006), the court

joined its two sister circuits in “find[ing] the record

presented to [it] provides insufficient support for a

claim that the ban ... is akin to the compiete

prohibition on paying petition circulators” as in

Meyer “or that the alternative methods of payment it

leaves available are insufficient,” id. at 143 (citations

omitted). The court concluded that the petitioner's

argument that paying circulators on a per-signature

basis was the best economic incentive was

insufficient to show an unconstitutional burden

“when balanced against the state’s interest in

preventing fraud in the gathering of signatures.” Id.

Several guide posts can be gleaned from these

Supreme Court and circuit court decisions regarding

the character and magnitude of the burden created

by Ohio’s per-time-only requirement. First, the

16a

question is fact-intensive, given the “sliding scale”

analysis outlined by the Supreme Court in Meyer,

Buckley and other decisions. Lee v. Keith, 463 F.3d

763, 768 (7th Cir. 2006) (describing the Supreme

Court's flexible approach in_ similar _ First

Amendment cases as a “sliding scale”). Bans on

paying circulators, whether outright or partial, can

impact political expression in at least three related

but distinct ways: (1) a ban can reduce the number

and hours of voices which will convey the message;

(2) it ean limit the size of the audience of the

petition; and (3) it can lower the likelihood that a

measure will qualify for the statewide ballot. A

circulator plays a crucial role in the petition process

because the circulator both has to express the

petitioner’s desire for political change and has to

discuss the merits of the proposed change. Finally,

although the availability of other payment methods

might reduce the burden, the extent to which the

more effective means are foreclosed is an important

consideration.

b. Character and Magnitude of Ohio’s

Per-Time-Only Requirement

A review of the record evidence shows that Ohio’s

per-time-only requirement would make proposing

and qualifying initiatives more expensive, primarily

because of the inefficiencies inherent in a per-time-

only system. The evidence also shows that so-called

professional circulators would likely not work under

a per-time-only system (or at least would choose a

per-signature system if given the option). The

evidence is mixed on how validity rates are affected.

Moreover, CTR has not pointed to any evidence

showing that, outside a relatively small number of

professional circulators, there exists a substantial

17a

number of people or a demonstrable percentage of

Ohio’s population who would participate under a per-

signature system but not under a_ per-time-only

system.

There is little dispute that operating under a

per-time-only system will increase the costs of both

proposing an initiative and qualifying it for the

ballot. First, the ban eliminates the opportunity for a

petitioner to enter into a fixed-price contract with a

political consulting firm, signature coordinator, or

circulator. Under a per-signature payment scheme,

CTR can contract, for example, for 500,000

signatures at a fixed price of $1.50 per signature.

The petitioner knows how much money it will need

to raise at the outset to qualify its initiative. Under

Ohio’s_ per-time-only provision, however, the

petitioner cannot enter into a fixed price contract to

pay circulators per signature. O.R.C. § 3599.111.

Moreover, § 3599.111 does not define the term

“person.” Section 1.59(C) of the Ohio criminal code

states: “As used in any statute, .. . ‘Person’ includes

an individual, corporation, business trust, estate,

trust, partnership, and association.” Thus, a

petitioner is prohibited from paying a_ political

consulting firm, signature coordinating firm, or any

other business entity to gather a specific number of

signatures for a fixed price. In other words, the ban

works up and down the chain from petitioner to

consulting firm to signature coordinating firm to

circulator. Thus, the per-time-only provision adds an

element of risk to the petition process which would

otherwise be absent.

In addition to the increased risk, petitioners

get fewer signatures for their money, according to

CTR. Per-hour circulators are less efficient at

18a

gathering signatures than are _per-signature

circulators. The cause for this drop in efficiency is

hardly novel: basic economic theory instructs that a

producer will seek to maximize the output for which

she gets paid until the cost to her of producing

another marginal unit equals the payment she

receives for it. Under the per-time-only provision, the

output for which the circulator is to get paid would

not be signatures, but rather time worked. Thus, the

circulator would have an incentive to work as many

hours as possible up to the point the wage earned for

the marginal unit of time equaled the marginal cost

to her of working that unit of time. The circulator’s

primary focus would be on the amount of time

worked, not the quality of work product produced.

CTR further asserts that the best, most

professional coordinators and circulators are not

interested in working under a per-time-only system.

They purportedly can earn more money working on a

per-signature basis than they can under any other

system. Tracy Taylor testified that his top

coordinators that qualified his last two Ohio issues

refuse to go to Ohio on an hourly basis. This

reluctance on the part of some _ professional

coordinators and circulators also makes economic

sense. If, for example, the professional circulators are

more efficient than the average circulator in the

sense that they can gather more valid signatures

within a given unit of time, they will be financially

better off working under a system that rewards them

based on their efficiency, rather than a system which

pays them based on something for which they do not

have a comparative advantage, quantity of time

worked.

19a

According to CTR, the cumulative effect of the

inefficiencies caused by a per-time-only system

increases the amount of time it takes to collect

signatures, further exacerbating the risk of

unforeseen costs. As a result, CTR contends that it

and other firms are not only less likely to qualify

their proposed initiatives for the ballot, but are less

likely even to try. The State counters by pointing to

the relatively stable numbers of qualifying petitions

in Oregon before and after it enacted its per-

signature ban in 2002. The Oregon numbers suffer,

however, from a_ similar defect in Colorado’s

experience that the Supreme Court pointed out in

Meyer: the statistic “does not reject the possibility

that even more petitions would have been successful

if paid circulators had been available, or, more

narrowly, that [petitioners] would have had greater

success if they had been able to hire extra help.” 486

U.S. at 418 n.3.

CTR has also presented evidence that

circulators paid by the time worked yield lower

validity rates than circulators paid by the signature.

The evidence is limited, however, and inconclusive.

For example, Michael Arno stated in a declaration

that his company’s validity rates dropped in all three

of its petition drives it handled in Oregon after the

per-signature ban went into cffect in that state. Lee

Albright, the owner of a petition management

company, testified that his firm collected signatures

for an initiative in Oregon after the ban. His firm

ended up collecting twice the number of signatures

needed to get the initiative on the ballot because he

was afraid that the amateur petition circulacors

would collect too many invalid signatures. However,

Ohio has’ submitted evidence from Oregon's

Secretary of State that the average validity rate on

20a

petitions actually increased from 69.63% in 2002 to

72.35% in 2004. At best, CTR has raised a question

of fact whether validity rates are lower under a per-

time-only scheme.

Finally, there is little in the record to suggest

that a substantial number of people in Ohio would be

dissuaded from participating in the petition process

because of a ban on all payment not based on time

worked. This is not a case like in Buckley where

approximately 35% of the state’s population was

categorically prohibited from participating. 525 U.S.

at 193-94 & n.15. Nor has CTR proffered, for

example, a _ broad-based survey to show a

demonstrable decrease in the pool of potential

circulators.

Accordingly, a review of the record confirms

that there is no genuine issue of material fact (1)

that Ohio's per-time-only requirement would make

proposing and qualifying initiatives more expensive;

and (2) that professional coordinators and circulators

would likely not work under a per-time-only system.

As to the validity rates and the available statewide

pool of circulators, however, the matters are at best

issues of fact.

ce. Wiere Does § 3599.111 Fit Along the

Sliding Scale?

If the Supreme Court’s decision in Meyer hes

at one end of the spectrum and the JARI, Prete and

Person decisions lie at the other, then this case falls

somewhere in between. Ohio's partial ban on

payment is not as draconian as the complete ban in

Meyer. However, it has a couple of features that

Z2la

distinguish it from those considered in the other

circuit court decisions.

