American Constitutional Law Foundation, Inc. v. Meyer
| Decision Date | 28 July 1997 |
| Docket Number | Nos. 94-1576,94-1581,s. 94-1576 |
| Citation | 120 F.3d 1092 |
| Parties | , 97 CJ C.A.R. 1520 AMERICAN CONSTITUTIONAL LAW FOUNDATION, INC.; David Aitken; Jon Baraga; Craig C. Eley; Jack Hawkins; Lonnie Haynes; Alden Kautz; Bill Orr, individually and as the Parent and Guardian of William David Orr, Plaintiffs-Appellants, v. Natalie MEYER, individually and as Secretary of State for the State of Colorado; Douglas Brown, individually and as Director of Legislative Legal Services for the State of Colorado, Defendants-Appellees. AMERICAN CONSTITUTIONAL LAW FOUNDATION, INC.; David Aitken; Jon Baraga; Craig C. Eley; Jack Hawkins; Lonnie Haynes; Alden Kautz; William David Orr; Bill Orr, individually and as the Parent and Guardian of William David Orr, Plaintiffs-Appellees, v. Natalie MEYER, individually and as Secretary of State for the State of Colorado; Douglas Brown, individually and as Director of Legislative Legal Services for the State of Colorado, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Neil D. O'Toole, of Dallas, Holland, & O'Toole, P.C., Denver, CO, for plaintiffs.
Bill Orr, Denver, CO, pro se.
Maurice G. Knaizer, Deputy Attorney General (Gale A. Norton, Attorney General, with him on brief), Denver, CO, for defendants.
Before BRISCOE, SETH *, and LUCERO, Circuit Judges.
Plaintiffs brought this 42 U.S.C. § 1983 action challenging portions of Senate Bill 93-135, which regulates Colorado's initiative and referendum petition process. Plaintiffs argued S.B. 93-135 imposed restrictions that violated their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution. Plaintiffs appeal the district court's decision to uphold portions of S.B. 93-135, and defendants appeal the court's decision to strike down portions of S.B. 93-135. We agree with the district court's decision in all regards, except for its ruling upholding the requirement set forth in C.R.S.A. 1-40-112(1) that the circulator be a registered elector. We affirm in part and reverse in part.
Colorado allows its citizens to place issues on the ballot by petition. Colo. Const. art. V, § 1(1). The petition process consists of the initiative and the referendum. Colo. Const. art. V, § 1(2) & (3). A referendum is unavailable with respect to laws "necessary for the immediate preservation of the public peace, health, or safety." Colo. Const. art. V, § 1(3). Under the Colorado system, the general assembly has exclusive authority to determine whether a law is "necessary for the immediate preservation of the public peace, health, or safety." Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108, 1110 (1916). Thus, when the general assembly attaches a "safety clause" to a law, a referendum on the law is precluded, although the right of initiative remains. See Cavanaugh v. Dept. of Social Services, 644 P.2d 1, 4 n. 6 (1982).
The Colorado Constitution grants the general assembly the authority to adopt legislation "designed to prevent fraud, mistake, or other abuses" in the petition process. Committee for Better Health Care v. Meyer, 830 P.2d 884, 893 (Colo.1992) (en banc) (). The manner in which petitions may be circulated and by whom, and how they may be signed and by whom are regulated by C.R.S.A. §§ 1-40-101 et seq. (West Supp.1996). Senate Bill 93-135 rearranged and amended the article to "properly safeguard, protect, and preserve inviolate" the people's initiative and referendum power. C.R.S.A. § 1-40-101.
Prior to circulation, proponents of a ballot issue must submit a draft petition to the directors of the legislative council and the office of legal services for review and comment. C.R.S.A. § 1-40-105(1). A public hearing is held within two weeks of submission. Id. Following the hearing, the draft is presented to the title board, which prepares a title, submission clause, and summary. C.R.S.A. § 1-40-106. The proponents then have six months to file the petition with the Secretary of State. C.R.S.A. 1-40-108(1). Unless the petition contains the number of signatures required by the Colorado Constitution, it is of no effect when filed. C.R.S.A. § 1-40-109(1).
Petition circulators collect the signatures and sign affidavits in which they aver, among other things, that each signer was a registered elector and was not paid to sign the petition. C.R.S.A. § 1-40-111(2). Circulators assume personal responsibility to prevent irregularities in the process. Loonan v. Woodley, 882 P.2d 1380, 1388 (Colo.1994) (en banc). If any circulator is found to have violated any provision of the article, the section of the petition circulated by that person "shall be deemed void." C.R.S.A. § 1-40-132(1).
Plaintiff American Constitutional Law Foundation, Inc., is a non-profit, public-interest organization that supports direct democracy. The remaining plaintiffs are various individuals who, with the exception of William David Orr (a minor who desires to circulate petitions regarding educational vouchers) and Bill Orr (a qualified but unregistered elector), regularly participate in the petition process as proponents and circulators. At the time of trial, Jon Baraga was circulating the Colorado Hemp Initiative and was also the statewide petition coordinator for the Hemp Initiative.
Along with several other plaintiffs, including American Constitutional Law Foundation, Baraga sought to repeal S.B. 93-135 by referendum. Plaintiffs had agreed to devote their resources in a joint effort, but the Secretary of State informed them by letter that a referendum on S.B. 93-135 was precluded because it contained a safety clause.
Plaintiffs brought suit claiming various portions of Article 40 violated the First and Fourteenth Amendments by restricting circulation to six months, requiring all circulators to sign an affidavit, restricting the right to circulate by age and voter registration, requiring all circulators to wear identification badges, requiring proponents to disclose the names of all paid circulators and the amounts they were paid, and attaching a safety clause to S.B. 93-135. They also asserted vagueness and Ninth Amendment claims. The court struck down the badge requirement and portions of the disclosure requirement after concluding they unduly burdened the First and Fourteenth Amendments. The court rejected plaintiffs' remaining claims.
We turn to plaintiffs' First Amendment issues. Plaintiffs argue the manner in which Colorado regulates the petition process is subject to exacting scrutiny because it significantly burdens political speech. They rely heavily on Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), in which proponents challenged a Colorado law making it unlawful to pay any consideration for the circulation of initiative or referendum petitions. Meyer acknowledged "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, 108 S.Ct. at 1891-92. The Court applied exacting scrutiny to strike down the challenged law, concluding it restricted political expression by limiting the number of voices conveying the proponents' message and making it less likely the proponents would gather the required number of signatures to place their issue on the ballot. Id. at 422-23, 108 S.Ct. at 1892-93.
Plaintiffs reason that because S.B. 93-135 restricts the manner in which citizens may circulate petitions, the instant case is indistinguishable from Meyer. They also cite Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981), First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), and Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), as controlling authority. Each case, including Meyer, involved restrictions on expenditures to disseminate information on political issues. No such restrictions are involved here.
A successful petition results in a question being submitted to the voters. Thus, the petition process is a ballot access vehicle, as well as an avenue for political expression. Unlike plaintiffs, we do not read Meyer to require that Colorado maintain a petition process that, in essence, allows unregulated access to the ballot. Indeed, such a reading would conflict with the general rule that states have the power to regulate their elections and access to their ballots. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, ----, 117 S.Ct. 1364, 1366, 137 L.Ed.2d 589 (1997) (); Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974) (). Cf. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 549, 93 L.Ed.2d 514 (1986) ().
"Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections." Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992). The Supreme Court has upheld "generally-applicable and evenhanded restrictions that protect the integrity of the electoral process itself." Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983). At least one...
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