Citizens in Charge et al v. Gale

Filing 111

MEMORANDUM AND ORDER that the defendant's objection to evidence, Filing No. 91 , is denied, as set forth in footnote number 2. The provision of Neb. Rev. Stat. § 32-629(2) is declared unconstitutional. The State of Nebraska is enjoined fr om enforcing Neb. Rev. Stat. § 32-629(2). The red letter and type size set forth in Neb. Rev. Stat. § 32-628(4) are held constitutional and will not be enjoined. A separate judgment will be entered in accordance with this Memorandum and O rder. The plaintiffs and intervenors shall have 21 days from the date of this order to file a motion for attorney fees and costs, if they choose to do so. Defendant shall have 21 days thereafter to respond to plaintiffs' and intervenors' motions for attorney fees and costs. Ordered by Chief Judge Joseph F. Bataillon. (CS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CITIZENS IN CHARGE, MIKE
GROENE, and DONALD SLUTI,
Plaintiffs,
LIBERTARIAN PARTY OF NEBRASKA
and LIBERTARIAN NATIONAL
COMMITTEE,
Plaintiff-Intervenors,
v.
JOHN A. GALE, in his official capacity
as Secretary of State of the State of
Nebraska,
Defendant.

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4:09CV3255

MEMORANDUM AND ORDER

This matter is before the court following a trial in this case. Plaintiffs and intervenors
brought this action to enforce their First Amendment rights of political free speech.
Plaintiffs and the intervenors request that this court enter a declaratory judgment finding
the defendant violated their rights pursuant to the First and Fourteenth Amendments to the
United States Constitution. The court makes the following findings of fact and conclusions
of law.
FINDINGS OF FACT
A. The Parties
Plaintiff Citizens in Charge is an educational not-for-profit that is dedicated to
protecting and expanding ballot initiative and referendums in Nebraska and other states.
The members include citizens in both Nebraska and other states. Plaintiffs Donald Sluti
(“Sluti”) and Mike Groene (“Groene”) are Nebraska residents and registered voters.

Groene assists with securing petitions and Sluti is an independent who wants to run for
office. Secretary of State for Nebraska John Gale is the defendant. The intervenors are
the Libertarian Party of Nebraska and Libertarian National Committee, Inc. The intervenors
are a grass roots organization with nationwide membership, and the members would like
to hire out-of-state paid petition circulators to assist with the forming of a new political party
that is recognized by the State of Nebraska through the petition process. The Libertarian
Party of Nebraska is a group of voters from the State of Nebraska.
B. Residency Requirement
On February 6, 2008, the Nebraska Unicameral passed Legislative Bill 39, and on
February 19, 2008, the bill became law. This law went into effect on July 18, 2008.1 The
law stated in relevant part that “only an elector of the State of Nebraska may qualify as a
valid circulator of a petition and may circulate petitions under the Election Act.” Neb. Rev.
Stat. § 32-629(2). “Elector” is defined as:
Elector shall mean a citizen of the United States whose residence is within
the state and who is at least eighteen years of age or is seventeen years of
age and will attain the age of eighteen years on or before the first Tuesday
after the first Monday in November of the then current calendar year.
Neb. Rev. Stat. § 32-110.
The plaintiffs/intervenors offered evidence that the out-of-state ban increases the
time and costs of conducting a petition campaign in Nebraska. Filing No. 74: Declaration
of Gene Siadek (“Siadek Decl.) ¶ 11; Declaration of William Redpath (“Redpath Decl.”) ¶¶
55-69; Benedict Decl. ¶ 23; Declaration of Michael Arno (“Arno Decl.”) ¶¶ 16-29;
1

The governor vetoed Legislative Bill 39 on the following grounds: “[T]he restrictions proposed by
Legislative Bill 39, when coupled with the signature threshold requirem ents that exist in current law, would
unfairly inhibit the ability of citizens to petition their governm ent. I do not believe that we should enact
additional barriers to the power of the initiative and the referendum that are reserved for the people in Article
III of the Nebraska Constitution.” (Nebraska Legislative Journal, 100th legislature, 2d session, February 13,
2008, 584.) The Unicam eral overrode the governor’s veto.
2

Declaration of Mary Baggett ¶¶ 10-18; Declaration of John Hassett¶ 9; Declaration of
Arenza Thigpen (“Thigpen Decl.”) ¶¶ 9-13; Second Siadek Decl. ¶ 24; Second Jacob Decl.
¶¶ 7, 22-29; Declaration of Scott Kohlhaas (“Kohlhaas Decl.”) ¶¶ 17-18, 23-26; Declaration
of Diann Gentry (“Gentry Decl.”) ¶¶ 10-12; Declaration of Michael Groene ¶ 10; Declaration
of David Nabity ¶¶ 10-13.2

