Difference between revisions of "Pay-per-signature"

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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 ([[Colorado House Bill 1326 (2009)|HB 1326]]) in a lawsuit that says the law's ban on pay-per-signature violates the U.S. Constitution.<ref>[http://www.denverpost.com/legislature/ci_15083067 ''The Denver Post'', "Think-tank chief challenges Colorado's petition-gathering rules," May 14, 2010]</ref>
 
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 ([[Colorado House Bill 1326 (2009)|HB 1326]]) in a lawsuit that says the law's ban on pay-per-signature violates the U.S. Constitution.<ref>[http://www.denverpost.com/legislature/ci_15083067 ''The Denver Post'', "Think-tank chief challenges Colorado's petition-gathering rules," May 14, 2010]</ref>
  
==Bans: For and against==
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==Arguments==
  
===In favor===
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===For===
  
 
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.
 
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.
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* When state legislatures enact laws that make petition drives more expensive, they are chipping away at the right of initiative.<ref name=dp />
 
* When state legislatures enact laws that make petition drives more expensive, they are chipping away at the right of initiative.<ref name=dp />
  
* 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.<ref>[http://facethestate.com/peter-blake/18775-ballot-initiative-promoters-can-lose-even-when-they-win ''Face the State'', "Ballot initiative promoters can lose even when they win," May 27, 2010]</ref>
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* 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.<ref>[https://web.archive.org/web/2/http://facethestate.com/peter-blake/18775-ballot-initiative-promoters-can-lose-even-when-they-win ''Face the State'', "Ballot initiative promoters can lose even when they win," May 27, 2010]</ref>
  
==State legislation==
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Jill Stewart, a reporter at LA Weekly, referred to a bill banning pay-per-signature passed by the [[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 was a [[pseudo-reforms of the ballot initiative process|pseudo-reform]].<ref name=jill/>
  
===Alaska Republicans attempt ban===
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==State laws==
 +
As of August 25, 2014, the states that have an initiative process had the following rules regarding signature circulators that are paid on a per-signature basis.
 +
===Alaska===
 +
Alaska does not prohibit paying circulators by the signature, but caps their pay at $1 per signature.
  
Alaska State Representatives [[Kyle Johansen]] (R-Ketchikan) and [[Charisse Millett]] (R-Anchorage) have introduced [[Alaska HB 36 (2009)|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.<ref>[http://www.ballot-access.org/2009/01/19/alaska-anti-initiative-bill/ ''Alaska anti-initiative bill'', January 19, 2009]</ref>
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://www.legis.state.ak.us/basis/folioproxy.asp?url=http://wwwjnu01.legis.state.ak.us/cgi-bin/folioisa.dll/stattx10/query=*/doc/{t7514}? Alaska Statutes, Sec. 15.45.110]</span>
  
===Arizona legislature may ban===
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===Arizona===
 +
Arizona does not prohibit paying circulators on a per signature basis.
  
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 [[pay-per-signature|paid by signature]] or page.
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/19/00118.htm&Title=19&DocType=ARS Arizona Revised Statutes, Title 19, Ch. 1, Art. 2, 19-118]</span>
  
===California, proposed ban===
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===Arkansas===
 +
Arkansas does not prohibit paying circulators by the signature. In addition, the [[Arkansas Constitution]] forbids any law prohibiting the payment of circulators.<ref name="ARHB"/>
  
* [[California Senate Bill 34 (2009)|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.<ref>[http://www.ballot-access.org/2009/07/06/california-legislative-hearing-on-bill-to-ban-paying-circulators-per-signature/ ''Ballot Access News'', "California Legislative Hearing on Bill to Ban Paying Circulators Per Signature," July 6, 2009]</ref><ref>[http://info.sen.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_34_bill_20090715_status.html Text of SB 34]</ref>  The [[California State Senate]] passed SB 34, but the weekend of October 10-11, 2009, Gov. [[Arnold Schwarzenegger]] vetoed it.<ref name=jill>[http://blogs.laweekly.com/ladaily/politics/arnold-vetos-initiative-ban-a/ ''Los Angeles Weekly'', "Arnold vetoes initiative ban: Sleazy effort by California legislature to hamstring signature-gathering," October 12, 2009]</ref>
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [[Article 5, Arkansas Constitution|Arkansas Constitution, Article 5, Section 1]]</span>
  
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.<ref>[http://www.citizensincharge.org/press-releases/governor-arnold-schwarzenegger-honored-with-november-lilburne-award ''Citizens in Charge Foundation'', " Governor Schwarzenegger Honored with November Lilburne Award"]</ref>
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===California===
 +
California does not prohibit paying circulators by the signature. In 2011, the [[California State Legislature]] passed  [[California Senate Bill 168 (2011)|Senate Bill 168]] which would have instituted such a ban, but the bill was vetoed by Gov. [[Jerry Brown]].
  
