WE THE PEOPLE PAC, et al., v. SHENNA BELLOWS, in her official capacity as the Secretary of State of Maine, et al.
1:20-cv-00489-JAW
UNITED STATES DISTRICT COURT DISTRICT OF MAINE
Filed 01/11/21
A political action committee, an out-of-state professional petition circulator, a Maine State representative, and a non-profit organization filed a complaint against the state of Maine Secretary of State, seeking declaratory and injunctive relief prohibiting on First Amendment grounds the Secretary of State from enforcing provisions of the Maine Constitution and Maine statutory law that restrict the circulation of ballot initiative petitions to petition circulators who are Maine residents and who are registered to vote in Maine. Even though the plaintiffs raised serious legal issues, because the caselaw in this area is nuanced, because the plaintiffs failed to provide a sufficient uncontested factual record, and because the plaintiffs delayed bringing this lawsuit, they failed to sustain their burden to demonstrate that they are likely to succeed on the merits of this claim and to show entitlement to emergency and extraordinary injunctive relief. Thus, the Court dismisses without prejudice the motion for a temporary restraining order.
A. Procedural Background
On December 31, 2020, We the People PAC, State Representative Billy Bob Faulkingham, Liberty Initiative Fund, and Nicholas Kowalski (Plaintiffs) filed a complaint against Matthew Dunlap,1 in his official capacity as the Secretary of State of Maine, and Julie Flynn, in her official capacity as the Deputy Secretary of State of Maine for the Bureau of Corporations, Elections and Commissions (Defendants), seeking declaratory and injunctive relief prohibiting the Secretary of State from enforcing certain Maine State laws that regulate the circulation of ballot initiative petitions. Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl.). That same day, the Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction (TRO), prohibiting enforcement of laws that require petition circulators to be Maine residents and be registered to vote in Maine. Pls.’ Mot. for Emergency TRO and/or Prelim. Inj. (ECF No. 3); id., Attach. 1, Pls.’ Mem. of Law in Supp. of Their Mot. for TRO and/or Prelim. Inj. (Pls.’ Mem.). On January 6, 2021, the Court held a telephone conference of counsel with counsel for the Plaintiffs and the Defendants, at which the Court set deadlines for the Defendants to respond to the Plaintiffs’ motion by the end of the day on January 8, 2021. Min. Entry (ECF No.
B. Factual Background
The Court recites this factual background from the Complaint and declarations submitted by the Plaintiffs and the Defendants.
1. The Parties
We the People PAC is a political action committee registered in Maine and is currently circulating a petition for an initiative of direct legislation prohibiting anyone who is not a citizen of the United States from voting in any election held within the state of Maine. Compl. ¶ 16. Liberty Initiative Fund is a 501(c)(4) nonprofit organization actively engaged in supporting the proposed ban on non-citizen voting in Maine. Id. ¶ 18. Liberty Initiative Fund is the original proponent of the effort to institute bans on non-citizen voting through state ballot initiatives and referenda and is supporting We the People PAC‘s efforts to collect signatures for the petition. Id.
Nicholas Kowalski is a professional petition circulator who resides in the state of Michigan and would like to help circulate We the People PAC‘s petition in Maine. Compl. ¶ 19. Mr. Kowalski has circulated petitions in multiples states, including Michigan, Massachusetts, and California, and claims to have acquired unique skills, allowing him to “quickly screen-out unqualified signers, articulately communicate the substance of the petition and efficiently direct the potential signer on the correct method to properly sign the petition so that the signature will be counted as a valid signature.” Pls.’ Mot., Attach. 3, First Decl. of Nicholas Kowalski at ¶¶ 3, 5 (Kowalski Decl.).
The Maine Secretary of State is vested with authority to enforce the statutory provisions challenged in this action. Compl. ¶ 20; Defs.’ Opp‘n, Attach. 1, Decl. of Julie Flynn in Supp. of Defs.’ Opp‘n to Pls.’ Mot. for TRO (pursuant to
2. The People‘s Veto and Direct Initiative Process in Maine
a. The Maine Constitution
The Maine Constitution “establishes three separate branches of government“: “the legislative, executive and judicial.” Avangrid Networks, Inc. v. Sec‘y of State, 2020 ME 109, ¶ 24, 237 A.3d 882, 891 (quoting
The Maine Constitution contains two provisions that limit the Maine Legislature‘s authority to legislate. See McGee v. Sec‘y of State, 2006 ME 50, ¶ 20, 896 A.2d 933, 940; Farris ex rel. Dorsky v. Goss, 143 Me. 227, 231, 60 A.2d 908, 910 (“The right of the people, as provided by Article XXXI of the constitution, to enact legislation and approve or disapprove legislations enacted by the legislature is an absolute one and cannot be abridged directly or indirectly by any action of the legislature“). The first is the so-called “people‘s veto“,
To exercise the people‘s veto or direct initiative powers, a Maine citizen must file a valid petition with a sufficient number of signatures with the Secretary of State. Under the Maine Constitution, the number of signatures shall not be less than 10% of the total vote for Governor cast in the last gubernatorial election.
b. Maine Statutory Law
In addition to these constitutional provisions, the Maine Legislature has enacted statutes regulating this petition procedure. See
Once a petition is submitted to the Secretary of State‘s office, the Secretary of State has thirty days to review and determine the validity of each citizen initiative or people‘s veto referendum petition.