One difference between the present case and

IRI, Prete and Person is that Ohio’s ban is more

restrictive. North Dakota, Oregon and New York all

banned payments made on a per-signature basis;

Ohio, on the other hand, has’ banned all

remuneration to circulators except on a per-time

basis. The difference is not academic. As the Ninth

Circuit recognized in Prete, Oregon’s ban on per-

signature payments left open various other means of

payment besides one based solely on the time

worked:

Allowable practices include: paying an

hourly wage or salary, establishing either

express or implied minimum signature

requirements for circulators, terminating

circulators who do not meet’ the

productivity requirements, adjusting

salaries prospectively relative to a

circulators productivity, and paying

discretionary bonuses based on reliability,

longevity and productivity, provided no

payments are made on a per signature

basis.

Prete, 438 F.3d at 952 n.1 (quoting Or. Admin. R.

165-014-0260); see also Person, 467 F.3d at 143

(noting that New York’s statute “specifically

prohibits only the per-signature payment to election

workers’); [RI, 241 F.3d at 616 (reviewing North

Dakota’s provision which prohibits payment “on a

basis related to the number of signatures obtained”).

22a

This is a significant distinction. Under a plain

reading of § 3599.111, CTR (or its subcontractors)

could not give a bonus to a circulator based on

productivity or longevity. CTR could not set a

minimum signature requirement because, in order to

earn a day’s wages, for example, a circulator would

both have to work a certain number of hours and

have to collect a certain number of signatures,

thereby partially tying earnings to the number of

signatures. Arguably, CTR could not terminate a

circulator who consistently did not collect enough

signatures because, again, to earn a wage (and keep

the job) the circulator would, among other things,

have to collect a minimum number of signatures.

Furthermore, CTR could not base a circulator’s

earnings on the geographic area covered (pay per city

block, for example). It is even unclear whether CTR

could pay a salary to a circulator unless it strictly

limited the hours worked. If, instead, a salaried

circulator were responsible for completing a number

of duties each day or week regardless of the number

of hours worked (i.e., the typical plight of the

salaried worker), then in a sense the circulator would

be compensated on a basis other than strictly time

worked. This added difficulty with motivating a

workforce reinforces CTR’s argument that proposing

and qualifying initiatives would be significantly more

expensive under § 3599.111.

Another difference between § 3599.111 and

the other state provisions is the penalty for a

violation. The New York provision makes a violation

a misdemeanor punishable by up to one year of

imprisonment, a fine of $100 to $500, or both. Person,

467 F.3d at 143 (citing N.Y. Elec. L. § 17-122()),

violation of which is a misdemeanor); N.Y. Elec. L. §

17-166 (stating that penalty for any _ such

23a

misdemeanor violation). Similarly, the North Dakota

provision makes a violation a misdemeanor

punishable by up to one year of imprisonment, a fine

up to $2,000, or both. JRI, 241 F.3d at 616 (citing

N.D. Cent. Code § 16.1-01-12(11), violation of which

is a class A misdemeanor); N.D. Cent. Code § 12.1-

32-01(5) (describing the penalty for a class A

misdemeanor). Violation of the Oregon prevision is

punishable by a minimum of a $100 civil fine. Prete,

438 F.3d at 952 n.1. In contrast, anyone who was to

violate § 3599.111 would be guilty of a felony

punishable by imprisonment between six and twelve

months, a fine up to $2,500, or both. O.R.C. §

3599.111(E) (stating that violation of the Ohic

provision constitutes a felony of the fifth degree);

O.R.C. § 2929.14(A)(5) (describing the penalty for a

felony of the fifth degree).

With the broader ban on the types of payment

and harsher criminal sanctions for violations, Ohio’s

provision lies closer to the complete ban in Meyer

than the partial bans in the other circuit court

cases.’ As the Supreme Court explained in Meyer,

“The First Amendment protects [petitioners right

not only to advocate their cause but also to select

what they believe to be the most effective means for

so doing.” 486 U.S. at 424. While petitioners are not

3 We take no position on the hypothetical question of whether, if

Ohio were to enact a partial ban similar to Oregon's, North

Dakota's or New York's, that partial ban would be subject to the

less exacting review of Timmons. The constitutional analysis is,

as we have noted, fact- and context-intensive. There may be

significant differences between how Ohio and those other States

govern and operate their respective petition drives and

elections which would make even a lesser ban in Ohio subject to

the more exacting scrutiny of Meyer. But, again, as the question

is not before us, we will address the matter no further.

24a

constitutionally guaranteed an endless varicty of

means, when their means are limited to volunteers

and to paid hourly workers who cannot be rewarded

for being productive and arguably cannot be

punished for being unproductive, they carry a

significant burden in exercising their right to core

political speech.

3. The State’s Interest in Eliminating

Fraud

When a State places a severe or significant

burden on a core political right, like here, it faces a

“well-nigh insurmountable” obstacle to justify it.

Meyer, 486 U.S. at 425; cf. Buckley, 525 U.S. at 192

n.12. The provision must be narrowly tailored and

advance a compelling state interest. 7immons, 520

U.S. at 358; Meyer, 486 U.S. at 423-24. Although a

State need not present “elaborate, empirical

verification” of the weight of its purported

justification when the burden is moderate, see

Timmons, 520 U.S. at 364, it must come forward

with compelling evidence when the burden is higher,

see Buckley, 525 U.S. at 203-04; Meyer, 486 U.S. at

425-28.

While eliminating election fraud is certainly a

compelling state interest, § 3599.111 is not narrowly

drawn. First, there is no evidence in the record that

most, many, or even more than a de minimis number

of circulators who were paid by signature engaged in

fraud in the past. The State points primarily to the

2004 presidential election, when circulators trying to

get Ralph Nader on the ballot engaged in fraud. The

circulators were paid on a persignature basis. CTR,

462 F. Supp. 2d at 834. While this is evidence that

circulators who were paid per-signature engaged in

25a

fraud, it does not prove that the per-signature

feature actually caused or significantly contributed

to the circulators’ fraudulent acts. At most, the

evidence of fraud associated with the Nader election

effort and other elections is evidence of correlation,

not causation.

Of course, just as CTR argues that per-

signature payment creates a better incentive for

hard, efficient work and valid signatures, it cannot

escape the flip-side of the argument: the payment

also creates an economic incentive to engage in fraud

by padding signatures (whether by forgery, false

certification or false pretense). Just as the Supreme

Court took judicial notice in Meyer that “it is often

more difficult to get people to work without

compensation than it is to get them to work for pay,”

486 U.S. at 423, we can take judicial notice that

there is an incentive to inflate the measure of output

when payment is directly tied to that output. If a

person gets paid by the hour, there is an incentive to

pad hours; if a person gets paid by the signature,

there is an incentive to pad sig atures.

That is not to say, of course, that someone

faced with the incentive to pad signatures will

actually act upon it. That is an empirical question,

one for which there is little in the record to answer.

The State has not, for example, pointed to evidence

from Oregon suggesting a marked decrease in the

level of election fraud since its per-signature ban was

enacted. While there is some evidence that validity

rates have increased, see supra, there are many non-

fraudulent reasons why signatures are rejected (e.g.,

insufficient information about the signer, illegible

handwriting). The State’s correlation evidence is

relevant, if only circumstantial, evidence, but it is a

26a

far cry from showing that the provision is narrowly

tailored (or even reasonably tailored) to the State’s

legitimate interest in reducing election fraud. As

explained in Meyer, courts should not be “prepared to

assume that a _ professional circulator—whose

qualifications for similar future assignments may

well depend on a reputation for competence and

integrity—is any more likely to accept false

signatures than a volunteer who is motivated

entirely by an interest in having the proposition

placed on the ballot.” 486 U.S. at 426.

