BUCKLEY, SECRETARY OF STATE OF COLORADO v. AMERICAN CONSTITUTIONAL LAW FOUNDATION, INC., ET AL.
No. 97-930
Supreme Court of the United States
Argued October 14, 1998—Decided January 12, 1999
525 U.S. 182
Neil D. O’Toole argued the cause for respondents. With him on the brief for respondents American Constitutional
JUSTICE GINSBURG delivered the opinion of the Court.
Colorado allows its citizens to make laws directly through initiatives placed on election ballots. See
Precedent guides our review. In Meyer v. Grant, 486 U.S. 414 (1988), we struck down Colorado’s prohibition of payment for the circulation of ballot-initiative petitions. Petition circulation, we held, is “core political speech,” because it involves “interactive communication concerning political change.” Id., at 422 (internal quotation marks omitted).
I
The complaint in this action was filed in 1993 in the United States District Court for the District of Colorado pursuant to
The Court of Appeals affirmed in part and reversed in part. See 120 F. 3d 1092 (CA10 1997). That court properly sought guidance from our recent decisions on ballot access, see, e. g., Timmons v. Twin Cities Area New Party, 520 U. S. 351 (1997), and on handbill distribution, see McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995). See 120 F. 3d, at 1097, 1103. Initiative-petition circulators, the Tenth Circuit recognized, resemble handbill distributors, in that both seek
II
As the Tenth Circuit recognized in upholding the age restriction, the six-month limit on circulation, and the affidavit requirement, 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. See Biddulph v. Mortham, 89 F. 3d 1491,
III
By constitutional amendment in 1980, see
When this case was before the District Court, registered voters in Colorado numbered approximately 1.9 million. At least 400,000 persons eligible to vote were not registered. See 2 Tr. 159 (testimony of Donetta Davidson, elections official in the Colorado Secretary of State’s office);14 120 F. 3d, at 1100 (“Colorado acknowledges there are at least 400,000 qualified but unregistered voters in the state.“).15
As earlier noted, see supra, at 190, the District Court found from the statistical and testimonial evidence: “The record does show that the requirement of registration limits the number of persons available to circulate and sign [initiative] petitions and, accordingly, restricts core political speech.” 870 F. Supp., at 1002. Because the requirement’s source was a referendum approved by the people of Colorado, however, the District Court deemed the prescription “not subject to any level of [judicial] scrutiny.” Ibid. That misjudgment was corrected by the Tenth Circuit: “The voters may no more violate the United States Constitution by enacting a ballot issue than the general assembly may by enacting legislation.” 120 F. 3d, at 1100.
The Tenth Circuit reasoned that the registration requirement placed on Colorado’s voter-eligible population produces a speech diminution of the very kind produced by the ban on paid circulators at issue in Meyer. See id., at 1100. We agree. The requirement that circulators be not merely voter eligible, but registered voters, it is scarcely debatable given the uncontested numbers, see supra, at 193, and n. 15, decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment to circulators.16 Both provisions “limi[t] the number of voices who
Colorado acknowledges that the registration requirement limits speech, but not severely, the State asserts, because “it is exceptionally easy to register to vote.” Reply Brief 5, 6; see Brief for Petitioner 30-31. The ease with which qualified voters may register to vote, however, does not lift the burden on speech at petition circulation time. Of course there are individuals who fail to register out of ignorance or apathy. See post, at 219-220 (O’CONNOR, J., concurring in judgment in part and dissenting in part). But there are also individuals for whom, as the trial record shows, the choice not to register implicates political thought and expression. See 1 Tr. 14 (testimony of ballot-initiative organizer Jack
The State’s dominant justification appears to be its strong interest in policing lawbreakers among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State’s subpoena power, which in these matters does not extend beyond the State’s borders. See Brief for Petitioner 32. The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the “address at which hе or she resides, including the street name and number, the city or town, [and] the county.”
In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measure—a question we, like the Tenth Circuit, see 120 F. 3d, at 1100, have no occasion to decide because the parties have not placed the matter of residence at issue—the added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot-access arena without impelling cause.
IV
Colorado enacted the provision requiring initiative-petition circulators to wear identification badges in 1993, five years after our decision in Meyer. 1993 Colo. Sess. Laws, ch. 183, § 1.18 The Tenth Circuit held the badge requirement invalid insofar as it requires circulators to display their names. See 120 F. 3d, at 1104. The Court of Appeals did not rule on the constitutionality of other elements of the badge provision, namely, the “requirements that the badge disclose whether the circulator is paid or a volunteer, and if paid, by whom.” Ibid. Nor do we.