3. We the People PAC‘s Petition
The Plaintiffs seek to exercise their direct initiative power by sponsoring and circulating a petition to propose to the Maine Legislature for its consideration their proposed ban on all non-citizen voting in the state of Maine, and if not adopted verbatim by the Legislature, place the question on the next general election ballot as a direct initiative question to be decided by Maine voters. Compl. ¶ 30. Representative Faulkingham believes that “[l]ocal jurisdictions across the country have opened up their electoral process to illegal aliens, permitting them to cast ballots in local elections” and “We The People PAC‘s referendum seeks to prevent that trend from making its way to the State of Maine.” Faulkingham Decl. ¶ 5. The Secretary of State approved the Plaintiffs’ form of a citizen initiative petition entitled “An Act to Clarify the Eligibility of Voters” on August 26, 2019, in accordance with
To force their initiative to be adopted by the Maine Legislature or placed on the general election ballot, the Plaintiffs must collect and file 63,067 signatures on their petition. Id. ¶ 6. They must do so by February 26, 2021. Id. To meet this deadline, the Plaintiffs hope to hire Mr. Kowalski and other out-of-state professional petition circulators. Compl. ¶¶ 33-34. The Plaintiffs also wish to hire and recruit
II. THE PARTIES’ POSITIONS
A. The Plaintiffs’ Motion for TRO
The Plaintiffs bring a motion for TRO, requesting emergency, preliminary and permanent injunctive relief prohibiting the Defendants from enforcing: (1)
1. Likelihood of Success on the Merits
The Plaintiffs split the evaluation of their likelihood of success on the merits into two sections, dealing first with the voter registration requirement and second the residency requirement. Id. at 8.
The Plaintiffs contend that their challenge to the voter registration requirement is “directly controlled by the United States Supreme Court decision in Buckley which held voter registration requirements for petition circulators [were] unconstitutional under the First and Fourteenth Amendments to the United States Constitution.” Id. The Plaintiffs outline two Supreme Court decisions—Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). The Plaintiffs state that the Supreme Court in Meyer reasoned that circulation of a ballot access petition is “core political speech” meriting the highest protections under the First Amendment such that any restriction which decreased the pool of available circulators was subject to strict scrutiny analysis.” Id. at 8-9 (citing Meyer, 486 U.S. at 420-24).
Turning to Buckley, the Plaintiffs state that the Supreme Court held unconstitutional a Colorado law requiring circulators to be registered voters because “the requirement reduced the number of persons available to carry the message advanced by the petition sponsors and reduced the number of hours that could be worked and limited the number of persons the circulators could reach without impelling cause.” Id. at 9-10 (citing Buckley, 525 U.S. at 193-97). The Plaintiffs compare their case to Buckley and argue “[t]he instant action is a near replicant of the Colorado litigation resolved by the Tenth Circuit and the United States Supreme Court striking down the voter registration requirement for petition circulators.” Id. at 10. They contend that in Maine, “well over 146,000 voter eligible citizens are not
The Plaintiffs further argue that “Maine[] could easily require circulators provide their current address, as is required in Colorado, as a more narrow means recognized by the United States Supreme Court, to protect the state‘s legitimate interest in serving process for any post-filing investigation.” Id. The Plaintiffs claim such an address attestation would “provide a more immediate ‘currency’ than a potentially stale voter registration record.” Id. Therefore, the Plaintiffs contend the voter registration requirement “imposes a severe burden on the exercise of core political speech subject to strict scrutiny analysis,” and because the state of Maine “can more narrowly advance its interest by requiring circulators to provide their current address to Defendants,” the voter registration requirement is “facially unconstitutional.” Id.
b. Residency Requirement
The Plaintiffs also argue that they are likely to succeed on the merits of their challenge to the residency requirement because “state residency requirements for petition circulators have been held unconstitutional by every Court of Appeals to consider the issue where out-of-state petition circulators can be required to submit to
The Plaintiffs next review federal courts that have weighed in on the issue of residency requirements. The Plaintiffs claim they find strong support in Libertarian Party of Virginia v. Judd, 718 F.3d 308 (4th Cir. 2013), as well as various district court decisions in Pennsylvania and Connecticut. Id. at 12-15. The Plaintiffs also cite appellate decisions from the Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuits. Id. at 15-16.