===Colorado 2009 ban===
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=09001-10000&file=9020-9022 California Election Code, Section 9021]''</span>
  
Gov. [[Bill Ritter]] signed [[Colorado House Bill 1326 (2009)]] on [[BC2009#May|May 29, 2009]].  It forbids compensating [[circulator]]s 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.  
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===Colorado===
 +
Colorado law restricts per-signature pay to 20 percent or less of a circulator's compensation. Colorado also requires petition organizations to apply for a license to hire paid circulators. As part of the requirements for this license, at least one of the two designated petition representatives must attend a training course on petition fraud.
  
===Oregon 2002 ban===
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#363636">'''''See law:''' [http://www.michie.com/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=2b7e01b8.4721371c.0.0&nid=c41#JD_1-40-112 Colorado Revised Statutes, Title 1, Article 40, Section 112] & [http://www.michie.com/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=2b7e01b8.4721371c.0.0&nid=c73#JD_1-40-135 Section 135]</span>
  
In 2002, [[Oregon Ballot Measure 26 (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 &sect;1b reads:
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===Florida===
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Florida law does not prohibit pay-per-signature or restrict the pay of petition circulators. However, proponents who choose to hire circulators forfeit the right to file an "undue burden oath." Ordinarily, initiative sponsors are required pay for the cost of signature verification unless they submit, under oath, a statement of their inability to pay without incurring an undue financial burden. An affidavit of undue burden can be found [http://election.dos.state.fl.us/forms/pdf/DSDE19D.pdf here.]
  
<blockquote>''"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."''<ref>[http://paypersignaturelaws.googlepages.com/ ''Pay Per Signatures Blog'']</ref></blockquote>
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#363636">'''''See law:''' [http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0099/Sections/0099.097.html Florida Statutes, Title IX, Chapter 99.097, Section 4]</span>
  
===Reduced Attempts to Restrict Compensation===
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===Idaho===
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Idaho does not ban pay-per-signature. It used to have such a ban, but this rule was struck down in 2001 by a federal court in ''Idaho Coalition United for Bears v. Cenarrusa.''<ref>[https://web.archive.org/web/2/http://www.citizensinchargec4.com/learn/threats-and-restrictions/pay-per-signature-bans-0 ''Citizens in Charge,'' "Pay-Per-Signature Bans," accessed July 29, 2011]</ref>
  
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.<ref>[http://www.citizensincharge.org/blog/brandon/payment-per-signature-are-legislators-getting-the-message ''Citizens in Charge Foundation'', "Payment-Per-Signature: Are Legislators Getting the Message?"]</ref>
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [[Article III, Idaho Constitution#Section 1| Idaho Constitution, Article III, Section 1]] & [http://www.legislature.idaho.gov/idstat/Title34/T34CH18.htm Idaho Statutes, Title 34, Chapter 18]''</span>
  
==Litigation==
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===Maine===
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Maine does not ban pay-per-signature. It used to have such a ban, but this rule was struck down in 1999 by a federal court in ''[[On Our Terms '97 PAC v. Secretary of State of Maine]].''<ref>[https://web.archive.org/web/2/http://www.citizensinchargec4.com/learn/threats-and-restrictions/pay-per-signature-bans-0 ''Citizens in Charge,'' "Pay-Per-Signature Bans," accessed July 29, 2011]</ref>
  
===Independence Institute v. Colorado Secretary of State===
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[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://www.mainelegislature.org/legis/statutes/21-A/title21-Ach11sec0.html Maine Revised Statutes, Title 21-A, Chapter 11]''</span>
 +
 
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===Massachusetts===
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Massachusetts does not ban pay-per-signature.<ref>[http://www.ncsl.org/default.aspx?tabid=16502 ''NCSL,'' "Paid vs. Volunteer Petitioners," June 17, 2010]</ref>
 +
 
