Prete v. BradburyPrete v. Bradbury
David E. Leith, Office of the Oregon Attorney General, Salem, OR, for the appellees.
Margaret S. Olney, Portland, OR, for the intervenor-appellees.
Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding, D.C. No. CV-03-06357-ALA.
Before RAYMOND C. FISHER, RONALD M. GOULD, and CARLOS T. BEA, Circuit Judges.
BEA, Circuit Judge.
We are called upon to decide whether Oregon Ballot Measure 26‘s prohibition of payment to electoral petition signature gatherers on a piece-work or per signature basis unconstitutionally burdens core political speech. Because the district court did not clearly err in determining that the plaintiffs failed to establish that the challenged measure significantly burdens speech, we cannot hold the Measure imposes a severe burden under the First Amendment. Therefore, because the defendant has established an important regulatory interest in support of the Measure, the plaintiffs have failed to prove that the prohibition violates the First Amendment.
I.
To protect the integrity of initiative and referendum petitions, the People of Oregon add the following provisions to the Constitution of the State of Oregon: It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition. Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained.
Barbara and Eugene Prete and Jason Williams (collectively “plaintiffs“), as chief petitioners,2 later coordinated signature gathering to place various initiative measures on the February and November 2004 general election ballots. Oregon‘s Elections Division office sent inquiry letters to plaintiffs in November 2003, advising plaintiffs that the Elections Division had received complaints alleging plaintiffs had paid signature gatherers on the basis of the number of signatures collected, in violation of Measure 26. The inquiry letters requested additional information from plaintiffs.3
Plaintiffs responded by bringing an action in federal district court against defendant, alleging Measure 26 violated the First Amendment. Plaintiffs sought declaratory and injunctive relief. Six days later, Tim Nesbitt and the Oregon AFL-CIO (collectively “intervenor-defendants“) brought a motion to intervene as of right under
Plaintiffs then brought a motion for a preliminary injunction to enjoin defendant from enforcing Measure 26. After oral argument on the motion, the parties stipulated no further discovery was needed and the court could issue a final ruling on the merits pursuant to
In its amended opinion and order, the district court found Measure 26 was targeted at electoral processes rather than at the communicative aspect of petition circulation. The court reasoned Measure 26 prohibited only one method of payment for petition circulators, “a matter entirely between the circulator, his or her employer, and the chief petitioner.” Next, the court found Measure 26 imposed no severe or substantial burdens on the circulation of initiative or referendum petitions, and defendant‘s interest in protecting the integrity of the initiative process justified the lesser burdens imposed by the measure. The court, therefore, denied plaintiffs’ motion for a preliminary injunction and entered judgment in favor of defendant and intervenor-defendants. Plaintiffs timely appealed.
On appeal, plaintiffs assert (1) the district court erred in granting intervenor-defendants’ motion to intervene as of right, and (2) Measure 26 violates the First Amendment of the United States Constitution. We have jurisdiction under
This court reviews de novo a district court‘s ruling on a motion to intervene as of right pursuant to
Under
A. Timeliness, “Significant Protectable Interest,” and Impairment
Here, plaintiffs wisely concede the intervenor-defendants’ application was timely and the intervenor-defendants have a “significant protectable interest” relating to the subject of this action. First, intervenor-defendants brought the motion to intervene only six days after plaintiffs brought the action. Second, for purposes of intervention as of right, a public interest group that has supported a measure (such as an initiative) has a “significant protectable interest” in defending the legality of the measure. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir.1983). Third, an adverse court decision on such a measure may, as a practical matter, impair the interest held by the public interest group. Id.
In Sagebrush Rebellion, this court held that a public interest group may have a protectable interest in defending the legality of a measure it had supported. Id. at 527. There, a public interest group which had supported the creation of a conservation area in Idaho sought to intervene on behalf of the government in an action challenging the federal statute that created that conservation area. Id. at 526. The district court denied the motion to intervene. This court reversed, holding the group had a protectable interest in defending the creation of the conservation area. We stated in broad language that “a public interest group [is] entitled as a matter of right to intervene in an action challenging the legality of a measure which it had supported.” Id. at 527. Further, an adverse decision against the conservation area “would impair the society‘s interest in the preservation of birds and their habitats,” an interest the conservation area was designed to protect. Id. at 528. This court also held the government‘s representation of the group‘s interest “may be inadequate” (for reasons discussed infra); thus, this court reversed and remanded to the district court for it to grant the motion to intervene. Id. at 529.