The defendant disagrees and likewise has provided

calculations to the court supporting its argument that there is very little in increased costs.
See Filing No. 102, pp. 41-42, ¶ 4; p. 45, ¶ 3. The court credits the evidence and
testimony of the plaintiffs and intervenors in this regard, and finds there are increased
costs associated with using untrained solicitors.
At the time in question in this lawsuit there were no petitioning companies devoted
to initiative, referendum, and/or recall petitions.3 There are 1,344,978 potential eligible
voters in Nebraska available to circulate petitions and witness the signatures of petition
signers. There are 1,000 potential individuals in the State of Nebraska with at least some
experience in circulating petitions.
According to the parties, a nonresident may: 1) solicit signatures from Nebraska
residents, 2) talk to Nebraska residents about the nature and benefits of particular petition
efforts, 3) carry petitions with them, 4) advise petition proponents who are from Nebraska
about the best way to carry out their duties, and 5) perform any other duties in connection
with petition circulation. However, a nonresident cannot witness signatures. Under
2

The court notes that objections have been filed by the defendant as to a num ber of docum ents filed
by plaintiffs and intervenors. See Filing No. 91 and Filing No. 92. These objections are based on foundation,
hearsay, relevance, speculation and legal conclusion. The court is aware of these objections and has taken
them into consideration when reviewing the evidence. See Harris v. Rivera, 454 U.S. 339, 346 (1981) (in a
bench trial the court is presum ed capable of hearing evidence otherwise inadm issable and ignoring that
evidence when m aking decisions).
3

There are a couple of com panies who run petition drives for gam ing and KENO.
3

Nebraska law, “[e]ach circulator of a petition shall personally witness the signatures on the
petition and shall sign the circulator’s affidavit.” Neb. Rev. Stat. § 32-630(2). Thus,
nonresidents cannot witness signatures.
The plaintiffs and intervenors argue that the out-of-state ban severely burdens the
right to associate for political purposes. They contend that there has been no stateside
petition effort in Nebraska since the imposition of the residency requirement, in contrast
to the 70% success rate noted by the Eighth Circuit in Initiative & Referendum Inst. v.
Jaeger, 241 F.3d 614 (8th Cir. 2001) (discussed hereinafter), a case that originated in
North Dakota with a similar ban on out-of-state petition circulators. The out-of-state ban
prohibits the plaintiffs and intervenors from relying on nonresident professional petition
circulators.
In 2010 the Libertarian Party implemented a local petition drive for the recall of the
Omaha mayor. The intervenors contend they were forced to pay one of the KENO
companies extra money to assist with this drive. AGT, the KENO petition circulation
company, initially declined to help, but later agreed to do so. This company is geared
towards gaming and KENO issues, and not towards initiatives of this type.
The State of Nebraska contends that the Unicameral passed this law in part to
prohibit signature fraud. The State only offered three instances of potential petition
process fraud from 1995-2010. One perpetrator was from Nebraska, one was out of state,
and the residence of the remaining person is unknown. There is no further evidence of any
significant petition fraud in Nebraska by out-of-state residents.
Further, the State of Nebraska also contends that it is difficult to timely subpoena
out-of-state circulators. The State argues that at times it only has a two-week window for
4

determining the validity of a petition, and it is difficult to obtain service and return the
petition circulator in that period of time. Plaintiffs and intervenors argue that the State of
Nebraska could locate or prosecute nonresident petition circulators.
All petition circulators in the State of Nebraska must submit each petition page for
verification to the Secretary of State, and on the affidavit must list his or her name, street
and number and city. See Neb. Rev. Stat. § 32-628(3). According to the plaintiffs and
intervenors, this should enable the State of Nebraska to find out-of-state petitioners. In
fact, in the case where Nebraska charged an out-of-state petition circulator with falsifying
signatures on the petitions, Sergeant Sandra Meyers of the Lincoln Police Department
used the home address in Oklahoma which had been provided on the affidavit to locate
the person charged with fraud. Filing No. 81, Ex. 40, Deposition of Sandra Myers (“Myers
Dep”) 36-40; 52-55. However, it took the Tulsa police more than a year to serve the
warrant on the fraud perpetrator. Filing No. 81-2, Ex. 40.
Mr. Lawrence Neal Erickson, Assistant Secretary of State for Elections for fifteen
years and considered the election expert for the State of Nebraska, testified that he knew
of no instances in which an out-of-state petition circulator was subpoenaed to Nebraska
but could not be found. Filing No. 81, Attach. 1, Ex. 39, Deposition of Lawrence Neal
Erickson (“Erickson Dep.”) 164. According to Mr. Erickson, the Secretary of State’s
signature verification process is “very reliable.” Id., Erickson Dep. 17-18, 42, 128-29.
The plaintiffs and intervenors offered declarations of numerous persons who
testified that very few people are effective petition circulators. See Siadek Decl. ¶¶ 7-8,
Filing No. 40; Filing No. 74: Siadek Decl.; Redpath Decl. ¶¶ 25-26; Second Declaration of
Gene Siadek ¶ 33, Docket No. 74-4; Arno Decl. ¶ 14, Docket No. 74-6; Thigpen Decl. ¶ 11,
5