 +
===Michigan===
 +
Michigan does not ban pay-per-signature.<ref>[http://www.ncsl.org/default.aspx?tabid=16502 ''NCSL,'' "Paid vs. Volunteer Petitioners," June 17, 2010]</ref>
 +
 
 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [[Article II, Michigan Constitution#Section 9| Michigan Constitution, Article II, Section 9]] ''';''' [[Article XII, Michigan Constitution#Section 2| Article XII, Section 2]] & [http://www.legislature.mi.gov/(S(dzri4df1pmpk3zq1s0a4y145))/mileg.aspx?page=getObject&objectName=mcl-Act-116-of-1954 Michigan Compiled Laws, Chapter 168 (Act 116)]''</span>
 +
 
 +
===Mississippi===
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Mississippi does not ban pay-per-signature. It used to have a ban, but this rule was struck down in 1997 by a federal court in ''[[Term Limits Leadership Council v. Clark]].''<ref>[https://web.archive.org/web/2/http://www.citizensinchargec4.com/learn/threats-and-restrictions/pay-per-signature-bans-0 ''Citizens in Charge,'' "Pay-Per-Signature Bans," accessed September 6, 2011]</ref>
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://www.sos.ms.gov/links/elections/home/tab2/InitiativeCode.pdf Mississippi Code, Title 23, Chapter 17, Section 57&nbsp;]''</span>
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 +
===Missouri===
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Missouri does not ban pay-per-signature.<ref>[https://web.archive.org/web/2/http://www.citizensinchargec4.com/learn/threats-and-restrictions/pay-per-signature-bans-0 ''Citizens in Charge,'' "Pay-Per-Signature Bans," accessed September 17, 2011]</ref>
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [[Article III, Missouri Constitution#Section 49|Missouri Constitution, Article III, Sections 49-53]] & [https://web.archive.org/web/2/http://www.moga.mo.gov/statutes/C116.HTM Missouri Revised Statutes, Title IX, Chapter 116]''</span>
 +
 
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===Montana===
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Montana bans pay-per-signature for initiative petition gatherers.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [https://web.archive.org/web/2/http://data.opi.mt.gov/bills/mca/13/27/13-27-102.htm Montana Code Annotated, Title 13, Chapter 27, Section 102]''</span>
 +
 
 +
===Nebraska===
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Nebraska bans paying circulators by the signature. The law was challenged in 2011 in ''[[Bernbeck v. Gale]]'', but the ban was not overturned.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See  law:''' [http://nebraskalegislature.gov/laws/statutes.php?statute=32-630 Nebraska Revised Statutes, Chapter 32, Section 630 (g)]''</span>
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 +
===Nevada===
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Nevada does not ban paying circulators by the signature.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://www.leg.state.nv.us/nrs/NRS-295.html Nevada Revised Statutes, Chapter 295]''</span>
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 +
===North Dakota===
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North Dakota does not permit paying circulators by the signature. In [[Initiative & Referendum Institute v. Jaeger]], the [[Judgepedia:United States Court of Appeals for the Eighth Circuit|United States Court of Appeals for the Eighth Circuit]] upheld the ban.
 +
 
