40 F.4th 1
1st Cir.2022Background
- Maine law requires that petition "circulators" be Maine residents and registered voters; circulators must sign affidavits swearing they witnessed signatures.
- Plaintiffs (We the People PAC, Rep. Faulkingham, Liberty Initiative Fund, and out-of-state professional circulator Kowalski) challenged the residency and voter-registration requirements under the First Amendment.
- Plaintiffs sought emergency relief during an active drive to place a direct initiative (to restrict non-citizen voting) on the ballot; the drive resumed Oct 2020 and collected ~38,000 signatures through Jan 2021 but needed ~63,067.
- District Court denied a TRO but granted a preliminary injunction (Feb 16, 2021) enjoining §903-A as applied to out-of-state circulators who submit to Maine jurisdiction; defendants appealed.
- First Circuit reviewed de novo the legal conclusions and affirmed the preliminary injunction, holding plaintiffs likely to succeed on the merits and that other injunction factors favored relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of Maine's residency requirement for petition circulators | Residency drastically reduces the pool of speakers and severely burdens core political speech; therefore strict scrutiny applies and the law is not narrowly tailored | Residency protects election integrity, ensures amenability to process, and preserves "grassroots" self-government; it's necessary and narrowly tailored | Court: strict scrutiny applies; plaintiffs likely to succeed — residency requirement (as applied to out-of-state circulators who submit to Maine jurisdiction) is not narrowly tailored and likely violates the First Amendment |
| Constitutionality of Maine's voter-registration requirement for circulators | Registration-in-Maine further narrows pool; like residency it severely burdens speech and cannot survive strict scrutiny | Registration is easy, excludes a small percentage, and serves integrity/vested-interest objectives | Court: strict scrutiny applies; plaintiffs likely to succeed — registration requirement likely not narrowly tailored and likely violates the First Amendment |
| Proper level of scrutiny for circulator restrictions | Meyer and Buckley compel exacting/strict scrutiny because petition circulation is core interactive political speech and the challenged rules drastically reduce available circulators | Distinguish residency from registration; argue less exacting review or that burdens are minimal given successful past campaigns | Court: followed Meyer/Buckley — restrictions that severely burden circulation warrant strict/exacting scrutiny; both requirements meet that threshold |
| Preliminary-injunction factors (irreparable harm, balance, public interest) | Loss of First Amendment rights is irreparable; future campaigns would be harmed; public interest favors speech protection | Plaintiffs delayed, harm speculative for future drives, and injunction harms public interest in electoral integrity | Court: District Court did not abuse discretion — irreparable harm shown (continuing deprivation), balance and public interest favor injunction; affirmed |
Key Cases Cited
- Meyer v. Grant, 486 U.S. 414 (1988) (petition circulation is core political speech; bans on means of petitioning trigger exacting scrutiny)
- Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182 (1999) (voter-registration requirement for circulators drastically reduces pool of speakers; strict tailoring required)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms, even briefly, constitutes irreparable injury)
- Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (upholding residency requirement — cited as a contrasting precedent)
- Yes On Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (applying strict scrutiny to ban on non-resident petition circulators)
- Libertarian Party of Va. v. Judd, 718 F.3d 308 (4th Cir. 2013) (strict scrutiny for residency requirement on circulators)
- Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008) (applying heightened scrutiny to residency-related circulator restrictions)