Cum-20-227
Maine Supreme Judicial Court
September 22, 2020
2020 ME 113
MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
Argued: September 15, 2020; Reporter of Decisions
PER CURIAM
[¶ 1] Intervenors The Committee for Ranked Choice Voting and three individuals (collectively, “Committee“) and the Secretary of State appeal from a judgment of the Superior Court (Cumberland County, McKeon, J.) vacating the Secretary of State‘s determination that an inadequate number of valid signatures had been submitted to place on the ballot a people‘s veto of An Act to Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine, P.L. 2019, ch. 539. See
I. BACKGROUND
[¶ 2] On July 15, 2020, the Secretary of State issued a written determination of the validity of a petition for the people‘s veto of An Act to Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine, P.L. 2019, ch. 539.2 He concluded that an insufficient number of valid signatures had been submitted in support of the petition.3 See
[¶ 3] On July 27, 2020, Jones filed a petition for review of the Secretary of State‘s final agency action in the Superior Court. See
[¶ 4] On August 3, the court (McKeon, J.) granted the motion to intervene and held a status conference. By agreement of the parties, the court granted the motion to remand and ordered the Secretary of State to take additional evidence and reconsider his decision, with a supplement to his determination and the administrative record to be filed by August 11, and also ordered a schedule of briefing that would conclude on August 21.4
[¶ 5] On August 12, 2020, the Secretary of State issued an amended determination of the validity of the petition in which he concluded, among other things, that the signatures submitted from some signature collectors were not valid because those collectors had not been registered voters on the voting lists of their municipalities of residence at the time that they collected signatures.5 See
[¶ 6] On August 21, after receiving briefs, the court held a telephonic hearing and remanded the matter to the Secretary of State to complete an investigation related to one town office by noon on August 24, with briefs to be submitted from the other parties on the same day. The court also ordered that the parties would have until August 24 to submit briefs on the effect of Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), on the validity of the signatures that the Secretary of State had disqualified because the signature collectors were not registered as voters in their municipalities of residence at the time they collected signatures.
[¶ 7] The parties submitted all required materials on August 24, and the Secretary of State additionally filed a supplement to his amended determination of the validity of the petition for a people‘s veto. The Secretary of State still concluded—although
[¶ 8] On August 24, 2020, the court entered a judgment vacating the Secretary of State‘s determination that insufficient signatures had been collected. The court concluded that Buckley rendered the requirement that a circulator be a registered voter at the time he or she collected signatures to be a violation of the First Amendment of the United States Constitution and held that 988 signatures had been improperly invalidated on the basis of the circulator‘s registration status.
[¶ 9] Both the Secretary of State and the Committee appealed. See
II. DISCUSSION
[¶ 10] In this opinion, we consider (A) whether Maine‘s Constitution and statutes require circulators to be registered voters in the municipality where they reside at the time they collect signatures on a people‘s veto petition and (B) if they do so require, whether, on the record presented, the registration requirement violated the First Amendment to the United States Constitution.
A. Constitutional and Statutory Requirement of Circulator Registration
[¶ 11] We interpret Maine‘s Constitution and statutes de novo as questions of law. See Avangrid Networks, Inc. v. Sec‘y of State, 2020 ME 109, ¶ 13, --- A.3d ---; Reed v. Sec‘y of State, 2020 ME 57, ¶ 14, --- A.3d ---. We will interpret the constitutional or statutory provision according to its plain meaning if the language is unambiguous. See Avangrid Networks, Inc., 2020 ME 109, ¶ 14, --- A.3d ---; Reed, 2020 ME 57, ¶ 14, --- A.3d ---.
[¶ 12] As to the constitution, “[i]f the provision is ambiguous, we [will] determine the meaning by examining the purpose and history surrounding the provision.” Avangrid Networks, Inc., 2020 ME 109, ¶ 14, --- A.3d --- (quotation marks omitted). With respect to the language of a statute within the expertise of an administering agency, however, if the provision is ambiguous, meaning that it is “reasonably susceptible to different interpretations,” we defer to the agency‘s reasonable construction. Reed, 2020 ME 57, ¶ 14, --- A.3d --- (quotation marks omitted). We have held before that the Secretary of State “is the constitutional officer entrusted with administering—and having expertise in—the laws pertaining to the direct initiative process.” Id. ¶ 18. As we do with respect to the direct initiative process, we accord deference to the Secretary of State‘s reasonable interpretation of an ambiguous statute governing the people‘s veto process. See id.
[¶ 13] “‘[C]irculator’ means a person who solicits signatures for written petitions, and who must be a resident of this State and whose name must appear on the voting list of the city, town or plantation of the circulator‘s residence as qualified to vote for Governor.”