 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://www.legis.nd.gov/cencode/t16-1c01.pdf North Dakota Century Code, Title 16.1, Chapter 1, Section 12(11)&nbsp;] & [http://www.iandrinstitute.org/New%20IRI%20Website%20Info/I&R%20Research%20and%20History/I&R%20Legal%20History/I&R%20and%20the%20Courts/Major%20Court%20Decisions/IRI%20v.%20North%20Dakota/8th%20Circuit%20Decision.pdf I & R Institute v. Jaeger]''</span>
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===Ohio===
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Ohio does not ban paying circulators by the signature. Ohio used to have such a ban, but it was struck down in ''Citizens for Tax Reform v. Deters.''
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://codes.ohio.gov/orc/3599.111 Ohio Revised Code, Title XXXV, Chapter 3599.111(B)] & [http://www.ca6.uscourts.gov/opinions.pdf/08a0104p-06.pdf Citizens for Tax Reform v. Deters&nbsp;]''</span>
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===Oklahoma===
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Oklahoma does not ban paying circulators by the signature.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [[Article V, Oklahoma Constitution#Section 1| Oklahoma Constitution, Article V, Sections 1-8, 57]] ''';''' [[Article XXIV, Oklahoma Constitution| Article XXIV, Sections 1-3]] & [http://webserver1.lsb.state.ok.us/OK_Statutes/CompleteTitles/os34.rtf Oklahoma Statutes, Title 34]''</span>
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===Oregon===
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Oregon bans paying petition circulators by the signature. This ban was challenged but upheld in [[Prete v. Bradbury]]. In addition, paid signature gatherers are required to register with the state and carry "evidence of registration" with them as they gather. By law, this evidence must include a photo of the circulator and his or her registration number. As part of this registration, petition circulators must also complete a training course. Oregon law also requires any organization or person that pays persons to gather signatures to register with the state.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [[Article IV, Oregon Constitution#Section 1b|Oregon Constitution, Article IV, Section 1b]] & [http://scholar.google.com/scholar_case?case=17269287319638517557&hl=en&as_sdt=2&as_vis=1&oi=scholarr Prete v. Bradbury]''</span>
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===South Dakota===
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South Dakota does not permit paying circulators by the signature. However, state law explicitly permits employers to set minimum gathering requirements and pay discretionary bonuses based on productivity.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-13-28 South Dakota Codified Laws, Title 12, Chapter 13, Section 28]''</span>
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 +
===Utah===
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Utah does not ban paying circulators by the signature.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://le.utah.gov/~code/TITLE20A/htm/20A07_020500.htm Utah Code, Title 20A, Chapter 7, Section 205] & [http://le.utah.gov/~code/TITLE20A/htm/20A07_020505.htm Section 205.5]''</span>
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 +
===Washington===
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Washington used to ban paying circulators by the signature. However, that ban was struck down in ''LIMIT v. Maleng'' in 1994.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://apps.leg.wa.gov/rcw/default.aspx?cite=29A.84.250 Revised Code of Washington, Title 29A, Chapter 84, Section 250 (Formerly, 29.79.490)] & [http://www.leagle.com/xmlResult.aspx?xmldoc=19942012874FSupp1138_11833.xml&docbase=CSLWAR2-1986-2006 LIMIT v. Maleng]''</span>
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 +
===Wyoming===
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Wyoming does not permit paying circulators by the signature. In addition, sponsors are required to register circulators with the state and verify, under oath, the names, addresses, and eligibility of each circulator.
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 +
[[File:DocumentIcon.jpg|link=Portal:Ballot Measure Law]] <span style="color:#404040">'''''See law:''' [http://legisweb.state.wy.us/statutes/statutes.aspx?file=titles/Title22/T22CH24.htm Wyoming Statutes, Title 22, Chapter 24, Sections 107 & 125(a)]''</span>
 +
 
 +
==Lawsuits==
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 +
===Ind. Ins. v. Colorado SOS===
  
 
:: ''See also: [[Independence Institute v. Colorado Secretary of State]]''
 
:: ''See also: [[Independence Institute v. Colorado Secretary of State]]''
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===Bernbeck v. Gale===
 
===Bernbeck v. Gale===
 
:: ''See also: [[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<ref>[http://www.citizensincharge.org/blog/brandon/second-lawsuit-in-three-weeks-challenges-nebraska-petition-restrictions ''Citizens in Charge Foundation'', "Second Lawsuit in Three Weeks Challenges Nebraska Petition Restrictions"]</ref>.  The trial begun on December 21, 2010, in the [[judgepedia:District of Nebraska|District of Nebraska]] federal court<ref name="ne">[Confirmed via email in a official statement received from Domina Law Firm on December 19, 2010]</ref>.  The lawsuit alleges that age and residency restrictions added to petition circulators in 2008 violate the First Amendment to the U.S. Constitution<ref name="ne" />.  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]]<ref name="ne" />.
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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<ref>[http://www.citizensincharge.org/blog/brandon/second-lawsuit-in-three-weeks-challenges-nebraska-petition-restrictions ''Citizens in Charge Foundation'', "Second Lawsuit in Three Weeks Challenges Nebraska Petition Restrictions"]</ref>.  The trial begun on December 21, 2010, in the [[judgepedia:District of Nebraska|District of Nebraska]] federal court<ref name="ne">[Confirmed via email in a official statement received from Domina Law Firm on December 19, 2010]</ref>.  The lawsuit alleges that age and residency restrictions added to petition circulators in 2008 violate the First Amendment to the U.S. Constitution<ref name="ne" />.  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]]<ref name="ne" />.
  