Moreover, Ohio already has criminalized

election fraud, specifically with regard to false

signatures. See O.R.C. § 3599.28 (making false

signatures on election-related documents a felony of

the fifth degree). This and other criminal provisions

of Ohio election law are the types of protections that

the Supreme Court has found “adequate” to deter

improper conduct with regard to petition circulation,

“especially since the risk of fraud or corruption, or

the appearance thereof, is more remote at the

petition stage of an initiative than at the time of

balloting.” Meyer, 486 U.S. at 427 (citations omitted).

Accordingly, under the exacting scrutiny of

Meyer and Buckley, Ohio's per-time-only requirement

is not sufficiently tied to its otherwise legitimate

interest.

III

The State of Ohio argues in large measure

that CTR’s evidence of increased costs establishes

not a free-speech problem, but a business problem.

Yet, the State largely misses the point that free

speech can be costly. By making speech more costly,

27a

the State is virtually guaranteeing that there will be

less of it. Because its ban on all forms of payment to

circulators except based on the amount of time

worked would create a significant burden on CTR’s

and other petitioners’ core political speech rights, the

State must justify it with a compelling interest and

narrowly tailored means. It fails to raise a genuine

issue of material fact that § 3599.111 is narrowly

tailored. Therefore, we AFFIRM summary judgment

in favor of CTR.

28a

APPENDIX B

ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Citizens for Tax Reform, et al.,

Plaintiffs,

v.

Joseph T. Deters, et al.,

Defendants.

Case No. 1:05-CV-212

District Judge Susan J. Dlott

ORDER

This matter comes before the Court on

Plaintiffs’ Motion for Summary Judgment (doc. 29),

the State of Ohio's Motion for Summary Judgment

(doc. 33), Defendant Joseph T. Deters’ Motion for

Summary Judgment (doc. 32), and Defendant

Mathias H. Heck, Jr.’s Motion for Summary

Judgment (doc. 34). For the reasons that follow,

Plaintiffs’ Motion, Deters’ Motion, and Heck’s Motion

are GRANTED, and the State of Ohio’s Motion is

DENIED.

I, FACTUAL AND PROCEDURAL BACKGROUND

Ohio Revised Code (“O.R.C.”) § 3599.111 (“the

Statute”) states in relevant part as follows:

29a

(B) No person shall receive compensation

on a fee per signature or fee per volume

basis for circulating any declaration of

candidacy, nominating petition, initiative

petition, referendum petition, recall

petition, or any other election-related

petition that is filed with or transmitted

to a board of elections, the office of the

secretary of state, or other appropriate

public office. * * *

sap

(D) No person shall pay any other person

for collecting signatures on_ election-

related petitions or for registering voters

except on the basis of time worked.

O.R.C. § 3599.111.

Plaintiffs Citizens for Tax Reform (“CTR”) and

Jeffrey P. Ledbetter, a former Treasurer of CTR,

filed a Verified Complaint on April 1, 2005

challenging the constitutionality of the O.R.C. §

3599.111 on the grounds that the prohibition of

payment to petition circulators on a per-signature or

per-volume basis violated their core political speech

rights. (Doc. 1.) Plaintiffs named as defendants

Joseph T. Deters, the Hamilton County, Ohio

prosecutor, and Mathias H. Heck, Jr., the

Montgomery Cuunty, Ohio prosecutor, both in their

official capacities only, as persons responsible for the

enforcement of the Statute. (Id.)

Prior to the effective date of the Statute, CTR

had engaged a political consulting firm on the basis

of a fixed fee contract to secure the necessary

30a

signatures to qualify a proposed constitutional

amendment for the November 2005 Ohio general

election. Pursuant to the contract, CTR was to pay

the firm $1.70 per signature for a_ total of

approximately 450,000 signatures. After the Statute

became effective, CTR was not permitted to pay

circulators on a per-signature or on any per-volume

basis. The political consulting firm was no longer

willing to collect signatures pursuant to the agreed-

upon fixed-fee contract and it estimated that the cost

for gathering the signatures would increase by more

than $300,000. Plaintiffs asserted that the Statute

increased the cost of qualifying their proposed

amendment, made it more difficult to raise money

necessary to fund the initiative effort, and that they

had refrained from attempting to qualify the

proposed amendment for the ballot so long as the

Statute was in force. (Id.)

The Ohio Attorney General moved to

intervene as a defendant in this action on March 11,’

2005 in order to defend the constitutionality of §

3599.111 and the Court issued a Notation Order

permitting the intervention on March 12, 2005. (Doc.

7.)

On March 19, 2005, Chief Judge Sandra

Beckwith issued a Temporary Restraining Order

enjoining the enforcement of O.R.C. § 3599.111. (Doc.

16.) Chief Judge Beckwith found that Plaintiffs

“have introduced actual evidence that tends to show

that the restriction on payment of petition

circulators on a per-signature basis limits their

ability to retain effective circulators and reduces the

likelihood that they will succeed in placing their

initiative on the November 2005 ballot.” (Id. at 9.)

She further found that the State of Ohio did not

3la

adduce evidence of the necessity of the law to

prevent fraud. She stated that the State’s evidence

that fraud occurred when circulators were paid on a

per-signature basis in Ohio was not sufficient to

establish that the per-signature basis was cause of or

an incentive to the fraud. (Id.) The State had not

proven “that compensation on a per-signature basis

generates fraud at a greater rate than other forms of

compensation.” (Id.)

On May 4, 2005, March 22, 2006, and April 16,

2006, the Court issued Agreed Orders extending the

temporary restraining order until October 15, 2005,!

extending it to cover the amendments to the law that

took effect on May 2, 2005,? and extending it pending

a final disposition in this case. (Docs. 20, 42, 46.)

II, ANALYSIS

A. Defendants Deters’ and Heck’s Motions for

Summary Judgment

Defendants Deters and Heck move for

summary judgment on the basis that the State of

Ohio has intervened to defend the State of Ohio

Statute. Defendants also admit that they will be

bound by an adverse ruling against the State of Ohio

as to the validity of the Statute. Plaintiffs have

presented no argument or evidence suggesting that

the county prosecutors are necessary to a complete

1 The Court originally issued a Temporary Restraining Order

and then extended that TRO. For reasons not clear in the

record, the TRO is referred to as a preliminary injunction in

CM/ECF document numbers 42 and 46.

* The amendments primarily concerned the punitive provisions

of the law and are not relevant to the constitutional issues

before the Court.

32a

and final adjudication of this matter. Accordingly,

Deters’ and Heck’s Motions for Summary Judgment

are GRANTED.

B. Plaintiffs’ and the State of Ohio’s Cross-

Motions for Summary Judgment

Plaintiffs have moved for summary judgment

seeking a_ declaration that the Statute is

unconstitutional and an order enjoining enforcement

of the Statute. The State of Ohio has filed a cross-

motion for summary judgment.

“Petition circulation is core political speech

because it involves interactive communicativa

concerning political change.” Buckley v. American

Const. Law Found., Inc., 525 U.S. 182, 186 (1999)

(citation omitted). It “involves both the expression of

a desire for political change and a discussion of the

merits of the proposed change.” Meyer v. Grant, 186

U.S. 414, 421 (1988). Petition circulators must

convince the signators that the subject matter of the

petition “is one deserving of the public scrutiny and

debate that would attend its consideration by the

whole electorate.” Id.