Here, Nesbitt was chief petitioner for the measure, and the Oregon AFL-CIO was a main supporter of the measure. Under the rule from Sagebrush Rebellion, intervenor-defendants thus have a “significant protectable interest” related to this action, and an adverse judgment might impede or impair that interest.
Plaintiffs contend, however, that Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (hereinafter ”AOE“), controls here and bars initiative sponsors from intervening in judicial challenges to the initiative. Plaintiffs misread AOE. There, the plaintiff (Yniguez), a state employee, brought an action against the State of Arizona alleging the adoption of an initiative which declared English “the official language of [Arizona]” violated the First Amendment. Id. at 49, 117 S.Ct. 1055. Yniguez complained she often spoke Spanish with Spanish-speaking persons as part of her state job, and the initiative‘s mandate for state employees to “act in English” could expose her to sanctions. Id. at 50, 117 S.Ct. 1055. After a bench trial, the district ruled the initiative was unconstitutional as overbroad. Id. at 54, 117 S.Ct. 1055. The Arizonans for Official English Committee (“AOE“)—which was the principal sponsor of the initiative—then brought a motion to intervene, seeking to defend the constitutionality of the initiative on appeal. Id. at 56, 117 S.Ct. 1055. The district court denied the motion. Yniguez then resigned from her employment with the state. AOE appealed nonetheless, and this court determined AOE had Article III standing to pursue the appeal in defense of the initiative, and the action was not moot because of Yniguez‘s resignation. Id. at 58-60, 117 S.Ct. 1055. The U.S. Supreme Court reversed. The Court observed that AOE was not an elected representative, nor did any Arizona state law appoint initiative sponsors as agents “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Id. at 65, 117 S.Ct. 1055. On that basis, the Court stated: “We thus have grave doubts whether AOE . . . ha[s] standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve the issue. Rather, we will follow a path we have taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue.” Id. at 66, 117 S.Ct. 1055. The Court concluded Yniguez‘s resignation after the district court‘s judgment but before appeal mooted the case, and the Court then vacated the decision of the district court and the court of appeals. Id. at 72, 75, 117 S.Ct. 1055.
B. Adequacy of Representation
A closer issue is presented whether intervenor-defendants established that “the existing parties may not adequately represent the applicant‘s interest.” See Alisal Water Corp., 370 F.3d at 919. Plaintiffs contend that because defendant is defending the constitutionality of Measure 26, intervenor-defendants’ interest in defending the constitutionality of Measure 26 is adequately represented. The district court disagreed, concluding defendant might not adequately represent intervenor-defendants’ interests because intervenor-defendants “claim an interest in preventing the gathering and eventual counting of invalid signatures for initiatives opposing union interests,” and thus defendant possibly could make different arguments than intervenor-defendants.
In assessing whether a present party will adequately represent an intervenor-applicant‘s interests, we “consider several factors, including whether [a present party] will undoubtedly make all of the intervenor‘s arguments, whether [a present party] is capable of and willing to make such arguments, and whether the intervenor offers a necessary element to the proceedings that would be neglected.” Sagebrush Rebellion, 713 F.2d at 528. The burden of showing inadequacy of representation is minimal and “is satisfied if the applicant shows that representation of its interests `may be’ inadequate. . . .” Id. (internal citations omitted).
Although the burden of establishing inadequacy of representation may be minimal, the requirement is not without teeth:
The most important factor in determining the adequacy of representation is how the interest compares with the interests of existing parties. When an applicant for intervention and an existing party have the same ultimate objective, a presumption of adequacy of representation arises. If the applicant‘s interest is identical to that of one of the present parties, a compelling showing should be required to demonstrate inadequate representation.
Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.2003) (internal citations omitted). Additionally, “[t]here is also an assumption of adequacy when the government is acting on behalf of a constituency that it represents. In the absence of a very compelling showing to the contrary, it will be presumed that a state adequately represents its citizens when the applicant shares the same interest.” Id. (internal citations and quotation marks omitted).
In Sagebrush Rebellion, discussed supra, we held the public interest group seeking to intervene as of right established that the defendant (the Secretary of the Interior) might not adequately represent the group‘s interest. 713 F.2d at 528. We reasoned that the Secretary of the Interior, James Watt, had previously been head of the foundation which was representing the plaintiff in the present action. Thus, the public interest group—intervening on the defendant‘s side—might bring a perspective materially different from that of the present parties and was entitled to intervene. Id.
Here, the ultimate objective for both defendant and intervenor-defendants is upholding the validity of Measure 26. Thus, a presumption arises that defendant is adequately representing intervenor-defendants’ interests. See id. at 1305. Second, defendant is the Oregon government, and intervenor-defendants (the Oregon AFL-CIO and its president) share the same interest with defendant, i.e., defending Measure 26. Therefore, it is assumed that defendant is adequately representing intervenor-defendants’ interests. Arakaki, 324 F.3d at 1086. While it is unclear whether this “assumption” rises to the level of a second presumption, or rather is a circumstance that strengthens the first presumption, it is clear that “[i]n the absence of a `very compelling showing to the contrary,’ it will be presumed that” the Oregon government adequately represents the interests of the intervenor-defendants. See id.
Intervenor-defendants fail to present that compelling showing of inadequate representation. In their motion to intervene, intervenor-defendants stated first that defendant may not be able to provide a complete defense of Measure 26 due to “budget constraints.” Virtually all governments face budget constraints generally, and if such a basis were sufficient to establish inadequate representation, it would eliminate the presumption of adequate representation when the government and the intervenor-applicant share the same interest. Most importantly, there is no evidence in the record that defendant is unable to mount an effective defense of Measure 26 due to alleged “budget constraints.” See League of United Latin Am. Citizens, 131 F.3d at 1307 (citing Moosehead San. Dist. v. S.G. Phillips Corp., 610 F.2d 49, 54 (1st Cir.1979) (holding “a petitioner must produce something more than speculation to the purported inadequacy in order to justify intervention as of right“)).10
Second, intervenor-defendants assert defendant “may be inclined [to] give an unnecessarily narrow construction of Measure 26 in the face of legal attacks on the measure.” Yet neither plaintiffs nor defendant have argued for a narrowing construction of Measure 26, and Measure 26 does not seem susceptible to any narrowing construction.11 Thus, intervenor-defendants have failed to present evidence sufficient to meet their burden of a “compelling showing” on this score as well.
Yet defendant, as Oregon‘s Secretary of State, is undoubtedly familiar with the initiative process and the requisite signature-gathering; indeed, defendant is the government party responsible for counting the signatures.12 Defendant also administers Oregon‘s election processes and promulgates regulations to give effect to the state‘s election statutes. See
Accordingly, while we emphasize that the burden of showing inadequacy of representation is generally minimal, here intervenor-defendants failed to present evidence sufficient to support a finding that their interests are not adequately represented by the defendant in this action. We hold, therefore, that the district court erred in granting the motion to intervene as of right.
C. Remedy
The remedy for an improper grant of intervention has not been clearly established. It is more common for appellate courts to consider the denial of a motion to intervene,14 and the few cases reversing the grant of a motion to intervene are distinguishable because here the district court did not enter separate judgments for the defendant and the intervenor-defendants as in the cited cases, but entered a single judgment in favor of both defendant and intervenor-defendants: that Measure 26 does not violate the First Amendment.15
Here, the district court erred in granting intervention as of right and thereby allowing intervenor-defendants to present evidence and argument. Under
Here, the district court‘s error in granting the motion to intervene did not affect the substantial rights of the parties. In its amended opinion and order, the district court discussed only one piece of evidence submitted by intervenor-defendant: an affidavit submitted by Ted Blaszak of Democracy Resources of Oregon, Inc., a signature-gathering firm. Blaszak averred that the requirement to pay petition circulators by the hour rather than by the signature did not significantly increase his costs or decrease productivity. Although helpful to defendant‘s case, the evidence was not crucial. As noted infra in footnote 21, consideration of that affidavit does not make it more probable than not that the district court‘s error tainted the judgment.18
Accordingly, the district court erred in granting intervenor-defendants’ motion to intervene as of right, but the error was harmless and, therefore, does not require vacating the judgment of the district court.