 
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<ref>[http://www.ballot-access.org/2010/12/20/trial-set-for-nebraska-case-on-residency-requirement-for-circulators-other-issues/ ''Ballot Access News'', "Trial Set for Nebraska Case on Residency Requirement for Circulators, Other Issues," December 20, 2010]</ref>.
 
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<ref>[http://www.ballot-access.org/2010/12/20/trial-set-for-nebraska-case-on-residency-requirement-for-circulators-other-issues/ ''Ballot Access News'', "Trial Set for Nebraska Case on Residency Requirement for Circulators, Other Issues," December 20, 2010]</ref>.
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* [[Term Limits Leadership Council v. Clark]]. U.S. District Court strikes down Mississippi's ban on payment per signature as well as residency requirement.
 
* [[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.
 
* [[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."<ref name=jill/> Stewart also used the phrase "Under the false guise of 'reform'," suggesting that the reform is a [[pseudo-reforms of the ballot initiative process|pseudo-reform]].
 
  
 
==References==
 
==References==

Latest revision as of 18:56, 25 November 2014

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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.[1]

Arguments

For

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. Scott Noren, DDS, a former U.S. Senate candidate in New York remarks the following, "If you were an underdog like I was, and could pay $15,000 to get 15,000 signatures to get on the ballot for U.S. Senate versus competing against incumbents like Senator Gillibrand who needs a State democratic committee vote to get on the ballot, this evens the playing field. It would make it more accessible for real grassroots candidates like myself to get on the ballot."

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.[2]
  • 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."[2]
  • When state legislatures enact laws that make petition drives more expensive, they are chipping away at the right of initiative.[2]
  • 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.[3]

Jill Stewart, a reporter at LA Weekly, referred to a bill banning pay-per-signature passed by the 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 was a pseudo-reform.[4]

State laws

As of August 25, 2014, the states that have an initiative process had the following rules regarding signature circulators that are paid on a per-signature basis.

Alaska

Alaska does not prohibit paying circulators by the signature, but caps their pay at $1 per signature.

DocumentIcon.jpg See law: Alaska Statutes, Sec. 15.45.110

Arizona

Arizona does not prohibit paying circulators on a per signature basis.

DocumentIcon.jpg See law: Arizona Revised Statutes, Title 19, Ch. 1, Art. 2, 19-118

Arkansas

Arkansas does not prohibit paying circulators by the signature. In addition, the Arkansas Constitution forbids any law prohibiting the payment of circulators.[5]

DocumentIcon.jpg See law: Arkansas Constitution, Article 5, Section 1

California

California does not prohibit paying circulators by the signature. In 2011, the California State Legislature passed Senate Bill 168 which would have instituted such a ban, but the bill was vetoed by Gov. Jerry Brown.

DocumentIcon.jpg See law: California Election Code, Section 9021

Colorado

Colorado law restricts per-signature pay to 20 percent or less of a circulator's compensation. Colorado also requires petition organizations to apply for a license to hire paid circulators. As part of the requirements for this license, at least one of the two designated petition representatives must attend a training course on petition fraud.

DocumentIcon.jpg See law: Colorado Revised Statutes, Title 1, Article 40, Section 112 & Section 135

Florida

Florida law does not prohibit pay-per-signature or restrict the pay of petition circulators. However, proponents who choose to hire circulators forfeit the right to file an "undue burden oath." Ordinarily, initiative sponsors are required pay for the cost of signature verification unless they submit, under oath, a statement of their inability to pay without incurring an undue financial burden. An affidavit of undue burden can be found here.