The Plaintiffs argue that Mr. Kowalski is willing to submit to the jurisdiction of Maine to circulate petitions, which “provides a greater ability to locate the nonresident circulator over a resident circulator.” Id. at 16-17. Furthermore, the Plaintiffs argue that “there is currently no recorded instant where a nonresident circulator, having submitted to the jurisdiction of a state, has failed to comply with a subpoena issued by a state in which the nonresident circulator filed petitions.” Id. at 17. According to the Plaintiffs, this should not be surprising, as out-of-state professional circulators like Mr. Kowalski have incentive to maintain their reputations and, like Mr. Kowalski, their payment is contingent on attaining a certain high percentage rate of valid signatures. Id. The Plaintiffs say that this
2. Irreparable Harm
The Plaintiffs argue that “[t]he loss of First Amendment rights, for even minimal periods of time, unquestionably constitutes irreparable injury” and “in the context of an alleged violation of First Amendment rights, a plaintiffs’ claimed irreparable harm is ‘inseparably linked’ to the likelihood of success on the merits of Plaintiffs’ First Amendment claims.” Id. at 18 (quoting Elrod v. Burns, 427 U.S. 347, 353 (1976); Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Plaintiffs claim that, absent a TRO, they will be unable to hire Mr. Kowalski, will be “deprived of the benefits of contracting for the services of other out-of-state professional circulators,” and “deprived of even in-state nonresidents who are registered in other state[s], such as college students.” Id. at 18-19. Furthermore, “the requested relief will not impact any deadlines associated with the current Referendum calendar.” Id. at 19. In sum, the Plaintiffs argue that “absent the requested emergency relief, it is less likely that Plaintiffs will be able to collect the required number of valid signatures needed to place their agenda on the Maine ballot for wider political debate.” Id.
The Plaintiffs claim that they will suffer irreparable harm if the Defendants are allowed to continue enforcing the voter registration and residency requirements, but the Defendants “will suffer no harm if the requested relief is granted.” Id. The Plaintiffs note that even if the laws are found unconstitutional, they will still need to gather the requisite number of signatures and the Defendants “will secure more information about Referendum and People‘s Veto petition circulators Defendants can use to execute any subpoena.” Id. In fact, the Plaintiffs claim their requested relief will actually “strengthen Defendants’ ability to enforce Maine election law while expanding the total quantum of protected speech.” Id. at 19-20.
4. Public Interest
Lastly, the Plaintiffs argue that “[t]he public interest is served by Defendants conducting the Referendum and People‘s Veto petition process within the boundary lines of the federal constitution.” Id. at 20. In support, the Plaintiffs quote a district court case that states, “[t]hough the public has a strong interest in the efficient regulation and processing of referendum petitioners, the public also has a strong interest in ensuring that referendum petitioners are not confronted with unconstitutional barriers, thereby impacting their speech . . .” Id. (quoting OpenPittsburgh.org v. Wolosik, No. 2:16-cv-1075, 2016 WL 7985286, at *4 (W.D. Pa. Aug. 9, 2016)).
The Defendants oppose the Plaintiffs’ motion for TRO, relying on the Maine Law Court‘s and this Court‘s previous consideration of the constitutionality of Maine‘s voter registration and residency requirements “in the context of Maine‘s unique circumstances and experience.” Defs.’ Opp‘n at 1. Before undertaking their constitutional analysis, the Defendants note the Plaintiffs waited “sixteen months after launching their petition drive” with no mention “of how they have proceeded thus far or how Maine‘s requirements threaten their ability to obtain sufficient signatures in the time remaining.” Id. at 1. “Given the striking lack of evidence to support the issuance of such relief, and the tardiness of Plaintiffs’ legal action, this Court should deny Plaintiffs’ Motion.” Id. at 2.
1. Likelihood of Success on the Merits
a. Legal Framework
The Defendants first lay out the legal framework for its constitutional analysis, arguing that “[t]he regulation of core political speech . . . does not automatically trigger strict scrutiny.” Id. at 3. Instead, they say, the Court should “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the [P]laintiff[s] seek[] to vindicate;” “identify and evaluate the precise interest put forward by the State as justifications;” and consider “the legitimacy and strength of each of those interests” and “the extent to which those interests make it necessary to burden the [P]laintiff[s‘] rights.” Id. at 4 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
The Defendants look next to the burden imposed by the Maine laws, calling it a “fact-intensive” decision. Id. at 5 (quoting Jones v. Sec‘y of State, 2020 ME 113, ¶ 27, 238 A.3d 982, 991). The Defendants claim that the Plaintiffs failed to demonstrate that the residency requirement imposes a severe burden because “the evidence here does not establish that the residency requirement has been, or will be, a significant obstacle to Plaintiffs gathering the requisite 63,067 signatures within the constitutionally prescribed 18-month timeframe, particularly given Maine‘s long history of successful petition drives meeting these requirements.” Id. at 5-6 (internal citations omitted). The Defendants point to additional missing evidence that they maintain the Plaintiffs failed to provide. Id. at 6.
