JANE GILBERT et al. v. SECRETARY OF STATE
Docket: Cum-26-288
MAINE SUPREME JUDICIAL COURT
Decided: July 10, 2026
Dеcision: 2026 ME 59; Argued: July 1, 2026; Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.; Reporter of Decisions
[¶1] Protect Girls Sports in Maine (the committee), a registered ballot question committee, appeals from a judgment of the Superior Court (Cumberland County, Cashman, J.) affirming the decision of the Secretary of State invalidating a petition for initiated legislation entitled, “An Act to Designate School Sports Participation and Facilities by Sex.”1 The question before us is whether the Secretary properly invalidated the signatures collected by four petition circulators who do not reside in Maine аnd who did not, in their
I. BACKGROUND
[¶2] On February 2, 2026, 79,692 signatures were submitted to the Secretary in support of the legislation that the petition sought to initiate.3 On March 17, 2026, the Secretary issued a written determination of the validity of the petition. The Secretary found that 71,033 signatures were valid, exceeding the 67,682 signatures required. Accordingly, the Secretary determined that the petition was valid.
[¶3] On March 27, 2026, Jane Gilbert, Mark Sayre, and Kaitlin Webber (collectively Gilbert) filed in the Superior Court a petition for review of the Secretary‘s decision. See
[¶5] The Secretary conceded several of Gilbert‘s challenges, including Challenge 3, i.e., she conceded that the signatures collected by the four out-of-state circulators who failed to check the box on their circulator affidavits consenting to the jurisdiction of the State of Maine should have been invalidated. On April 24, the court remanded the matter to the Secretary for further proceedings “which may include correcting the concessions identified herein, taking new evidence, and developing further findings of fact as necessary.”
[¶6] On May 12 and 13, 2026, the Chief Deputy Secretary of State held an evidentiary hearing. One of the circulators at issue in Challenge 3 testified at this hearing, and an updated affidavit from that circulator, in which she consented to the jurisdiction of Maine, was admitted in evidence.
[¶8] Four petition circulators who reside out of state did not, in their circulator affidavits submitted with the petition, check the box agreeing to the conditions required of out-of-state circulators, including consenting to the jurisdiction of the Maine courts. The Chief Deputy found that the failure of the circulator who testified at the hearing to timely agree to the conditions for out-of-state circulators was not inadvertent; rather, at the time of executing her affidavit, the circulator was concerned that checking that box might require her to appear in court during midterm seаson, so she wanted to get a better understanding of that requirement before agreeing to it. No one explained this provision, and she executed the affidavit without checking that box. On May 6, 2026, well after the petition was submitted to the Secretary in February 2026, the circulator executed a new affidavit in which she agreed to the conditions required of an out-of-state circulator.
[¶9] Ultimately, the Chief Deputy recommended that all signatures collected by the four nonresident petition circulators who did not consent to
[¶10] On May 29, 2026, at the request of the committee, the Superior Court resumed jurisdiction over the
II. DISCUSSION
[¶11] “When, as here, the Superior Court acts in its intermediate appellate capacity pursuant to
[¶12] The question before us is whether the Secretary had the legal authority to invalidate signatures collected by out-of-state petition circulators who did not, at the time the petitions were submitted to the Secretary, take an oath consenting to Maine jurisdiction. We hold that the Seсretary was not only
A. The Secretary is obligated to adhere to the Maine Constitution.
[¶13] The Secretary, who is a constitutional officer, see
[¶14] The Maine Constitution requires that circulators of initiative petitions be Maine residents.
[¶15] The Legislature has also given effect to this constitutional imperative by enacting
[¶16] Hence, absent any superseding authority, the Secretary was compelled by her oath and by Maine law to require circulators to file affidavits averring that they were Maine residents and voters.