Analysis of the particular restriction at hand,

the prohibition of a per-signature payment scheme,

must first begin with the recognition that the Ohio

General Assembly could not have acted to prohibit

all forms of payment to petition circulators. The

United States Supreme Court declared in 1988 that

a Colorado statute that prohibited payment to

petition circulators was an infringement of rights of

political speech guaranteed by the First Amendment.

Id. at 422-24. The Court held that the prohibition

restricted core political speech because it “limits the

33a

number of voices who will convey [the political]

message and the hours they can speak and,

therefore, limits the size of the audience they can

reach” and second it “makes it less likely that [the

proponents of the amendment] 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 423.

The Supreme Court stated that

petition/initiative proponents had a “right not only to

advocate their cause but also to select what they

believe to be the most effective means for so doing.”

Id. at 424. The Court considered the State of

Colorado’s expressed justifications for the restriction

of a protected right, including the protection of the

integrity of the initiative process. Id. at 425. The

Court concluded, however, that Colorado had “failed

to demonstrate that it is necessary to burden [the

amendment proponents] ability to communicate

their message in order to meet its concerns.” Id. at

426. The Supreme Court noted the State of Colorado

offered no evidence to support its theory that the

prohibition was necessary to eliminate’ the

temptation to “accept false signatures” and the Court

stated that it was unprepared to assume that a

“professional circulator--whose qualifications for

similar future assignments may well depend on a

reputation for competence and integrity--is any more

likely to accept false signatures than a volunteer who

is motivated entirely by an interest in having the

proposition placed on the ballot.” Id. The Meyer

Court expressed that it was persuaded by the

existence of Colevado laws creating criminal

penalties for forging a signature on a_ petition,

making false or misleading statements relating to a

petition, or paying someone to sign a petition. See id.

34a

at 427. The Court stated that those “provisions seem

adequate to the task of minimizing the risk of

improper conduct in the circulation of a petition.” Id.

Following Meyer, che Supreme Court had

another opportunity to set forth the standard by

which to evaluate the constitutionality of different

types of election laws. The Supreme Court set forth a

sliding scale test as follows:

When deciding whether a state election law

violates First and Fourteenth Amendment

associational rights, we weigh the character and

magnitude of the burden the State’s rule imposes on

those rights against the interests the State contends

justify that burden, and consider the extent to which

the State’s concerns make the burden necessary.

Regulations imposing severe burdens on plaintiffs’

rights 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. No bright

line separates permissible election-related regulation

from unconstitutional infringements on _ First

Amendment freedoms.

Timmons v. Twin Cities Area New Party, 520 U.S.

351, 358-59 (1997) (internal quotations and citations

omitted) (deciding that a state law forbidding a

single person from being listed as the candidate for

more than one political party was constitutional).

Finally, the Supreme Court addressed three

different conditions Colorado had placed on the

ballot-initiative process by law: (1) a requirement

that petition circulators be registered voters; (2) a

35a

requirement that circulators wear an identification

badge; and (3) a _ requirement that initiative

proponents report the name and address of all paid

circulators and the amount paid to each circulator.

Buckley, 525 U.S. at 186. After stating that petition

circulation is core political speech, the Supreme

Court explained 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.” Id. at 192. The Court cited Timmons and

then reviewed each restriction. It did not however,

specify whether each restriction was a severe burden

on speech necessitating strict scrutiny or a lesser

burden justifiable by a reasonable,

nondiscriminatory reason. See id. at 193; id. at 206

(Thomas, J. concurring). The Court ultimately struck

down each of the three restrictions. It found as to the

registered voter requirement and the name badge

requirement that both discouraged participation in

the petition circulation process, which limited the

number of voices who could carry the petitioner's

message and cut down the size of the audience they

could reach, and found that Colorado failed to justify

that burden. Id. at 194-95, 200.

Based on these Supreme Court precedents, the

Court must determine whether the Statute burdens

First Amendment rights and whether the State’s

interest in preventing fraud justifies the burden on

speech. The State contends that the Statute is only a

lesser burden on speech subject to less exacting

review under Timmons. Plaintiffs, on the other hand,

contend that the Statute is a burden on core political

rights under Meyer and that the Statute should be

subject to strict scrutiny analysis.

Paty

36a

The Court finds that Plaintiffs have

established with evidence that the Ohio Statute

burdens their core political speech rights. As Chief

Judge Beckwith found in Temporary Restraining

Order, Plaintiffs have introduced actual evidence

that tends to show that the Statute limits their

ability to retain effective circulators and reduces the

likelihood that petition proponents will be able to

place their petitions on the ballot. For example, prior

to the enactment of the Statute, CTR retained Arno

Political Consulting (“Arno PC”) to obtain 450,000

signatures to place the so-called “TEL Amendment”

on the ballot at the cost of $1.70 per signature for a

total of $765,000. CTR had determined, based on its

work on a previous ballot initiative, that it would not

be able to gather the number of necessary signatures

without engaging professional circulators. After the

Statute was passed, Arno PC indicated that it would

have to be paid on a “time and materials” basis,

requiring a monthly management fee of $45,000 plus

costs, and estimated that its total fee would exceed

$1 Million. Plaintiff Ledbetter stated in his affidavit

that CTR would not have been able hire Arno PC on

a time and materials contract, and thus would not

have been able to pursue its goal of placing the TEL

Amendment on the ballot, if the Statute had not

been enjoined in this litigation. In fact, CTR

eventually paid Arno PC $846,346.70 for the

collection of 497,851 signatures pursuant to the

fixed-price contract. With the benefit of hindsight,

and believing that it would have had to hire

employee supervisors to manage circulators who

worked in the more rural counties in Ohio, Arno PC

would have charged CTR approximately $1.5 Million

to collect the signatures on a‘ cost and materials

basis.

37a

Likewise, Lee Albright, the President of

National Petition Management, another consulting

firm who has successfully qualified four measures for

the ballot in Ohio prior to enactment of the Statute,

estimated that it would cost 60% more to qualify

ballot measures in Ohio if the Statute was enforced.

Additionally, Michael Arno, President of Arno PC,

stated that his firm had difficulty hiring the more

experienced and trustworthy circulators to work in

the State of Oregon after it prohibited per-signature

payments, and he believed the same problem would

arise in Ohio if the Statute is enforced. Arno also

stated his opinion that circulators paid per-signature

“are much more careful and diligent about collecting

signatures [than circulators paid by time worked] in

part because circulators are ‘selling’ each signature .

. and [political consulting firms] will not ‘buy’ a

signature it deems questionable.” (Arno Decl. 9 33.)

Tracy Taylor, who runs Taylor Petition Management,

a mid-level firm that recruits and hires the

circulators, testified that firms can control quality

better under a_ per-signature payment scheme

because they only pay circulators for signatures that

appear to be valid. Taylor has worked under both the

per-signature payment schemes and _ time-based

payment schemes and testified that qualifying

initiatives took more time and cost more money

under the time-based schemes. Taylor also testified

that he had trouble retaining the top coordinators

who had worked on prior Ohio initiatives to work en

the TEL Amendment because of the hourly pay

system in place before the Statute was enjoined.

Gena Ranger supports Arno’s and Taylor's

testimony. Ranger states in her declaration that she

is a professional circulator who has worked in more

than a dozen states and has worked in Ohio for five

38a

statewide petition efforts in 2003, 2004 and 2005.

Ranger refused a request by Taylor Petition

Management to participate in a petition drive in

Ohio in 2005 after being told she would be paid by

the hour. She also refuses to participate in petition

drives in Oregon (where she had previously worked

before a per-signature prohibition was passed) or in

other states where per-signature payment is

prohibited. She stated that she believes she can

make more money “being paid on a per-signature

basis working on petition efforts in states that do not

Prohibit per-signature payment.”