Second, the Defendants argue that “the residency requirement has very little impact on speech” because “[t]he provision at issue restricts circulation of a petition to Maine residents who are registered.” Id. (emphasis in brief). While Maine law requires circulators who perform the “critical mechanical aspects of the initiative process” to be Maine residents, “neither the Constitution nor any statute prevents a nonresident from coming to Maine and engaging in core political speech in support of an initiative drive.” Id. at 6-7. The Defendants suggest other ways that out-of-staters can participate in the petition process, such as “hir[ing] and train[ing] Maine residents on how best to collect signatures; accompany[ing] circulators to help
As to the registration requirement, the Defendants contend “it is hardly any more burdensome, as it only barely reduces the pool of potential circulators.” Id. at 8. The Defendants argue the voter registration process is simple and, unlike the circumstances in Colorado that the Supreme Court considered in Buckley, “approximately 97% of eligible adults are registered to vote in Maine.” Id. (citing Flynn Decl. ¶ 8). Thus, they contend “Plaintiffs have not demonstrated—beyond speculative reference to an unidentified group of college students who are allegedly here on campuses in Maine but are registered to vote in other states—that the registration requirement itself has prevented them from hiring willing circulators; that any potential circulators are unwilling or unable to register; that they have had difficulty recruiting a sufficient number of registered voter circulators; or that the registration requirement has otherwise hindered their ability to meet the initiative deadline.” Id. Rather, the Defendants suggest that “the recent history of successful petition drives in Maine demonstrates that there are ample numbers of Maine registered voters ready, willing, and able to circulate petitions.” Id. at 8-9.
c. State‘s Interests
Regarding the residency requirement, the Defendants argue that the state of Maine has two independent interests: “(1) ensuring the initiative process is carried out legally, and (2) preserving the initiative process as a grassroots vehicle for legislative change.” Id. at 9. The Defendants contend the interest in legality is a
The Defendants also claim that the residency requirement furthers the compelling interest of “protecting the local character of the direct initiative process.” Id. The Defendants claim the requirement “ensur[es] that those involved in the direct machinery of the initiative process are individuals with a personal stake in its outcome and who are accountable to their peers, namely those whose signatures they are collecting.” Id.
Regarding the voter registration requirement, the Defendants argue that it is a “simple and, more importantly, verifiable way for the Secretary of State to determine a person‘s residency in Maine at the time of the circulation of a petition—a consideration that was not discussed in Buckley.” Id. at 10-11 (quoting Jones, 2020 ME 113, ¶ 33) (emphasis in original).
The Defendants argue that the “utter lack of evidence accompanying Plaintiffs’ motion illustrates why a TRO is not necessary to prevent irreparable harm.” Id. at 11. Specifically, they point out that there is “no evidence concerning Plaintiffs’ efforts thus far to meet the signature requirement; their attempts to recruit and use registered Maine circulators; and the degree to which their efforts would be more successful—during the five weeks that remain before the filing deadline—if circulation by nonresidents and/or unregistered Mainers were permitted.” Id. at 11-12.
3. Balance of Equities
According to the Defendants, the balance of equities favors them because the Plaintiffs obtained approval to begin circulating their petition in August 2019 and had the opportunity to circulate their petition at the polls during multiple statewide elections, but nonetheless “waited over 16 months before filing this lawsuit, forcing this Court to consider extraordinary action to address their belated grievances . . ..” Id. at 12. Accordingly, the “Plaintiffs’ lack of diligence should not be rewarded with emergency relief.” Id.
4. Public Interest
Finally, the Defendants claim that the public interest would not be served by issuance of a TRO because the public has a “strong interest in the efficient regulation and processing of referendum petition[s]” and “in protecting the integrity and grassroots nature of the direct initiative and people‘s veto power.” Id. at 13. The
C. The Plaintiffs’ Reply
In their reply, the Plaintiffs clarify that the voter registration requirement is actually more restrictive than the residency requirement because not only does it exclude unregistered Maine residents, but it excludes all out-of-state individuals because residency is a prerequisite to registering to vote. Pls.’ Reply at 1-3. The Plaintiffs put the number of United States citizens excluded by the voter registration requirement at 207,904,840. Id. at 2. The Plaintiffs distinguish the Maine cases cited by the Defendants by claiming those cases neglected to consider the broader reach of the voter registration requirement and were not presented with facts showing that out-of-state circulators were willing to submit to Maine‘s jurisdiction. Id. at 3. The Plaintiffs also ask the Court not to read too much into the Buckley Court‘s consideration of the estimated reduction of potential circulators in Colorado as a result of the voter registration requirement, and instead look to Meyer, where they say the Supreme Court struck down a law “without testimony or a record detailing the numbers of petition circulators who would not circulate unless compensated . . ..” Id. at 4. Accordingly, the Plaintiffs argue “any reduction in the pool of available circulators which makes it less likely to secure ballot access is a severe impairment to First Amendment[] guarantees.” Id. at 4-5 (emphasis in brief).
Lastly, the Plaintiffs urge the Court to “update this district‘s case law to reflect the overwhelming consensus extending the analysis of Meyer and Buckley to overturn voter registration and residency requirements for out-of-state petition circulators willing to submit to the jurisdiction of the state.” Id. They repeat their claim that “[e]very jurisdiction which now employs the requirement that out-of-state circulators submit to its jurisdiction instead of a blanket registration or residency ban have operated for up to 20 years without any problems,” and “Maine does not have the right to cordon itself off from the speech of nonresident[s].” Id. at 11.
