Independence Institute v. Gessler, 936 F. Supp. 2d 1256

Plaintiffs challenge Colorado's hybrid compensation statute for petition circulators, Colo. Rev. Stat. § 1-40-112(4), as applied to initiative and referendum efforts.
HB 09-1326 amended initiative rules; the court previously granted summary judgment on all but the fifth claim challenging the hybrid scheme.
The statute prohibits paying a circulator more than 20% of compensation on a per-signature basis, effectively restricting per-signature pay and incentivizing hourly pay for most compensation.
Trial addressed whether the hybrid scheme raises costs, reduces the pool of professional and low-volume circulators, and impacts fraud or validity rates.
Evidence showed itinerant and low-volume professional circulators are central to efficient signature gathering; the hybrid scheme would deter or exclude them from Colorado.
The court ultimately held § 1-40-112(4) unconstitutional and permanently enjoined its enforcement and related provisions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1-40-112(4) imposes a severe First Amendment burden	1st Amendment burden on core speech due to reduced circulator pool and higher costs	Statute minimally burdens speech and advances fraud-reduction interests	Severe burden; strict scrutiny applies
Whether the hybrid scheme is narrowly tailored to a compelling state interest	Statute fails to show a causal link between compensation form and fraud/validity	Scheme reduces fraud and protects integrity of process	Not narrowly tailored; fails strict scrutiny
Whether the evidence supports a balancing test under Burdick/ Timmons	State interest in integrity outweighs speech restrictions	Moderate burden justifies restrictions	Balancing favors plaintiffs; injunction warranted
Whether a permanent injunction is proper	Irreparable harm and lack of adequate legal remedy without injunction	Injury could be remedied by other safeguards	Permanent injunction granted; statute enjoined

Meyer v. Grant, 486 U.S. 414 (1988) (initiative petition circulation is core political speech; strict scrutiny where appropriate)
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) (core principles for evaluating ballot-access restrictions; require tailoring and evidence of interest)
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (sliding-scale approach; balancing vs strict scrutiny based on burden)
Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (application of scrutiny level for election regulations; importance of burden assessment)
Chandler v. City of Arvada, 292 F.3d 1236 (10th Cir. 2002) (initiative circulation is core political speech; strict scrutiny when appropriate)
Jaeger v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (upholding pay-per-signature ban where no evidence of burden beyond existing framework)
Person v. New York State Board of Elections, 467 F.3d 141 (2d Cir. 2006) (balancing test for pay-per-signature restrictions; insufficient burden shown)
Deters v. All Ohio Ballot Problems, 518 F.3d 375 (6th Cir. 2008) (strict scrutiny where ban on pay-per-signature increases costs and reduces participation)
Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) (balancing test; pay-per-signature not shown to significantly burden)