[¶ 14] By statute, petitions “may be circulated by any Maine resident who is a registered voter acting as a circulator of a petition.”
[¶ 15] In sum, the Maine Constitution requires that a circulator be a resident “whose name must appear on the voting list of the city, town or plantation of the circulator‘s residence as qualified to vote for Governor,”
[¶ 16] Even if the Maine Constitution were ambiguous, however, we would reach the same conclusion based on the history surrounding the adoption of the definition of “circulator.” Effective November 24, 1975, the Maine Constitution was amended by legislative resolution approved by the electorate to add the definition of “circulator” to article IV, part 3, section 20. See Const. Res. 1975, ch. 2, approved in 1975. The Statement of Fact included with the proposed resolution provided: “The signature-gathering process is improved and tightened in several ways. Any registered voter, not just a person who is one of the signers of a petition, may circulate petitions.” L.D. 188, Statement of Fact (107th Legis. 1975) (emphasis added). The Legislature‘s Committee on the Judiciary had recommended the change: “The committee . . . felt the circulator should be a registered voter. This was accomplished by adding to this section a definition of a circulator requiring him or her to be a resident of the state and a registered voter.” Report of the Judiciary Committee on the Initiative and Referendum Process 14 (Dec. 2, 1974). These sources clearly indicate that the Legislature contemplated that circulators would be registered voters when they circulated petitions—not that they would become registered voters after circulation but before submitting the petitions. The Secretary of State‘s interpretation of section 903-A is consistent with the legislative history of article IV, part 3, section 20, and, if we discerned any ambiguity in the statute, we would defer to his reasonable construction of it. See Reed, 2020 ME 57, ¶ 14, --- A.3d ---.
[¶ 17] Because we conclude that the Maine Constitution and statutes require a petition circulator to be registered in the municipality of residence when circulating a petition, we must next consider whether the court erred in concluding that this
B. First Amendment
[¶ 18] A person challenging the constitutionality of a legislative enactment “bears a heavy burden of proving unconstitutionality[,] since all acts of the Legislature are presumed constitutional.” Goggin v. State Tax Assessor, 2018 ME 111, ¶ 20, 191 A.3d 341 (quotation marks omitted). To overcome the presumption of constitutionality, the party challenging a law must “demonstrate convincingly” that the law and the Constitution conflict. Id. (quotation marks omitted). “[A]ll reasonable doubts must be resolved in favor of the constitutionality” of the enactment. Id. (quotation marks omitted).
[¶ 19] The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”
1. Level of Scrutiny Applicable to Ballot-Access Regulations
[¶ 20] The circulation of petitions for a ballot initiative such as a people‘s veto constitutes “core political speech.” See Buckley, 525 U.S. at 186 (quotation marks omitted); Me. Taxpayers Action Network v. Sec‘y of State, 2002 ME 64, ¶ 8, 795 A.2d 75 (quotation marks omitted). Although state regulations affecting core political speech must ordinarily “be narrowly tailored to carry out a compelling state purpose,” Me. Taxpayers Action Network, 2002 ME 64, ¶ 8, 795 A.2d 75 (quotation marks omitted), application of the strict scrutiny standard has not always been required in cases involving the regulation of ballot access, including cases involving the regulation of petition circulation, because “‘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 processes.‘” Buckley, 525 U.S. at 187 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)); see Burdick v. Takushi, 504 U.S. 428, 430, 433 (1992) (reviewing a Hawaii regulation prohibiting write-in voting); Anderson v. Celebrezze, 460 U.S. 780, 782-83, 788 (1983) (reviewing an Ohio regulation imposing an early filing deadline for petitions to nominate an independent presidential candidate). Unlike with other regulations of core political speech, an important—but not necessarily compelling—governmental interest in regulating ballot access may outweigh the burden placed on even core political speech because of the need for fairness and order in the democratic process. See Buckley, 525 U.S. at 187; Burdick, 504 U.S. at 433-34.