The State challenges the Plaintiffs’ evidence

delineated above as proving at most a financial

disincentive, not a political speech impediment. The

State also asserts that the experience in Oregon after

Oregon prohibited per-signature payments to

circulators, establishes that such laws impose only a

lesser burden on speech. Certified results from the

Secretary of State of Oregon demonstrate that seven

election measures qualified for the ballot in Oregon

in 2002, before Oregon prohibited per-signature

payments, and six measures qualified in 2004. . ter

the prohibition was passed. Moreover, the signature

validity rate increased from 67.92% in 2002 to

72.35% in 2004 after the prohibition was passed.

The Court questions the probative value of

this limited data from Oregon. Without more data

and without a more sophisticated analysis, the Court

cannot determine whether factors apart from the

change in payment scheme might have impacted the

2002 results or the 2004 results. Further, the Court

questions this limited data, and to some degree

questions any testimony, equating the Oregon

initiative experience to the Ohio initiative experience

39a

because it is not an apples to apples comparison. The

laws in the two states have fundamental differences.

The Ohio Statute permits payments only if made on

the basis of time worked. O.R.C. § 3599.111. The

Oregon Constitution, as revised, prohibits payments

based on the number of signatures obtained. Or.

Const. Art. IV § 1b. But this Constitutional provision

has been interpreted in the Oregon Administrative

Rules as not prohibiting salary raises or bonuses

based on circulator’s productivity, so long as the

payment is not based on a per signature calculation.

Or. Admin. R. 165-014-0260. Also, circulators in Ohio

face a special challenge in that a certain percentage

of total signatures must be gathered from each of

one-half of the 88 counties in Ohio, which

necessitates that circulators gather signatures from

lesser populated counties. Ohio Const. Art. IT § 1g.

Michael Arno testified that in Oregon petition

circulators focus most of their attention on the

Portland area. The Ohio’ county-distribution

requirement would appear to make _ gathering

signatures in Ohio a more difficult effort in the best

of circumstances.

Finally, in Ohio, each signature on a part-

petition, as the signature sheets are called, is

verified individually by the county board of elections

for the county in which the signators reside to

determine if the signators are registered voters and

to eliminate any potential instances of fraud. O.R.C.

§ 3519.15. In Oregon, conversely, the Secretary of

State verifies the petitions using “a_ statistical

sampling technique to verify whether a _ petition

contains the required number of signatures of

electors.” Or. Rev. Stat. 250.105(4). It also then

employs statistical sampling to select a fraction of

the petition signatures to verify. Or. Admin. R. 165-

40a

014-0110. Thus, the likelihood of finding any

instances of irregularities or fraud that might have

occurred in the petitions appears to be greater in

Ohio.

On the whole, Plaintiffs’ evidence establishes

that the Statute would burden initiative proponents

in Ohio by increasing their costs, increasing the time

needed to qualify ballot measures, and as a result,

making it more difficult to collect signatures and

place measures on the ballot. Undoubtedly, the

Statute, though not as burdensome as the complete

payment prohibition struck down in Meyer, both

“limit[s] the number of voices who will convey [the

political] message and the hours they can speak and,

therefore, limits the size of the audience they can

reach” and “mak[es] it less likely that [the

proponents of the amendment] 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

USS. at 423.

As to the State’s justification for the per-

signature payment prohibition, the State relies in

large part upon the documented instances of

irregularities or fraud that occurred in the signature

collection effort to place Ralph Nader's name on the

ballot for the 2004 presidential election. The Nader

petition circulators were paid on the per-signature

basis. The fraud included instances where the name

of the petition circulator was forged, where persons

who signed off as the petition circulator did not

actually circulate the petition or witness’ the

signators signatures, and where petition circulators

misrepresented that the Nader petition was a

petition related to same-sex marriage. (Doc. 9-4.)

4la

Chief Judge Beckwith, in the Temporary Restraining

Order, criticized this evidence as not proving that the

method of payment was the cause of or incentive to

the fraud. This Court agrees. The Nader evidence

does not establish that the fraud would have been

less likely to occur had the circulators been paid on a

hourly basis.

The State also submits the affidavit of Bryan

C. Williams, Director of the Summit County Board of

Elections, who testified about an instance in Summit

County where one petition circulator who was paid

per-signature had his part-petitions invalidated in

toto based on numerous irregularities in the part-

petitions. (Doc. 35.) A great number of the signatures

on the part-petitions were determined to contain the

names of persons who were not registered voters.

Like the Nader petition evidence, the Williams

affidavit in no way isolates the per-signature

payment method as the cause of the irregularity.

Other evidence submitted by the State regarding

supposed fraud in Ohio similarly fails to prove that

the per-payment signature method is an incentive to

fraud. A criminal indictment against Kevin Eugene

Dooley in Franklin County, Ohio for forging a false

voter registration form proves nothing, primarily

because the Court will not infer guilt from an

indictment. (Doc. 37.) Interestingly, the indictment

alleges that Docley was paid both per hour and a fee

for each new voter registered above a set goal. An

indictment against and guilty plea by Chad A. Staton

in Defiance County, Ohio for ten counts of false voter

registration does not contain any information from

which the Court could infer that Staton was paid

per-signature or that such payment was the

motivation for the fraud. (Doc. 39.) Finally, the Court

struck as inadmissible “evidence” in the form of

42a

newspaper articles discussing possible instances of

irregularities in the November 2006 election. (Doc.

58.) The newspaper articles did not support the

State’s argument in any event because, among other

reasons, the articles did not establish that the

circulators involved were paid on a per-signature

basis.

The State also submits evidence related to

instances of fraud in Oregon by circulators working

under the per-signature payment method before

Oregon passed a per “signature payment prohibition.

The evidence is submitted in the form of an affidavit

of John Lindback, the Director of the Election

Division for the Oregon Secretary of State’s office,

and ‘supporting exhibits. (Doc. 51-2.) Plaintiffs

challenge the admissibility of the Lindback affidavit

and exhibits on a Rule 56 motion. The main point of

Lindback’s affidavit testimony is his belief that “per-

signature payments are a significant incentive to

fraud.” (Doc. 51-2 4 12.) He states that he bases his

conclusion on his “comprehensive catalog of

experience,” including “substantial responsibility for

investigating complaints related to initiative and

referendum process and reviewing reports generated

during such investigations.” (Id. 4/4] 1, 13.) He then

identifies several ways that circulators perpetuated

fraud when gathering signatures in Oregon and he

cites to anecdotal evidence based on investigative

reports and a deposition that are attached as

exhibits to his affidavit.

The investigative report exhibits concern

investigations conducted at the request of Lindback’s

office regarding suspected incidents of petition

signature fraud. (Doc. 51-2.) The investigative

reports and the factual findings therein are

43a

admissible under the public records and reports

hearsay exception contained in Rule 803(8)(c) of the

Federal Rules of Evidence. However, the numerous

sections of the investigative reports that merely

recount witness interviews are inadmissible as

hearsay under Rule 801 of the Federal Rules of

Evidence. Nowell v. City of Cincinnati, 2006 WL

2619846, at *5 (S.D. Ohio Sept. 12, 2006) (Dlott, J.);

see also Chicago Ins. Co. v. Chiminee Cricket, 17

Fed. Appx. 374, 378 (6th Cir. 2001) (not admitting

investigation report based on untrustworthy witness

hearsay statements); but see Leary v. Livingston

Cty., 2006 WL 2865213, at *5 (£.D. Mich. Oct. 5,

2006) (“The reports, and accompanying statements

made by witnesses recorded in the reports, fall under

this [Rule 803(8)] exception.”). The difficulty here is

that the investigative reports are almost devoid of

factual findings, and instead contain only witness

statement summaries. The Lindack affidavit also

references and contains as an exhibit a small portion

of a deposition transcript from an Oregon case. That

deposition is not admissible for the truth of the

matters asserted therein in this case.

