Conference Call: In Ballot Battle, a Signature Issue for the Court

The following column, featuring a selected petition up for consideration at the Justices’ private conference on November 7, appears in today’s edition of Legal Times (available to subscribers here). To access the certiorari-stage filings, or see other cases on the list of petitions to watch at Friday’s conference, click here.

If not for the Supreme Court, voters across the country would have a lot fewer decisions to make when they go to the polls tomorrow. The reason? Twice in the last two decades, the justices have struck down state laws they deemed too restrictive on groups seeking to place initiatives on the ballot.

In Meyer v. Grant (1988), the Court unanimously struck down a law that barred using paid circulators to gather signatures. And in Buckley v. American Constitutional Law Foundation (1999), it found a law requiring all circulators to be registered in-state voters likewise amounted to an unconstitutional restriction on the speech of initiative sponsors.

At their private conference on Nov. 7, the justices will consider whether to grant review in a case presenting a closely related question: whether the First Amendment also prohibits states from requiring circulators to be paid for the amount of time worked, rather than for the number of signatures collected. A decision is expected Nov. 10. (The petition is No. 08-151, Ohio v. Citizens for Tax Reform.)

Following numerous incidents of petition fraud in the 2004 election, Ohio’s legislature enacted a bill that barred paying circulators on a per signature basis, a method it believed could create an incentive to forge signatures. Instead, the law mandated that compensation be “on the basis of time worked.”

At the time the law was passed, the group Citizens for Tax Reform was circulating a petition containing an amendment to the state constitution, which it hoped to place on the 2006 ballot. To gather signatures, it hired a political consulting firm and agreed to pay it $1.70 for each of up to 450,000 names collected.

But once the law went into effect, the consulting firm said it would need at least an additional $300,000 to pay circulators on an hourly basis. Lacking the money to continue the effort, CTR withdrew the petition and sought to enjoin the law in the U.S. District Court for the Southern District of Ohio.

On cross motions for summary judgment, Judge Susan Dlott struck down the law under the First Amendment. Applying strict scrutiny, Dlott found that the law interfered with CTR’s core political speech rights and that the legislature failed to show a sufficient connection between the method of payment and past incidents of petition fraud.

In March, the U.S. Court of Appeals for the 6th Circuit unanimously affirmed the decision. Writing for the panel, Judge David McKeague accepted CTR’s arguments that professional circulators often work only on a per-signature basis, and that paying by the hour would make gathering signatures more expensive. Taken together, the panel concluded that the law would ultimately hinder efforts to qualify initiatives on the ballot.

While the panel conceded the state had a compelling interest in reducing petition fraud, it agreed with the district court that evidence from Ohio and other states failed to demonstrate a connection with the way circulators were paid.

Ohio’s petition for certiorari — filed by state Solicitor General Benjamin Mizer, a former clerk to Justice John Paul Stevens — contends legislators had ample justification to pass the law. Citing numerous examples from Ohio and other states, Mizer says incidents of petition fraud have only increased since the 2004 elections, when more than the half the signatures collected to place Ralph Nader on the Ohio ballot were later found to be forged.

Mizer further maintains that under last term’s decision in Crawford v. Marion County Election Board, which struck down a facial challenge to an Indiana law requiring voters to show identification at the polls, Ohio should not have been required to show evidence of actual fraud in the first place, much less a connection to how petition circulators were paid.

The petition also disputes the 6th Circuit’s attempt to distinguish Ohio’s law from similar measures in three other states previously upheld by the 2nd, 8th, and 9th circuits. According to the panel, Ohio’s law both imposed harsher penalties and, by prohibiting anything but time-based compensation, barred initiative sponsors from firing circulators who under performed or providing bonuses for efficient work.

According to Mizer, Ohio’s penalties are virtually identical to those in other states, and nothing in the law bars sponsors from either firing circulators or raising their hourly wages. The petition also contends that under the doctrine of “constitutional avoidance,” the 6th Circuit should have construed the law to avoid — rather than create — First Amendment problems.

Stressing the importance of the issue, the petition states that the number of ballot initiatives — and the money behind them — has vastly increased since the Supreme Court last addressed a state law regulating the initiative process. In addition, the petition notes, political parties often use ballot initiatives on controversial subjects to increase turnout for political candidates.

Opposing certiorari, CTR maintains that all circuits that have considered bans on per-signature payments have applied the same standard, and that the 6th Circuit reached its decision based on the narrow facts before it. According to the brief in opposition — filed by Cincinnati solo practitioner David Langdon — the panel struck down the law only because CTR, unlike the plaintiffs in other cases, managed to meet their evidentiary burden.

Langdon also contends that like the measures struck down in Meyer and Buckley, Ohio’s law reduces speech that is constitutionally protected. “The difference,” he maintains, “is one only of degree.”  —Ben Winograd

© 2008 ALM Properties Inc.