“[Injunctive relief] is an extraordinary and drastic remedy that is never awarded as of right.” Peoples Fed. Sav. Bank v. People‘s United Bank, 672 F.3d 1, 8-9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)). A judge should use the authority to grant such injunctive relief “sparingly.” Mass. Coal. of Citizens with Disabilities v. Civil Def. Agency & Office of Emergency Preparedness, 649 F.2d 71, 76 n.7 (1st Cir. 1981); see Phillips v. Willis Re Inc., Civil No. 20-1635 (FAB), 2020 U.S. Dist. LEXIS 217027, at *7 (D.P.R. Nov. 18, 2020) (“Temporary restraining orders ‘must be used sparingly and only in cases where the need for extraordinary equitable relief is clear and plain‘“) (quoting Nw. Bypass Grp. v. U.S. Army Corps of Eng‘rs, 453 F. Supp. 2d 333, 338 (D.N.H. 2006)).
To determine whether to issue a TRO, the Court applies the same four-factor analysis used to evaluate a motion for a preliminary injunction. See Alcom, LLC v. Temple, No. 1:20-cv-00152-JAW, 2020 WL 2202443, at *5 (D. Me. May 6, 2020) (citing cases). The four factors are:
(1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court‘s ruling on the public interest.
Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 17-18 (1st Cir. 2006) (alteration in original) (quoting Bl(a)ck Tea Soc‘y v. City of Boston, 378 F.3d 8, 11 (1st Cir. 2004)).
IV. DISCUSSION
The task before the Court on this motion for a TRO is narrow: to determine whether, at this early stage, the Plaintiffs are entitled to immediate temporary injunctive relief to prevent irreparable harm and serve the public interest. The Court analyzes the four factors Plaintiffs must establish in turn.
A. Likelihood of Success on the Merits
“The sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); see also Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 7 (1st Cir. 2012) (confirming that this factor is the “most important part of the preliminary injunction assessment“) (quoting Jean v. Mass. State Police, 492 F.3d 24, 27 (1st Cir. 2007)). The Court analyzes the Plaintiffs’ challenge to the voter registration requirement and the residency requirement in turn.
a. Level of Scrutiny
To properly evaluate the constitutionality of Maine‘s voter registration requirement, the Court must first determine the proper standard of review.4 As it turns out, because this legal issue defies quick and clear resolution, its uncertainty provides one of the bases for this Court‘s denial of the motion for TRO. The Court‘s conclusions are tentative and subject to further research, but for the moment, the Court concludes that the proper standard is a balancing approach, not the strict scrutiny standard the Plaintiffs urge.
In general, there are two possible standards to examine issues of this sort, where a state has restricted core political speech: one is strict scrutiny and the other a more flexible, balancing approach. If strict scrutiny applies, the Plaintiffs will have a much easier time prevailing, but if a balancing approach applies, the Court must turn to the harder issue of how to draw lines and resolve contested facts, which makes the Plaintiffs’ case all the more difficult to prove a TRO is warranted.
The Court is not yet convinced. In Meyer, the Supreme Court concluded that “the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech‘” for which
In Buckley, the Supreme Court squarely confronted a requirement that circulators be registered voters, but the majority opinion did not explicitly state the proper level of constitutional scrutiny. However, the Buckley Court did explain that “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 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974), and citing Timmons, 520 U.S. at 359, and Anderson, 460 U.S. at 789-90).
This more flexible approach is in line with First Circuit precedent, as well as cases from this Court and the Maine Law Court. See Perez-Guzman v. Gracia, 346 F.3d 229, 239 (1st Cir. 2003) (applying the Anderson-Burdick analysis and explaining “[t]he rigorousness of the ensuing judicial inquiry depends upon the extent to which the challenged regulation burdens First Amendment rights“); Bond v. Dunlap, No. 1:20-cv-00216-NT, 2020 WL 4275035, at *7 (D. Me. July 24, 2020) (citing Libertarian Party of N.H. v. Gardner, 638 F.3d 6, 4 (1st Cir. 2011)) (stating that “courts review
b. Burden on the Plaintiffs
The Court turns to the burden of the voter registration requirement on the Plaintiffs’
The Supreme Court considered the constitutionality of voter registration requirements for petition circulators in Buckley. In Buckley, the plaintiffs challenged
Although the parties have not cited a First Circuit case directly on point, other federal courts have sought to apply the Buckley Court‘s determination. See Wilmoth v. Sec‘y of N.J., 731 F. App‘x 97, 102-03 (3d Cir. 2018) (applying Anderson-Burdick analysis and holding New Jersey voter registration law was a severe burden on plaintiffs’
Contrary to these cases, however, the Maine Law Court as recently as this past September upheld Maine‘s voter registration requirement. In Jones v. Secretary of State, 2020 ME 113, 238 A.3d 982, the Maine Secretary of State had rejected the plaintiffs’ petition after determining there were an insufficient number of valid signatures because some circulators were not registered voters. Id. ¶¶ 2-5. The plaintiffs filed a petition for review, and the Maine Superior Court vacated the Secretary of State‘s determination, concluding that Buckley rendered the registration requirement a violation of the
Using the sliding scale balancing test outlined in Burdick and Anderson, the Jones Court analyzed the
The First Circuit has not weighed in on the issue of voter registration requirements for petition circulators, but the Defendants cite a 1999 case from this Court, Initiative & Referendum Institute v. Secretary of State, No. 98-cv-104-B-C, 1999 U.S. Dist. LEXIS 22071, 1999 WL 33117172 (D. Me. Apr. 23, 1999), aff‘d (D. Me. Sept. 27, 1999), where Magistrate Judge Cohen confronted the voter registration issue on summary judgment. Magistrate Judge Cohen distinguished the plaintiffs’ case in Initiative & Referendum from Buckley, noting that in Colorado less than 65% of the voting-age population was registered to vote, while in Maine, approximately 98.8% of the voter-eligible population was registered. Id. at *15. Moreover, the plaintiffs failed to “identify the existence of any particular obstacle imposed by the voter-registration requirement, e.g., that as a direct result they were unable to hire sufficient numbers of circulators or a particular initiative campaign was hurt.” Id. Because the evidence demonstrated “at most the imposition of a slight burden, the less stringent standard of review applie[d].” Id.
