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Hart v. Secretary of State
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Decision:1998 ME 189
Argued:	July 20, 1998
Decided:July 28, 1998




	[¶1]  Stephanie Hart and Mainers for Medical Rights (the proponents)
challenge the constitutionality of a provision of the Maine Constitution.  They
appeal from a judgment entered in the Superior Court (Kennebec County,
Kravchuk, C.J.) affirming the decisions of the Secretary of State rejecting a
direct initiative petition.  On appeal, they argue that the Secretary of State,
by invalidating signatures on the basis that the circulators failed to comply
with the constitutional requirements of residency and voter registration,
violated their right to free speech protected by the first and fourteenth
amendments of the United States Constitution.  Because the number of
signatures invalidated on the basis of the circulators' residence alone would
prevent the initiative from being placed on the November 1998 ballot, we
affirm the judgment without ruling on the voter registration requirement.
	[¶2]  The relevant facts may be briefly summarized as follows:  On
October 24, 1997,  Stephanie Hart applied for approval of a direct initiative
petition entitled "An Act to Permit the Medical Use of Marijuana."  The
Secretary of State approved the form of the petition for circulation on
November 21, 1997, and the proponents had three years to circulate and
gather the 51,131 signatures (10% of votes cast in last gubernatorial
election) required to place the initiative on the ballot.  See 21-A M.R.S.A. §
903-A(1) (Supp. 1997).  The proponents submitted petitions with a
combined total of 68,330 signatures.  The Secretary of State reviewed the
petitions and invalidated a total of 22,507 signatures, leaving the proponents
with 5,308 signatures less than the number required.
	[¶3] The proponents filed a complaint in the Superior Court seeking a
review of the Secretary of State's decision pursuant to 21-A M.R.S.A. § 905
(1993 & Supp. 1997) and M.R. Civ. P. 80C.  They challenged the Secretary of
State's action in invalidating 1,033 signatures because the circulators were
not residents of the State of Maine and 4,347 signatures because the
circulators did not meet voter registration requirements.
	[¶4] Without the benefit of the guidance provided by our recent
decision in Palesky v. Secretary of State, 1998 ME 103, __ A.2d __, the
court held two evidentiary hearings in April of 1998.  After our decision in
Palesky, the court found the challenged provisions constitutional and
affirmed the Secretary of State's determination concerning the 4,347
signatures collected by unregistered voters.  With respect to the 1,033
signatures collected by alleged nonresident circulators, the court vacated
and remanded to the Secretary of State for further factual findings.
	[¶5] After remand, the Secretary of State issued an amended
determination reducing the number of signatures invalidated on the basis of
the circulators' residence from 1,033 to 347.  The Superior Court affirmed
and the proponents, still short by a total of 4,622 signatures, appealed. 
Because the signatures invalidated on the basis of the circulators' residence
leaves proponents short of the required minimum, we address only that
	[¶6]  Proponents argue that Article IV, pt. 3, § 20 of the Maine
Constitution (Supp. 1997) requiring circulators to be residents violates their
fundamental rights to freedom of speech, freedom of expression and
freedom of association afforded by the first and fourteenth amendments to
the United States Constitution.{1}  The Secretary of State argues that the
requirement represents reasonable regulation of the electoral process.  We
	[¶7]  The direct initiative process, the exercise of the legislative
power by the electors, is authorized by the Maine Constitution in the
following terms:  "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 . . ."  Me.
Const. art. IV, pt. 3, § 18 (Supp. 1997) (emphasis added).  "Written petition"
is defined as: 
one or more petitions 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.
Me. Const. art. IV, pt. 3, § 20 (Supp. 1997) (emphasis added).  "Circulator" is
defined as "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."  Me. Const. art. IV, pt. 3, § 20 (Supp. 1997) (emphasis
 	[¶8] The proponents rely heavily on Meyer v. Grant, 486 U.S. 414, 108
S. Ct. 1886 (1988) and American Const. Law Found., Inc. v. Meyer, 120 F.3d
1092 (10th Cir. 1997), cert. granted sub nom. Buckley v. American Const.
Law Found., Inc., 118 S. Ct. 1033 (Feb. 23, 1998), and cert. denied, 118 S.
