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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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).

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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.”

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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

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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

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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

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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

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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)).

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1193%3A2. Public record. Not legal advice.