The importance of a factual record is further supported by a district court case the Plaintiffs submitted to the Court in their reply, OpenPittsburgh.org v. Wolosik,
Unlike Wolosik, there has been no hearing and there are too many unresolved or contested facts. Unlike Buckley, the Plaintiffs here have put forth no evidence that individual circulators, who are unregistered voters but Maine residents, and whom they want to hire, are opposed to registering to vote. The sparse record before the Court suggests that 97% of Maine‘s voter-eligible population—all but about 32,000 eligible residents—is registered to vote, and the Defendants have outlined the easy voter registration process.6 Flynn Decl. ¶¶ 8, 14-16. The Plaintiffs state that they
“would like to hire college students who attend Maine colleges” who are unregistered but put forth no evidence of how the inability to hire these students burdens them. Faulkingham Decl. ¶ 19. This is particularly true because this is no ordinary time. The state of Maine, like the rest of the country, is experiencing a sharp spike in the number of COVID-19 cases and the Plaintiffs have not explained how they intend to contact university and college students who are at home or dorm-restricted and learning online, much less recruit them to collect signatures at a time when many people are masked and anxious to maintain a social distance.
Furthermore, the Plaintiffs claim that they “need[] to hire out-of-state professional circulators to make sure we have a larger motivated army of petition circulators on the streets collecting signatures,” but like Initiative & Referendum Institute, they have not presented sufficient evidence of particular obstacles imposed by the requirement. Faulkingham Decl. ¶ 18. The Plaintiffs specifically identify Mr. Kowalski as someone they would like to hire, but beyond stating their desire, they have put forth no evidence of how the failure to hire him burdens them.
The evidence before the Court suggests that the burden is less than severe. In the last five years, the Secretary of State received nine citizen initiatives and three people‘s veto referenda; all but one had enough valid signatures to qualify for the ballot. Flynn Decl. ¶ 10. The Plaintiffs had since August 2019 to collect the requisite
To ultimately resolve the question of burden, the parties must present the Court with an evidentiary record. See Wilmoth, 731 F. App‘x at 105 (vacating order granting motion to dismiss and remanding “to allow the parties to develop an appropriate factual record for the purposes of determining whether the New Jersey law does in fact violate [plaintiffs‘] constitutional rights“). It remains possible that on a fuller evidentiary record, the Plaintiffs can show a severe burden to their
c. The State‘s Interests
The Court next looks to see if the State has shown important interests to justify the restrictions. The State claims that “the marginal additional burden it imposes is . . . amply justified,” citing Jones. Defs.’ Opp‘n at 10-11.
In Jones, the Maine Law Court concluded that voter registration was “a simple and, more importantly, verifiable way for the Secretary of State to determine a person‘s residency in Maine at the time of circulation of a petition—a consideration that was not discussed in Buckley.” 2020 ME 113, ¶ 33 (emphasis in original). The Jones Court thus held that “[t]he 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
The Plaintiffs argue that Maine “can more narrowly advance its interest by requiring circulators to provide their current address to Defendants.” Pls.’ Mem. at 11. Indeed, in Buckley, the Supreme Court stated that “[t]he interest in reaching law violators” was better “served by the requirement upheld below, that each circulator submit an affidavit setting out, among several particulars, the ‘address at which he or she resides, including the street name and number, the city or town, [and] the county.‘” Buckley, 525 U.S. at 196.
The Plaintiffs, however, have again failed to produce any evidence that an affidavit requirement would adequately advance the State‘s interest of confirming residency. In fact, the only record evidence suggests that the Secretary of State has a narrow time period of thirty days to review and determine the validity of the petition. Flynn Decl. ¶ 11. The Maine Law Court has already held that “[t]his efficient method of confirming circulator residency is vital to the expedited review process that the Secretary of State must undertake after the petitions are submitted.” Jones, 2020 ME 113, ¶ 33. Given the State‘s strong interest in verifying the legality of submitted petitions, and in light of the less-than-severe burden on the Plaintiffs, at this stage the Court concludes that the Plaintiffs have not carried their burden of showing a likelihood of success on the merits.
a. Level of Scrutiny
As with the analysis of the voter registration requirement, the Court applies the Burdick sliding scale test, weighing “the character and magnitude of the asserted injury to the rights protected by the First and
b. Burden on the Plaintiffs
While the Supreme Court directly addressed voter registration requirements in Buckley, the Court did not reach Colorado‘s requirement that all petition circulators be residents of the state because the parties did not contest that provision. Buckley, 525 U.S. at 197. Justice Rehnquist, in dissent, specifically noted the majority‘s “sphinx-like silence” as to whether states may limit circulators to state residents. Id. at 228 (Rehnquist, J., dissenting).