Ct. 1045 (Feb. 23, 1998).   In Meyer v. Grant, the United States Supreme
Court declared unconstitutional a provision in Colorado's citizen initiative
statute making it a criminal offense to pay circulators. 486 U.S. at 428.  The
Colorado statute also required circulators to be registered voters, but the
constitutionality of that provision was not before the court and therefore was
not addressed.  In American Const. Law Found., Inc. v. Meyer, the 10th
Circuit, following the United States Supreme Court's analysis, found, inter
alia, that the Colorado statute requiring circulators to be registered voters
was unconstitutional.  Although this issue is presently before the United
States Supreme Court, it has not yet been decided.
	[¶9] The proponents argue that, although neither Meyer v. Grant nor
American Const. is controlling, the same strict scrutiny applies and the
Secretary of State has not demonstrated a compelling state interest to justify
the requirement of residence.  We have acknowledged that, in general,
"[t]he initiative petition process involves political discourse that is protected
by the first amendment of the federal constitution."  Wyman v.  Secretary of
State, 625 A.2d 307, 311 (Me. 1993)(citing Meyer v. Grant, 486 U.S. 414,
421, 108 S.Ct. 1886, 1891 (1988)).  Specifically, "[t]he circulation of an
initiative petition of necessity involves both the expression of a desire of
political change and a discussion of the merits of the proposed change. . . .
Thus the circulation of a petition involves the type of interactive
communication concerning political change that is appropriately described
as 'core political speech.'"  Id. (quoting Meyer v. Grant, 486 U.S. at 421-22). 
"Although the right to invoke an initiative is a state-created right, it does not
follow that the state is free to impose limitations on that right without
satisfying the dictates of the first amendment." Id. (citing Meyer v. Grant,
486 U.S. at 425).   We find, however, that the requirement does not impose
the same  burden on political expression; and, further, that the State has
demonstrated a compelling state interest in preserving the integrity of the
law-making process and that the provision is  narrowly tailored to serve that
	[¶10]  Contrary to the proponents' argument, the restriction in Meyer
is distinguishable from the restriction in this case.  Meyer involved a state
statute making paid circulation a criminal offense.  Thus, the proponents
were forced to rely on volunteer circulators and were prohibited from
making any contribution to their expenses.  The Supreme Court found that
the proponents' political expression was restricted in two ways:
First, it limits the number of voices who will convey
[proponents'] message and the hours they can speak and,
therefore, limits the size of the audience they can reach. 
Second, it makes it less likely that [proponents] 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. 
Meyer, 486 U.S. at 422-23 (footnotes omitted).  
	[¶11]  In this case, the requirement is that a circulator be a Maine
resident.  Although technically any restriction limits the "number of voices
who will convey the [proponents'] message," Meyer, 486 U.S. at 422, it does
not follow that requiring circulators to be residents will limit the size of the
audience the proponents can reach or will make it less likely that
proponents "will garner the number of signatures necessary to place the
matter on the ballot."  Meyer, 486 U.S. at 423. 
	[¶12]  In Meyer, the petitioners had only six months to gather the
necessary signatures and they demonstrated a need to pay circulators in
order to obtain the necessary signatures within the allotted time.  Here, the
petitioners had three years to gather the necessary signatures (21-A M.R.S.A.
§ 903-A (Supp. 1997)) and failed to demonstrate any necessity for
employing nonresidents in circulating the petitions.
	[¶13] We find persuasive the State's justification for the residency
requirement in the citizens' law-making process.  Residence enhances the
integrity of the initiative process by ensuring that citizens initiatives are
brought by citizens of Maine.  Because the circulators are the persons who
verify that the signature and residence of petitioners are accurate, the
residency requirement provides the State with jurisdiction over the
circulators and makes the circulators easier to locate if there is a question as
to the validity of the signatures collected.  Thus, any interference with
proponents' right to unfettered political expression is justified by the State's
compelling state interest in protecting the integrity of the initiative process,
and the residency requirement set forth in the Maine Constitution is
narrowly tailored to serve that interest. 
	The entry is:
					Judgment affirmed.

Attorneys for plaintiffs: Christopher B. McLaughlin, Esq., (orally) James T. Kilbreth, Esq. William C. Knowles, Esq. Verrill & Dana, LLP P O Box 586 Portland, ME 04112-0586 Attorneys for defendant: Andrew Ketterer, Attorney General Andrew Hagler, Asst. Atty. Gen., (orally) Phyllis Gardiner, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} The first amendment provides in part: Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const. amend. I The fourteenth amendment provides in part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, § 1.