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Residency requirements for petition circulators

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Residency requirements for petition circulators are laws that require that petition circulators legally reside in a particular political jurisdiction if the signatures they collect are to be considered valid. The laws can apply to people who are collecting signatures for candidates, initiatives, recall campaigns or veto referenda. The laws can apply to states, or to smaller political subdivisions.

Recently, some states have moved to make it a criminal violation for people who reside in one political jurisdiction to ask people in other political jurisdictions to sign petitions. The technical definition of what a resident is differs from state-to-state, in those states that concern themselves with residency requirements.

The courts rule on residency

Residency requirements are an active area of ballot access law. In 2008, three federal appeal court rulings invalidated residency laws in Arizona, Michigan and Oklahoma as being unconstitutional.

  • Bogaert v. Land. The Sixth Circuit in this case struck down Michigan's prohibition against non-resident circulators in recall petition drives.
  • Nader v. Brewer. On July 7, 2008, a three-judge panel of the Ninth Circuit overturned Arizona's residency requirement. Rulings of the 9th circuit apply to Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington. Of these states, Alaska, Idaho and Montana have residency requirements which will be impacted by this ruling. Brewer has filed a petition with the U.S. Supreme Court asking it to hear an appeal of the Ninth Circuit's ruling. Thirteen states submitted an amicus curiae brief to the court in December 2008, asking the Court to hear Arizona’s appeal. On January 6, the Supreme Court invited Nader to respond to Brewer's appeal; his reply brief is due February 6, 2009.[4],[5],[6]

Judges have also invalidated residency requirements in:

In Buckley v. American Constitutional Law Foundation, in 1999, the U.S. Supreme Court overturned a Colorado law requiring that petition circulators be registered voters in the political jurisdiction in which signatures are being solicited--a closely related requirement. In Initiative & Referendum Institute v. Jaeger in 2000, the Eighth Circuit federal appeals court upheld North Dakota's residency requirement. In Nader v. Brewer, the 9th Circuit takes the Eighth to task for the Jaeger decision, saying they find Jaeger "unpersuasive" and criticizing the 8th circuit for failing to take Krislov into account.

Residency requirements imposed recently

In 2007 and 2008, Nebraska legislators passed a new law making it a crime for non-residents to circulate petitions and successfully overrode a gubernatorial veto of the law. Montana and South Dakota made it a crime in 2007 for non-residents to circulate petitions, and several other states are considering similar legislation. On December 16, 2009 the ACLU filed a federal lawsuit on behalf of Citizens in Charge challenging Nebraska's residency requirement. The case is Citizens in Charge v. Gale.

The Colorado legislature enacted a law to make it illegal to paid circulators to be non-residents; Gov. Bill Ritter vetoed this bill on May 30, 2008.

States with residency requirements

The states with residency requirements are separated here according to which United States federal circuit court they're in. The reason for this is that when initiative sponsors or candidates challenge a state's residency requirement, they often (but not always) do so in federal court with appeals to federal constitutional principles. If a federal appeals court invalidates or upholds a residency requirement in one state in its jurisdiction, that ruling usually (but not always) applies with some immediacy to the laws of the other states in that federal court's jurisdiction.

The different federal courts of appeal are currently in conflict with respect to the constitutionality of state residency requirements. The Eighth Circuit upheld a residency requirement in Jaeger in 2000. The Seventh, Ninth and Tenth Circuits invalidated residency requirements before and after Jaeger.The Sixth and Tenth have pending lawsuits.

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Maine

Main article: Laws governing the initiative process in Maine

Circulators must be registered to vote in Maine.

States in the 5th Circuit

Mississippi

Circulators must be residents of Mississippi.

Bogaert v. Land was decided by the Sixth Circuit in September 2008. In the decision, the court found that Michigan's residency requirement is unconstitutional.

Michigan

Main article: Laws governing the initiative process in Michigan

A legal action, Ebbers v. Secretary of State, is pending in Michigan in state court, as well as Bogaert v. Land, a federal court action which challenges Michigan's MCL 168.957. That code has an in-district residency requirement.

Initiative circulators are required in a separate law to be residents of Michigan.

Ohio

Main article: Laws governing the initiative process in Ohio

Circulators must be eligible to register to vote in Ohio.

Illinois

Circulators must be registered to vote in Illinois.

Initiative & Referendum Institute v. Jaeger is the most recent decision in the 8th on residency requirements. Jaeger is at odds with earlier and later federal court decisions in the 6th, 7th, 9th and 10th circuits.