B. The only exception to the Secretary‘s duty to obey Maine law is if federal law supersedes the state mandate.
[¶17] The only exception to the Secretary‘s duty to comply fully with the Maine Constitution and Maine statutes is when the relevant provisions of Maine law are superseded by federal law. See
[¶18] Although we previously concluded that the provision in the Maine Constitution requiring circulators to be Maine residents did not violate the U.S. Constitution, see Hart v. Sec‘y of State, 1998 ME 189, ¶¶ 6, 13, 715 A.2d 165; Jones v. Sec‘y of State, 2020 ME 113, ¶ 33, 238 A.3d 982, subsequently, We the People PAC, a political action committee, and other plaintiffs filed an action in
[¶19] On February 16, 2021, the District Court granted a motion by We the People for a preliminary injunction enjoining the Secretary from enforcing the residency requirement of section 903-A as to out-of-state circulators who “first submit to the jurisdiction of the state of Maine for аny investigation and/or prosecution of alleged violations of Maine‘s election code.” We the People, 519 F. Supp. 3d at 53. The District Court issued its order on the basis that We the People was likely to succeed on its claim that the residency
[¶20] Following the First Circuit‘s affirmance of the preliminary injunction, on February 9, 2023, the District Court issued a consent order and judgment agreed to by the parties. The order permanently enjoined the Secretary
from enforcing
21-A M.R.S. § 903-A andMe. Const., art. IV, pt. 3, § 20 , to the extent they require that initiative or рeople‘s veto petitions only be circulated by Maine residents, against circulators who (a) agree to submit to the personal jurisdiction of Maine for purposes of any investigation or prosecution of any alleged violation of Maine law with respect to initiative or people‘s veto petitions; (b) maintain up-to-date contact information with the Maine Secretary of State‘s office, by whatever means identified by the Secretary of State‘s office, for the duration of any petition drive for which they circulat[e] petitions, which drive includes the collection of signatures and review of those signatures by the Secretary of State‘s office; and (c) are responsive to requests for information from the Secretary of State‘s office for the duration of the petition drive, as defined above.
[¶21] In sum, the Secretary is subject to a permanent federal injunction precluding her from enforcing the Maine Constitution‘s residency requirement except as to those non-Maine residents who, inter alia, do not agree to submit to the personal jurisdiction оf Maine.
[¶22] Under our federalist system, the federal courts craft any injunction that precludes a state officer from enforcing a provision in a state law as narrowly as possible so as to intrude as minimally as possible on the state officer‘s duty to comply with that law. See Clark v. Coye, 60 F.3d 600, 603-04 (9th Cir. 1995).5 Thus, the “normal rule” in the federal courts is to enjoin only the unconstitutional applicаtions of a challenged state law. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29 (2006) (quotation marks
[¶23] In re Apportionment involved a conflict between federal law and the Maine Constitution as to legislative apportionment. Id. at 213. In that situation, we stated that “we consider that it is our sworn duty to be governed by the Constitution of this State to the fullest extent reasonably possible consistently with recognition оf the Constitution of the United States as the Supreme law of the land” and noted that we could not “discard entirely” the provisions of the Maine Constitution relating to legislative apportionment “and proceed unrestrained except as we may be controlled by the Constitution of the United States.” Id. at 218-19.
[¶24] The injunction and consent order issued by the District Court did not prohibit the Secretary from enforcing the residency requirement against petition circulators who do not consent to personal jurisdiction in the state. Indeed, when the First Circuit concluded that а flat ban on nonresident circulators was likely unconstitutional under the federal constitution because
[¶25] Thus, to follow the Maine Constitution to “the fullest extent reasonably possible,” see In re Apportionment, 315 A.2d at 218, the Secretary is obligated to enforce the Maine Constitution‘s residency requirement against those petition circulators not covered by the consent order, including out-of-state circulators who do not consent to Maine jurisdiction. See id. at 219 (noting, in addressing a federal-state conflict, that the Court was able
[¶26] In sum, the requirement that out-of-state circulators consent to jurisdiction is not, as the committee argues, a novel rule created by the Secretary without enabling authority. Rather, by requiring out-of-state circulators to take an oath that they will submit to the jurisdiction of Maine, the Secretary is complying with the Maine Constitution and Maine statutes to the extent not precluded by federal restrictions. Her authority—and her duty—to impose the oath comes from the Maine Constitution and her own oath to adhere
D. The Secretary properly invalidated the signatures collected by the petition circulator who did not consent to jurisdictiоn at the time the signatures were submitted.
[¶27] The committee argues that even if the Secretary were permitted to invalidate the signatures collected by the three nonresident circulators who have never consented to jurisdiction, she could not do so as to the signatures collected by the circulator who consented to jurisdiction months after the circulator‘s submission of the collected signatures and months after the deadline provided in the Maine Constitution for the filing of the initiative petition. See
[¶28] Neither the permanent injunction nor thе consent order includes a provision dictating when nonresident circulators must agree to jurisdiction so as to enjoy the protection of the injunction. Hence, the State is not precluded by the injunction or the consent order from setting its own deadline.7 The
[¶29] If a state regulation imposes a severe burden on the signature collecting process, then a strict scrutiny standard of review applies to that regulation, pursuant to which the regulation is rejected unless the interest advanced in the regulation is compelling and the regulation is narrowly tailored to advance that interest. See Jones, 2020 ME 113, ¶ 24, 238 A.3d 982; Pierce, 44 F.4th at 859-60; We the People, 40 F.4th at 13-14. The Supreme Court has identified two non-exhaustive factors for when a regulation imposes a severe burden: when it (1) “limits the number of voices carrying the initiative proponent‘s message and the size of the audience the proponent can reach” or (2) “makes it less likely a proponent will get enough signatures to place the issue on the ballot, thereby limiting the ability to make the issue the focus of statewide discussion.” Pierce, 44 F.4th at 860 (citing Meyer v. Grant, 486 U.S. 414, 422–23 (1988)) (quotation marks omitted); see also Campbell v. Buckley,
[¶30] If a regulation does not impose a severe burden, then a less exacting standard applies, pursuant to which the regulation is upheld as long as the governmental interest is important and the regulation is nondiscriminatory and reasonable. See Jones, 2020 ME 113, ¶ 24, 238 A.3d 982; We the People, 40 F.4th at 13-14; Pierce, 44 F.4th at 860; see also Knutson v. Dep‘t of Sec‘y of State, 2008 ME 129, ¶ 11, 954 A.2d 1054 (citing the “U.S. Supreme Court‘s consistent holding that States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with the election process generally” and stating that the Supreme Court has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself” (quotation marks omitted)). In Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 188-89, 199-200 (1999), the Supreme Court noted that under its precedent, a requirement that circulators execute affidavits including, inter alia, their name and address, “which must be met only after circulators have completed their conversations with electors, exemplifies the type of regulation” deemed acceptable.