Evidence presented to the District Court, that court found, “demonstrated that compelling circulators tо wear iden-
Colorado urges that the badge enables the public to identify, and the State to apprehend, petition circulators who engage in misconduct. See Brief for Petitioner 36-37; Reply Brief 17. Here again, the affidavit requirement, unsuccessfully challenged below, see supra, at 191, and n. 10, is responsive to the State’s concern; as earlier noted, see supra, at 188-189, and n. 7, each petition section must contain, along with the collected signatures of voters, the circulator’s name, address, and signature. This notarized submission, available to law enforcers, renders less needful the State’s provision for personal names on identification badges.
While the affidavit reveals the name of the petition circulator and is a public record, it is tuned to the speaker’s interest as well as the State’s. Unlike a name badge worn at the time a circulator is soliciting signatures, the affidavit is separated from the moment the circulator speaks. As the Tenth Circuit explained, the name badge requirement “forcеs circu-
Our decision in McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995), is instructive here. The complainant in McIntyre challenged an Ohio law that prohibited the distribution of anonymous campaign literature. The writing in question was a handbill urging voters to defeat a ballot issue. Applying “exacting scrutiny” to Ohio’s fraud prevention justifications, we held that the ban on anonymous speech violated the First Amendment. See id., at 347, 357. “Circulating a petition is akin to distributing a handbill,” the Tenth Circuit observed in the decision now before us. 120 F. 3d, at 1103. Both involve a one-on-one communication. But the restraint on speech in this case is more severe than was the restraint in McIntyre. Petition circulation is the less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. See Tr. of Oral Arg. 21, 25-26. That endeavor, we observed in Meyer, “of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” 486 U. S., at 421.
The injury to speech is heightened for the petition circulator because the badge requirement compels personal name identification at the precise moment when the circulator’s interest in anonymity is greatest. See 120 F. 3d, at 1102. For this very reason, the name badge requirement does not qualify for inclusion among the “more limited [election process] identification requirement[s]” to which we alluded in McIntyre. 514 U. S., at 353 (“We recognize that a State’s enforce-
In sum, we conclude, as did the Court of Appeals, that Colorado’s current badge requirement discourages participation in the petition circulation process by forcing name identification without sufficient cause. We reiterate this qualification: In its final observation, the Court of Appeals noted that ACLF’s “arguments and evidence focus[ed] entirely on [the circulator identification] requirement“; therefore, that court expressed no opinion whether the additional requirements—that the badge disclose the circulator’s paid or volunteer status, and if paid, by whom—“would pass constitutional muster standing alone.” 120 F. 3d, at 1104. We similarly confine our decision.
Like the badge requirement, Colorado’s disclosure provisions were enacted post-Meyer in 1993. See 1993 Colo. Sess. Laws, ch. 183, § 1.21 The Tenth Circuit trimmed these provisions. Colorado requires ballot-initiative proponents who pay circulators to file both a final report when the initiative petition is submitted to the Secretary of State, and monthly reports during the circulation period.
The Court of Appeals next addressed Colorado’s provision demanding “detailed monthly disclosures.” 120 F. 3d, at 1105. In a concise paragraph, the court rejected compelled disclosure of the name and addresses (residential and business) of each paid circulator, and the amount of money paid and owed to each circulator, during the month in question. See
In ruling on Colorado’s disclosure requirements for paid circulations, the Court of Appeals looked primarily to our
Mindful of Buckley, the Tenth Circuit did not upset Colorado‘s disclosure requirements “as a whole.” But see post, at 233 (REHNQUIST, C. J., dissenting). Notably, the Court of Appeals upheld the State‘s requirements for disclosure of payors, in particular, proponents’ names and the total amount they have spent to collect signatures for their petitions. See 120 F. 3d, at 1104-1105. In this regard, the State and supporting amici stress the importance of disclosure as a control or check on domination of the initiative process by affluent special interest groups. See Reply Brief 15 (“[T]here are increasingly more initiatives that are the product of large monied interests.“); Brief for Council of State Governments et al. as Amici Curiae 3 (“Today the initiative and referendum process is dominated by money and professional firms.“). Disclosure of the names of initiative sponsors, and of the amounts they have spent gathering
Through the disclosure requirements that remain in place, voters are informed of the source and amount of money spent by proponents to get a measure on the ballot; in other words, voters will be told “who has proposed [a measure],” and “who has provided funds for its circulation.” See post, at 224 (O‘CONNOR, J., concurring in judgment in part and dissenting in part). The added benefit of revealing the names of paid circulators and amounts paid to each circulator, the lower courts fairly determined from the record as a whole, is hardly apparent and has not been demonstrated.22
We note, furthermore, that ballot initiatives do not involve the risk of “quid pro quo” corruption present when money is paid to, or for, candidates. See Meyer, 486 U. S., at 427-428 (citing First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 790 (1978) (“The risk of corruption perceived in cases involving candidate elections... simply is not present in a popular vote on a public issue.“)); McIntyre, 514 U. S., at 352, n. 15. In addition, as we stated in Meyer, “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.” 486 U. S., at 427. Finally, absent evidence to the contrary, “we are not prepared to assume that a professional circulator—whose qualifications for similar future assignments may
In sum, we agree with the Court of Appeals appraisal: Listing paid circulators and their income from circulation “forc[es] paid circulators to surrender the anonymity enjoyed by their volunteer counterparts,” 120 F. 3d, at 1105;24 no more than tenuously related to the substantial interests disclosure serves, Colorado‘s reporting requirements, to the extent that they target paid circulators, “fai[l] exacting scrutiny,” ibid.
