Citizens in Charge v. Gale

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Citizens in Charge v. Gale is a Nebraska lawsuit which successfully challenged the state's ban on out-of-state circulators. It was decided by United States District Court for the District of Nebraska on August 30, 2011. Although the court overturned the state's residency requirement, it upheld the state's "scarlet letter law." It was decided on the same day as Bernbeck v. Gale, which also challenged the Nebraska's residency requirement.

The outcome of Citizens in Charge further weakens an earlier decision by the Eighth District Court of Appeals, Initiative & Referendum Institute v. Jaeger, which upheld a similar law in North Dakota but also noted that plaintiffs there had not sufficiently demonstrated that the ban was burdensome. Since Jaeger, three other circuit courts have overturned residency requirements. The ruling in Citizens in Charge is surprising since the court had already relied on Jaeger to deny a request for a preliminary injunction against the residency requirement.[1]


On December 16, 2009, the ACLU filed the lawsuit on behalf of Citizens in Charge, Michael Groene, and Donald Sluti. In May of 2010, the Libertarian Party of Nebraska and the Libertarian National Committee intervened as plaintiffs in the case.

In a 2009 press release on the lawsuit, ACLU attorney Amy Miller stated, "It's hard not to see the restrictions as a deliberate effort on the part of legislators to keep independent candidates and grassroots initiatives off the ballot...Reducing the pool of petition circulators while doubling the number of signatures needed to get on the ballot is meant to keep independent candidates from disseminating their political views."

In the same press release, Citizens in Charge President Paul Jacob said, "These laws have served to muffle Nebraskans' voices for far too long, we are hopeful that the court will open up Nebraska's ballot initiative process and uphold people's right to petition their government."

A more detailed breakdown of the plaintiffs is as follows:

  • Citizens in Charge: A non-profit dedicated to "protecting and expanding the initiative and referendum process."[2] Its members have participated in signature collection for Nebraska ballot initiatives, and it seeks to participate directly in a future petition drive.[3]
  • Michael Groene: A registered voter in Nebraska who has circulated petitions for state ballot initiatives.[3]
  • Donald Sluti: A registered voter in Nebraska who wishes to run as an independent candidate for Secretary of State.[3]
  • Libertarian Party of Nebraska: A group of Nebraska voters seeking official recognition as a political party by the state.[4]
  • Libertarian National Committee: A national Libertarian organization seeking to hire professional out-of-state circulators to assist the Libertarian Party of Nebraska in gaining official recognition as a political party in the state.[4]


Preliminary injunction

After joining the case, the Libertarian Party filed a motion for preliminary injunction, asking the court to block enforcement of the residency law pending a full trial in the case. Following a hearing on June 30, 2010, US District Court Judge Jospeh Batallion issued an order on July 2 denying the injunction. The judge cited the 2001 decision by the Eighth Circuit Court of Appeals in Initiative & Referendum Institute v. Jaeger to be the controlling precedent in the case. Jaeger is one of only two cases in which residency laws have been upheld in federal court. The judge did not make a ruling on the constitutionality of the residency requirement or "scarlet letter law."[5]

District court rules

On August 30, 2011, the District Court issued its ruling. The court overturned the state's residency requirement but upheld the its badge requirement.[1]


Circulator residency requirement

See also: Residency requirements for petition circulators

Citizens in Charge, et al. challenged Nebraska's law requiring petition circulators to be registered voters and, thus, residents of the state. Defendents argued that the residency requirement constitutes a burden on exercise of their First Amendment rights (without serving a compelling state interest). Ultimately, the court overturned the state's residency requirement, stating:

"The court finds that the plaintiffs and intervenors have... showed an infringement on their rights to associate. Plaintiffs’ and intervenors’ argument that this ban inhibits their right to associate is a valid one. The out-of-state ban imposes a heavy burden on the plaintiff-intervenors efforts to promote their political views in Nebraska. The defendant has not met its burden in this regard. As stated previously herein, the defendant offered very few instances of fraud. Further, there are less restrictive alternatives for bringing petition circulators into the subpoena jurisdiction of this court."[6]

Laws restricting the exercise of First Amendment rights must be "narrowly tailored to achieve a compelling state interest."[7] Ultimately, the court found that Nebraska's residency requirement did not meet this standard given that less restrictive alternatives are available to the state for fraud prevention/prosecution. The residency requirement was passed in 2008 as Nebraska Legislative Bill 39.[6]

DocumentIcon.jpg See law: Nebraska Revised Statutes, Chapter 32, Section 629 & Chapter 32, Section 110

"Scarlet letter law"

See also: Badge requirements for petition circulators

Citizens in Charge, et al. also challenged Nebraska's law requiring the paid/volunteer status of circulators appear on petition forms. According to the law, the notice must in appear in red 16pt font. The plaintiffs argued that term "paid circulator" carries a pejorative and derogatory connotation, and that the requirement unfairly and unjustifiably targets paid circulators. Ultimately, the court upheld law, stating:

"The court finds the disclosure statement does not impose a severe burden on plaintiffs’ and intervenors’ First Amendment rights... Further, the court finds that the disclosure statement is a reasonable and a nondiscriminatory regulation designed to inform petition signers that the person gathering the petition signatures might be paid for such signatures. The court does not find that this is a pejorative label or compelled speech..."[6]

The court cited a number of successful petition drives that used paid circulators as evidence that the requirement was not a severe burden. In addition, the court found that the state's interest in providing the electorate with information (as articulated by Citizens United v. FEC and Buckley v. Valeo) justified the law.[6]

DocumentIcon.jpg See law: Nebraska Revised Statutes, Chapter 32, Section 628 (4)


Given that both parties won and lost on particular issues, an appeal by one or both sides is expected.[8] However, as of June 2012, no appeal had been filed.

See also

External links