III.
In reviewing a district court‘s final judgment after consolidation of its preliminary injunction ruling with its decision on the merits pursuant to
The First Amendment, incorporated and made applicable to the states by the Fourteenth Amendment, prohibits state governments from enacting a “law . . . abridging the freedom of speech.” McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 336 & n. 1, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). As discussed infra, the circulation of initiative and referendum petitions involves “core political speech,” and is, therefore, protected by the First Amendment. See Meyer v. Grant, 486 U.S. 414, 421-22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988).
The First Amendment does not, however, prohibit all restrictions upon election processes: “States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election— and campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). Indeed, the U.S. Supreme Court has recognized “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.” Buckley, 525 U.S. at 191, 119 S.Ct. 636 (1999).
weigh the character and magnitude of the burden the State‘s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State‘s concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State‘s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.
Arizona Right to Life Political Action Comm., 320 F.3d at 1007-08 (quoting Timmons, 520 U.S. at 358, 117 S.Ct. 1364) (emphases added and internal quotation marks omitted). The U.S. Supreme Court has counseled against establishing any bright-line rule in this field: “no litmus-paper test will separate valid ballot-access provisions from invalid interactive speech restrictions; we have come upon no substitute for the hard judgments that must be made.” Buckley, 525 U.S. at 192, 119 S.Ct. 636 (internal quotation marks omitted).
In Meyer v. Grant, the Supreme Court recognized the expressive nature of petition circulation and held the wholesale prohibition of paid petition circulators imposed an impermissible burden on free speech under the First Amendment. 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425. In Meyer, the plaintiffs challenged an amendment to the Colorado constitution which made it a felony to pay money or anything of value to petition circulators who circulated initiative or referendum petitions. Id. at 415, 108 S.Ct. 1886. After a bench trial, the district court upheld the statute, but the court of appeals reversed. Id. at 418-420, 108 S.Ct. 1886. The U.S. Supreme Court affirmed, explaining:
The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as “core political speech.”
Id. at 421-22, 108 S.Ct. 1886.
The Court recognized that a wholesale prohibition of paid petition circulators limited such “core political speech” in two ways: (1) “it limits the number of voices who will convey [plaintiffs‘] message and the hours they can speak and, therefore, limits the size of the audience they can reach“; and (2) “it makes it less likely that [plaintiffs] 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 423-424, 108 S.Ct. 1886. The Court rejected Colorado‘s argument that the prohibition was justified by the state‘s interest in protecting the integrity of the initiative process, reasoning that Colorado presented no evidence that paid petition circulators are more likely to accept fraudulent signatures over those of a volunteer, and that other Colorado statutes prohibited accepting forged or fraudulent signatures. Id. at 426-27, 108 S.Ct. 1886. The Court thus concluded the prohibition “imposes a burden on political expression that the State has failed to justify,” and hence the prohibition violated the First Amendment. Id. at 428, 108 S.Ct. 1886.
Similarly, in Buckley the Supreme Court struck down a Colorado statute which required: (1) petition circulators be registered voters in Colorado; (2) petition circulators wear an identification badge bearing the circulator‘s name; and (3) initiative proponents publicly disclose the names and amounts paid to all paid circulators. 525 U.S. at 186, 119 S.Ct. 636. First, the Court observed the registered voter requirement “decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment to circulators. Both provisions limit the number of voices who will convey the initiative proponents’ message and, consequently, cut down the size of the audience proponents can reach.” Id. at 194-95, 119 S.Ct. 636 (internal quotation marks and alterations omitted). The Court rejected Colorado‘s assertion that the registered voter requirement was not a severe burden because it was not difficult to register to vote; although failure to register sometimes results from ignorance or apathy, the decision not to register can also implicate “political thought and expression.” Id. at 195-96, 119 S.Ct. 636. The Court also struck down the name badge requirement and the disclosure provisions, explaining that both provisions forced circulators to surrender the anonymity enjoyed by their volunteer counterparts and had only a tenuous relationship to Colorado‘s interest in ensuring the integrity of the initiative process. Id. at 198-204, 119 S.Ct. 636.