VI
Through less problematic measures, Colorado can and does meet the State‘s substantial interests in regulating the ballot-initiative process. Colorado aims to protect the integrity of the initiative process, specifically, to deter fraud
To ensure grass roots support, Colorado conditions placement of an initiative proposal on the ballot on the proponent‘s submission of valid signatures representing five percent of the total votes cast for all candidates for Secretary of State at the previous general election.
*
*
*
For the reasons stated, we conclude that the Tenth Circuit correctly separated necessary or proper ballot-access controls from restrictions that unjustifiably inhibit the circulation of ballot-initiative petitions. Therefore, the judgment of the Court of Appeals is
Affirmed.
When considering the constitutionality of a state election regulation that restricts core political speech or imposes “severe burdens” on speech or association, we have generally required that the law be narrowly tailored to serve a compelling state interest. But if the law imposes “lesser burdens,” we have said that the State‘s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. The Court today appears to depart from this now-settled approach. In my view, Colorado‘s badge, registration, and reporting requirements each must be evaluated under strict scrutiny. Judged by that exacting standard, I agree with the majority that each of the challenged regulations violates the First and Fourteenth Amendments, and accordingly concur only in the judgment.
I
States, of course, must regulate their elections to ensure that they are conducted in a fair and orderly fashion. See, e. g., Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997); Burdick v. Takushi, 504 U. S. 428, 433 (1992). But such regulations often will directly restrict or otherwise burden core political speech and associational rights. To require that every voting, ballot, and campaign regulation be narrowly tailorеd to serve a compelling interest “would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Ibid. Consequently, we have developed (although only recently) a framework for assessing the constitutionality, under the First and Fourteenth Amendments, of state election laws. When a State‘s rule imposes severe burdens on speech or association, it must be narrowly tailored to serve a compelling interest; lesser burdens trigger less exacting review, and a State‘s important regulatory interests are typically enough to justify reasonable restrictions. Timmons, supra, at 358-359; Burdick,
Predictability of decisions in this area is certainly important, but unfortunately there is no bright line separating severe from lesser burdens. When a State‘s election law directly regulates core political speech, we have always subjected the challenged restriction to strict scrutiny and required that the legislation be narrowly tailored to serve a compelling governmental interest. See, e. g., Burson v. Freeman, 504 U. S. 191, 198 (1992) (Tennessee law prohibiting solicitation of voters and distribution of campaign literature within 100 feet of the entrance of a polling place); Brown v. Hartlage, 456 U. S. 45, 53-54 (1982) (Kentucky‘s regulation of candidate campaign promises); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978) (Massachusetts law prohibiting certain business entities from making expenditures for the purpose of affecting referendum votes).
Even where a State‘s law does not directly regulate core political speech, we have applied strict scrutiny. For example, in Meyer v. Grant, 486 U. S. 414 (1988), we considered a challenge to Colorado‘s law making it a felony to pay initiative petition circulators. We applied strict scrutiny because we determined that initiative petition circulation “of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Id., at 421. In Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290 (1981), we subjected to strict scrutiny a city ordinance limiting contributions to committees formed to oppose ballot initiatives because it impermissibly burdened association and expression. Id., at 294.
When core political speech is at issue, we have ordinarily applied strict scrutiny without first determining that the State‘s law severely burdens speech. Indeed, in McIntyre v. Ohio Elections Comm‘n, 514 U. S. 334 (1995), the Court suggested that we only resort to our severe/lesser burden
When an election law burdens voting and associational interests, our cases are much harder to predict, and I am not at all sure that a coherent distinction between severe and lesser burdens can be culled from them. For example, we have subjected to strict scrutiny Connecticut‘s requirement that voters in any party primary be registered members of that party because it burdened the “associational rights of the Party and its members.” Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986). We similarly treated California‘s laws dictating the organization and composition of official governing bodies of political parties, limiting the term of office of a party chair, and requiring that the chair rotate between residents of northern and southern California because they “burden[ed] the associational rights of political parties and their members,” Eu, supra, at 231. In Storer v. Brown, 415 U. S. 724 (1974), we applied strict scrutiny to California‘s law denying a ballot positiоn to independent candidates who had a registered affiliation with a qualified political party within a year of the preceding primary election, apparently because it “substantially” burdened the rights to vote and associate. Id., at 729, 736.1 And in Nor-
II
Colorado argues that its badge, registration, and reporting requirements impose “lesser” burdens, and consequently, each ought to be upheld as serving important state interests. I cannot agree.