In the years that have passed, however, a consensus has emerged. A majority of the federal appellate courts that have considered the question have found residency restrictions to be severe burdens and unconstitutional under a strict scrutiny review. See Wilmoth, 731 F. App‘x at 103 (applying strict scrutiny to New Jersey‘s residency
In fact, only the Eighth Circuit has found a residency requirement not to be a severe burden. See Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (holding that North Dakota‘s residency requirement was not a severe burden and upholding its constitutionality). But see Citizens in Charge v. Gale, 810 F. Supp. 2d 916, 926 (D. Neb. 2011) (reviewing Nebraska‘s residency requirement and
The Maine Law Court, however, approved Maine‘s residency requirement in Hart v. Secretary of State, 1998 ME 189, 715 A.2d 165. The Hart Court stated that “[a]lthough technically any restriction limits the ‘number of voices who will convey the [proponents‘] message,’ it does not follow that requiring circulators to be residents will limit the size of the audience the proponents can reach or will make it less likely that proponents ‘will garner the number of signatures necessary to place the matter on the ballot.‘” Id. ¶ 11 (quoting Meyer, 486 U.S. at 422-23) (alteration in original). The Hart Court distinguished its case from Meyer, explaining that “[i]n Meyer, the petitioners had only six months to gather the necessary signatures and they demonstrated a need to pay circulators in order to obtain the necessary signatures within the allotted time,” while the plaintiffs “had three years to gather the necessary signatures and failed to demonstrate any necessity for employing nonresidents in circulating the petitions.” Id. ¶ 12. See Maine Taxpayers Action Network v. Gwadosky, No. Civ.A. AP-02-005, 2002 WL 747912, at *2 n.2 (Me. Super. Ct. Mar. 19, 2002) (declining to revisit Hart in light of Buckley).
Like the voter registration requirement, the First Circuit has not addressed residency requirements, but Magistrate Judge Cohen in Initiative & Referendum Institute briefly considered the issue. The Court made quick work of the plaintiffs’ challenge, noting that they “adduce[d] no evidence that Maine‘s residency
These cases demonstrate that, like the voter registration requirement, the constitutional analysis here is fact-intensive. However, the Court has few facts before it. The Plaintiffs provided direct evidence that they have been unable to hire Mr. Kowalski because of the residency requirement but have not shown why they need to hire him. The Plaintiffs have had eighteen months to gather the requisite number of signatures and, like in Hart, have “failed to demonstrate any necessity for employing nonresidents in circulating the petitions.” Hart, 1998 ME 189, ¶ 12. In recently submitted declarations, Plaintiffs claim that prohibiting out-of-state circulators increases costs and there is a dearth of in-state circulators, but the Court concludes there are too many unresolved and contested facts to issue a TRO. See Pls.’ Reply, Attach. 1, Decl. of Paul Jacob ¶¶ 14-16; id., Attach. 2, Decl. of James J. Tracey, Jr. ¶¶ 6-7.
Ultimately the Court will require an evidentiary hearing and will need to determine the burden on a full record. Like the voter registration requirement, the Court notes the consensus that has emerged from most appellate courts that have considered residency requirements and found them unconstitutional, and it may be that the Plaintiffs are ultimately able to convince the Court to follow the majority
c. The State‘s Interests
The Court next considers whether the State has shown sufficient interests that justify the less-than-severe burden. The Defendants argue that the residency requirement serves the State‘s interests in “(1) ensuring the initiative process is carried out legally, and (2) preserving the initiative process as a grassroots vehicle for legislative change.” Defs.’ Opp‘n at 9. The Plaintiffs, on the other hand, argue that Mr. Kowalski‘s willingness to submit to the jurisdiction of Maine to circulate petitions actually “provides a greater ability to locate the nonresident circulator over a resident circulator.” Pls.’ Mem. at 16-17. Moreover, “there is currently no recorded instant where a nonresident circulator, having submitted to the jurisdiction of a state, has failed to comply with a subpoena issued by a state in which the nonresident circulator filed petitions,” which makes sense as “most (virtually all) petition circulators who travel to a state to circulate ballot access petitions are professional circulators whose reputation is contingent on their ability to produce a high number and percentage of valid signatures.” Id. at 17.