Unlike Buckley, where the pool was limited to state residents registered to vote, here, anyone may serve as a petition circulator, regardless of residence or registration. Therefore, we find the Eight Circuit‘s analysis of a North Dakota state law more analogous to Measure 26, and thus more persuasive. In Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir.2001), the Eighth Circuit distinguished North Dakota‘s prohibition on paying initiative-petition circulators “on a basis related to the number of signatures obtained” (i.e., the same type of restriction at issue here) from the complete prohibition on paid petition circulators in Meyer. In Jaeger, the court noted that the state had an “important interest in preventing signature fraud” in the initiative process, and that the state had supported that interest with evidence that paying petition circulators per signature encouraged such fraud. Id. at 618. Further, the plaintiffs had “produced no evidence that payment by the hour, rather than on commission, would in any way burden their ability to collect signatures. The [plaintiffs] have only offered bare assertions on this point.” Id. Thus, because the state asserted an important interest in preventing signature fraud, supported that interest with evidence that signature fraud was actually a problem in North Dakota, and the plaintiffs failed to present evidence the restriction would otherwise burden their ability to collect signatures, the court upheld the ban on paying petition circulators on the basis of the number of signatures collected. Id. For reasons discussed further below, our case is more properly analyzed under the framework applied in Jaeger than under Meyer or Buckley.
A. “Severe” or “Lesser” Burden
Plaintiffs contend Measure 26 imposes a severe burden on the circulation of initiative petitions because the measure makes paid signature gathering prohibitively expensive, inefficient, and results in a higher rate of invalid signatures. Plaintiffs thus contend that strict scrutiny should apply and Measure 26 is not narrowly tailored to serve a compelling governmental interest. The district court rejected this argument, finding plaintiffs did not prove that Measure 26 imposed severe burdens on the circulation of initiative petitions, and any lesser burdens imposed by Measure 26 were reasonably related to and justified by the state‘s interest in preventing fraud in the initiative process.
In reaching that conclusion, the district court assessed plaintiffs’ claims that: (1) Measure 26 eliminates an avenue of signature-gathering and decreases the available pool of petition circulators; (2) Measure 26 increases the costs of gathering signatures, making it more difficult to circulate petitions and qualify initiative or referendum measures for the ballot; and (3) Measure 26 resulted in a significant decrease in the number of valid signatures collected by signature gatherers. Because these are claims of historical fact, we review the district court‘s findings regarding these claims for clear error. See Planned Parenthood, 290 F.3d at 1070. Because the district court did not clearly err in rejecting each of these claims, we affirm the district court‘s holding that Measure 26 imposes only a lesser burden on the circulation of initiative petitions.
1. The Effect Of Measure 26 On The Pool of Petition Circulators in Oregon
Plaintiffs presented affidavits from William Arno of Arno Political Consultants (“APC“), a California petition circulation firm, and Tracy Taylor of Taylor Petition Management, LLC, a Washington state petition circulation firm (under contract with APC). Arno averred Measure 26 “make[s] it less likely that companies such as APC will continue to do business in Oregon” and stated he had “personal knowledge that at least three of [his] chief competitors will not do business in Oregon” because of Measure 26. Yet Arno later testified that his “personal knowledge” of those companies came only from Taylor.
The district court rejected Arno and Taylor‘s averments of circulators leaving or refusing to work in Oregon as “unsupported speculation” because Arno received his information from Taylor, Taylor only repeated the basic claim that paid circulators would not work in Oregon because of Measure 26, and several factors other than Measure 26 could explain the alleged reluctance of petition circulators to work in Oregon. The district court‘s factual conclusion is supported by the record and is not clearly erroneous.