A
The challenged badge requirement,
B
Although Colorado‘s registration requirement,
Colorado primarily defends its registration requirement on the ground that it ensures that petition circulators are residents, which permits the State to more effectively enforce its election laws against those who violate them.4 The Tenth Circuit assumed, and so do I, that the State has a compelling interest in ensuring that all circulators are residents. Even so, it is clear, as the Court of Appeals decided, that the registration requirement is not narrowly tailored. A large number of Colorado‘s residents are not registered voters, as the majority points out, ante, at 193, and the State‘s asserted interest could be more precisely achieved through a residency requirement.5
The District Court and the Court of Appeals both suggested that by forcing proponents to identify paid circulators by name, the reports made it less likely that persons would want to circulate petitions. Therefore, both concluded, the reporting requirement had a chilling effect on core political speech similar to the one we recognized in Meyer. American Constitutional Law Foundation, Inc. v. Meyer, 120 F. 3d 1092, 1096 (CA10 1997); American Constitutional Law Foundation, Inc. v. Meyer, 870 F. Supp. 995, 1003 (Colo. 1994). The District Court additionally determined that preparation of the required monthly reports was burdensome for and involved additional expense to those supporting an initiative petition. Ibid.
In my view, the burdens that the reporting requirement imposes on circulation are too attenuated to constitute a “severe burden” on core political speech. However, “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley v. Valeo, 424 U. S. 1, 64 (1976) (per curiam). In Buckley, because the disclosure requirements of the
Colorado argues that the “essential purpose” of the reports is to identify circulators. Brief for Petitioner 44. It also claims that its required reports are designed to provide “the press and the voters of Colorado a more complete picture of how money is being spent to get a measure on the ballot.” Ibid. Even assuming that Colorado has a compelling interest in identifying circulators, its law does not serve that interest. The State requires that proponents identify only the names of paid circulators, not all circulators. The interest in requiring a report as to the money paid to each
The State contends that its asserted interest in providing the press and the electorate with information as to how much money is spent by initiative proponents to advance a particular measure is similar to the governmental interests in providing the electorate with information about how money is spent by a candidate and where it comes from, and in deterring actual corruption and avoiding the appearance of corruption that we recognized in Buckley, supra, at 66-67. However, we have suggested that ballot initiatives and candidate elections involve different considerations. Bellotti, 435 U. S., at 791-792 (“[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.... [I]f there be any danger that the people cannot evaluate the information and arguments advanced by [one source], it is a danger contemplated by the Framers of the First Amendment“); see also Citizens Against Rent Control, 454 U. S., at 296-298. Indeed, we recognized in Meyer that “the risk of improper conduct... is more remote at the petition stage of an initiative.” 486 U. S., at 427. Similarly, I would think, at the very least, the State‘s interest in informing the public of the financial interests behind an initiative proposal is not compelling during the petitioning stage.
As it stands after the lower court decisions, proponents must disclose the amount paid per petition signature and the total amount paid to each circulator, without identifying each circulator, at the time the petition is filed. Monthly disclosures are no longer required.6 Because the respondents did
I recognize that in Buckley, although the Court purported to apply strict scrutiny, its formulation of that test was more forgiving than the traditional understanding of that exacting standard. The Court merely required that the disclosure provisions have a “substantial relation,” 424 U. S., at 64, to a “substantial” government interest, id., at 68.7 (The majority appears to dilute Buckley‘s formulation even further, stating that Colorado‘s reporting requirement must be “substantially related to important governmental interests.” Ante, at 202.) To the extent that Buckley suggests that we should apply a relaxed standard of scrutiny, it is inconsistent with our state election law cases that require the application of traditional strict scrutiny whenever a state law “severely burdens” association, and I would not adhere to it. I would nevertheless decide that the challenged portions of Colorado‘s disclosure law are unconstitutional as evaluated under the Buckley standard.
*
*
*
To conclude, I would apply strict scrutiny to each of the challenged restrictions, and would affirm the judgment of
JUSTICE O‘CONNOR, with whom JUSTICE BREYER joins, concurring in the judgment in part and dissenting in part.