[¶ 21] To ensure fairness and order, the United States Supreme Court has therefore adopted a specific framework for cases involving the regulation of ballot access that does not always require application of the strict scrutiny standard. See Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, No. CV-20-0098-SA, 2020 Ariz. LEXIS 279, at *24, --- P.3d --- (Sept. 4, 2020) (citing Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 789). This approach is in contrast to the mandatory application of the strict scrutiny standard in reviewing restrictions on core political speech—or content-based restrictions
[¶ 22] Thus, unlike in Mowles v. Commission on Governmental Ethics & Election Practices, 2008 ME 160, ¶¶ 1, 10-31, 958 A.2d 897, where we applied strict scrutiny to review restrictions on the “pure speech” of campaign advertisements,6 here we are reviewing a regulation regarding petition circulation—a ballot-access regulation pertaining to the “mechanics of the electoral process.” McIntyre, 514 U.S. at 345; see Buckley, 525 U.S. at 186-87; Burdick, 504 U.S. at 433-34; Anderson, 460 U.S. at 789. As we stated in Mowles, we ordinarily determine “whether the speech being regulated is core political speech,” and apply strict scrutiny if it is. Mowles, 2008 ME 160, ¶¶ 15-17, 958 A.2d 897. Ballot-access regulations such as regulations of petition circulation, although regulating core political speech, see Buckley, 525 U.S. at 186; Me. Taxpayers Action Network, 2002 ME 64, ¶ 8, 795 A.2d 75, require us to undertake a further inquiry to determine the appropriate level of scrutiny. See Buckley, 525 U.S. at 186-87; Burdick, 504 U.S. at 433-34; Anderson, 460 U.S. at 789.
[¶ 23] Specifically, pursuant to the framework adopted by the Supreme Court, to determine whether a ballot-access regulation governing the “mechanics of the electoral process,” McIntyre, 514 U.S. at 345, violates the United States Constitution, a court “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789. The court must both “determine the legitimacy and strength of each of those interests” and “consider the extent to which those interests make it necessary to burden the plaintiff‘s rights.” Id.
[¶ 24] When First Amendment rights “are subjected to severe restrictions, [a] regulation must be narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434 (quotation marks omitted). In contrast, “when a state election law provision imposes only reasonable, nondiscriminatory restrictions” on First Amendment rights, “the State‘s important regulatory interests are generally sufficient to justify the restrictions.” Id. (quotation marks omitted); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358-59 (1997). As we have stated, “there is no litmus test for determining whether an
[¶ 25] We applied the analysis set forth by the Supreme Court in Anderson and Burdick in Maine Taxpayers Action Network:
We agree with the Secretary, then, that requiring circulators to correctly identify themselves in their oath and affidavit is narrowly tailored to carry out the state‘s reasonable interest in locating circulators within or without the state‘s borders. See, e.g., Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992) (stating that 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” (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983))).
2002 ME 64, ¶ 20, 795 A.2d 75 (emphasis added).
2. Courts’ Consideration of Circulator Registration Requirements
[¶ 26] The Supreme Court applied the Anderson/Burdick test in 1999 to determine whether a registration requirement for petition circulators violated the First Amendment.7 See Buckley, 525 U.S. at 193 (citing Timmons, 520 U.S. at 358 (summarizing the Anderson/Burdick test)). Specifically, the Court considered whether the State of Colorado‘s concerns warranted the burden on First Amendment rights that arose from a statutory requirement that initiative circulators be registered voters. Id. The Court held that Colorado‘s statutory requirement violated the First Amendment. See Buckley, 525 U.S. at 192-97.
[¶ 27] The Court reached this holding after a trial at which an election official testified that, although there were 1,900,000 registered voters in Colorado, at least 400,000 eligible people—more than 17 percent of all eligible voters—were not registered. Id. at 193.8 The Court concluded that the government had not presented “impelling cause” to require circulators to register to vote to exercise their First Amendment rights by circulating petitions. Id. at 197. The court held that the government‘s asserted interests in ensuring that circulators are not breaking the law and would be amenable to the subpoena power were insufficient grounds for curtailing First Amendment rights. Id. at 195-97. The Court considered in its analysis that, “given the uncontested numbers,” the registration requirement “decrease[d] the pool of
potential circulators” and limited the
[¶ 28] After the Court‘s decision in Buckley, the United States District Court for the District of Maine considered Maine‘s requirement of voter registration to serve as a circulator. See Initiative & Referendum Inst. v. Sec‘y of State, No. CIV. 98-104-B-C, 1999 WL 33117172 (D. Me. Apr. 23, 1999). The court concluded that, because it was undisputed on summary judgment that 98.8 percent of those eligible to vote in Maine were registered, the imposition on First Amendment rights was minimal and the registration requirement, although less compelling than a simple residency requirement, was sufficiently compelling to justify the minor intrusion. Id. at *14-15.