Plaintiffs also presented affidavits from David Rubin of Universal Petitions, a southern California petition circulating firm; Lura Lucille Cordes, who employs initiative-petition circulators to gather signatures in California; and Angelo Paparella of Progressive Campaigns, Inc., a national signature gathering firm. Rubin averred that because—in his opinion—payment by signature is more efficient than payment by the hour, and Measure 26 would thus make signature gathering more difficult in Oregon, he is “sure I would never be asked to go to Oregon to coordinate a petition drive with Measure 26 restrictions in effect.” Similarly, Cordes stated because of the burdens imposed by Measure 26, she would “not come to Oregon to circulate petitions/gather signatures.” Paparella also stated that because of Measure 26, his company “will not circulate petitions in Oregon because the cost of hiring and maintaining a workforce of hourly wage workers is very, very high when compared to using petition circulators who are independent contractors.” Yet none of these affiants stated they had ever circulated petitions in Oregon or would do so in the absence of Measure 26. Further, Paparella‘s averment suggests he would not come to Oregon because he would have to treat petition circulators as employees rather than as independent contractors, which is the law in Oregon notwithstanding Measure 26. Therefore, the district court‘s conclusion that plaintiffs did not prove Measure 26 “caused a reduction in the number of available circulators or otherwise limit[ed] the size of plaintiff‘s audience” is supported by the record and is not clearly erroneous.
2. The Effect Of Measure 26 On The Cost of Signature Gathering in Oregon
Arno averred that Measure 26 would increase the cost of signature collection by 35-45 percent. Taylor similarly averred Measure 26 would increase the cost of gathering signatures in Oregon. Yet both Arno and Taylor based their predictions on the misapprehended fact that Measure 26 converted circulators from independent contractors into employees, resulting in increased payroll costs. As noted above, Oregon law recognizes petition circulators as employees, rather than independent contractors, notwithstanding Measure 26.
Further, Arno and Taylor had little, if any, experience in initiative-petition circulation in Oregon before Measure 26 was passed. Arno testified he had worked on one initiative campaign in Oregon “around 1992,” but that campaign “ended up folding prior to turning in signatures.” Arno had not worked on any other initiative campaigns in Oregon. Similarly, Taylor testified that apart from an unrelated petition (Referendum Petition 401 placed on the November 2004 ballot), he had never worked on any initiative campaigns in Oregon before or after Measure 26 was passed. Thus, as noted by the district court, neither Arno nor Taylor could “offer a reliable comparison on the added costs, if any, imposed by Measure 26.”
Plaintiffs submitted several other affidavits which they contend support their claim that Measure 26 poses a severe burden by increasing costs. Jason Williams (one of the plaintiffs) averred he did not circulate an initiative petition “due in large part to the fact that the cost of circulating the petition, using paid signature gatherers, has increased significantly.” Yet Williams does not aver that Measure 26 is responsible for any such price increase. R. Russell Walker, chief petitioner for an unrelated initiative (initiative petition 59), averred that he did not circulate that petition “due in large part to the fact that the cost of circulating the petition, using paid signature gatherers, has increased significantly.” Similarly, he makes no averment that Measure 26 is to blame.
3. The Effect of Measure 26 On The Invalidity Rate of Signatures Gathered for Initiatives in Oregon
Arno averred he “noticed a significant decrease in the number of valid signatures collected by signature gatherers since Measure 26 became law.” Taylor similarly averred he “discovered a disproportionate number of signatures to be invalid [in Oregon], as opposed to the validity rates I am encountering in Washington and Ohio [which states do not prohibit payment by signature].” Yet Taylor does not attribute the higher invalidity rate to Measure 26 or suggest any reason for the higher invalidity rate. He stated, however, that signature gatherers paid by the hour “have more of an incentive to defraud me [compared to signature gatherers paid per signature] because they know that regardless of whether I think the signatures are valid, the signature gatherer must still be paid an hourly wage.” As the district court noted, however, both Arno and Taylor testified they had limited to no experience in initiative and referendum processes in Oregon. Thus, their assertions that paying petition circulators by the hour, instead of per signature, results in higher signature invalidity rates carry little weight.
