History of restrictions on paid circulators
State legislatures often view the initiative process as lawmaking competition. People don't put ballot measures on the ballot, typically, unless they believe that the legislature in their state has failed to adequately address a particular political concern or problem.
State legislatures are typically not able to entirely end or ban lawmaking competition from ordinary citizens enabled through the initiative process. These rights are included in state constitutions, and state legislators are not allowed to pass state statutes removing or altering constitutional amendments.
However, state legislators can pass state statutes that burden the initiative process with restrictions and regulations. Almost as soon as the initial burst of state constitutional amendments giving some states the right of citizen lawmaking in 1912, they proceeded to do so. State legislators have shown a particular interest in regulating practices relating to people who are paid to collect signatures.
As initiative advocates regularly point out, state legislators have not shown a similar interest in regulating people who are paid to collect signature to put the names of political candidates on the ballot or, indeed, in regulating, restricting or banning other types of paid political consultants--advertising consultants, grassroots coordinators, door-to-door canvassers, and so on.
Types of restrictions
The most common restrictions imposed on campaign workers who are paid to collect signatures are:
- Laws making it illegal to pay campaign workers based on how many signatures they collect (payment-per-signature).
- Laws requiring paid campaign workers to obtain some form of certification or training from the government before they are legally allowed to ask a voter to sign a petition,
- Laws requiring paid campaign workers who collect signatures to register themselves with the government, as in the Washington state law that was struck down in WIN v. Warheit.
Early history of bans and restrictions on paid circulators
Ohio, South Dakota and Washington passed laws banning the payment of petition circulators in 1913 and 1914. Oregon passed a similar prohibition in 1935, Colorado in 1941, and Idaho and Nebraska in 1988.
The Colorado law was struck down in Meyer v. Grant in 1988.
Oregon Ballot Measure 26 in 2002
In 2002, Oregon voters approved Oregon Ballot Measure 26 (2002). Measure 26 made it illegal to pay people to collect signatures "based on the number of signatures obtained". Measure 26 was legally challenged in the case of Prete v. Bradbury on the grounds that in the U.S. Supreme Court reasoning in Meyer v. Grant, its ban on pay-per-signature is unconstitutional. However, on February 26, 2006, the United States Court of Appeals for the Ninth Circuit upheld Measure 26.
In 2007, Montana Senate Bill 96 (2007), sponsored by Democratic state rep Carol Williams, made it illegal for the sponsor of a ballot initiative to pay a person who has collected signatures based on how many signatures were collected.
In June 2007, Nevada Assembly Bill 604 (2007) became law. Lobbied for by a local representative of the AFL-CIO, AB 604 requires that people who ask Nevada residents to sign initiative petitions must first register with the government. A reporter for the Las Vegas Review-Journal reported that when the participants on a national conference call heard from union lobbyist Gail Tuzzolo about the new law, they "buzzed with excitement". The provisions of AB 604 are very similar to the provisions of a law in the state of Washington that the United States Court of Appeals for the Ninth Circuit struck down as unconstitutional in the 2000 case of WIN v. Warheit.
South Dakota state legislators in 2007 moved to make it significantly harder for citizens to compete with the state legislature as lawmakers by enacting South Dakota House Bill 1156 (2007). HB 1156 makes it a Class 2 misdemeanor for an initiative sponsor to compensate a person who has collected initiative signatures based on how many initiative signatures that person collected. However, it is still legal for candidates for political office to pay people who collect signatures to place their name on the ballot to pay those circulators by the signature.
In Oregon in 2007, Oregon legislators granted their state government significant new authority over citizen initiatives with the passage of Oregon House Bill 2082 (2007). HB 2082 allows the Oregon Secretary of State to demand payroll records from initiative sponsors, and also allows the Secretary of State to shut down petition drives in the absence of payroll records that are deemed satisfactory by the Secretary of State. Additionally, HB 2082 requires people who intend to ask Oregon voters to sign a petition to take a certification course from the Secretary of State before they can legally ask someone to sign a petition. The new law also makes it illegal for a person who is collecting signatures to assist a voter in filling out the voter's home address on the petition sheet.
Impact of HB 2082
In February 2008, a month after the new law had taken effect, the sponsors of 14 citizen initiatives were ordered by the Oregon Secretary of State to stop collecting signatures. Oregon initiative activist Bill Sizemore said, "The secretary of state's position illustrates just how unbelievably arrogant he and his office are. It's clearly unconstitutional, and they probably know it. Bill Bradbury works for the public employees' unions. They want all my initiatives shut down, and that's all they are doing.".
- Changes in 2007 to laws governing the initiative process
- Changes in 2008 to laws governing the initiative process
- Prete v. Bradbury
- Initiative & Referendum Institute v. Jaeger
- On Our Terms '97 PAC v. Secretary of State of Maine
- Term Limits Leadership Council v. Clark
- Person v. New York State Board of Elections
- LIMIT v. Maleng