Federal Judge Says Colorado Can't Restrict How Campaigns Pay Workers
U.S. District Judge Philip Brimmer on Friday put a temporary hold on part of a controversial 2009 bill restricting, among other things, how and when voters can be asked to sign a petition. You can read the judge’s order here.
Judge Brimmer has yet to rule on the constitutionality of the state’s requirement that no more than 20 percent of a petition circulator’s compensation can be based on the number of voters who sign a petition. Friday’s preliminary injunction prohibits the state from enforcing that part of the law until the court reaches its full opinion. In his order of injunction the judge indicated that the group challenging the payment ban was likely to succeed.
Federal courts have struck down bans on paying workers by the signature in five different states - Idaho, Maine, Mississippi, Ohio, and Washington - for violating the First Amendment by reducing free speech. Judge Brimmer found that restricting the amount that could be paid by the signature was in effect a complete ban on per-signature payment. Like other courts, he also found that not only does restricting payment drive up the cost of qualifying a measure for the ballot, it severely reduces the pool of people willing to help collect signatures.
During testimony in the suit, managers of several petition firms from Colorado and nationwide testified that banning or restricting payment per signature causes the cost of qualifying a petition for the ballot to nearly double. Testimony also indicated that top signature collectors - who don’t need to be trained on state laws and rely on their reputations for continued business - will not work unless paid by the signature.
The claim made by Colorado lawmakers when the passed the bill - which was popular with politicians and abhorred by free speech activists - was that paying by the signature encourages petition fraud. This same argument is used to justify or promote similar bans around the country. The judge was careful to distinguish - as some courts have failed to do - between invalid signatures and fraudulent signatures (emphasis mine):
Examples of fraudulent practices include forging signatures, telling signers that they do not need to be registered voters, and tricking people into signing two different petitions by claiming that two signatures are needed on the same petition. Whereas most invalid signatures appear to be the result of the signer not knowing his or her status as a registered voter or intentionally writing a clearly fictitious name such as “Mickey Mouse,” forging a signature on a ballot petition is a purposeful attempt to deceive the Secretary of State’s Office into accepting a signature as that of a registered voter.
During a hearing in the case several petition professionals testified that per signature payment does not increase signature fraud. Included was research-based testimony of Dr. Daniel Smith who said “Honestly, I don’t think that the pay per signature model necessarily indices fraud.” Because of this overwhelming testimony that payment per signature did not induce fraud, and the lack of evidence from the state that such a system did, the court found that paying campaign workers by the signature induced neither increased fraud nor an increased number of invalid signatures.
The head of one petition company, Ted Blaszak, even indicated that inexperienced local campaign workers are more likely to commit signature fraud than professionals. Blaszak does not pay by the hour, but he and the owners of several other petition companies indicated that they have refused to pay for signatures that appear to have been forged. The court concluded that professional petition circulators “have a greater reputational interest in avoiding fraud and invalidity” than amateur or volunteer circulators.
Judge Brimmer notes that, unlike cases where bans on payment per signature have been upheld, ample evidence was presented that Colorado’s ban imposed a severe burden on petition supporters by limiting who can carry their message. At the same time, while the state of Colorado showed that preventing fraud is a legitimate state interest, it failed to present any evidence that the restriction actually prevented fraud or forgery.
The judge also points out that while Colorado does provide penalties for forging signatures, “very few resources have been devoted to enforcing such laws and very few prosecutions have taken place.” He went on to tell that state that they should enforce current laws against fraud before restricting free speech.
Because the court found that the payment per signature ban does impose a severe burden on those wishing to circulate an initiative petition while not serving any state interest, the constitutional challenge to that ban is likely to succeed in a full trial. Because this burden falls on groups currently collecting signatures, irreparable harm could be caused by the law staying in place until trial. For that reason Judge Brimmer issued the preliminary injunction to protect petitioners now.
The bill in question, House Bill 1326 from 2009 not only restricted how campaigns could pay their workers but also made several other changes to the initiative process, including changing the calendar to reduce the time to collect signatures and imposing reporting requirements related to the payment ban. The current lawsuit, Independence Institute v. Buescher, challenges ten provisions of the law. A hearing on the remainder of the challenged provisions and the overall constitutionality of the payment per signature ban has not been set.
It is interesting to note that the only two major cases dealing with restrictions on ballot initiative rights to go to the US Supreme Court originated in Colorado. The state of Colorado lost both cases. In Meyer v. Grant the Court struck down a law banning any type of compensation for petition circulators. In Buckley v. ACLF the Court found unconstitutional Colorado’s requirement that petition circulators be registered to vote and wear a “Scarlet Letter:” a badge containing information about how they are paid and where they live.