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Taxpayers Action Network v. Sec. of State, concurring opinion, attorneys and footnotes.

DANA, J.,  concurring in the judgment.

	[¶22]  I concur in the result, but I would affirm the decision of the
Secretary of State for a different reason:  
	[¶23]  The Court upholds the disenfranchisement of over three thousand
citizens as a sanction for "James Powell's" criminal conduct.  The policy
rationale for imposing such a sanction has a legislative ring.  I reach the same
result, however, because "James Powell" was not a "circulator" as that term is
defined in the Maine Constitution.
	[¶24]  The Constitution requires that a circulator's "name must appear
on the voting list of the city, town or plantation of the circulator's residence . .
. ."  Me. Const. art. IV, pt. 3, § 20.  In the present case, the circulator
fraudulently registered to vote as "James Powell."  The circulator's actual
name, which is currently unknown, does not "appear on the voting list" of the
municipality of his residence, and, therefore, he is not a circulator pursuant to
Me. Const. art. IV, pt. 3, § 20.
	[¶25]  MTAN contends that the registrar of the municipality is the
"exclusive" authority on a voter's qualifications,{10} and, therefore, the Secretary
of State has no authority to determine whether "James Powell" was a properly
registered voter.{11}  The issue, however, is not whether a person named "James
Powell" is a properly registered voter, but whether the circulator's "name"
"appear[s] on the voting list of the city, town or plantation of the circulator's
residence . . . ."  Me. Const. art. IV, pt. 3, § 20.  Because the circulator (whose
identity is unknown) did not register to vote using his correct name, his name
did not appear on the voting list of his local community as required by the
	[¶26]  MTAN contends that Maine's "registered voter" requirement
violates the right to free speech as guaranteed by the First and Fourteenth
Amendment.  See U.S. Const. amends. I, XIV, § 1.  MTAN relies on the United
States Supreme Court's decision in Buckley v. American Constitutional Law
Foundation, Inc., 525 U.S. 182, 197 (1999), in which the Court struck down a
Colorado statute requiring circulators to be registered voters.  As the Supreme
Court stated, however, there is "'no litmus paper test' [to] separate valid ballot-
access provisions from invalid interactive speech restrictions . . . ."  Id. at 192
(quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).  The Court has also stated: 
Decision in this context, as in others, is very much a 'matter of
degree,' very much a matter of 'consider[ing] the facts and
circumstances behind the law, the interests which the State claims
to be protecting, and the interests of those who are disadvantaged
by the classification.  What the result of this process will be in any
specific case may be very difficult to predict with great assurance.  

Storer, 415 U.S. at 730 (citations omitted).
	[¶27]  In Buckley, 525 U.S at 193, the Supreme Court considered the
actual effect of the voter registration requirement in Colorado, in light of
evidence in the record that there were at least 400,000, id., and possibly as
many as 964,000, id. at 193 n.15, unregistered, but voter-eligible residents in
Colorado at the time Buckley was decided.  Based on this evidence, and "given
the uncontested numbers," the Court found that Colorado's registered voter
requirement "decreases the pool of potential circulators . . . ," id. at 194, to an
impermissible degree, and "cuts down the number of message carriers in the
ballot-access arena without impelling cause," id. at 197.
	[¶28]  There is no evidence in the record to support the assertion that
Maine's voter registration requirement will have a similar impact on the
number of potential circulators as the Colorado requirement.  Indeed, a recent
decision by a federal court in Maine has upheld the Maine voter registration
requirement against First Amendment and equal protection challenge, stating:
The Secretary [of State] in this case adduces undisputed evidence
that the estimated voting-age population of Maine (i.e., Maine
residents age 18 and over) was 944,785 as of July 1997, compared
with a pool of Maine registered voters totalling 933,753 as of
November 1998.  Earlier data is comparable, showing a voting-age
population of 943,797 in 1996 and a total of 953,368 registered
voters as of November 1997.  Thus, approximately 98.8 percent of
Maine's voter-eligible population is registered to vote.  These
numbers do not in themselves sustain a claim of severe burden.