Both Williams and Walker also averred Oregon had a higher signature invalidity rate post-Measure 26. Yet neither affiant attributed the higher invalidity rate directly to Measure 26.
In contrast, defendant submitted an affidavit from Richard J. Ellis, Ph.D., a political science professor at Willamette University in Oregon. Ellis averred that “the available evidence—though limited—suggests that circulators paid by the hour also have a higher validity rate than those paid by the signature.” For example, in Oregon‘s 2002 election year, Measure 26 (which used only circulators paid by the hour) had a signature validity rate of 73.43 percent, higher than the ten other initiative petitions submitted for that election. Ellis also states the overall signature validity rates have dropped in Oregon not because of Measure 26, but because a March 2000 directive by the Oregon Elections Division instructed county clerks (who confirm the validity of signatures on petitions) not to count initiative signatures by “inactive voters” (i.e., voters who have registered but have not voted in a certain number of past elections).
Further, Referendum Petition 401, which was qualified for the February 2004 Oregon ballot, after the passage of Measure 26, had a signature validity rate of 84.55 percent. Arno, Taylor, and Williams were involved in the circulation and gathering of signatures for Referendum Petition 401. The high validity rate of the collection of signatures for Referendum Petition 401, conducted after the adoption of Measure 26, weighs against plaintiffs’ claim. The record, therefore, supports the district court‘s conclusion that Measure 26 results in higher validity rates for signature collection, rather than lower validity rates. Therefore, the district court‘s finding is not clearly erroneous.
In sum, plaintiffs’ presentation of proof falls short here. The district court did not clearly err in finding that Measure 26 did not decrease the pool of petition circulators in Oregon; did not increase the costs of signature gathering; and did not result in a higher invalidity rate of signatures gathered for initiatives.
We next review the district court‘s determination that Measure 26 creates only a “lesser burden” on plaintiffs’ First Amendment rights. Because this question relates to a constitutional fact (i.e., what constitutes a “severe burden” or a “lesser burden“), we review the district court‘s determination de novo. See Planned Parenthood, 290 F.3d at 1070.
As noted supra, the district court did not clearly err in finding plaintiffs failed to prove Measure 26 resulted in any burden on their First Amendment rights. Unlike Meyer, plaintiffs did not prove that Measure 26 limited “the number of voices who will convey [plaintiffs‘] message and the hours they can speak“; that Measure 26 “limits the size of the audience [plaintiffs‘] can reach“; or that Measure 26 makes it “less likely that [plaintiffs] 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.” See Meyer, 486 U.S. at 423-24, 108 S.Ct. 1886. Moreover, unlike Buckley, plaintiffs did not prove that Measure 26 significantly limits the available pool of people willing to circulate petitions or constrains petition circulators’ “political thought and expression.” See Buckley, 525 U.S. at 194-96, 119 S.Ct. 636.
Of course, from an economic perspective, eliminating one method of payment (but not every method, a la Meyer) for petition circulators could result in some barriers to entry in the signature procurement market. For a task like signature gathering, it is possible that paying per signature (i.e., a commission basis) can be more productive of signatures than paying an hourly wage. Whether Measure 26 creates such barriers to entry, however, is a question of historical fact reviewed for clear error.22 Here, the district court did not clearly err in finding plaintiffs failed to prove the existence of such barriers to entry or that, if present, they diminished petition circulators’ ability to garner the requisite number of signatures to qualify initiatives for the ballot. Absent proof that such barriers to entry existed and had the claimed result, we are not left with a “definite and firm conviction that a mistake has been made” by the district court. See Sawyer v. Whitley, 505 U.S.