Docket No. 74-9; Ferrell Decl. ¶¶ 7-13, Docket No. 74-14; Erickson Dep. 22-23, 157-58.
Further, plaintiff and intervenors contend that many people will not circulate petitions under
any circumstances. Filing No. 74, Attach. 1, Redpath Decl. ¶ 25; Filing No. 81, Myers Dep.
17-18.
Plaintiffs and intervenors also assert that professional petition circulators are
experienced and know how to obtain the required number of signatures in a specific
amount of time. Filing No. 74, Redpath Decl. ¶¶ 18-22; Benedict Decl. ¶¶ 19-22; Arno
Decl. ¶¶ 12-15; Thigpen Decl. ¶ 11; Kohlhaas Decl. ¶¶ 10-14, 21-22; Declaration of Darryl
Bonner ¶¶ 15-16, Bonner Decl.; Declaration of Andrew S. Jacobs ¶¶ 16-17, Jacobs Decl.;
Declaration of Mark Read Pickens ¶¶ 21-22, Pickens Decl.; Ferrell Decl. ¶¶ 7-13; Gentry
Decl. ¶¶ 2-7; Erickson Dep. 117 (higher signature validity rates for petition drives by paid
circulators than those done partly or entirely by volunteers); Filing No. 81-2; deposition of
John Hassett 77-78, 116-18 (“Hassett Dep.”) (higher signature validity rates for
professional circulators compared with nonprofessional circulators);.
The State of Nebraska has not passed legislation that would require petition
circulators to agree to be subject to the State’s jurisdiction as a condition of circulation.
Approximately 5934 signatures were necessary to form a new political party under
Neb. Rev. Stat. § 32-716 in 2010 and about 4,000 signatures necessary to place a
partisan candidate on the statewide general election ballot under Neb. Rev. Stat. §
32-618(2).
The plaintiffs and intervenors offered evidence of perceived animus against out-ofstate petitioners. See Ex. 5, Memo to Government Committee Members, Filing No. 55 at
ID # 456-57 (sets out purposes of out-of-state ban but does not mention intent to reduce
6

signature fraud); Filing No. 81, Ex. 39 Erickson Dep. 89-93. Some of the legislative history
reads as follows:
We support LB39 . . . for the very reason that something needs to be done
. . . not [to] have the big money outsiders come in, hire what we call the
carpetbaggers, put them out on the street, house them and harass the
citizens. . . .
Ex. 5, Hearing Before the Government, Military and Veterans Affairs Committee, January
17, 2007, p. 11 (statement of Pat Loontjer), Filing No. 55-1 at ID # 465.
They came in and for $1 million it is sad to say you can almost buy
your way onto a Nebraska ballot. That is certainly not what our founding
fathers wanted when they initiated the petition process. It’s been so distorted
that it ties the hands of the average citizens.
Id.
I really do want to . . . cut down on the money that comes in from out of
state.
Ex. 5, Hearing Before the Government, Military and Veterans Affairs Committee, January
17, 2007, p. 14 (statement of Kathy Holkeboer), Filing No. 55-1 at ID # 468.
[W]hen paid petitioners come in from outside and a lot of outside money
comes in to fund that that it in a sense kind of tilts the playing field so that the
ordinary citizen effort can’t compete and the big money interests on the
outside really have an advantage in what I see often as meddling in our own
business that really has nothing to do with the outside interest[.]
Ex. 5, Hearing Before the Government, Military and Veterans Affairs Committee, January
17, 2007, p. 33 (statement of Senator Avery), Filing No. 55-1 at ID # 487.
[T]he people in Nebraska do not and are not interested in having people from
out of state harassing them at Wal-Mart, K-Mart or wherever they are. . . .
They have no idea about what is the issue of Nebraska. . . . [T]he simple fact
is it was out-of state people, it was millionaires putting money in to tell
Nebraskans what to do. That’s wrong.

