Pay-per-signature

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Pay-per-signature is one way of compensating signature-gatherers who collect signatures to qualify candidates or ballot initiatives or recall elections for the ballot.

In 2008-2009, several states -- including Colorado, Montana and Nebraska -- made it illegal to compensate petition circulators based on how many signatures they are able to collect on petitions. It is an active area of litigation with a federal judge issuing a preliminary injunction in June 2010 against the new Colorado law (HB 1326) in a lawsuit that says the law's ban on pay-per-signature violates the U.S. Constitution.

Bans: For and against

In favor

Those who believe it should be illegal to pay a circulator by the signature generally say that they think that there will be more fraud in the signature-gathering process when circulators have a financial incentive to turn in more signatures.

Against

Those who believe that initiative sponsors ought to be able to pay circulators by the signature advance three main claims:

• Circulators who are paid by the signature do not have higher rates of fraud than those who are paid by the hour, or who are volunteers. Daniel Smith, a professor at the University of Florida, wrote a study in 2008 which concluded "there is no clear pattern demonstrating that paying for signatures increases invalid rates" over volunteer efforts.

• When initiative sponsors are forbidden by the government to pay circulators on a per-signature basis, petition drives become more expensive. Mason Tvert of SAFER, a pro-marijuana-rights organization, says that after HB 1326 was enacted in Colorado in 2009, "The cost of qualifying a measure for the ballot has increased dramatically as a result. I have been quoted about $3.50 per signature for this year, as compared to $1.50 last year."

• When state legislatures enact laws that make petition drives more expensive, they are chipping away at the right of initiative.

• Such laws are constitutionally suspect under the First Amendment because they drive up the cost of collecting signatures and therefore cut into core First Amendment rights.

State legislation

Alaska Republicans attempt ban

Alaska State Representatives Kyle Johansen (R-Ketchikan) and Charisse Millett (R-Anchorage) have introduced HB 36 in 2009 to make it illegal for initiative circulators to be paid on a per-signature basis. It would also make it illegal for initiative circulators to circulate more than one initiative at once.

Arizona legislature may ban

The Arizona Reform the Initiative Process Amendment (2010) has been proposed as a reform of Arizona's laws. One of its provisions if enacted would ban signature-gatherers from getting paid by signature or page.

California, proposed ban

• Senate Bill 34, sponsored by Democrat Ellen M. Corbett and co-sponsored by Mark DeSaulnier and Dean Florez, would have made it illegal to pay initiative circulators on a pay-per-signature basis., The California State Senate passed SB 34, but the weekend of October 10-11, 2009, Gov. Arnold Schwarzenegger vetoed it.

On November 11, 2009 Citizens in Charge Foundation awarded Gov. Schwarzenegger their November 2009 John Lilburne Award for protecting the initiative and referendum process by vetoing SB 34 along with other attacks on initiative rights.

Colorado 2009 ban

Gov. Bill Ritter signed Colorado House Bill 1326 (2009) on May 29, 2009. It forbids compensating circulators based on how many signatures they collect. Of eight states that tried to enact bans in 2009, Colorado's was the only one that succeeded.

Oregon 2002 ban

In 2002, Oregon Ballot Measure 26 was approved by popular vote. It forbid initiative sponsors from paying petitioners on a per-signature basis. This ban on pay-per-signature was upheld in Prete v. Bradbury, a ruling of the Ninth Circuit Court. Oregon Constitutional Article IV §1b reads:

"It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition. Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained."

Reduced Attempts to Restrict Compensation

In March of 2010, Brandon W. Holmes at Citizens in Charge Foundation noted that while in 2009 eight states attempted to ban pay-per-signature, only one state - Missouri - has attempted to do so in 2010. Holmes suggests that pro-petitioning rights activism has made legislators less likely to propose bans.

Litigation

Independence Institute v. Colorado Secretary of State

See also: Independence Institute v. Colorado Secretary of State

On Friday, June 11, federal district judge Philip Brimmer issued a 39-page preliminary injunction forbidding the state of Colorado from enforcing several key provisions of Colorado House Bill 1326 (2009). Judge Brimmer's order, in particular, found that the provisions of HB 1326 that ban compensating petition circulators on a pay-per-signature basis are unconstitutional.

Prete v. Bradbury

See also: Prete v. Bradbury

Prete v. Bradbury is a lawsuit filed in the United States District Court for the District of Oregon against Oregon Secretary of State Bill Bradbury challenging Oregon's restrictions on paying petition circulators by the signature.

The outcome of the lawsuit was that U.S. District Court Judge Ann Aiken, a Clinton appointee, upheld Oregon's ban on pay-per-signature on February 11, 2004. The ban was one of the provisions of Oregon Ballot Measure 26.

Bernbeck v. Gale

See also: Bernbeck v. Gale

On January 5, 2010 Nebraska petition rights activist Kent Bernbeck filed a lawsuit, Bernbeck v. Gale in federal district court challenging Nebraska's ban on pay-per-signature . The trial begun on December 21, 2010, in the District of Nebraska federal court. The lawsuit alleges that age and residency restrictions added to petition circulators in 2008 violate the First Amendment to the U.S. Constitution. A petition for a new pool slide in Stanton, Nebraska was denied as John Bernebeck's brother and daughter did not meet the requirements for being a legal circulator. Bernbeck's daughter was under the age of 18 while his brother was a resident of the State of Nevada.

In a separate case, the Citizens in Charge Foundation sued Nebraska Secretary of State John Gale on the out-of-state petition circulator ban along with the county-level distribution requirement for non-presidential independent candidates in 2010. The outcome of the case is pending.

Other lawsuits

• Citizens for Tax Reform v. Deters. Federal court struck down Ohio's ban on pay-per-signature.
• On Our Terms '97 PAC v. Secretary of State of Maine. Federal court struck down Maine's ban.
• Initiative & Referendum Institute v. Jaeger. Federal court upheld North Dakota's ban.
• LIMIT v. Maleng. Federal court strikes down State of Washington's ban on pay-per-signature.
• Meyer v. Grant. U.S. Supreme Court strikes down Colorado ban on paying circulators.
• Term Limits Leadership Council v. Clark. U.S. District Court strikes down Mississippi's ban on payment per signature as well as residency requirement.
• Person v. New York State Board of Elections. Second Circuit Court of Appeals upheld New York ban on payment per signature.

Pros and cons

Jill Stewart, a reporter at LA Weekly, referred to a bill banning pay-per-signature passed in by California State Senate in 2009 (but vetoed by Gov. Schwarzenegger) as "a blatant effort by legislators, working on behalf of huge special interests including Big Pharma, Big Labor and Big Business, to stop environmental groups, anti-tax groups and others from gathering the 450,000 to 700,000 signatures required to place an initiative, referendum or recall on the statewide ballot." Stewart also used the phrase "Under the false guise of 'reform'", suggesting that the reform is a pseudo-reform.