Moreover, even if such barriers to entry did arise, they would result in only a “lesser burden” under the First Amendment. Measure 26 is quite limited in its proscription, barring only payment of petition circulators on the basis of the number of signatures gathered. It does not prohibit adjusting salaries or paying bonuses according to validity rates or productivity, see
In the absence of proof that Measure 26 creates such barriers to entry or otherwise burdens their First Amendment rights, plaintiffs have established only that Measure 26 imposes “lesser burdens” upon the initiative process. Generally, the finding of a “lesser burden” triggers a “less exacting review” under which an “important regulatory interest[ ]” will support a finding that the measure is a “reasonable, nondiscriminatory restriction[ ].”24 See Bayless, 320 F.3d at 1007.25
B. Oregon‘s “Important Regulatory Interest”
Defendant has an important regulatory interest in preventing fraud and its appearances in its electoral processes. See Bayless, 320 F.3d at 1013; see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (“States certainly have an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes as means for electing public officials.“). Further, the record supports the conclusion that Measure 26 is aimed at combating actual instances of fraud and forgery committed by petition circulators paid on the basis of the number of signatures gathered.
First, the voter pamphlet circulated to the voters in consideration of Measure 26 supports the conclusion that Measure 26 is aimed at combating fraud in the signature gathering process. See Ecumenical Ministries v. Oregon State Lottery Comm‘n, 318 Or. 551, 871 P.2d 106, 111 n. 8 (1994) (“In considering the history of a constitutional provision adopted through the initiative process, [Oregon courts] examine[ ], as legislative facts, other sources of information that were available to the voters at the time the measure was adopted and that disclose the public‘s understanding of the measure . . . [such as] the ballot title and arguments for and against the measure included in the voters’ pamphlet. . . .“). The voter pamphlet states in support of Measure 26 that “[t]his most recent election cycle saw convictions [of paid petition circulators] on a variety of forgery, fraud, and identity theft counts, charges pending against others and allegations of dozens more.” Measure 26 would combat such fraud, the pamphlet states, by removing the “incentive for fraud out of the system” by mandating hourly pay rather than per signature.
As evidence of the actual existence of fraud and forgery in the initiative process, defendant presented an affidavit from Bill Carroll, a criminal investigator in the Oregon Department of Justice. He averred that paying petition circulators per signature leads to two types of fraud. First, the signature gatherers often forge signatures, thus receiving payment for a collected signature even though the signature is invalid. Second, the signature gatherers falsely certify the petition signature sheets,26 either for petitions submitted by themselves or for other petition circulators.
As attachments to his affidavit, Carroll supplied reports of interviews of various signature gatherers (paid per signature) who had forged signatures on their petitions; purchased signature sheets filled with signatures, then submitted them with their petitions as if they had collected the signatures themselves;27 or participated in “signature parties” in which multiple petition circulators would gather and sign each others’ petitions.28
Defendant also submitted an affidavit by John Lindback, Director of Oregon Secretary of State‘s Elections Division. He averred “the practice of paying signature gatherers by the signature is a substantial case of . . . fraud” and forgery in the initiative process.
Plaintiffs point to the Arno and Taylor affidavits, however, which aver that signature gatherers would not engage in fraud or forgery
because signature gatherers are “selling” each signature to APC, and APC won‘t “buy” a signature APC deems questionable. In that respect, signature gatherers paid by the signature police themselves because professional signature gatherers don‘t want a reputation that would cause them to not be hired by APC in the future, or not be hired by other signature gathering companies.
Although such a general proposition may be sound, it does not controvert defendant‘s evidence discussed above that some signature gatherers paid per signature have engaged in fraud and forgery, nor does it diminish defendant‘s important regulatory interest in preventing such fraud.29
Like Jaeger, defendant asserted an important regulatory interest in preventing fraud and forgery in the initiative process. Defendant supported that interest with evidence that signature gatherers paid per signature actually engage in such fraud and forgery. This court‘s duty is not to determine whether the state‘s chosen method for prevention of fraud is the best imaginable. Once the burden is found to be of the “lesser” variety, our inquiry is limited to whether the chosen method is reasonably related to the important regulatory interest. Last, as the district court correctly determined, plaintiffs did not prove Measure 26 would otherwise burden their ability to collect signatures. See Jaeger, 241 F.3d at 618.
In sum, because plaintiffs failed to prove the district court erred in determining that Measure 26 does not severely burden their First Amendment rights in circulating initiative petitions, and defendant has established that Measure 26 serves the important regulatory interest in preventing fraud and forgery in the initiative process, we hold that Measure 26 does not violate the First Amendment, as applied, and AFFIRM the judgment of the district court.
AFFIRMED.