The Court‘s decision again comes down to the lack of evidence. Despite the Plaintiffs’ claims about the reliability of out-of-state circulators, they have not provided evidence to back up their claims. The Court is persuaded by the Law Court‘s conclusion on the matter:
Residence enhances the integrity of the initiative process by ensuring that citizens initiatives are brought by citizens of Maine. Because the circulators are the persons who verify that the signature and residence of petitioners are accurate, the residency requirement provides the State with jurisdiction over the circulators and makes the circulators easier to locate if there is a question as to the validity of the signatures collected. Thus, any interference with proponents’ right to unfettered political expression is justified by the State‘s compelling interest in protecting the integrity of the initiative process, and the residency requirement set forth in the
Maine Constitution is narrowly tailored to serve that interest.
Hart, 1998 ME 189, ¶ 13. See also Initiative & Referendum Inst., 1999 WL 33117172, at *15 (recounting the important and compelling interests served by Maine‘s residency requirement). Thus, the Court concludes at this point, the Plaintiffs have failed to carry their burden of establishing their likelihood of success on the merits.
B. Irreparable Harm
Irreparable injury is “an injury that cannot adequately be compensated for either by a later-issued . . . injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). Plaintiffs must “demonstrate that irreparable injury is likely in the absence of an injunction,” not merely that it is a possibility. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original); see also Canadian Nat‘l Ry. Co. v. Montreal, Me. & Atl. Ry., Inc., 786 F. Supp. 2d 398, 432 (D. Me. 2011) (“[P]roof of a mere possibility of injury is insufficient to justify an injunction“).
The Plaintiffs claim that they will suffer irreparable harm because Mr. Kowalski, other out-of-state professional circulators, and Maine college students
As the Plaintiffs note in their motion, “in the context of an alleged violation of
The Court must weigh the balance of the hardships on the parties and the public interest. On the one hand, the public has a strong interest in ensuring the freedom of speech and expanding the total quantum of protected speech. Pls.’ Mem. at 19-20. On the other hand, the public has a strong interest in the regulation of referendum petitions and in protecting the integrity and grassroots nature of the direct initiative and people‘s veto power. Defs.’ Opp‘n at 13. The Court recognizes that the public has strong competing interests on both sides.
In balancing the equities, however, the scale decidedly tips in the Defendants’ favor. As this Court previously emphasized, “[t]here is no constitutional right to procrastinate.” Dobson v. Dunlap, 576 F. Supp. 2d 181, 183 (D. Me. 2008). The record shows that the Plaintiffs obtained the approval to begin circulating their initiative petition in August 2019. Flynn Decl. ¶ 5. While the Plaintiffs complain about the difficulty of gathering signatures in “Maine‘s brutal winter weather,” winters in Maine are nothing new. As a Maine resident himself, Representative Faulkingham should have known that it would be harder to collect signatures in the winter. The Court is unpersuaded by the Plaintiffs’ attempt to use ordinary seasonal weather to justify extraordinary relief.
As the Court discussed earlier, by contrast, COVID-19 was not in existence in August 2019. The global pandemic has made the world, including Maine, a fundamentally different place than it was a year ago. The fact remains, though, that while the pandemic continues to rage throughout the country and the state of Maine,
D. Summary
In reaching its conclusion, the Court emphasizes that it is the Plaintiffs’ burden to establish entitlement to extraordinary injunctive relief. Whether a ballot petition law violates the
In Jones and Hart, the highest court in Maine, interpreting its own constitution, approved both the residency and voter registration requirements, as did this Court on the one occasion it addressed them. The Court notes that Supreme Court precedent in Buckley suggests that on a proper evidentiary record, voter
In the Court‘s view, the Plaintiffs’ claim for a TRO mirrors Lux v. Rodrigues, 561 U.S. 1306 (2010), where the United States Supreme Court addressed a litigant‘s request for an injunction pending appeal in a case involving a state requirement that each signature on a petition to place a candidate on a congressional ballot must be witnessed by a resident of the district. Id. at 1306-07. In rejecting the litigant‘s motion for injunctive relief, Chief Justice Roberts wrote that the appellant “may very well be correct that the Fourth Circuit precedent relied on by the District Court . . . has been undermined by our more recent decisions addressing the validity of petition circulation restrictions.” Id. at 1307-08 (citing Meyer, 486 U.S. at 422, 428, and Buckley, 525 U.S. at 186-87). At the same time, the Chief Justice observed that in Buckley, the Supreme Court was “careful . . . to differentiate between registration requirements that were before the Court, and residency requirements, which were not.” Id. at 1308. However, the Chief Justice denied the request for injunctive relief pending appeal, noting that “courts of appeals appear to be reaching divergent results in this area, at least with the respect to the validity of state residency requirements.” Id.. Accordingly, the Chief Justice concluded that even if the reasoning in Meyer and Buckley “does support Lux‘s claim, it cannot be said that his right to relief is ‘indisputably clear.‘” Id.
V. CONCLUSION
The Court DISMISSES without prejudice We the People PAC, State Representative Billy Bob Faulkingham, Liberty Initiative Fund, and Nicholas Kowalski‘s Motion for Emergency Temporary Restraining Order and/or Preliminary Injunction (ECF No. 3).7 The Court will schedule a telephone conference of counsel to discuss the next steps.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 11th day of January, 2021