Nebraska

Main article: Laws governing the initiative process in Nebraska

In 2008, with the passage of Nebraska Legislative Bill 39 (overriding a gubernatorial veto), Nebraska has now adopted a law making it a Class III misdemeanor for a person who does not live in Nebraska to ask a Nebraska voter to sign an initiative petition. See Changes in 2008 to laws governing the initiative process. On December 16, 2009 the ACLU filed a federal lawsuit on behalf of Citizens in Charge challenging Nebraska's residency requirement. The case is Citizens in Charge v. Gale.

North Dakota

Main article: Laws governing the initiative process in North Dakota

Circulators must be residents of North Dakota. The United States Court of Appeals for the Eighth District upheld North Dakota's residency requirement in the case of Initiative & Referendum Institute v. Jaeger. The court argued that North Dakota's prohibition on non-residents collecting signatures did not unconstitutionally infringe their core first amendment rights because[7]:

"Many alternative means remain to non-residents who wish to communicate their views on initiative measures."

South Dakota

Circulators must be residents of South Dakota.

Alaska

Main article: Laws governing the initiative process in Alaska

Circulators must be residents of Alaska. Alaska's language regarding residency is:

Designating Circulators for Initiative or Referendum

Qualified voters who sign the application are designated as sponsors, who may or may not circulate the petition. The initiative committe may designate additional circulators by giving their names and addresses in written notice to the Lieutenant Governor. [AS 15.45.060] If circulators designated by the committee are not registered voters, they must sign a certificate of Alaska residency available from the Division of Elections. Circulators must be 18 or older and a U.S. citizen.

Designating Circulators for Recall

Qualified voters who sign the application are designated as sponsors, who may or may not circulate the petition. If circulators designated by the initiative committee are not registered voters, they must sign a certificate of Alaska residency located on the back of each petition booklet that the circulator is circulating. Circulators must be 18 or older and a U.S. citizen.[8]

Alaska is in the Ninth Circuit. The Ninth Circuit's July 9, 2008 ruling in the case of Nader v. Brewer threw out Arizona's residency requirement as unconstitutional, saying that "such a restriction creates a severe burden on Nader and his out-of-state supporters' speech, voting and associational rights." This ruling will have an impact on Alaska's laws, since Alaska is in the 9th, but it is not yet clear what that impact will be.

Arizona

Main article: Laws governing the initiative process in Arizona

Circulators must be eligible to register to vote in Arizona. This is a de facto residency requirement since in order to be eligible to register to vote, a person has to be a resident.

Arizona is in the Ninth Circuit. The Ninth Circuit's July 9, 2008 ruling in the case of Nader v. Brewer threw out Arizona's residency requirement for circulators collecting signatures for independent presidential candidates as unconstitutional, saying that "such a restriction creates a severe burden on Nader and his out-of-state supporters' speech, voting and associational rights." This ruling will have an impact on Arizona's residency requirement for other circulators as well--such as those who circulate petitions for initiatives--but it is not yet clear what that impact will be.

California

Main article: Laws governing the initiative process in California

Circulators must be eligible to register to vote in California. (See Jeff Denham recall). However, on January 16, 2008, the California State Court of Appeals in a 3-0 decision declared that two parts of California's election code are an inconstitutional abridgement of the First Amendment. In Preserve Shorecliff Homeowners v. City of San Clemente, a trial court judge ruled and the appellate court agreed that the "functionally equivalent" California election codes 9209 and 9238 are unconstitutional. These parts of the code required that for people to circulate a veto referendum opposing a newly-enacted city ordinance in any California city, the petition circulators must be residents of that city.[9]

Idaho

Main article: Laws governing the initiative process in Idaho

1. Circulator shall be a resident of the State of Idaho and at least 18 years of age. (34-1807 I.C.)

2. Residence defined:

(1) "Residence," for voting purposes, shall be the principal or primary home or place of abode of a person. Principal or primary home or place of abode is that home or place in which his habitation is fixed and to which a person, whenever he is absent, has the present intention of returning after a departure or absence therefrom, regardless of the duration of absence.

(2) In determining what is a principal or primary place of abode of a person the following circumstances relating to such person may be taken into account business pursuits, employment, income sources, residence for income or other tax pursuits, residence of parents, spouse, and children, if any, leaseholds, situs of personal and real property, situs of residence for which the exemption in section 63-602G, Idaho Code, is filed, and motor vehicle registration.