The Court finds that the Lindback affidavit,

and the exhibits attached thereto, are not probative

of the issue before the Court even to the extent they

are admissible. The affidavit and exhibits would tend

to establish that certain circulators in Oregon who

were paid on a per-signature basis or a productivity

basis submitted numerous false _ signatures.

However, as discussed above, stark differences exist

between the Ohio initiative process and the Oregon

initiative process. The Court will not extrapolate

that the per-signature payment method is an

incentive to fraud in Ohio, whereas an_ hourly

payment system would discourage fraud in Ohio,

44a

based on instances of apparent fraud occurring in a

different state where signatures are verified using a

statistical sampling method.

In sum, the Court finds that the State has not

submitted evidence that the per-signature payment

method is such an incentive to fraud that would

justify the burden the Statute places on initiative

proponents’ core political speech rights. The Court’s

decision is informed by a= growing body of

jurisprudence examining similar per-signature

payment prohibitions enacted in other states. In

earlier district court cases striking down laws that

prohibited per-signature payment, a common theme

was the defendants’ failure to provide evidence that

the per-signature method of payment caused actual

fraud.

A district court analyzing a Washingon law

framed the issue as follows: “Unless there is some

proof of fraud or actual threat to citizens’ confidence

in government which would provide a compelling

justification, the right of public discussion of issues

may not’ be infringed by laws _ restricting

expenditures on referenda and initiative campaigns.”

LIMIT v. Maleng, 874 F.Supp. 1138, 1141 (W.D.

Wash. 1994). The defendants conceded that they had

no actual proof of fraud stemming from the payment

of per-signature method of collection. Id. at 1140.

The court held that the Washington law was

unconstitutional. Id. at 1140-41.

In Mississippi, the plaintiffs challenging a law

prohibiting per-signature and per-petition payment

schemes established that the law burdened political

expression, including with evidence that circulators

paid a flat daily rate collected “far fewer” signatures

45a

than those paid per-signature and that some

circulators would only work on a per-signature basis.

See Term Limits Leadership Council v. Clark, 984

F.Supp. 470, 471-73 (S.D. Miss. 1297). Conversely,

the defendants offered only speculation, not direct

evidence, that circulators paid per-signature were

more likely to commit fraud than circulators paid

per-day or per-hour. Id. at 474-75. Thus, the, court

found that the law violated the First Amendment. Id.

at 470-71.

Likewise, opponents of a similar law in Maine

presented evidence from their personal experience in

Maine and in another state that per-signature

payment prohibitions created uncertainties in the

cost and length of petition circulation, increased the

costs of petition circulation, required additional

hires, and resulted in the collection of fewer

signatures. See On Our Terms ‘97 PAC, 101

F.Supp.2d 19, 22-23 (D. Me. 1999). The State of

Maine did not offer evidence that there was a higher

incidence of fraud based on the per-signature method

than there is with other methods. Id. at 25. The court

held that the law was unconstitutional because it

severely burdened First Amendment speech, but was

not narrowly tailored to serve a compelling state

interest. Id. at 25-26.

The District Court for Idaho applied strict

scrutiny analysis from Meyer when it struck down a

law prohibiting per-signature payments. Idaho

Coalition United for Bears v. Cenarrusa, 234

F.Supp.2d 1159, 1165 (D. Idaho 2001) (quoting Idaho

Code § 34-1821). Because the court found that the

law chilled protected speech and did not find

evidence that payment on a _ per-signature basis

46a

encouraged fraud, it held that the law violated the

First Amendment. Id. at 1165-66.

In three later court of appeals decisions, the

appeals courts accepted the evidence submitted by

the respective states that the per-signature payment

prohibition was necessary to ensure the integrity of

the voting process. In Initiative & Referendum Inst.

v. Jaeger, 241 F.3d 614 (8th Cir. 2001), North Dakota

produced evidence concerning an incident in 1994

where 17,000 petition signatures were invalidated

and “a _ subsequent investigation revealed that

payment per signature was an issue in the 1994

incident.” Id. at 618. It is not clear from the decision

exactly what the Ninth Circuit panel meant by the

phrase “payment per signature was an issue” and it

is therefore difficult to compare the quantum of

evidence submitted in that case to the evidence

submitted by the State of Ohio here. Perhaps more

importantly, the court found in Jaeger, unlke here,

that the plaintiffs had offered only bare assertions,

and not evidence, that a payment per-hour scheme

would burden their ability to collect signatures.

The Ninth Circuit likewise upheld the Oregon

per-signature payment prohibition, but again the

evidence submitted in that case was of a different

quality than the evidence submitted here. Prete v.

Bradbury, 438 F.3d 949, 961-62 (9th Cir. 2006). The

Prete court found that the law imposed only a lesser

burden on free speech, and Oregon had an

“important regulatory interest in preventing fraud

and its appearances in its electoral processes.” Id. at

969-71. It accepted Oregon’s evidence that some

signature gatherers paid per-signature had engaged

in fraud. Id. at 970. But it rejected the plaintiffs

claims that per-signature payment prohibition

47a

decreased the pool of circulators, made it more

difficult to qualify initiative or referendum measures

for the ballot, and resulted in a significant decrease

in the number of valid signatures obtained. Id. at

963-64.

The Ninth Circuit discounted testimony from

the plaintiffs’ witnesses, including William Arno and

Tracy Taylor, that professional petitioner circulators

would not be interested in circulating petitions in

Oregon after the per-signature payment prohibition

passed because the Arno and Taylor could not testify

that the circulators would work in Oregon in the

absence of the prohibition. Id. at 964. No witness in

Prete testified that he or she would have worked in

Oregon in the absence of the prohibition. Plaintiffs

here presented stronger evidence. Tracy Taylor

testified that the top coordinators he had used for

prior Ohio initiatives refused to work in Ohio on an

hourly pay basis. (Taylor Dep. at 53.) Taylor's

testimony is boosted by that of Gena Ranger who

stated that she would not work in Ohio, where she

had worked before, for hourly pay. (Ranger Decl. §

D.)

The plaintiffs’ case in Prete also was hurt

when the Ninth Circuit credited the testimony of a

professor who stated that the lmited available

evidence suggested that circulators paid by the hour

obtained a higher validity rate than those paid per-

signature. Id. at 966. The State of Ohio offers no

evidence that circulators paid per-hour would have

similar success in Ohio and the difference in the

initiative procedures in the two states cautions

against using the Oregon experience as a predictor of

what would happen in Ohio. Even the Prete court

noted that the Oregon law did “not prohibit adjusting

48a

salaries or paying bonuses according to validity rates

or productivity.” Id. at 968.

Finally, and most recently, in a short decision

issued under time constraints, the Second Circuit

held consistent with Jaeger and Prete that a

prohibition on per-signature payment “does not

impose unduly burdensome’ and_ unjustified

restrictions on the payment of petition signature

collectors.” Person _v. New York State Bd. of

Elections, — F.3d —, 2006 WL 2961240, at *2 (2nd Cir.

