Kent Bernbeck v. Scott A. Moore ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3503
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Kent Bernbeck; Stan Dobrovolny; *
Richard Bellino; Angela L. Crouse; *
Gwen Kutschkau, *
*
Appellees, *
*
Betty Cowart, *
*
Plaintiff, *
*
v. * Appeal from the United States
* District Court for the District of
Scott A. Moore, * of Nebraska.
*
Appellant. *
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Submitted: May 20, 1997
Filed: October 9, 1997
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Before McMILLIAN, ROSS and FAGG, Circuit Judges.
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ROSS, Circuit Judge.
Appellees brought this 42 U.S.C. § 1983 action challenging portions
of Nebraska statutory law which prohibit and criminalize the circulation
of initiative petitions by persons who have not been registered to vote for
one month prior to the circulation of the petitions. See Neb. Rev. Stat.
§§ 32-629, 32-630, 32-1404, 32-1546. Appellees,
who are petition-drive organizers or circulators who did not meet the
registration requirements, allege that the registration requirements
violated their First Amendment right to free speech. The district court1
concluded that the statutory provisions restrict appellees’ core political
speech and, because they are not narrowly tailored to serve the State’s
compelling interests, violate appellees’ First Amendment rights. Secretary
of State Moore appeals the court’s decision with respect to the
constitutionality of the voter-registration requirement. He does not
appeal, however, the court’s decision with respect to the thirty-day
registration requirement. We affirm.
The Nebraska Constitution reserves for the people the power to
propose laws and amendments to the constitution and to enact or reject the
same at the polls by petition, independent of the legislature. Neb. Const.
art. III, §§ 1, 2. While the provisions with respect to the initiative and
referendum are self-executing, the constitution provides that “legislation
may be enacted to facilitate their operation,” Neb. Const. art. III, § 4,
including “legislation to prevent fraud.” State ex rel. Stenberg v.
Beerman, 485 N.W.2d 151, 152 (Neb. 1992). The Nebraska Constitution does
not impose residency or registration requirements on petition circulators.
In 1995, legislation was enacted which required that circulators of
initiative petitions had to be registered voters of Nebraska for one month
prior to the circulation of any petitions. Neb. Rev. Stat. §§ 32-629, 32-
1404. Section 32-630(3)(c) affirmatively prohibited any person from
circulating a petition if he or she is not qualified as a petition
circulator under § 32-629, while § 32-1546(1) makes it a Class I
misdemeanor to circulate a petition if the circulator is not statutorily
qualified to circulate the petition.
Petition circulators must sign an affidavit before a notary public
on every sheet of the petition stating, among other things, that (a) he or
she is a registered voter of the State of Nebraska; (b) the persons who
signed the petition did so in the presence of the
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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circulator, and the date of the signatures is correctly stated on the
petition; (c) the circulator believes the signer has written his or her
name, street and number or voting precinct, and address correctly; (d) the
circulator believes each signer was qualified to sign the petition, and (e)
the circulator informed each signer of the purpose of the petition before
the signer affixed his or her signature. Id. § 32-628(3). In addition,
the petition must state whether the circulator has been paid or is a
volunteer. Id. § 32-628(4).
Nebraska law further provides that election officials are “to
determine if the circulator was a registered voter one month prior to the
date of circulating and signing the petition,” and if not, “[a]ll [such]
signatures . . . shall not be counted." Id. § 32-1409(1), (3). Once the
petitions have been submitted to the proper state authorities, the
signatures on the petitions must go through an extensive verification
process. In order to prevent fraud, election officials must determine,
among other things, that each person who signed the petition was registered
to vote before or at the time the petition had to be filed with the
Secretary of State. Id. § 32-1409.
In Meyer v. Grant, 486 U.S. 414 (1988), the Supreme Court struck down
as unconstitutional a Colorado statute that prohibited the payment of
petition circulators because the law “abridged appellees’ right to engage
in political speech and therefore violated the First and Fourteenth
Amendments to the Federal Constitution.” Id. at 416. The Court reasoned
that the circulation of a petition, which “involves both the expression of
a desire for political change and a discussion of the merits of the
proposed change,” constitutes “core political speech.” Id. at 421-22. For
that reason, the Court concluded, the Colorado “statute trenches upon an
area in which the importance of First Amendment protections is “at its
zenith,” and “the burden that Colorado must overcome to justify this
criminal law is well-nigh insurmountable.” Id. at 425.
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We reject the Secretary of State’s attempt to distinguish Meyer with
the argument that the registered-voter requirement does not regulate
“political speech,” but rather the “process” of conducting an initiative
election, thereby raising no First Amendment concerns. As in Meyer, the
statutes at issue in the present case limit the ability of citizens to have
initiative petitions circulated. The Meyer Court expressly concluded that
“the circulation of a petition involves the type of interactive
communication concerning political change that is appropriately described
as ‘core political speech.’” Id. at 421-22.
The concerns raised by the prohibition of paid circulators in Meyer
are identical to the effect of the voter-registration requirement on the
initiative process in the present case. In both instances, the laws
“limit[ ] the number of voices who will convey appellees’ message and the
hours they can speak and, therefore, limit[ ] the size of the audience
they can reach.” Id. at 422-23. Moreover, the laws at issue in both Meyer
and the present case “make[ ] it less likely that appellees will garner the
number of signatures necessary to place the matter on the ballot, thus
limiting their ability to make the matter the focus of statewide
discussion.” Id. at 423.