7

Ex. 5, Senate Floor Debate, February 1, 2007, p. 8 (statement of Senator Harms), Filing
No. 55-2 at ID # 505.
I understand the intention that we want to keep rich folks from outside the
state from coming in here and influencing our public policy, but there is a
ruling by a high court that indicates that it would be an abridgment of the
constitution. And so in a sense, our hands are tied. . . .
Ex. 5, Senate Floor Debate, February 1, 2007, p. 15 (statement of Senator Fulton), Filing
No. 55-2 at ID # 512.
I think, by and large, most of us want to preserve the petition process for
Nebraskans. . . .
Ex. 5, Senate Floor Debate, February 1, 2007, pp. 21-22 (statement of Senator Schimek),
Filing No. 55-2 at ID # 518-519.
I have seen the people’s house so abused by paid hired guns who parachute
in and then run away.
Ex. 5, Senate Floor Debate, February 19, 2008, p. 17 (statement of Senator White), Filing
No. 56-1 at ID # 595. Mr. Erickson testified that the out-of-state ban is good policy, stating:
“out-of-state circulators, in particular, don’t understand the issues, don’t convey them to
potential signers in a manner that really informs them as to what they’re signing.” Filing
No. 81, Ex. 39, Erickson Dep. 72-73. He did not testify regarding any fraud concerns.
On the other hand, these comments were made by Senator Lathrop during the floor
debate on LB 39:
Thank you very much, Madam President and colleagues. I would like to
echo the remarks of Senator Adams, who correctly pointed out that the
debate here and what we should focus on in our remarks, I think, is whether
or not there is an evil we are trying to correct. The law is very clear that we
have to choose the most narrow manner for limiting the process available to
us to address a compelling interest, and that narrow process, I believe the
use of the term “electorate” is as narrow as we can be with the problem that
we are trying to correct or the evil that we’re trying to correct in the petition
8

process. The reported cases require that we have a compelling interest, and
I think that it would do us well to include in our debate the compelling interest
—those things that are problematic, the fraud that we have seen, that we’ve
heard about in these committee hearings and that accompany the
introduction of this bill.
Floor Debate on LB 39, 100th Leg., 1st Sess. Filing No. 55-3 at 10 #552. Likewise,
Senator Schimek stated:
And one of the reasons that I think that we should keep it in, and I
asked to have the severability clause added, is because during the course
of our discussion in the petition task force, while we were talking about the
potential for fraud, two election commissioners who serve on that task force
were very concerned about the fact that last time when we had the term
limits petition drive in this state there were a number of instances, and here
in Lancaster County, in which people came into the state, registered at a
motel and then registered to vote, and then circulated petitions. And
immediately upon turning in the signatures for that petition drive they left the
state, they were gone. And there was no way to trace them and there was
no way to investigate the potential fraud.
Floor Debate on LB 337, 94th Leg., 1st Sess. Filing No. 66-2 at ID #1637.
At the risk of sounding too much like I’m preaching or too much like
a school teacher here, I would tell you don’t come to the microphone and say
we don’t want outsiders in our state because we don’t like outsiders or we
don’t like what they have to say. That’s the wrong reason.
Ex. 5, Senate Floor Debate, January 15, 2008, p. 53 (statement of Senator Adams), Filing
No. 55-3 at ID # 546.
C. Scarlett Letter Provision
In 1995 the Unicameral passed a bill requiring that the paid circulator language must
appear in red ink and sixteen-point type. Neb. Rev. Stat. § 32-628(4). Plaintiffs and
intervenors contend that this is offensive, coerced speech.
Subsection 4 of Neb. Rev. Stat. § 32-628 provides as follows: “Each sheet of a
petition shall have upon its face and in plain view of persons who sign the petition a

9

statement in letters not smaller than sixteen-point type in red print on the petition. If the
petition is circulated by a paid circulator, the statement shall be as follows: This petition
is circulated by a paid circulator. If the petition is circulated by a circulator who is not being
paid, the statement shall be as follows: This petition is circulated by a volunteer circulator.”
This is the only part of the Election-Act Petitions that must appear in red type. Neb. Rev.
Stat. § 32-628(4).
Plaintiffs and intervenors challenge this provision.
CONCLUSIONS OF LAW
A. Residency
The law requires that only electors of the State of Nebraska may circulate petitions
under the Election Act. Plaintiffs and the intervenors argue this imposes residency
requirements on petition circulators, because petitions circulated by nonresidents will be
declared invalid. The plaintiffs and intervenors argue that circulation of petitions is core
political speech. The residency requirement imposed by Legislative Bill 39 applies to new
party petitions, candidacy petitions and to initiative or referendum petitions.
Neb. Const. art. VI, § 1 states:
Every citizen of the United States who has attained the age of
eighteen years on or before the first Tuesday after the first Monday in
November and has resided within the state and the county and voting
precinct for the terms provided by law shall, except as provided in section 2
of this article, be an elector for the calendar year in which such citizen has
attained the age of eighteen years and for all succeeding calendar years.
Plaintiffs and intervenors believe the Nebraska statutes make it impossible to gather
signatures. Plaintiffs state:
At issue are three provisions of Nebraska law: Neb. Rev. Stat. §
32-618(2)(a), Neb. Rev. Stat. § 32-629(2), and Neb. Rev. Stat. § 32-628(4).
10