Petition circulation undoubtedly has a significant political speech component. When an initiative petition circulator approaches a person and asks that person to sign the petition, the circulator is engaging in “interactive communication concerning political change.” Meyer v. Grant, 486 U. S. 414, 422 (1988). It was the imposition of a direct and substantial burden on this one-on-one communication that concerned us in Meyer v. Grant. To address this concern, we held in that case that regulations directly burdening the onе-on-one, communicative aspect of petition circulation are subject to strict scrutiny. Id., at 420.
Not all circulation-related regulations target this aspect of petition circulation, however. Some regulations govern the electoral process by directing the manner in which an initiative proposal qualifies for placement on the ballot. These latter regulations may indirectly burden speech but are a step removed from the communicative aspect of petitioning and are necessary to maintain an orderly electoral process. Accordingly, these regulations should be subject to a less exacting standard of review.
In this respect, regulating petition circulation is similar to regulating candidate elections. Regulations that govern a candidate election invariably burden to some degree one‘s right to vote and one‘s right to associate for political purposes. Such restrictions are necessary, however, “if [elections] are to be fair and honest.” Storer v. Brown, 415 U. S. 724, 730 (1974). To allow for regulations of this nature without overly burdening these rights, we have developed a flexible standard to review regulations of the electoral process.
“[W]hen [First and Fourteenth Amendment] rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State‘s important regulatory interests are generally sufficient to justify the restrictions.” Id., at 434 (internal quotation marks and citations omitted).
Applying this test, in Burdick, we upheld as reasonable Hawaii‘s prohibition on write-in voting, holding that it imposed only a limited burden upon the constitutional rights of voters. See id., at 433-441. See also Timmons v. Twin Cities Area New Party, 520 U. S. 351, 362-370 (1997) (upholding Minnesota law that banned fusion candidacies on the ground that the State had asserted a “suffiсiently weighty” interest). The application of this flexible standard was not without precedent. Prior to Burdick, the Court applied a test akin to rational review to regulations that governed only the administrative aspects of elections. See Rosario v. Rockefeller, 410 U. S. 752, 756-762 (1973) (upholding requirement that voters enroll as members of a political party prior to voting in a primary election on the ground that the regulation did not impose an onerous burden and advanced a legitimate state interest).
Under the Burdick approach, the threshold inquiry is whether Colorado‘s regulations directly and substantially burden the one-on-one, communicative aspect of petition circulation or whether they primarily target the electoral process, imposing only indirect and less substantial burdens on communication. If the former, the regulation should be subject to strict scrutiny. If the latter, the regulation should be subject to review for reasonableness.
I agree with the Court that requiring petition circulators to wear identification badges, specifically name badges, see
II
Unlike the majority, however, I believe that the requirement that initiative petition circulators be registered voters, see
When one views the registration requirement as a neutral qualification, it becomes apparent that the requirement only indirectly and incidentally burdens the communicative aspects of petition circulation. By its terms, the requirement does not directly prohibit otherwise qualified initiative petition circulators from circulating petitions. Cf. Rosario v. Rockefeller, supra, at 758 (holding that time limits on enrollment in political parties did not violate the right of association because individuals were not prohibited from enrolling in parties). Moreover, as THE CHIEF JUSTICE illustrates in his dissent, this requirement can be satisfied quite easily. See post, at 228. The requirement, indeed, has been in effect in Colorado since 1980, see American Constitutional Law Foundation, Inc. v. Meyer, 870 F. Supp. 995, 999 (Colo. 1994), with no apparent impact on the ability of groups to circulate petitions, see 2 Tr. 159 (testimony of Donetta Davidson that the number of initiative proposals placed on the ballot has increased over the past few years).
In this way, the registration requirement differs from the statute held unconstitutional in Meyer. There, we reviewed a statute that made it unlawful to pay petition circulators, see Meyer v. Grant, 486 U. S., at 417, and held that the statute directly regulated and substantially burdened speech by
*See, e. g.,
The respondents have offered only slight evidence to suggest that the registration requirement negatively affects the one-on-one, communicative aspect of petition circulation. In particular, the respondents argue that the registration requirement burdens political speech because some otherwise-qualified circulators do not register to vote as a form of political protest. See ante, at 195-196. Yet the existence and severity of this burden is not as clearly established in the record as the respondents, or the Court, suggests.
