Kent Bernbeck; Stan Dobrovolny; Richard Bellino; Angela L. Crouse; Gwen Kutschkau, Appellees, Betty Cowart, Plaintiff, v. Scott A. Moore, Appellant.
No. 96-3503
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: May 20, 1997 Filed: October 9, 1997
Before McMILLIAN, ROSS and FAGG, Circuit Judges.
Appeal from the United States District Court for the District of Nebraska.
ROSS, Circuit Judge.
Appellees brought this
The
Petition circulators must sign an affidavit before a notary public on every sheet of the petition stating, among other things, that (a) he or she is a registered voter of the State of Nebraska; (b) the persons who signed the petition did so in the presence of the circulator, and the date of the signatures is correctly stated on the petition; (c) the circulator believes the signer has written his or her name, street and number or voting precinct, and address correctly; (d) the circulator believes each signer was qualified to sign the petition, and (e) the circulator informed each signer of the purpose of the petition before the signer affixed his or her signature.
Nebraska law further provides that election officials are “to determine if the circulator was a registered voter one month prior to the date of circulating and signing the petition,” and if not, “[a]ll [such] signatures . . . shall not be counted.”
In Meyer v. Grant, 486 U.S. 414 (1988), the Supreme Court struck down as unconstitutional a Colorado statute that prohibited the payment of petition circulators because the law “abridged appellees’ right to engage in political speech and therefore violated the First and Fourteenth Amendments to the Federal Constitution.” Id. at 416. The Court reasoned that the circulation of a petition, which “involves both the expression of a desire for political сhange and a discussion of the merits of the proposed change,” constitutes “core political speech.” Id. at 421-22. For that reason, the Court concluded, the Colorado “statute trenches upon an area in which the importance of First Amendment protections is at its zenith,” and “the burden that Colorado must overcome to justify this criminal law is well-nigh insurmountable.” Id. at 425.
We reject the Secretary of State‘s attempt to distinguish Meyer with the argument that the registered-voter requirement does not regulate “political speech,” but rather the “process” of conduсting an initiative election, thereby raising no First Amendment concerns. As in Meyer, the statutes at issue in the present case limit the ability of citizens to have initiative petitions circulated. The Meyer Court expressly concluded that “the
The concerns raised by the prohibition of paid circulators in Meyer are identical to the effect of the voter-registration requirement on the initiative process in the present case. In both instances, the laws “limit[ ] the number of voices who will convey appellees’ message and the hours they can speak and, therefore, limit[ ] the size of the audienсe they can reach.” Id. at 422-23. Moreover, the laws at issue in both Meyer and the present case “make[ ] it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion.” Id. at 423.
Here, the district court made the factual determination that the “evidence is undisputed that when petition organizers attempted to comply with the restrictions, the number of individuals they could hire to solicit signatures was grossly insufficient to the task, and this was true despite efforts to obtain ‘qualified’ circulators through mass mailing and advertisements.” Bernbeck v. Moore, 936 F. Supp. 1543, 1561 (D. Neb. 1996). The evidence further showed that the Nebraska statutes made it less likely that the appellees, as sponsors of initiatives, would be able to collect the necessary numbеr of signatures to place their initiatives on the ballot. The effect, therefore, of these statutes is a restriction of the people‘s constitutional right to express core political speech.
The strict or exacting scrutiny standard requires that a state must show the regulation in question is substantially related to a compelling government interest and is narrowly tailored to achieve that end. Burson v. Freeman, 504 U.S. 191, 198 (1992). Under this standard, the Secretary of State asserts that the registration requirement is necessary because it serves two compelling state interests: (1) it prevents signature fraud by assuring the validity of the signatures of registered voters on the petitions and allowing election officials to track down petition circulators who have committed fraud; and (2) it maintains the integrity of the initiative process by “assur[ing] that the people participating in the process are indeed Nebraskans.”
Secretary of State Moore testified that the voter-registration requirement serves the compelling state interest of preventing signature fraud in two ways. First, it requires circulators to “establish residency in Nebraska, be aware of Nebraska laws and have concern about Nebraska laws.” Second, it provides a record of those circulating petitions that cаn be used to verify signatures on the petitions. Appellees concede the State has a compelling interest in preventing fraud, but argue that the voter-registration requirement is not narrowly tailored to serve that end.
First, appellees note thаt other less restrictive provisions of Nebraska law are adequate to prevent signature fraud without imposing a voter-registration requirement. For example, Nebraska already has a signature-by-signature verification process in which the elеction commissioner compares every signature on a petition with the corresponding signature on a voter-registration card, and also compares the printed name and address to the registration records.
The Secretary of State also contends the State has a compelling interest in maintaining the integrity of the initiative process, in other words, an interest in assuring that the process is reserved “for Nebraskans, people who live in Nebraska, make their livelihood here, will continue to live here.” Bernbeck, 936 F. Supp. at 1562. Noting that the Nebraska Constitution gives the right to circulate petitions to the “people,” without any limitation on whether they are registered to vote or residents of Nebraska, the district court disagreed that the Stаte has a compelling interest in prohibiting non-registered voters from circulating petitions.
The district court noted, however, that even assuming that reserving the right to the initiative process to Nebraska residents was a compelling interest, the registration requirement for circulators was not narrowly tailored to satisfy that interest. Id. at 1562. The court stated that “the specific voter-registration requirement for circulators harms the very Nebraskans it is ostensibly designed to protect” by preventing Nebraskans from hiring non-registered voters, regardless of their residence, to circulate their petitions. Id. at 1563 (emphasis in original). Finally, the district court noted that in no other situation does Nebraska law prohibit or restrict Nebraskans who advocate or oppose electoral measures from hiring or recruiting non-rеgistered voters to champion their cause, including hiring non-registered lobbyists, non-registered campaign workers or campaign managers, or non-registered persons to run a telephone bank opposing various initiatives. Id. We agree with the district court that even if the interests advanced by the State to support the registration requirement are compelling, the law is not narrowly tailored to achieve those interests.
Our decision comports with the Tenth Circuit‘s recent decision in American Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), where the court applied strict scrutiny to a Colorado law requiring petition circulators to be registered voters,
In summary, we agree with the district court that the law requiring petition circulators to be registered voters in Nebraska violates the First Amendment because it restricts core political sрeech and the statutory requirement is not the least restrictive means available for satisfying Nebraska‘s interests in preventing signature fraud and maintaining the integrity of its initiative process. We have considered other issues raised by the appellant and find them to be without merit. Accordingly, the judgment of the district court is affirmed.
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CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.