Chandler v. City of Arvada
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In a July 2008 decision, Nader v. Brewer, the United States Court of Appeals for the Ninth Circuit cites Chandler with approval.
The City of Arvada had appealed to the Tenth Circuit to overturn a ruling unfavorable to them from the United States District Court for the District of Colorado. In that lower court case, the U.S. District Court had thrown out a residency requirement imposed by Arvada, Colorado on petition circulators.
The original lawsuit against Arvada was brought by Dave Chandler, Daniel Hayes, Cheryl St. John and Robert Prokop. These plaintiffs sued Arvada on the grounds that Arvada City Ordinance No. 3590 was an unconstitutional abridgement of their core constitutional rights. Ordinance 3590 prohibited nonresidents of Arvada, Colorado, from circulating initiative, referendum, or recall petitions in the City of Arvada.
The Tenth Circuit upheld the lower court's view that Arvada's ordinance was unconstitutional.
The judges first note the argument of plaintiffs, that they sought "by petition to achieve political change in Colorado;" and that "their right freely to engage in discussions concerning the need for change is guarded by the First Amendment" and that "petition circulation . . . is 'core political speech,' because it involves 'interactive communication concerning political change.'"
The judges then note that "there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes."
The question then becomes whether "the regulation at issue is subject to a balancing test or strict scrutiny."
The Tenth Circuit decision concludes that they agree with the opinion of the lower court that Arvada has a "compelling interest in policing the integrity of its petition process" and also that "Ordinance No. 3590 is subject to strict scrutiny." Since the regulation at issue is subject to strict scrutiny, that means that state regulations "impos[ing] 'severe burdens' on speech . . . be narrowly tailored to serve a compelling state interest."
The Tenth Circuit then considers whether Ordinance 3590 is narrowly tailored, and concludes that it is not. They note:
Arvada asserts Ordinance No. 3590 is narrowly tailored to prevent fraud, malfeasance, and corruption in municipal elections within the City. The Ordinance is constitutional in the eyes of Arvada because, without it, the Arvada City Clerk has no authority to subpoena nonresidents for a petition protest hearing; and, therefore, Arvada cannot adequately regulate nonresidents to prevent them from improperly influencing the City's elections.
The Tenth Circuit decision rejects Arvada's view of this, arguing that:
- Fears of fraud are not present in a popular vote on a public issue.
- The record showed that the city had not conducted "a single protest hearing" in the past.
- 82% of the signatures collected on a 1998 citizen-initiated petition in Arvada were collected by non-residents, which the court argues is suggestive that eliminating non-resident circulators would reduce the pool of those available to collect signatures.
- Therefore, they argue, a "diminution in core political speech results from Ordinance No. 3590."
- Ordinance No. 3590 is substantially broader than necessary to ensure the petition process' integrity and is therefore unconstitutional.
Subpoenas and residents
Fleshing out their last point, the judges argue that Arvada could "achieve its interest without wholly banning nonresidents from circulating petitions in Arvada." Rather than banning non-resident circulators, Arvada could achieve its goal of ensuring the integrity of the petition process by:
- Requiring "as a prerequisite to circulating an initiative, referendum, or recall petition in the City, the prospective circulator agree to submit to the jurisdiction of the Arvada Municipal Court for the purpose of subpoena enforcement."
The judges also noted that Arvada's concern about the power to issue subpoenas does not guarantee the integrity of the petition process because:
Presently, an Arvada resident who circulates a petition in Arvada, subsequently moves outside the City, but is later called upon by the City Clerk for a protest hearing, is beyond the reach of the City Clerk's subpoena power.
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