For example, witness Jack Hawkins, whose testimony the Court cites for the proposition that “the choice not to register implicates political thought and expression,” see ante, at 195, did not testify that anyonе failed to register to vote as a political statement. He responded “[y]es, that‘s true” to the leading question “are there individuals who would circulate your petition who are non-registered voters because of their political choice?” 1 Tr. 14. But he went on to explain this “political choice” as follows:
“They have interesting views of why they don‘t want to register to vote. They‘re under a misconception that they won‘t be called for jury duty if they‘re not registered to vote and they‘re really concerned about being a jurist, but in Colorado you can be a jurist if you drive a car or pay taxes or anything else. So, they‘re under a
misconception, but I can‘t turn them around on that.” Id., at 15-16 (emphasis added).
Likewise, witness Jon Baraga, who testified that some potential circulators are not registered to vote because they feel the political process is not responsive to their needs, see ante, at 196, went on to testify that many of the same people would register to vote if an initiative they supported were placed on the ballot. See 1 Tr. 58. Considered as a whole, this testimony does not establish that the registration requirement substantially burdens alternative forms of political expression.
Because the registration requirement indirectly and incidentally burdens the one-on-one, communicative aspect of petition circulation, Burdick requires that it advance a legitimate state interest to be a reasonable regulation of the electoral process. Colorado maintains that the registration requirement is necessary to enforce its laws prohibiting circulation fraud and to guarantee the State‘s ability to exercise its subpoena power over those who violate these laws, see ante, at 196, two patently legitimate interests. See, e. g., Timmons v. Twin Cities Area New Party, 520 U. S., at 366-367; Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 636-637 (1980). In the past, Colorado has had difficulty enforcing its prohibition on circulation fraud, in particular its law against forging petition signatures, because violators fled the State. Sеe 2 Tr. 115 (testimony of Donetta Davidson). Colorado has shown that the registration requirement is an easy and a verifiable way to ensure that petition circulators fall under the State‘s subpoena power. See Tr. of Oral Arg. 14; see also Appellee‘s Supplemental App. in Nos. 94-1576 and 94-1581 (CA10), p. 268 (describing requirement that signatories be registered voters as necessary for verification of signatures). For these reasons, I would hold the requirement as a reasonable regulation of Colorado‘s electoral process.
Most disturbing is the Court‘s holding that Colorado‘s disclosure provisions are partially unconstitutional. Colorado requires that ballot-initiative proponents file two types of reports: monthly reports during the period of circulation and a final report when the initiative petition is submitted. See
Colorado‘s disclosure provision is a step removed from the one-on-one, communicative aspects of petition circulation, and it burdens this communication in only an incidental manner. Like the mandatory affidavit that must accompany every set of signed petitions, the required disclosure reports “revea[l] the name of the petition circulator and [are] public record[s]... [, but are] separated from the moment the circulator speaks,” see ante, at 198. This characteristic indeed makes the disclosure reports virtually indistinguishable from the affidavit requirement, which the Court suggests is a permissible regulation of the electoral process, see ante, at 200, and similarly lessens any chilling effect the reports might
As a regulation of the electoral process with an indirect and insignificant effect on speech, the disclosure provision should be upheld so long as it advances a legitimate government interest. Colorado‘s asserted interests in combating fraud and providing the public with information about petition circulation are surely sufficient to survive this level of review. These are among the interests we found to be substantiаl in Buckley v. Valeo, 424 U. S. 1, 67, 68 (1976) (per curiam) (holding that the Government has a substantial interest in requiring candidates to disclose the sources of campaign contributions to provide the electorate with information about “the interests to which a candidate is most likely to be responsive,” to “deter actual corruption and avoid the appearance of corruption,” and “to detect violations of the contribution limitations“). Moreover, it is scarcely debatable that, as a general matter, financial disclosure effectively combats fraud and provides valuable information to the public. We have recognized that financial disclosure requirements tend to discourage those who are subject to them from engaging in improper conduct, and that “[a] public armed with information . . . is better able to detect” wrongdoing. See id., at 67; see also Grosjean v. American Press Co., 297 U. S. 233, 250 (1936) (observing that an “informed public opinion is the most potent of all restraints upon misgovernment“). “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Buckley v. Valeo, supra, at 67, and n. 80 (quoting L. Brandeis, Other People‘s Money 62 (1933)). “[I]n the United States, for half a century compulsory publicity of political accounts has been the cornerstone of legal regulation. Publicity is advocated as an automatic regulator, inducing self-discipline among political contenders and arming the electorate with important information.” H. Alexander & B. Haggerty, The Federal Election Campaign Act: After a Decade of Political Reform 37 (1981). “[T]otal disclosure” has been recognized as the ““essential cornerstone” to effective campaign finance reform, id., at 39, and “fundamental to the political system,” H. Alexander, Financing Politics: Money, Elections, and Political Reform 164 (4th ed. 1992).