DocumentIcon.jpg See law: Florida Statutes, Title IX, Chapter 99.097, Section 4

Idaho

Idaho does not ban pay-per-signature. It used to have such a ban, but this rule was struck down in 2001 by a federal court in Idaho Coalition United for Bears v. Cenarrusa.[6]

DocumentIcon.jpg See law: Idaho Constitution, Article III, Section 1 & Idaho Statutes, Title 34, Chapter 18

Maine

Maine does not ban pay-per-signature. It used to have such a ban, but this rule was struck down in 1999 by a federal court in On Our Terms '97 PAC v. Secretary of State of Maine.[7]

DocumentIcon.jpg See law: Maine Revised Statutes, Title 21-A, Chapter 11

Massachusetts

Massachusetts does not ban pay-per-signature.[8]

Michigan

Michigan does not ban pay-per-signature.[9]

DocumentIcon.jpg See law: Michigan Constitution, Article II, Section 9 ; Article XII, Section 2 & Michigan Compiled Laws, Chapter 168 (Act 116)

Mississippi

Mississippi does not ban pay-per-signature. It used to have a ban, but this rule was struck down in 1997 by a federal court in Term Limits Leadership Council v. Clark.[10]

DocumentIcon.jpg See law: Mississippi Code, Title 23, Chapter 17, Section 57 

Missouri

Missouri does not ban pay-per-signature.[11]

DocumentIcon.jpg See law: Missouri Constitution, Article III, Sections 49-53 & Missouri Revised Statutes, Title IX, Chapter 116

Montana

Montana bans pay-per-signature for initiative petition gatherers.

DocumentIcon.jpg See law: Montana Code Annotated, Title 13, Chapter 27, Section 102

Nebraska

Nebraska bans paying circulators by the signature. The law was challenged in 2011 in Bernbeck v. Gale, but the ban was not overturned.

DocumentIcon.jpg See law: Nebraska Revised Statutes, Chapter 32, Section 630 (g)

Nevada

Nevada does not ban paying circulators by the signature.

DocumentIcon.jpg See law: Nevada Revised Statutes, Chapter 295

North Dakota

North Dakota does not permit paying circulators by the signature. In Initiative & Referendum Institute v. Jaeger, the United States Court of Appeals for the Eighth Circuit upheld the ban.

DocumentIcon.jpg See law: North Dakota Century Code, Title 16.1, Chapter 1, Section 12(11)  & I & R Institute v. Jaeger

Ohio

Ohio does not ban paying circulators by the signature. Ohio used to have such a ban, but it was struck down in Citizens for Tax Reform v. Deters.

DocumentIcon.jpg See law: Ohio Revised Code, Title XXXV, Chapter 3599.111(B) & Citizens for Tax Reform v. Deters 

Oklahoma

Oklahoma does not ban paying circulators by the signature.

DocumentIcon.jpg See law: Oklahoma Constitution, Article V, Sections 1-8, 57 ; Article XXIV, Sections 1-3 & Oklahoma Statutes, Title 34

Oregon

Oregon bans paying petition circulators by the signature. This ban was challenged but upheld in Prete v. Bradbury. In addition, paid signature gatherers are required to register with the state and carry "evidence of registration" with them as they gather. By law, this evidence must include a photo of the circulator and his or her registration number. As part of this registration, petition circulators must also complete a training course. Oregon law also requires any organization or person that pays persons to gather signatures to register with the state.

DocumentIcon.jpg See law: Oregon Constitution, Article IV, Section 1b & Prete v. Bradbury

South Dakota

South Dakota does not permit paying circulators by the signature. However, state law explicitly permits employers to set minimum gathering requirements and pay discretionary bonuses based on productivity.

DocumentIcon.jpg See law: South Dakota Codified Laws, Title 12, Chapter 13, Section 28

Utah

Utah does not ban paying circulators by the signature.

DocumentIcon.jpg See law: Utah Code, Title 20A, Chapter 7, Section 205 & Section 205.5

Washington

Washington used to ban paying circulators by the signature. However, that ban was struck down in LIMIT v. Maleng in 1994.

DocumentIcon.jpg See law: Revised Code of Washington, Title 29A, Chapter 84, Section 250 (Formerly, 29.79.490) & LIMIT v. Maleng

Wyoming

Wyoming does not permit paying circulators by the signature. In addition, sponsors are required to register circulators with the state and verify, under oath, the names, addresses, and eligibility of each circulator.

DocumentIcon.jpg See law: Wyoming Statutes, Title 22, Chapter 24, Sections 107 & 125(a)

Lawsuits

Ind. Ins. v. Colorado SOS

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.[12]

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.[13] 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[14]. The trial begun on December 21, 2010, in the District of Nebraska federal court[15]. The lawsuit alleges that age and residency restrictions added to petition circulators in 2008 violate the First Amendment to the U.S. Constitution[15]. 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[15].

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[16].

Other lawsuits

References