The nature of the facts to which the circulator is required to attest varies. Some of the more common requirements are:
- The circulator attests that he or she personally witnessed each act of signing the petition.
- The circulator attests that he or she believes (or in some cases, is required to state that he or she knows) that each individual who signed the petition is a registered voter or otherwise eligible to sign the petition.
Because the circulator affidavit is an oath of sorts, it must be signed in the presence of a notary public. This additional requirement leads to a common claim in petition blocking cases in post-certification signature challenges, when those challenging the initiative or candidate scrutinize the bona fides of each notary public who witnessed circulator affidavits. If a notary public who signed, for example, 80 petition sheets for a particular circulator turns out to have a lapsed notary license, all those signatures might be invalidated.
There are 18 states that require circulators to swear under oath that he or she personally witnessed each individual sign the petition.
Some states, however, have no requirements at all as state law is silent on the issue. These states are: Massachusetts, Michigan, Mississippi, Oklahoma and Florida. The Florida Secretary of State Election Division has promulgated an administrative rule, however, allowing for signatures to be collected outside the presence of a circulator, meaning the circulator does not have to attest under oath that he or she witnessed the signature being made.
- Secretary of State v. Give Nevada a Raise. In this 2004 lawsuit, the Nevada Supreme Court ruled that the affidavit requirements set forth in Section 3 of Article 19 of the Nevada Constitution are an unconstitutional burden on political speech and hence prohibited under the First Amendment. The law that was struck down as unconstitutional provided that each petition form must include an affidavit stating that all the signatures on the petition are genuine signatures of persons who are registered voters in the counties in which they reside. The circulator was also required to sign the affidavit in the presence of a notary public.
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