550 F.3d 1023 (10th Cir. 2008), 07-6233, Yes On Term Limits, Inc. v. Savage

Docket Nº:07-6233.
Citation:550 F.3d 1023
Party Name:YES ON TERM LIMITS, INC., Robert Murphy; Sherri Ferrell; Eric Dondero Rittberg, Plaintiffs-Appellants, v. M. Susan SAVAGE, individually and in her official capacity as Oklahoma Secretary of State; W.A. Drew Edmondson, individually and in his official capacity as the Oklahoma Attorney General, Defendants-Appellees. Institute For Justice; American Ci
Case Date:December 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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550 F.3d 1023 (10th Cir. 2008)

YES ON TERM LIMITS, INC., Robert Murphy; Sherri Ferrell; Eric Dondero Rittberg, Plaintiffs-Appellants,

v.

M. Susan SAVAGE, individually and in her official capacity as Oklahoma Secretary of State; W.A. Drew Edmondson, individually and in his official capacity as the Oklahoma Attorney General, Defendants-Appellees.

Institute For Justice; American Civil Rights Coalition, Amici Curiae.

No. 07-6233.

United States Court of Appeals, Tenth Circuit.

December 18, 2008

Page 1024

Edward D. Greim, Graves Bartle & Marcus LLC, Kansas City, MO (Todd P. Graves, Graves Bartle & Marcus LLC, Kansas City, MO; Michael Salem, Salem Law Offices, Norman, OK; and Stephen M. Hoersting, Esq., Vice President, Center for Competitive Politics, Alexandria, VA, with him on the briefs), for Plaintiffs-Appellants.

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Gregory Thomas Metcalfe, Assistant Attorney General, Oklahoma Attorney General's Office (Martha R. Kulmacz, Assistant Attorney General, Oklahoma Attorney General's Office, and Sandy Rinehart, Senior Assistant Attorney General, with him on the brief), Oklahoma City, OK, for Defendants-Appellees.

William R. Maurer, Institute for Justice, Seattle, WA, filed an amicus curiae brief in support of Plaintiffs-Appellants.

Michael E. Rosman and Michelle A. Scott, Center for Individual Rights, Washington, D.C., filed an amicus brief for American Civil Rights Coalition in support of Plaintiffs-Appellants.

Before MURPHY, McKAY, and McCONNELL, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiffs brought this action pursuant to 42 U.S.C. § 1983, challenging the validity of Oklahoma's ban on non-resident petition circulators under the First Amendment, Privileges and Immunities Clause, and Commerce Clause of the United States Constitution. Plaintiffs sought declaratory and injunctive relief. The United States District Court for the Western District of Oklahoma upheld the ban and denied Plaintiffs' request for injunctive relief. The district court concluded the ban survived strict scrutiny analysis under the First Amendment because it was narrowly tailored to further Oklahoma's compelling interest in protecting the integrity of its initiative process. Plaintiffs appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we hold Oklahoma's ban on non-resident circulators does not survive strict scrutiny analysis because it is not sufficiently tailored to further Oklahoma's compelling interest. We therefore reverse the decision of the district court and remand for proceedings consistent with this opinion.

II. BACKGROUND

The Oklahoma Constitution grants its citizens the right to “ propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature" through the initiative and referendum processes. Okla. Const. art. V, § § 1-2. To place an initiative to amend the Oklahoma Constitution on the ballot, a proponent must gather signatures totaling fifteen percent of the total number of votes cast at the last general election for the state office receiving the highest number of votes. Okla. Const. art. V, § 2. The signatures must be gathered within 90 days of the filing of the petition. Okla. Stat. Ann. tit. 34, § § 4, 8.

The proponent delivers the signatures to the Secretary of State's office for counting. Id. § § 4, 6. After the counting, the Secretary of State certifies to the Oklahoma Supreme Court the number of signatures collected by the proponent and the number of votes cast in the last election for the state office receiving the highest number of votes. Id. § 8. Oklahoma citizens have the right to challenge the Secretary of State's signature count or protest a petition by filing written notice with the Oklahoma Supreme Court within ten days of the Secretary's publication of apparent sufficiency. Id. The Oklahoma Supreme Court ascertains whether there are enough signatures for the petition to reach the ballot. Id.

Under Oklahoma law, the Secretary of State does not count signatures gathered by non-resident circulators. Okla. Stat. Ann. tit. 34, § § 6, 6.1 (requiring the petition circulator to swear by affidavit to be an elector in order for the gathered signatures to be counted); Okla. Const. art. III, § 1 (defining elector as “ all citizens of

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the United States, over the age of eighteen (18) years, who are bona fide residents of this state." ); see also In re Initiative Petition No. 379, 155 P.3d 32, 48 (Okla.2006) (striking all signatures gathered by non-resident circulators); In re Initiative Petition No. 365, 55 P.3d 1048, 1050 (Okla.2002) (disqualifying signatures gathered by an individual who was not a qualified elector). In addition, non-residents who circulate petitions face criminal penalties including fines and/or imprisonment. Okla. Stat. Ann. tit. 34, § 3.1.

Plaintiff Yes on Term Limits, Inc. (“ YOTL" ) is an Oklahoma organization seeking to place on the ballot a proposed amendment to the Oklahoma Constitution imposing term limits for various state offices. Plaintiff Robert Murphy is the vice president of YOTL and an Oklahoma resident. Plaintiffs Sherri Ferrell and Eric Rittberg are professional petition circulators. Neither Ferrell nor Rittberg is a resident of Oklahoma. YOTL and Murphy wish to hire professional circulators, including Ferrell and Rittberg, to aid in the signature gathering process. Ferrell and Rittberg claim they would work for YOTL if not for the ban on non-resident circulators.

YOTL and Murphy contend there are not enough professional circulators who are Oklahoma residents to gather the required signatures. In addition, they contend that hiring professional, non-resident circulators is significantly more cost-efficient and effective than hiring and training resident circulators. This is so, they argue, because professional circulators do not have to go through the training process. In addition, they claim professional circulators have greater productivity due to prior experience with the difficulties of signature gathering and strong incentives to collect valid signatures in order to remain marketable in their field.

Plaintiffs filed suit in the United States District Court for the Western District of Oklahoma against M...

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