Here, the district court made the factual determination that the
“evidence is undisputed that when petition organizers attempted to comply
with the restrictions, the number of individuals they could hire to solicit
signatures was grossly insufficient to the task, and this was true despite
efforts to obtain ‘qualified’ circulators through mass mailing and
advertisements.” Bernbeck v. Moore, 936 F. Supp. 1543, 1561 (D. Neb.
1996). The evidence further showed that the Nebraska statutes made it less
likely that the appellees, as sponsors of initiatives, would be able to
collect the necessary number of signatures to place their initiatives on
the ballot. The effect, therefore, of these statutes is a restriction of
the people’s constitutional right to express core political speech.
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The strict or exacting scrutiny standard requires that a state must
show the regulation in question is substantially related to a compelling
government interest and is narrowly tailored to achieve that end. Burson
v. Freeman, 504 U.S. 191, 198 (1992). Under this standard, the Secretary
of State asserts that the registration requirement is necessary because it
serves two compelling state interests: (1) it prevents signature fraud by
assuring the validity of the signatures of registered voters on the
petitions and allowing election officials to track down petition
circulators who have committed fraud; and (2) it maintains the integrity
of the initiative process by “assur[ing] that the people participating in
the process are indeed Nebraskans.”
Secretary of State Moore testified that the voter-registration
requirement serves the compelling state interest of preventing signature
fraud in two ways. First, it requires circulators to “establish residency
in Nebraska, be aware of Nebraska laws and have concern about Nebraska
laws.” Second, it provides a record of those circulating petitions that
can be used to verify signatures on the petitions. Appellees concede the
State has a compelling interest in preventing fraud, but argue that the
voter-registration requirement is not narrowly tailored to serve that end.
First, appellees note that other less restrictive provisions of
Nebraska law are adequate to prevent signature fraud without imposing a
voter-registration requirement. For example, Nebraska already has a
signature-by-signature verification process in which the election
commissioner compares every signature on a petition with the corresponding
signature on a voter-registration card, and also compares the printed name
and address to the registration records. Neb. Rev. Stat. § 32-1409.
Nebraska law also makes it a misdemeanor for any person to fraudulently
sign a petition, id. § 32-1546(1), and a felony to falsely swear to a
circulator’s affidavit or to accept or offer money in exchange for a
signature on a petition. Id. § 32-1546(2). Further, each petition page
must contain a warning regarding signature fraud and the penalty therefore,
id. § 32-628(2), and every circulator must sign an affidavit under oath at
the bottom of each sheet of a petition attesting that he or she witnessed
each signature, that
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the date of each signature is correct and that the circulator believes each
signer was qualified to sign the petition. Id. § 32-628(3).
These same devices for preventing signature fraud were found to be
“adequate to the task of minimizing the risk of improper conduct in the
circulation of a petition” in Meyer, “especially since the risk of fraud
or corruption, or the appearance thereof, is more remote at the petition
stage of an initiative than at the time of balloting.” 486 U.S. at 427.
The State of Nebraska similarly has an adequate arsenal of safeguards to
protect against the danger of signature fraud, and accordingly, we conclude
that the requirement of voter registration is not narrowly tailored to
serve the State’s compelling interest.
The Secretary of State also contends the State has a compelling
interest in maintaining the integrity of the initiative process, in other
words, an interest in assuring that the process is reserved “for
Nebraskans, people who live in Nebraska, make their livelihood here, will
continue to live here.” Bernbeck, 936 F. Supp. at 1562. Noting that the
Nebraska Constitution gives the right to circulate petitions to the
“people,” without any limitation on whether they are registered to vote or
residents of Nebraska, the district court disagreed that the State has a
compelling interest in prohibiting non-registered voters from circulating
petitions.
The district court noted, however, that even assuming that
reserving the right to the initiative process to Nebraska residents was a
compelling interest, the registration requirement for circulators was not
narrowly tailored to satisfy that interest. Id. at 1562. The court stated
that “the specific voter-registration requirement for circulators harms the
very Nebraskans it is ostensibly designed to protect” by preventing
Nebraskans from hiring non-registered voters, regardless of their
residence, to circulate their petitions. Id. at 1563 (emphasis in
original). Finally, the district court noted that in no other situation
does Nebraska law prohibit or restrict Nebraskans who advocate or oppose
electoral measures from hiring or recruiting non-registered voters to
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champion their cause, including hiring non-registered lobbyists, non-
registered campaign workers or campaign managers, or non-registered persons
to run a telephone bank opposing various initiatives. Id. We agree with
the district court that even if the interests advanced by the State to
support the registration requirement are compelling, the law is not
narrowly tailored to achieve those interests.
Our decision comports with the Tenth Circuit’s recent decision in
American Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir.
1997), where the court applied strict scrutiny to a Colorado law requiring
petition circulators to be registered voters, Colo. Rev. Stat. § 1-40-
112(1), and concluded that Colorado failed to identify a compelling state
interest to which its registration requirement is narrowly tailored. Id.
at 1100. The court noted that “[t]he mandatory exclusion of unregistered
circulators also limits the number of voices to convey the proponent’s
message, limiting the audience the proponents can reach and making it less
likely they will be able to gather the required number of signatures to
place a measure on the ballot.” Id.
In summary, we agree with the district court that the law requiring
petition circulators to be registered voters in Nebraska violates the First
Amendment because it restricts core political speech and the statutory
requirement is not the least restrictive means available for satisfying
Nebraska’s interests in preventing signature fraud and maintaining the
integrity of its initiative process. We have considered other issues
raised by the appellant and find them to be without merit. Accordingly,
the judgment of the district court is affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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