The second requires petition circulators to be “electors” of the State of
Nebraska. The third requires all petitions to contain certain language in
large, red type. The plaintiffs claim that these provisions violate various
rights guaranteed by the First and Fourteenth Amendments to the United
States Constitution, as enforced by 42 U.S.C. § 1983, and they ask this
Court for declaratory and injunctive relief prohibiting state officials from
enforcing the unconstitutional statutes now and in the future.4
Filing No. 1, Complaint, page 1. Plaintiffs seek to enjoin enforcement of Neb. Rev. Stat.
§ 32-629(2).5
The State has a right to regulate elections to ensure they are fair and orderly.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). The court agrees that
circulation of petitions is core political speech involving “interactive communication
concerning political change” “for which the First Amendment protection is ‘at its zenith.’”
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186 (1999) (quoting Meyer
v. Grant, 486 U.S. 414, 422 (1988)). Colorado had an extensive law on petition circulators.
The Supreme Court in Buckley reviewed the provisions dealing with registration (that
circulators must be registered voters), badge (language denoting whether the circulator was
paid or volunteer), and disclosure requirements (regarding amount of money paid to each
circulator). The Supreme Court has determined that there must be vigilance in making
judgments on the First Amendment, so as not to inhibit the exchange of ideas or political

4

The first provision set out a signature-distribution requirem ent for would-be independent candidates,
requiring them to obtain at least 50 signatures from at least one-third of Nebraska’s counties on a candidacy
petition before they m ay appear on the ballot. However, since the filing of this lawsuit, the Nebraska
Unicam eral repealed this section of the statute. Consequently, the m erits of this claim are no longer at issue
in this lawsuit.
5

At the tim e of filing this lawsuit, plaintiffs argued that they wanted to field Libertarian Party candidates
for the Novem ber 2010 election, and they wanted to hire a petition-gathering firm to collect signatures. It
appears that at least som e of these circulators would have been paid and would have been nonresidents.
The court notes that this is an issue that is capable of repetition yet evading review. Norman v. Reed, 502
U.S. 279, 288 (1992).
11

conversations. Meyer, 486 U.S. at 421. The Buckley court concluded that the voter
registration requirement reduces the number of persons, both volunteer and paid
circulators, that would be in the pool to circulate petitions. Buckley, 525 U.S. at 193.
Further, the Supreme Court upheld the requirement that each circulator must submit an
affidavit with his or her name and address, so as to subject the circulators to subpoenas
if the need arises. Buckley, 525 U.S. 193-197. The Buckley Court further determined that
Colorado’s interests, administrative efficiency, fraud detection, and informing voters, did not
justify the restrictions set forth by the Colorado election laws. Id. at 192.
In determining whether the law violates the plaintiffs’ and intervenors’ rights to
associate, the United States Supreme Court has set forth the following test with regard to
states’ election laws:
[A court] must first consider the character and magnitude of the
asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate. It then must identify and
evaluate the precise interests put forward by the State as justifications for the
burden imposed by its rule. In passing judgment, the Court must not only
determine the legitimacy and strength of each of those interests; it also must
consider the extent to which those interests make it necessary to burden the
plaintiff’s rights.
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). When the law imposes a reasonable
and nondiscriminatory restriction, the State’s regulatory interests are generally sufficient
to justify such restrictions.

Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting

Anderson, 460 U.S. at 788. However, when there is a heavy burden or discrimination with
reference to these rights, the regulation must be narrowly drawn and there must be a
compelling interest. Id. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992).

12

The United States Supreme Court has stated that the freedom to associate as a
political party is a fundamental right. Williams v. Rhodes, 393 U.S. 23, 40 (1968). As
Justice O’Connor recognized in Clingman v. Beaver, “applying heightened scrutiny helps
to ensure that such limitations are truly justified and that the State’s asserted interests are
not merely a pretext for exclusionary or anticompetitive restrictions.” 544 U.S. 581, 603
(2005) (O’Connor, J., concurring). Voters are free to join together to create a common goal
or agenda.

See Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000)

(“Representative democracy in any populous unit of governance is unimaginable without
the ability of citizens to band together in promoting among the electorate candidates who
espouse their political views.”); Norman v. Reed, 502 U.S. 279, 288 (1999) (same). Under
the Anderson and Burdick balancing tests: the court must first determine whether it is a
burden; if the answer is no, the inquiry stops. If the response is yes, the court must
determine if it is it narrowly tailored to serve compelling state interests. Anderson v.
Celebrezze, 460 U.S. at 789; Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788).
The court finds that the ban is subject to strict scrutiny. Buckley, 525 U.S. at 204;
see also Meyer, 486 U.S. at 423 (applying strict scrutiny where, as here, a ban on
nonresident petition circulators “has the inevitable effect of reducing the total quantum of
speech on a public issue”). In Buckley, the Supreme Court applied strict scrutiny to
Colorado’s voter registration requirement for initiative-petition circulators finding it
decreases the pool of potential circulators and the numbers of people who might be
interested in spreading the message. Buckley, 525 U.S. at 194-95. The court further found
that the law was not narrowly restricted to achieve any compelling state interest argued by
the state. Id.
13

Further, as in Meyer, the requirement “imposes a burden on political expression that
the State has failed to justify.” Meyer, 486 U.S. at 428. In addition, this court agrees with
the plaintiffs and intervenors that their right to associate for political purposes is violated.
Rhodes, 393 U.S. 23. The court finds that the plaintiffs and intervenors have established
the first prong and have showed an infringement on their rights to associate. Plaintiffs’ and
intervenors’ argument that this ban inhibits their right to associate is a valid one. The out-ofstate ban imposes a heavy burden on the plaintiff-intervenors efforts to promote their
political views in Nebraska. The defendant has not met its burden in this regard. As stated
previously herein, the defendant offered very few instances of fraud. Further, there are
less restrictive alternatives for bringing petition circulators into the subpoena jurisdiction of
this court.
The majority of circuit courts that have reviewed similar restrictions, applied strict
scrutiny, and have made the same determination. See Nader v. Blackwell, 545 F.3d 459
(6th Cir. 2008) (Ohio statute imposing a residency and voter registration restriction on
candidate-petition circulators violated free speech rights and the circulation activity
constituted core political speech and was not narrowly tailored to achieve a compelling
state interest); Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008) (Arizona statutes creating
a residency restriction on candidate-petition circulators placed a severe burden on First
Amendment rights and was not narrowly tailored to serve the asserted interest of
preventing fraud in the election process); Yes on Term Limits v. Savage, 550 F.3d 1023
(10th Cir. 2008) (Oklahoma ban on nonresident petition circulators was not narrowly
tailored to the interests of protecting and policing the integrity and reliability of the initiative

14

process); see also Daien v. Ysursa, 711 F. Supp. 2d 1215 (D. Idaho 2010) (court found that
Idaho statute requiring residency for petition circulators unconstitutional).
However, defendant argues that Jaeger is dispositive of this case. Defendant
contends the Eighth Circuit Court of Appeals in Jaeger found that the North Dakota
residency requirement, which had a law similar to the one in this case, was valid. The
Eighth Circuit noted that Buckley struck down the voter registration requirement but was
not asked whether the residency requirements for petition circulators were permissible.
Buckley, 241 F.3d at 616. The Eighth Circuit based its finding in part by determining that
North Dakota had a compelling interest in preventing fraud. Jaeger, 241 F.3d at 616. The
court in Jaeger did not specifically determine if the residency requirement was narrowly
tailored, but it did cite to two district court decisions that so found.6 See Jaeger, 241 F.3d
at 617 (citing Kean v. Clark, 56 F. Supp.2d 719 (S.D. Miss. 1999) and Initiative &
Referendum Institute v. Secretary of State of Maine, 1999 Westlaw 33117172 (D. Me. April
23, 1999)). Several other district courts have recently found that similar restrictions do not
violate the First Amendment. See Libertarian Party of Virginia v. Virginia State Board of
Elections, 2010 Westlaw 3732012 *8 (E.D. Va. September 16, 2010) (no severe restriction
on First Amendment rights when “out-of-district supporters” could work on candidate’s
campaign and “assist in circulating his petition, so long as someone eligible to vote in the
Eighth Congressional District accompanied them and was present to witness any voters’
signatures.”); but see Lux v. Rodrigues, 736 F. Supp.2d 1042 (E.D. Va. August 26, 2010)
(citing Jaeger discussion of alternative means available to nonresidents to communicate

6

The Eighth Circuit recently had an opportunity to revisit the Jaeger case, but dism issed the case for
lack of standing. Constitution Party of South Dakota v. Nelson, No. 10-2910 (8th Cir. May 4, 2011).
15