Oct. 18, 2006). The court explained its decision as

follows: “[W]e find the record presented to us

provides insufficient support for a claim that the ban

on per-signature payment is akin to the complete

prohibition on paying petition circulators that was

deemed unconstitutional in Meyer, or that the

alternative methods of payment it leaves available

are insufficient.” Id.

However, the opinion is so lacking in legal

analysis as to be of little persuasive authority. In

sum, the Court is satisfied that this case, based on

the evidence submitted, is more analogous to the

District Court decisions in which similar _per-

signature prohibitions were struck down than to the

Circuit Court of Appeals decisions where such

prohibitions were upheld. CTR has established with

evidence that the Ohio Statute would burden the

core political speech of initiative proponents by

making it more difficult to retain circulators to

communicate their political message, thus limiting

the size of the audience it can reach and making it

less likely that they will gather the number of

signatures needed to place an initiative on the ballot.

See Meyer, 486 U.S. at 423. Conversely, while the

State of Ohio's evidence might show that fraud has

49a

occurred when the payment per-signature method is

used, it has not isolated the form of payment as

being the cause of or an incentive to widespread

petition signature fraud in Ohio. As such, the Court

finds that O.R.C. § 3599.111 is unconstitutional.

For the foregoing reasons, the Plaintiffs’

Motion for Summary Judgment is GRANTED

against the State of Ohio and the State of Ohio’s

Motion for Summary Judgment is DENIED.

HT. CONCLUSION

The Court hereby GRANTS the Motions for

Summary Judgment filed by Defendants Joseph T.

Deters and Mathias H. Heck, Jr. (docs. 32, 24.) The

Court hereby further GRANTS Plaintiffs’ Motion for

Summary Judgment (doc. 29) against the State of

Ohio, DENIES the State of Ohio’s Motion for

Summary Judgment (doc. 33), declares that the

O.R.C. § 3599.111 is unconstitutional, and enjoins its

enforcement.

IT IS SO ORDERED. —

s/Susan J. Dlott

United States District Judge

50a

APPENDIX C

TEMPORARY RESTRAINING ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Citizens for Tax Reform, et al.,

Plaintifis,

Vs.

Joseph T. Deters, et al.,

Defendants.

Case No. 1:05-CV-212

Temporary Restraining Order

Citizens for Tax Reform wishes to circulate an

initiative petition for the purpose of placing a

proposed amendment to the Ohio Constitution on the

November 2005. Prior to March 31, 2005, Plaintiffs

had engaged Arno Political Consultants (“Arno”), a

California-based political consulting firm that

specializes in collecting signatures for initiative and

referendum efforts, to collect signatures on their

initiative petitions through the use of circulators

paid on a—per-signature basis. When Plaintiffs

entered into their agreement with Arno the use of

paid circulators was legal in the State of Ohio. On

March 31, 2005, however, Ohio Revised Code

(“O.R.C.”) § 3599.111, which prohibits the use of

circulators paid on a per-signature basis, became

Sila

effective. Plaintiffs then initiated this action,

alleging that the newly effective statute violates

rights guaranteed to them by the First and

fourteenth Amendments to the United States

Constitution. They simultaneously filed the motion

for temporary restraining order that is presently

before the Court.

The parties agree that the ostensible purpose

of the challenged statute is the prevention of fraud in

the process of collecting signatures on _ political

petitions, including initiative petitions. The Ohio

General Assembly passed the statute as a reform to

Ohio’s initiative and referendum process in response

to extensive fraud in the collection of signatures on

petitions supporting the placement of Ralph Nader's

name on the Ohio ballot for President of the United

States in November 2004. Some or all of that fraud

was perpetrated by petition circulators who were

paid on a per-signature basis.

Defendants herein, including the Intervenor-

Defendant, Ohio Attorney General James Petro as

representative of the State of Ohio, have not

introduced evidence or otherwise suggested that

professional circulators paid on any basis other than

per signature were involved in the circulation of

petitions favoring the addition of Mr. Nader to the

Ohio presidential ballot. In other words, the State

has not attempted to demonstrate, by means other

than supposition, that the method of calculating the

pay of the paid circulators was the cause of the

fraud. The State has argued that reason supports its

position that the incentive to commit fraud is greater

when payment is made on a per signature, rather

than a per hour or other time incremental, basis.

52a

The State acknowledges that the General

Assembly could not have acted to prohibit all

circulation of petitions in Ohio by paid circulators.

The United States Supreme Court declared in 1988

that a Colorado statute that prohibited payment to

petition circulators was an infringement of rights of

political speech guaranteed by the First Amendment.

See Meyer v. Grant, 486 U.S. 414, 422-23 (1988). The

Court held that the prohibition restricted political

speech by limiting “the number of voices who will

convey [the political] message and the hours they can

speak and, therefore, limits the size of the audience

they can reach.” Id. The Court identified a second

manner in which the prohibition restricted core

political speech, which, the Court stated, includes

the circulation of petitions: “it makes it less likely

that [the proponents of the amendment] will garner

the number of signatures necessary to place the

matter on the ballot, thus limiting thei ability to

make the matter the focus of statewide discussion.”

Id. at 423.

The Supreme Court did not invalidate all

restrictions on core political speech in the form of the

circulation of petitions; although, it did explicitly

recognize that the First Amendment protects

amendment proponents “right not only to advocate

their cause but also to select what they believe to be

the most effective means for so doing.” Id. at 424.

The Court considered the State of Colorado’s

expressed justifications for the restriction of a

protected right, including the protection of the

integrity of the initiative process. See id. at 425. The

Court concluded, however, that Colorado had “failed

to demonstrate that it is necessary to burden [the

amendment proponents] ability to communicate

their message in order to meet its concerns.” Id. at

53a

426. The Court noted the lack of evidence in support

of the State’s theory that the prohibition was

necessary to eliminate the temptation to “accept false

signatures” and stated that it was unprepared to

assume that a _ professional circulator “whose

qualifications for similar future assignments may

well depend on a reputation for competence and

integrity” is more likely to accept false signatures

than a volunteer. Id.

The Meyer court expressed that it was

persuaded by the presence in the Colorado statutes

of criminal penalties for forging a signature on a

petition, making false or misleading statements

relating to a petition, or paying someone to sign a

petition. See id. at 427. The Court noted that those

“provisions seem adequate to the task of minimizing

the risk of improper conduct in the circulation of a

petition.” Id. The State of Colorado had, apparently,

not attempted to demonstrate that it had prosecuted

or investigated offenses of the criminal statutes and

yet failed to curtail fraud in the petition process. So,

the Court recognized the theoretical possibility that

a governmental interest might compel a restriction

on the right to circulate a petition, but it did so while

affirming that the area is one in which the protection

of the First Amendment is “at its zenith” so that the

burden a state must overcome to justify a restriction

is “well-nigh insurmountable.” Id. at 425.

Since the Meyer decision, various federal

courts have considered state statutes prohibiting the

payment of petition circulators on a per signature

basis. In LIMIT v. Maleng, 874 F.Supp. 1138 (W.D.

Wash. 1994), for example, the Court concluded that a

Washington statute prohibiting the use of circulators

paid per signature was not justified by actual

54a

evidence that that method of payment increased the

incidence of fraud. The court observed that actual

evidence was required in the context of constitutional

challenges to legislation restricting expenditures in

ballot referenda and initiative campaigns. See id. at

1141 (citing Citizens Against Rent Control v.

Berkeley, 454 U.S. 290 (1981)). The Court struck

down the Washington statute. See id. at 1142.