(3) A qualified elector who has left his home and gone into another state or territory or county of this state for a temporary purpose only shall not be considered to have lost his residence.

(4) A qualified elector shall not be considered to have gained a residence in any county or city of this state into which he comes for temporary purposes only, without the intention of making it his home but with the intention of leaving it when he has accomplished the purpose that brought him there.

(5) If a qualified elector moves to another state, or to any of the other territories, with the intention of making it his permanent home, he shall be considered to have lost his residence in this state. (34-107, I.C.)[10]

Idaho is in the Ninth Circuit. The Ninth Circuit's July 9, 2008 ruling in the case of Nader v. Brewer threw out Arizona's residency requirement as unconstitutional, saying that "such a restriction creates a severe burden on Nader and his out-of-state supporters' speech, voting and associational rights." This ruling will have an impact on Idaho's residency requirement but it is not yet clear what that impact will be.

Montana

Main article: Laws governing the initiative process in Montana

As of 2007, Montana has a new law, SB 96, making it illegal for a person who does not live in Montana to ask a Montana voter to sign an initiative petition. Residency is defined as: "the union of act and intent" to reside and continue to reside in Montana.[11]

Montana is in the Ninth Circuit. The Ninth Circuit's July 9, 2008 ruling in the case of Nader v. Brewer threw out Arizona's residency requirement as unconstitutional, saying that "such a restriction creates a severe burden on Nader and his out-of-state supporters' speech, voting and associational rights." This ruling will have an impact on SB 96 but it is not yet clear what that impact will be.

Yes on Term Limits v. Savage is the most recent decision in the 10th regarding residency. On December 18, 2008, a three-judge panel of the Tenth issued a unanimous decision in the case, saying that Oklahoma's residency restriction is an unconstitutional violation of core First Amendment speech rights. The decision of the 10th Circuit overturns a lower federal court decision. Oklahoma AG Drew Edmondson appealed the decision and on January 21, 2009, the Tenth Circuit announced that it was rejecting Edmondson's request for a re-hearing saying that no judges wanted to rehear the case. Edmondson then dropped his prosecution of the Oklahoma 3 and said that the state's 1969 residency law is "not legally enforceable".[12][13],[14]

Chandler v. City of Arvada is a 2002 ruling of the Tenth District, in which the 10th circuit judges addressed Jaeger -- a decision from their 8th Circuit neighbors -- in order to dissent from it, arguing that in Meyer v. Grant, the U.S. Supreme Court court held that the right to circulate petitions is a uniquely impactful way of asserting one's political views.

In Meyer, the [Supreme] Court observed: "[the fact that] appellees remain free to employ other means to disseminate their ideas does not take their speech through petition circulators outside the bounds of First Amendment protection." 486 U.S. at 424. The Court then characterized petition circulation as "the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication." Id. The First Amendment protects Plaintiffs' right, "not only to advocate their cause but also to select what they believe to be the most effective means for advancing it."

Colorado

Main article: Laws governing the initiative process in Colorado

The Colorado legislature passed House Bill 1406 in early May 2008, which stated that petition drives that hire petitioners for pay are restricted to hiring only Colorado residents. Gov. Bill Ritter vetoed the bill on May 30, 2008, saying, "...the state bears a heavy burden when it comes to regulating petition circulators in a manner that will meet constitutional muster. In my view, the differential treatment of paid versus volunteer petition circulators contained in House Bill 08-1406 would not survive a constitutional challenge."

Oklahoma

Main article: Laws governing the initiative process in Oklahoma

Oklahoma's residency requirement, established in 1969, was overturned by the 10th Circuit in the case of Yes on Term Limits v. Savage on December 18, 2008. In January 2009, the state's attorney general declared that the law is no longer legally enforceable.

Utah

Main article: Laws governing the initiative process in Utah

Circulators must be residents of Utah. However, the December 2008 decision of the Tenth Circuit in the case of Yes on Term Limits v. Savage could mean that Utah's law is unconstitutional.

Wyoming

Main article: Laws governing the initiative process in Wyoming

Circulators must be residents of Wyoming. However, the December 2008 decision of the Tenth Circuit in the case of Yes on Term Limits v. Savage could mean that Wyoming's residency law is unconstitutional.


States without residency requirements

Arkansas, Florida, Illinois, Massachusetts, Missouri, Nevada, Oregon, and Washington.

See also

External links

References