their views) (recently reversed by Lux v. Judd, 2011 WL 2624173 (4th Cir. July 6, 2011)
and remanded to the district court to review the residency requirement on its merits;
Constitution Party of South Dakota v. Howe, 730 F. Supp.2d 992 (D.S.D. August 4, 2010)
(no First Amendment violation where state did not prohibit plaintiff “from accompanying
other circulators and speaking with potential voters about the candidate.” Defendant relies
on Jaeger and asks the court find it dispositive on the claims in this case. The court
disagrees and finds that Jaeger does not control on this issue.7 During the preliminary
injunction hearing, the court determined that Jaeger would most likely apply. However, the
court had received insufficient evidence at that time and Jaeger appeared to control.
Following the submission of evidence and argument, the court believes that Jaeger is
distinguishable. The Eighth Circuit in Jaeger specifically stated that there was “no evidence
in the record” of the alleged burden associated with the ban. Id. at 618.
The court believes that the plaintiffs and intervenors have met their burden in this
regard. The plaintiffs and intervenors have offered evidence of increased cost; evidence
of the ability of trained solicitors to come in and do the job in the time permitted, and how
training new solicitors is an increased cost burden; offered evidence as to a reduction of
the available pool of circulators if only in-state petitioners are used; offered evidence as to
the lack of any petition circulation firms in the State of Nebraska, other than those who
petition for KENO issues; the Libertarian Party showed that there are very few instances
of fraud in Nebraska, and only one in the last 15 years by someone from out of state; and

7

Jaeger is the only Court of Appeals case that has upheld a residency restriction on petition circulators
to date. The plaintiffs and intervenors argue that the Jaeger case is wrongly decided. That argum ent m ust
be presented to and decided by the Eighth Circuit and clearly is not for this court to decide.
16

offered evidence that the Libertarian Party has limited resources for these campaigns,
which could cause the Libertarian Party to not participate in petition drives in Nebraska.
For these reasons, the court finds Jaeger is distinguishable. The plaintiffs and intervenors
provided sufficient evidence of a real burden on their First Amendment rights.
Moreover, the court finds that there are less restrictive ways to meet the ability to
subpoena out-of-state residents, such as a consent to jurisdiction requirement, or by the
affidavit containing the necessary personal and geographical information. See Buckley,
525 U.S. at 196 (“the interest in reaching law violators . . . is served by the requirement . . .
that each circulator submit an affidavit setting out, among several particulars, the address
at which he or she resides, including the street name and number, the city or town, [and]
the county.”). Buckley clearly articulates that this is a less restrictive means for obtaining
jurisdiction over out-of-state petitioners. Id.
Other courts of appeal have held that the consent to jurisdiction option is clearly a
less restrictive alternative than the residency requirement. See Brewer, 531 F.3d at 1037
(9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236, 1242-45 (10th Cir. 2002);
Krislov v. Rednour, 226 F.3d 851, 866 n.7 (7th Cir. 2000); see also Daien, 711 F. Supp. 2d
at 1235; Frami v. Ponto, 255 F. Supp. 2d 962, 970 (W.D. Wis. 2003).
B. Scarlet Letter Provision
Formerly, from 1986 till 1988, Nebraska law prohibited payment to petition
circulators. These prohibitions were struck down by the Supreme Court in Meyer v. Grant,
486 U.S. 414. In 1991 the Nebraska Unicameral passed legislation requiring that the
petitions have language stating: “This petition is circulated by a paid circulator.” Filing No.
56-2. This law was later amended so as to require red ink and large font.
17

Plaintiffs and intervenors contend that the language placed on the petition is
pejorative. Pejorative language is disfavored.8 Cook v. Gralike, 531 U.S. 510, 524-26

8

In addition to the language quoted previously by m em bers of the Unicam eral, the record is replete
with additional com m ents from m em bers of the Unicam eral about their feeling for paid circulators.
[W ]e have, as a Legislature, for m any years taken a dim view of paid petition circulators and
had banned those by statute, not allowed for paid petition circulators, and then the court
struck down not only our law but every law in the country that did not allow for paid petition
circulators. So we have struggled with how to identify paid petition circulators and legislation
a few years ago I introduced would have had them wear a big badge saying “Paid Petition
Circulator” and, again, there was a constitutional question raised with that and so we cam e
to the conclusion, the com prom ise of at least including on the petition som e identification that
this was a paid circulator . . . we at least have red ink, som e way to particularly draw attention
to the fact that these are paid circulators. If we can’t ban them , if we have to allow for them ,
at least the public should know that that’s who they are dealing with. It m akes a difference
to people I think. If som ebody com es up and they’re legitim ately, personally concerned about
an issue and asking for som ebody to sign a petition, that’s one thing, but it’s another if
som ebody is getting paid 75 cents or a dollar a signature trying to collect m oney as they
collect signatures and I think the public reacts appropriately . . . having the red ink m ight help
draw attention to the fact, so we’ve had people som ewhat abusing the previous law we
passed by hiding that inform ation. . . .
(Ex. 9, Senate Debate, March 13, 1995, p. 2480-81 (statem ent of Senator W esely), Filing No. 65-3 at ID #
1538-9.)
[N]ow that we have paid circulators, the m onied interests will be able to very easily to get
upon the initiative ballot their propositions. And those propositions are not necessarily going
to be good for the general public even in the event of volunteer groups.
(Ex. 9, Senate Debate, March 13, 1995, p. 2499 (statem ent of Senator Beutler), Filing No. 65-3 at ID # 1557.
1569.)
[W e need to] protect our state from these transient bounty hunters that com e in and are paid
so m uch per signature to m ake quick m oney. . . .
(Ex. 9, Governm ent, Military & Veterans Affairs Com m ittee Hearing, February 1, 1995, p. 97 (statem ent of
Patty Hansen), Filing No. 65-2 at ID # 1501.)
I know that there are som e people on the floor who place a paid circulator probably
som ewhere beneath an attorney even.
(Ex. 9, Senate Debate, March 24, 1995, p. 5178 (statem ent of Senator W itek), Filing No. 66-2 at ID # 1639.)
[A warning about paid petition circulators is about] . . . protecting our process . . . from those
people who really don’t care what happens in the State of Nebraska, except if they’re paid
while they’re here.
(Ex. 9, Senate Debate, March 24, 1995, p. 5177 (statem ent of Senator W ickersham ), Filing No. 66-2 at ID
# 1638.)