A Maine district court struck down a similar

Maine statute for the same reason. See On Our

Terms ‘97 PAC v. Secretary of State, 101 F.Supp.2d

19 (D.Me. 1999). The court observed that the state

had offered “no evidence whatsoever that fraud is

more pervasive among circulators paid per

signature.” Id. at 26. The court specifically rejected

that state’s “supposition” that payment may affect

the incidence of fraud, noting that a state must

establish that “its regulation is narrowly tailored to

meet a compelling need.” Id. at 25 (citing Meyer, 486

U.S. at 426).

A third district court, sitting in Mississippi,

invalidated a similar Mississippi statute on the same

basis. See Term Limits Leadership Council, Inc. v.

Clark, 984 F.Supp. 470 (S.D. Miss. 1997). The court

noted that Mississippi could not “avoid strict

scrutiny of the statute[], which is to say, it cannot

avoid its burden to justify that statute[] by

demonstrating a compelling interest and showing

further that the statute[ is] the least restrictive

means of addressing the state’s interest.” Id. at 473

(citing Meyer, 486 U.S. at 424). The court observed

that Mississippi’s effort to justify the statute by

supposition “flies directly in the face of Supreme

Court's refusal in Meyer to assume that paid petition

55a

circulators were more likely to commit fraud than

volunteers.” Id. at 473 n.3.

In the Mississippi case, the state had argued,

as Ohio has in this matter, “that paying circulators

on a per-signature basis encourages fraud by those

circulators since it gives them incentive to obtain

signatures by any possible means, including fraud.”

Id. at 474. The court concluded that that hypothesis,

however rooted in logic or expert opinion, did not

tend to prove what the State must prove, namely,

actual fraud or threat to citizens’ confidence in

government posed by .. . circulators who are paid per

signature.” Id. at 475. The court reiterated that the

Meyer court had identified the state’s burden as

showing “that paid circulators were actually more

likely to commit fraud” and held the State of

Mississippi to the same burden as regards circulators

paid on a per-signature basis. Id. Finding “no proof

to support such a finding,” the court invalidated the

Mississippi statute. Id.

The factors the Court considers in determining

whether to issue a temporary restraining order

pursuant to Rule 65 of the Federal Rules of Civil

Procedure are as follows:

(1) whether the plaintiff has shown a

likelihood that it will succeed on the

merits of its claims:

(2) whether the plaintiff will suffer

irreparable harm if the temporary

restraining order does not issue;

56a

(3) the probability that granting the

temporary restraining order will cause

substantial harm to third parties; and

(4) whether the public interest is

advanced by the issuance of the

temporary restraining order.

See Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.

1994) (6th Cir. 1993)). Those four considerations are

"factors to be balanced, not prerequisites that must

be met." In re DeLorean Motor Co., 755 F.2d 1223,

1229 (6th Cir. 1985). The degree of likelihood of

success on the merits required to support the

issuance of a temporary restraining order may,

therefore, depends on the strength of the other

factors considered. See Washington, 35 F.3d at 1099

(citing DeLorean, supra).

The Court is persuaded that Plaintiffs’

likelinood of success on the merits of their claim,

under the First Amendment, that O.R.C. § 3599.111

impermissibly infringes upon their core political

speech rights is very high. While the parties disagree

as to the quality of proof that each must offer at this

stage of these proceedings, the Court is persuaded

that Plaintiffs’ burden is to assert that the restriction

on payment of petition circulators on a per-signature

basis will “burden their ability to collect signatures.”

Initiative & Referendum Institute v. Jaeger, 241

F.3d 614, 618 (8th Cir. 2001). Plaintiffs may have

been required to adduce actual evidence of such a

burdening effect. had the State introduced evidence

in support of its supposition that payment on a per-

signature basis causes, or increases the incidence of,

fraud. See id. Absent such evidence from the State,

S7a

assertions that the restriction burdens core political

speech are sufficient. See id.

In either case, Plaintiffs have satisfied their

burden. They have introduced actual evidence that

tends to show that the restriction on payment of

petition circulators on a per-signature basis limits

thew ability to retain effective circulators and

reduces the likelihood that they will succeed in

placing their initiative on the November 2005 ballot.

The State of Ohio, on the other hand, has failed to

adduce evidence of the necessity of the statute to

prevent fraud in the initiative process. While

evidence identified by the State demonstrates that

fraud has occurred in the context of circulation of

petitions by circulators paid on a per-signature basis,

it has not isolated the inethod of payment as the

cause of, or an incentive to, the fraud.

In the Ralph Nader petition matter,

circulators were not, apparently, paid on any basis

other than per signature. Accordingly, the State is

unable to rely upon evidence generated in the

context of its investigation of that matter to prove

that compensation on a_ per-signature basis

generates fraud at a greater rate than other forms of

compensation. Its argument to that effect is mere

Supposition and insufficient to defeat Plaintiffs’

assertions in the opinions of all of the courts that

have considered the matter, including the Eighth

Circuit Court of Appeals, upon whose decision in

Jaeger, supra, the State of Ohio relies primarily.

The harm to the Plaintiffs that would result

from this Court’s refusal to grant the requested

temporary equitable relief is the impairment of a

First Amendment right. Such an impairment, even

58a

for a short period of time, is irreparable harm. See,

e.g., Connection Distributing Co. v. Reno, 154 F.3d

281, 288 (6th Cir. 1998) (citing Elrod v. Burns, 427

U.S. 347 (1976) (plurality); Newsom v. Norris, 888

F.2d 371, 378 (6th Cir. 1989)), cert. denied, 526 U.S.

1087 (1999). Thus, to the extent that Plaintiffs have

established a likelihood of success on the merits of

their First Amendment claim, they have also

established the possibility of irreparable harm as a

result of the impairment of their core political speech

rights. See Connection Distributing, 154 F.3d at 288

(citing Dayton Area Visually Impaired Persons, Inc.

v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995), cert.

denied, 517 U.S. 1135 (1996)).

The State has argued that any harm to

Plaintiffs is merely economic, inasmuch as_ the

collection of signatures on their initiative petitions

may be more costly in light of the restriction

embodied in O.R.C. § 3599.111. That argument

ignores Plaintiffs’ assertion that they are less likely

to succeed in placing their initiative on the ballot if

they are prohibited from paying circulators on a per-

signature basis. The Supreme Court in Meyer

concluded that a restriction on speech that “makes it

less likely” that a petition drive will be successful

burdens a right protected by the First Amendment.

See Meyer, 486 U.S. at 423. The potential harm to

Plaintiffs, therefore, is the loss or impairment of a

Constitutional right, not merely an economic injury.

The Siate and the other Defendants have

failed to identify a harm that will befall third parties

in the event that the Court issues the requested

temporary restraining order. The Court perceives

none.

59a

Finally, the preservation and defense of

constitutional rights is always in the public interest.

See, e.g., G_& V_ Lounge, Inc. v. Michigan Liquor

Control Commission, 23 F.3d 1071, 1079 (6th Cir.

1994) (citing Gannett Co., Inc. v. DePasquale, 443

U.S. 368, 383 (1979); Planned Parenthood

Association v. Cincinnati, 822 F.2d 1390, 1400 (6th

Cir. 1987)). The Court concludes, therefore, that each

of the relevant factors favors the issuance of the

requested temporary restraining order in this case.

For those reasons, the Court hereby

ENJOINS the Defendants from enforcing O.R.C.

§ 3599.111 pending further order of this Court or the

United States Court of Appeals. The Court will not

require payment of bond. The Court will conduct a

hearing on Plaintiffs’ motion for a_ preliminary

injunction on May 6, 2005, beginning at 9:00 a.m.

IT IS SO ORDERED.

s/Sandra S. Beckwith, Chief Judge

United States District Court