In light of these many and substantial benefits of disclosure, we have upheld regulаtions requiring disclosure and reporting of amounts spent by candidates for election, amounts contributed to candidates, and the names of contributors, see Buckley v. Valeo, 424 U. S., at 60-84, while holding that the First Amendment protects the right of the political speaker to spend his money to amplify his speech, see id., at 44-59. Indeed, laws requiring the disclosure of the names of contributors and the amounts of their contributions are common to all States and the Federal Government. See id., at 62-64 (describing disclosure provisions of Federal Election Campaign Act of 1971); Alexander, Financing Politics, supra, at 135 (“All fifty states have some disclosure requirements, and all except two [South Carolina and Wyoming] call for both pre- and post-election reporting of contributions and expenditures“). Federal disclosure laws were first enacted in 1910, and early laws, like Colorado‘s current provision, required the disclosure of the names of contributors and the
The recognized benefits of financial disclosure are equally applicable in the context of petition circulation. Disclosure deters circulation fraud and abuse by encouraging petition circulators to be truthful and self-disciplined. See generally id., at 67. The disclosure required here advances Colorado‘s interest in law enforcement by enabling the State to detect and to identify on a timely basis abusive or fraudulent circulators. Moreover, like election finance reporting generally, Colorado‘s disclosure reports provide facts useful to voters who are weighing their options. Members of the public deciding whether to sign a petition or how to vote on a measure can discover who has proposed it, who has provided funds for its circulation, and to whom these funds have been provided. Knowing the names of paid circulators and the amounts paid to them also allows members of the public to evaluate the sincerity or, alternatively, the potential bias of any circulator that approaches them. In other words, if one knows a particular circulator is well paid, one may be less likely to believe the sincerity of the circulator‘s statements about the initiative proposal. The monthly disclosure reports are public records available to the press and public, see Brief for Petitioner 44, are “contemporaneous with circulation,” American Constitutional Law Foundation, Inc. v. Meyer, 120 F. 3d 1092, 1105 (CA10 1997), and are more accessible than the other “masses of papers filed with the petitions,” see 870 F. Supp., at 1004.
It is apparent from the preceding discussion that, to combat fraud and to inform potential signatories in a timely manner, disclosure must be made at the time people are being asked to sign petitions and before any subsequent vote on a measure that qualifies for the ballot. It is, indeed, during
To be sure, Colorado requires disclosure of financial information about only paid circulators. But, contrary to the Court‘s assumption, see ante, at 203-204, this targeted disclosure is permissible because the record suggests that paid circulators are more likely to commit fraud and gather false signatures than other circulators. The existence of occasional fraud in Colorado‘s petitioning process is documented in the record. See 2 Tr. 197-198 (testimony of retired FBI agent Theodore P. Rosack); id., at 102, 104-116 (testimony of Donetta Davidson). An elections officer for the State of Colorado testified that only paid circulators have been involved in recent fraudulent activity, see id., at 150-151 and 161 (testimony of Donetta Davidson); see also id., at 197-198 (testimony of Theodore P. Rosack) (describing recent investigation of fraud in which only paid circulators were implicated). Likewise, respondent William C. Orr, the executive
Because the legitimate interests asserted by Colorado are advanced by the disclosure provision and outweigh the incidental and indirect burden that disclosure places on political speech, I would uphold the provision as a reasonable regulation of the electoral process. Colorado‘s interests are more than legitimate, howеver. We have previously held that they are substantial. See Buckley v. Valeo, supra, at 67, 68. Therefore, even if I thought more exacting scrutiny were required, I would uphold the disclosure requirements.
Because I feel the Court‘s decision invalidates permissible regulations that are vitally important to the integrity of the political process, and because the decision threatens the enforceability of other important and permissible regulations, I concur in the judgment only in part and dissent in part.
CHIEF JUSTICE REHNQUIST, dissenting.
The Court today invalidates a number of state laws designed to prevent fraud in the circulation of candidate petitions and to ensure that local issues of state law are decided by local voters, rather than by out-of-state interests. Because I believe that Colorado can constitutionally require that those who circulate initiative petitions to registered voters actually be registered voters themselves, and because I believe that the Court‘s contrary holding has wide-reaching implication for state regulation of elections generally, I dissent.