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(2001) (labels placed next to candidate’s name on ballots found to violate the First
Amendment). Paid circulators, argue plaintiffs and intervenors, receive derogatory labels
that nonpaid circulators do not receive. Plaintiffs and intervenors contend they cannot
effectively reply to these derogatory labels. In addition, the plaintiffs and intervenors argue
that the red letter language is not justified by any governmental interest. See Cook, 531
U.S. at 532; and Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
Plaintiffs and intervenors also argue that this is compelled speech. Finally, the plaintiffs
and intervenors argue that the scarlet letter provisions violate the Equal Protection clause
of the Fourteenth Amendment, as the provisions bear no rational relationship to a
legitimate state interest.
The first justification provided by the defendant is that the State of Nebraska wants
to provide the electorate with information so they can choose to decide whether to sign or
not. Second, the State argues this will help deter circulation fraud.
Plaintiffs disagree and ask the court to rely on Cook and Mosley, which state:
where “the State has chosen one and only one issue to comment on”—here, the paid
versus volunteer status of circulators—“the State is saying that the issue . . . is paramount.”
Cook, 531 U.S. at 532. The State “may not select which issues are worth discussing or
debating.” Id. (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972)). The
two justifications set forth by defendant do not survive the rational basis test, argue
plaintiffs and intervenors.
The record reflects that, since 1996, while the disclosure has been required to be
placed on petitions, 42 petition drives submitted petitions to the Secretary of State for
signature verification. Erickson Affidavit at 2, 3 and Attachment A (Filing No. 73-1, Ex. 12).
19

Of those 42 petition drives, 34 were successful in placing issues, candidates, or parties on
the ballot, including all six petition drives undertaken by the Libertarian Party. Erickson
Affidavit at Attachment A (Filing No. 73-1, Ex. 12); Erickson Dep. (Filing No. 81-1, Ex. 39),
153:11-15. The majority of these successful petition drives used paid petition circulators.
Erickson Dep. (Filing No. 81-1, Ex. 39), 152:24-153:7.
The court finds the disclosure statement does not impose a severe burden on
plaintiffs’ and intervenors’ First Amendment rights. Neither the plaintiffs nor the intervenors
offered any significant or substantially credible evidence that the required language, color
and type impaired their ability to obtain signatures. Further, the court finds that the
disclosure statement is a reasonable and a nondiscriminatory regulation designed to inform
petition signers that the person gathering the petition signatures might be paid for such
signatures. The court does not find that this is a pejorative label or compelled speech, but
instead concludes that this language is intended merely to inform the electorate of the paid
or volunteer status. Such information is “justified based on a governmental interest in
‘provid[ing] the electorate with information.’” Citizens United v. Federal Election Comm’n,
130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 66). And finally, the court finds that the
disclosure does not violate the Equal Protection clause. The plaintiffs have offered no
evidence that they are a protected class. See Jaeger, 241 F.3d at 618.

20

THEREFORE, IT IS ORDERED that:
1. The defendant’s objection to evidence, Filing No. 91, is denied, as set forth in
footnote number 2.
2. The provision of Neb. Rev. Stat. § 32-629(2) is declared unconstitutional. The
State of Nebraska is enjoined from enforcing Neb. Rev. Stat. § 32-629(2).
3. The red letter and type size set forth in Neb. Rev. Stat. § 32-628(4) are held
constitutional and will not be enjoined.
4. A separate judgment will be entered in accordance with this Memorandum and
Order.
5. The plaintiffs and intervenors shall have 21 days from the date of this order to file
a motion for attorney fees and costs, if they choose to do so. Defendant shall have 21 days
thereafter to respond to plaintiffs’ and intervenors’ motions for attorney fees and costs.

DATED this 30th day of August, 2011.

BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
21