Initiative & Referendum Inst. v. Sec'y of State, No. CIV. 98-104-B-C, 1999 WL
33117172, at *15 (D. Me. Apr. 23, 1999).{12}
	[¶29]  Maine's voter registration requirement serves a purpose of
providing a convenient and administratively efficient means of identifying and
locating circulators as part of the validation process, if necessary, or to
investigate potential misconduct.  See id. at *15-*16.  In the absence of any
evidence to suggest that Maine's voter registration requirement presents a
severe burden on the right of free speech, I would uphold the voter registration
requirement and affirm the Secretary of State's decision to invalidate the 3,054
signatures on the ground that the circulator's name does not appear on a list
of registered voters as required by Me. Const. art. IV, pt. 3, § 20.
Attorney for plaintiff: Stephen C. Whiting, Esq. (orally) The Whiting Law Firm, P.A. 75 Pearl Street, suite 207 Portland, ME 04101 Attorneys for defendant: G. Steven Rowe, Attorney General Phyllis Gardner, Asst. Attorney General (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The Maine Constitution provides, in pertinent part: § 18. Direct initiative of legislation Section 18 1. Petition procedure. The electors may propose to the Legislature for its consideration any bill, resolve or resolution, including bills to amend or repeal emergency legislation but not an amendment of the State Constitution, by written petition addressed to the Legislature or to either branch thereof and filed in the office of the Secretary of State . . . . 2. Referral to electors unless enacted by the Legislature without change; number of signatures necessary on direct initiative petitions; dating signatures on petitions; competing measures. For any measure thus proposed by electors, the number of signatures shall not be less than 10% of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition. The date each signature was made shall be written next to the signature on the petition, and no signature older than one year from the written date on the petition shall be valid. The measure thus proposed, unless enacted without change by the Legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the Legislature, and in such manner that the people can choose between the competing measures or reject both. . . . Me. Const. art. IV, pt. 3, §18. {2} . Section 20 provides, in pertinent part: § 20. Meaning of words "electors," "people," "recess of Legislature," "state-wide election," "measure," and "written petition"; written petitions for people's veto; petitions for direct initiative Section 20. As used in any of the 3 preceding sections or in this section the word "electors" and "people" mean the electors of the State qualified to vote for Governor; . . . "circulator" means a person who solicits signatures for written petitions, and who must be a resident of this State and whose name must appear on the voting list of the city, town or plantation of the circulator's residence as qualified to vote for Governor; "written petition" means one or more signatures written or printed, or partly written and partly printed, with the original signatures of the petitioners attached, verified as to the authenticity of the signatures by the oath of the circulator that all of the signatures to the petition were made in the presence of the circulator and that to the best of the circulator's knowledge and belief each signature is the signature of the person whose name it purports to be, and accompanied by the certificate of the official authorized by law to maintain the voting list of the city, town or plantation in which the petitioners reside that their names appear on the voting list of the city, town or plantation of the official as qualified to vote for Governor. The oath of the circulator must be sworn to in the presence of a person authorized by law to administer oaths. . . . Me. Const. art. IV, pt. 3, § 20 (emphasis added). {3} . Title 21-A section 354(7)(A) requires: The circulator of [an initiative] petition shall verify by oath or affirmation before a notary public or other person authorized by law to administer oaths that all of the signatures to the petition were made in his presence and that to the best of his knowledge and belief each signature is the signature of the person whose name it purports to be and each person is a resident of the electoral division named in the petition. 21-A M.R.S.A. § 354(7)(A) (1993). {4} . The term "oath" is defined as "[a] solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise." Black's Law Dictionary 1099 (7th Ed. 1999). Strictly speaking, the lack of a swearing to God or a revered person or thing means that the "oath" taken by the circulator here was really an affirmation, but there is no contention that this distinction makes a difference under the Maine Constitution or the relevant statutes. Cf. id. at 59 (defining "affirmation" as "[a] pledge equivalent to an oath but without a reference to a supreme being or to 'swearing'"). {5} . MTAN limits its appeal to the Secretary's invalidation of the 3054 signatures collected by the imposter, and does not challenge the invalidation of the remaining 11,452 signatures. {6} . MTAN also contends that Maine's requirement that circulators be registered voters and residents of Maine violates its First Amendment right of free speech. See U.S. Const. amends. I, XIV, § 1. But see Hart v. Sec'y of State, 1998 ME 189, ¶ 13, 715 A.2d 165, 168, cert. denied 525 U.S. 1139 (1999) (concluding that Maine's residency requirement did not violate the constitutional right to free speech). See also Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001). Because we affirm the Secretary's decision on other grounds, it is unnecessary to address MTAN's challenges to the constitutional requirement that circulators must be residents and registered voters. {7} . Section 905(1) provides: The Secretary of State shall review all petitions filed in the Department of the Secretary of State . . . for a direct initiative under the Constitution of Maine, Article IV, Part Third, Section 18. The Secretary of State shall determine the validity of the petition and issue a written decision stating the reasons for the decision within 30 days after the final date for filing the petitions in the Department of the Secretary of State under the Maine Constitution of Maine, Article IV, Part Third, Section 17 or 18. 21-A M.R.S.A. § 905(1) (Supp. 2001). {8} . We have long recognized that the executive officer charged with overseeing the petition process-formerly the Governor, now the Secretary of State-has plenary power to investigate and determine the validity of petitions. Opinion of the Justices, 116 Me. 557, 580- 82, 103 A. 761, 771-72 (1917). {9} . Other criminal sanctions could also apply. See 21-A M.R.S.A. § 159(1) (Supp. 2001) (criminalizing the giving of a false statement or oath in connection with voter registration); 29-A M.R.S.A. § 2103 (1996 & Supp. 2001) (regarding false statements on a driver's license application); 17-A M.R.S.A. § 452(1)(A) (1993) (criminalizing false swearing, that is, the making of a false statement under oath); see also State v. Anthoine, 2002 ME 22, ¶ 12, 789 A.2d 1277, 1280 (affirming false swearing conviction of petition circulator). {10} . Section 121 provides: "The registrar has the exclusive power, subject to section 163, to determine whether a person who applies for registration as a voter meets the qualifications prescribed by this Title." 21-A M.R.S.A. § 121 (Supp. 2001). Section 161 also provides that "[t]he registrar has the exclusive power to prepare and revise the voting list." Id. § 161. Section 161(4) provides: "If the registrar is in doubt as to the qualifications of a person to vote, the registrar shall fix a reasonable time and place for a hearing and give written notice to the voter at the last known address provided by the voter . . . ." Id. § 161(4). {11} . On the other hand, we have stated that "[f]raud opens all doors," Opinion of the Justices, 116 Me. 557, 581-82, 103 A. 761, 772 (1917), and that credible evidence of fraud may give the executive officer responsible for petition review the authority to make an independent investigation. {12} . In an attached footnote, the District Court noted that "[t]he total number of registered voters appears to exceed the estimated voting-age population because local registrars do not always purge the names of registered voters who move or die." Initiative & Referendum Inst. v. Sec'y of State, No. CIV. 98-104-B-C, 1999 WL 33117172, at *15 n.16 (D. Me. Apr. 23, 1999).

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