I
Ballot initiatives of the sort involved in this case were a central part of the Progressive movement‘s agenda for reform at the turn of the 20th century, and were advanced as a means of limiting the control of wealthy special inter
The basis of the Court‘s holding is that because the state laws in question both (1) decrease the pool of potential circulators and (2) reduce the chances that a measure would gather signatures sufficient to qualify for the ballot, the measure is unconstitutional under our decision in Meyer v. Grant, 486 U. S. 414 (1988). See ante, at 194-195. Meyer, which also dealt with Colorado‘s initiative regulations, struck down a criminal ban on all paid petition circulators. 486 U. S., at 428. But Meyer did not decide that a State cannot impose reasonable regulations on such circulation. Indeed, before today‘s decision, it appeared that under our case law a State could have imposed reasonable regulations on the circulation of initiative petitions, so that some order could be established over the inherently chaotic nature of
II
The Court, however, reasons that the restriction of circulation to electors fails to pass scrutiny under the First Amendment because the decision not to register to vote “implicates political thought and expression.” Ante, at 195. Surely this can be true of only a very few of the many residents who do not register to vote, but even in the case of the few it should not invalidate the Colorado requirement. Refusing to read current newspapers or to watch television may have “First Amendment implications,” but this does not mean that a state university might not refuse to hire such a person to teach a course in “today‘s media.” The examples of unregistered people who wish to circulate initiative petitions presented by the respondents (and relied upon by the Court) are twofold1—people who refuse to participate in the political process as a means of protest, and convicted drug felons who have been denied the franchise as part of their punishment. For example, respondent Bill Orr, apparently the mastermind of this litigation, argued before the District Court that “It‘s my form of . . . private and public protest. I don‘t believe that representative organs of Government are doing what they‘re supposed to be doing.” 1 Tr. 223. And respondent Jon Baraga, a person affiliated with the “Colorado Hemp Initiative,” which seeks to legalize marijuana in Colorado, testified that “there are a great many folks who are refused to participate as registered voters in the political
Thus, the Court today holds that a State cannot require that those who circulate the petitions to get initiatives on the ballot be electors, and that a State is constitutionally required to instead allow those who make no effort to register to vote—political dropouts and convicted drug dealers—to engage in this electoral activity. Although the Court argues that only those eligible to vote may now circulate candidate petitions, there is no Colorado law to this effect. Such a law would also be even harder to administer than one which limited circulation to residents, because eligible Colorado voters are that subset of Colorado residents who have fulfilled the requirements for registration, and have not committed a felony or been otherwise disqualified from the franсhise. A State would thus have to perform a background check on circulators to determine if they are not felons. And one of the reasons the State wished to limit petition circulation to electors in the first place was that it is far easier to determine who is an elector from who is a resident, much less who is “voter eligible.”2
In addition, the Court does not adequately explain what “voter eligible” means. If it means “eligible to vote in the State for which the petitions are circulating” (Colorado, in this case), then it necessarily follows from today‘s holding that a State may limit petition circulation to its own residents. I would not quarrel with this holding. On the other hand, “voter eligible” could mean “any person eligible to vote in any of the United States or its territories.” In this case,
State ballot initiatives are a matter of state concern, and a State should be able to limit the ability to circulate initiative petitions to those people who can ultimately vote on those initiatives at the polls. If eligible voters make the conscious decision not to register to vote on the grounds that they reject the democratic process, they should have no right to complain that they cannot circulate initiative petitions to people who are registered voters. And the idea that convicted drug felons who have lost the right to vote under state law nonetheless have a constitutional right to circulate initiative petitions scarcely passes the “laugh test.”
But the implications of today‘s holding are even more stark than its immediate effect. Under the Court‘s interpretation of Meyer, any ballot initiative regulation is unconstitutional if it either diminishes the pool of people who can circulate petitions or makes it more difficult for a given issue to ultimately appear on the ballot. See ante, at 194-195. Thus, while today‘s judgment is ostensibly circumscribed in scope, it threatens to invalidate a whole host of historically established state regulations of the electoral process in general. Indeed, while the Court is silent with respect to whether a State can limit initiative petition circulation to state residents, the implication of its reading of Meyer—that being unable to hire out-of-state circulators would “limi[t] the number of voices who will convey [the initiative proponents‘] message,” ante, at 194-195 (bracketing in original)—is that under today‘s decision, a State cannot limit the ability to circulate issues of local concern to its own residents.
May a State prohibit children or foreigners from circulating petitions, where such restrictions would also limit the number of voices who could carry the proponents’ message
III
As to the other two laws struck down by the Court, I agree that the badge requirement for petition сirculators is unconstitutional. McIntyre v. Ohio Elections Comm‘n, 514 U. S. 334 (1995). I also find instructive, as the Court notes, ante, at 197, n. 18, that Colorado does not require such badges for those who circulate candidate petitions. See generally
I disagree, however, that the First Amendment renders the disclosure requirements unconstitutional. The Court affirms the Court of Appeals’ invalidation of only the portion of the law that requires final reports to disclose information
IV
Because the Court‘s holding invalidates what I believe to be legitimate restrictions placed by Colorado on the petition circulation process, and because its reasoning calls into question a host of other regulations of both the candidate nomination and petition circulation process, I dissent.