[¶ 29] Unlike in Buckley and Initiative & Reform Institute, there has been no trial or summary judgment motion to generate evidence for the trial court‘s—or our—consideration here. Cf. Buckley, 525 U.S. at 192-97; Initiative & Referendum Inst., No. CIV. 98-104-B-C, 1999 WL 33117172, at *1. Nor was any independent claim joined that could produce the kind of crucial evidence that is sometimes necessary to succeed in a First Amendment challenge in this context. Cf. Libertarian Party of Va. v. Judd, 718 F.3d 308, 311-12 (4th Cir. 2013) (reviewing a summary judgment entered in an action brought pursuant to
3. Review of Maine‘s Requirement of Registration in the Municipality of Residence Before Circulation
[¶ 30] Here, the court was ruling only on a
a. Character and Magnitude of the Burden on First Amendment Rights
[¶ 31] On this record, we cannot conclude that “the character and magnitude of the asserted injury” to First Amendment rights, Anderson, 460 U.S. at 789, is severe. The only statistics available in the administrative record pertain to this petition. It is undisputed that less than two percent of the people who collected signatures for this specific petition were determined to have been unregistered at the time they collected signatures. Cf. Bernbeck v. Moore, 126 F.3d 1114, 1116-17 (8th Cir. 1997) (holding that a circulator registration requirement violated the First Amendment when the trial court had found, based on undisputed evidence, that the number of individuals that petition organizers could find “was grossly insufficient to the task” (quotation marks omitted)). Unlike some of those who testified in Buckley, 525 U.S. at 195-96, the individual circulators whose petitions are in dispute here were not opposed to registering to vote and indeed became registered voters in their municipalities, albeit after they circulated the disputed petitions. Thus, although the effect of the signature collectors’ failure to timely register in their new municipalities of residence may be severe in this case, we cannot say that the burden of the registration requirement on the exercise of petition supporters’ First Amendment rights is severe either as applied in this case or more broadly in Maine. See Me. Taxpayers Action Network, 2002 ME 64, ¶ 29, 795 A.2d 75 (Dana, J., concurring) (“In the absence of any evidence to suggest that Maine‘s voter registration requirement presents a severe burden on the right of free speech, I would uphold the voter registration requirement . . . .“).
b. Interests Put Forward by the State
[¶ 32] We turn next to “the precise interests put forward by the State as justifications” for the restrictions. Anderson, 460 U.S. at 789. The Secretary of State has argued that the regulation is designed to enable him to (1) locate circulators in the event that there are any questions of fraud or forgery, (2) subpoena circulators if necessary, and (3) determine residency in Maine as of the time of circulation without extensive factual inquiry. The argument as to the first two reasons is not germane to this case. As long as a circulator registers to vote in the circulator‘s municipality of residence at some point before the petitions are submitted to the Secretary of State, see
[¶ 33] This leaves only one other justification for the registration requirement—the determination of the circulator‘s Maine residency at the time the circulator collects signatures. We determined in 1998 that the residency requirement itself does not violate the First Amendment. See
[¶ 34] The requirement that a circulator be registered in the circulator‘s municipality of residence while circulating a petition therefore imposes only “reasonable, nondiscriminatory restrictions” on the First Amendment rights of petition supporters for the purpose of ensuring compliance with the residency requirement of the Maine Constitution. Burdick, 504 U.S. at 434 (quotation marks omitted). Thus, we conclude that the government‘s interest is sufficient to justify the restriction that the requirement places on petitioners’ First Amendment rights. See Burdick, 504 U.S. at 434. The Superior Court erred in concluding, on the record before it, that Jones had satisfied his burden of overcoming the presumption of constitutionality. Goggin, 2018 ME 111, ¶ 20, 191 A.3d 341.
[¶ 35] We therefore vacate the judgment of the Superior Court in which it vacated the Secretary of State‘s decision as to the 988 signatures that it determined were valid. Because our decision results in a deficit in the number of signatures required for the people‘s veto to be placed on the ballot, we do not reach or consider the Committee‘s arguments regarding other signatures that it contends were improperly validated.
The entry is:
Judgment of the Superior Court vacated. Remanded with instructions to affirm the Secretary of State‘s determinations that the 988 signatures contested on appeal to us are invalid and that therefore an inadequate number of valid signatures had been submitted to place the people‘s veto on the ballot. Mandate to issue immediately.
James G. Monteleone, Esq. (orally), and Matthew J. Saldaña, Esq., Bernstein Shur, Portland, for appellants The Committee for Ranked Choice Voting et al.
Aaron M. Frey, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellant Secretary of State
Patrick N. Strawbridge, Esq. (orally), Consovoy McCarthy PLLC, Boston, Massachusetts, for appellees David A. Jones, et al.
Cumberland County Superior Court docket number AP-20-16
FOR CLERK REFERENCE ONLY