[¶32] Applying this less exacting standard, the deadline is nondiscriminatory: the same deadline for filing the affidavit applies to all circulators.8
[¶33] As noted above, the Secretary must obey Maine law to the extent she is not precluded from doing so by federal law. The Maine Constitution authorizes the Legislature to “enact laws not inconsistent with the Constitution
[¶34] In sum, federal law does not preclude this timing requirement—the requirement does not impose a severe burden on core political speech, the requirement advances an important state interest, and the deadline is reasonable and nondiscriminatory. The Secretary has the authority and the duty to implement the Legislature‘s will and to rеquire the timing of the filing of the affidavits as directed in section 903-A(4).
III. CONCLUSION
[¶35] As a result of the Secretary‘s proper invalidation of the signatures collected by these four circulators, the petition fell below the constitutional
The entry is:
Judgment affirmed.
Timothy C. Woodcock, Esq. (orally), and Janna L. Gau, Esq., Katahdin Law, Bangor, for appellant Protect Girls’ Sports in Maine
James G. Monteleone, Esq., Bernstein Shur, Portland, Ben Stafford, Esq., and Tyler L. Bishop, Esq., Elias Law Group LLP, Seattle, Washington, and Christopher D. Dodge, Esq. (orally), Elias Law Group, Washington, D.C., for cross-appellants Jane Gilbert, Mark Sayre, and Kaitlin Webber
Aaron M. Frey, Attorney General, and Jonathan R. Bolton, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Secretary of State
Cynthia A. Dill, Esq., Cape Elizabeth, for amici curiae Sofia Pride, Jason McNeill, Matthew Couture, and Molly Curtis
Stephen C. Smith, Esq., John E. Baldacci, Esq., and Carl E. Woock, Esq., Steve Smith Trial Lawyers, Augusta, and Edward D. Greim, Esq., and Katherine E. Mitra, Esq., Graves Garrett Greim LLC, Kansas City, Missouri, for amici curiae Initiative and Rеferendum Institute and Dane Waters
Cumberland County Superior Court docket number AP-2026-10
FOR CLERK REFERENCE ONLY
Notes
60 F.3d at 603-04 (citations and quotation marks omitted). See also Newman v. Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982) (stating that permanent injunctive relief from a constitutional violation “must be no broader than necessary to remedy the constitutional violation“); EagleMed LLC v. Cox, 868 F.3d 893, 905 (10th Cir. 2017) (“In fashioning injunctive relief against a state agency or official, a district court must ensure that the relief ordered is ‘no broader than necessary to remedy the [federal] violation.‘” (quoting Toussaint v. McCarthy, 801 F.2d 1080, 1086-87 (9th Cir. 1986))); cf. Younger v. Harris, 401 U.S. 37, 44 (1971) (stating that “Our Federalism” represents “a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States” (quotation marks omitted)).Due to concerns of comity and federalism, the scope of federal injunctive relief against an agency of state government must always be narrowly tailored to enforce federal constitutional and statutory law only. This is critical because a federal district court‘s exercise of discretion to enjoin state political bodies raises serious questions regarding the legitimacy of its authority. Thus, in reviewing a district court‘s injunction against an agency of state government, we scrutinize the injunction closely to make sure that the remedy protects the plaintiffs’ federal constitutional and statutory rights but does not require more of state officials than is necessary to assure their compliance with federal law.
The committee also alludes to the right to petition under the Maine and U.S. Constitutions but does not develop a substantive argument based on this right. Hence, any such argument is also waived. See Mehlhorn, 2006 ME 110, ¶ 11, 905 A.2d 290; see also Wayte v. United States, 470 U.S. 598, 610 n.11 (1985) (“Although the right to petition and the right to free speech are separate guarantees, they are related and generally subject to the same constitutional analysis.“).