882 N.W.2d 270
N.D.2016Background
- On election day in Jamestown, ND, Curtis Francis and another individual collected signatures for an initiated measure near a polling place and moved under a canopy at the polling-place entrance when it rained; Francis continued soliciting signatures as voters entered/left.
- A voter complained; county election officials and a police officer told them collecting signatures within 100 feet of a polling place was illegal; signatures were confiscated and a report was forwarded to the prosecutor.
- Francis was charged under N.D.C.C. § 16.1-10-06.2 (prohibiting approaching voters to gather signatures within 100 feet while a polling place is open). He moved to dismiss on First Amendment, North Dakota Constitution (initiative power), overbreadth, and selective prosecution grounds.
- The district court denied the motion; Francis conditionally pleaded guilty and appealed.
- The Supreme Court of North Dakota reviewed de novo, analyzed the statute as a time, place, and manner restriction, and examined claims of overbreadth, state-constitutional conflict, and selective prosecution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 16.1-10-06.2 violates the First Amendment (content neutrality / TPM analysis) | The statute is a content-neutral, narrow time/place/manner restriction justified by protecting voters and election integrity | The statute unconstitutionally burdens political speech and is not narrowly tailored (citing McCullen) | Statute is content neutral, serves a compelling interest in protecting voting, is narrowly tailored under the TPM framework, and leaves ample alternatives; constitutional |
| Whether the statute is facially or as-applied overbroad | State: statute regulates place/time, not content, and does not chill a substantial amount of protected speech | Francis: the statute criminalizes constitutionally protected petitioning in an overly broad manner as applied to him | Overbreadth claim rejected: Francis failed to show the statute chills a substantial amount of protected speech; as-applied challenge fails because solicitation within 100 feet is a valid TPM restriction |
| Whether § 16.1-10-06.2 unlawfully restricts the people’s initiative power under N.D. Const. art. III, § 1 | State: restriction facilitates voting and thus does not impair the initiative power; it is a reasonable regulation to safeguard elections | Francis: statute hampers the initiative process by restricting signature gathering on election day at polling places | Court balanced rights and held the statute is a reasonable regulation that does not unconstitutionally impair the initiative power (cautioning laws still must not hamper the process) |
| Whether Francis was selectively prosecuted for his political views | State: prosecutor exercised prosecutorial discretion based on probable cause; other counties’ non-prosecutions do not show impermissible motive | Francis: similarly situated violators in other counties were not prosecuted; prosecution was politically motivated | Selective prosecution claim failed: Francis did not meet heavy burden to show invidious or bad-faith enforcement or bias by the prosecutor |
Key Cases Cited
- McCullen v. Coakley, 573 U.S. 464 (2014) (time, place, and manner narrow-tailoring and ample-alternatives analysis)
- Burson v. Freeman, 504 U.S. 191 (1992) (upholding 100-foot buffer around polling places to protect voting integrity)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutrality inquiry and TPM standards)
- Bolinske v. North Dakota State Fair Ass’n, 522 N.W.2d 426 (N.D. 1994) (upholding regulation limiting petitioning at state fair; state-constitutional initiative analysis)
- Emineth v. Jaeger, 901 F. Supp. 2d 1138 (D.N.D. 2012) (federal district court decision striking broader electioneering ban; prompted legislative amendment)