Citizens in Charge v. Gale, 4:09CV3255.

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Citation: 810 F.Supp.2d 916
• Docket Number: No. 4:09CV3255.,4:09CV3255.
• Parties: CITIZENS IN CHARGE, Mike Groene, and Donald Sluti, Plaintiffs,Libertarian Party of Nebraska and Libertarian National Committee, Plaintiff–Intervenors, v. John A. GALE, in his official capacity as Secretary of State of the State of Nebraska, Defendant.
• Decision Date: 30 August 2011

810 F.Supp.2d 916

CITIZENS IN CHARGE, Mike Groene, and Donald Sluti, Plaintiffs,Libertarian Party of Nebraska and Libertarian National Committee, Plaintiff–Intervenors,

v.John A. GALE, in his official capacity as Secretary of State of the State of Nebraska, Defendant.

No. 4:09CV3255.

United States District Court, D. Nebraska.

Aug. 30, 2011.

Held Unconstitutional

West's Neb.Rev.St. § 32–629(2).

Amy A. Miller, American Civil Liberties Union Foundation of Nebraska, Lincoln, NE, Elora Mukherjee, American Civil Liberties Union Foundation, New York, NY, M. Laughlin McDonald, American Civil Liberties Union Foundation, Atlanta, GA, for Plaintiffs.

Dale A. Comer, L. Jay Bartel, Attorney General's Office, Lincoln, NE, for Defendant.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, Chief Judge.

This matter is before the court following a trial in this case. Plaintiffs and intervenors brought this action to enforce their First Amendment rights of political free speech. Plaintiffs and the intervenors request that this court enter a declaratory judgment finding the defendant violated their rights pursuant to the First and Fourteenth Amendments to the United States Constitution. The court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

A. The Parties

Plaintiff Citizens in Charge is an educational not-for-profit that is dedicated to protecting and expanding ballot initiative and referendums in Nebraska and other states. The members include citizens in both Nebraska and other states. Plaintiffs Donald Sluti (“Sluti”) and Mike Groene (“Groene”) are Nebraska residents and registered voters. Groene assists with securing petitions and Sluti is an independent who wants to run for office. Secretary of State for Nebraska John Gale is the defendant. The intervenors are the Libertarian Party of Nebraska and Libertarian National Committee, Inc. The intervenors are a grass roots organization with nationwide membership, and the members would like to hire out-of-state paid petition circulators to assist with the forming of a new political party that is recognized by the State of Nebraska through the petition process. The Libertarian Party of Nebraska is a group of voters from the State of Nebraska.

B. Residency Requirement

On February 6, 2008, the Nebraska Unicameral passed Legislative Bill 39, and on February 19, 2008, the bill became law. This law went into effect on July 18, 2008.¹ The law stated in relevant part that “only an elector of the State of Nebraska may qualify as a valid circulator of a petition and may circulate petitions under the Election Act.” Neb.Rev.Stat. § 32–629(2). “Elector” is defined as:

Elector shall mean a citizen of the United States whose residence is within the state and who is at least eighteen years of age or is seventeen years of age and will attain the age of eighteen years on or before the first Tuesday after the first Monday in November of the then current calendar year.Neb.Rev.Stat. § 32–110.

The plaintiffs/intervenors offered evidence that the out-of-state ban increases the time and costs of conducting a petition campaign in Nebraska. Filing No. 74: Declaration of Gene Siadek (“Siadek Decl.”) ¶ 11; Declaration of William Redpath (“Redpath Decl.”) ¶¶ 55–69; Benedict Decl. ¶ 23; Declaration of Michael Arno (“Arno Decl.”) ¶¶ 16–29; Declaration of Mary Baggett ¶¶ 10–18; Declaration of John Hassett ¶ 9; Declaration of Arenza Thigpen (“Thigpen Decl.”) ¶¶ 9–13; Second Siadek Decl. ¶ 24; Second Jacob Decl. ¶¶ 7, 22–29; Declaration of Scott Kohlhaas (“Kohlhaas Decl.”) ¶¶ 17–18, 23–26; Declaration of Diann Gentry (“Gentry Decl.”) ¶¶ 10–12; Declaration of Michael Groene ¶ 10; Declaration of David Nabity ¶¶ 10–13. ² The defendant disagrees and likewise has provided calculations to the court supporting its argument that there is very little in increased costs. See Filing No. 102, pp. 41–42, ¶ 4; p. 45, ¶ 3. The court credits the evidence and testimony of the plaintiffs and intervenors in this regard, and finds there are increased costs associated with using untrained solicitors.

At the time in question in this lawsuit there were no petitioning companies devoted to initiative, referendum, and/or recall petitions.³ There are 1,344,978 potential eligible voters in Nebraska available to circulate petitions and witness the signatures of petition signers. There are 1,000 potential individuals in the State of Nebraska with at least some experience in circulating petitions.

According to the parties, a nonresident may: 1) solicit signatures from Nebraska residents, 2) talk to Nebraska residents about the nature and benefits of particular petition efforts, 3) carry petitions with them, 4) advise petition proponents who are from Nebraska about the best way to carry out their duties, and 5) perform any other duties in connection with petition circulation. However, a nonresident cannot witness signatures. Under Nebraska law, “[e]ach circulator of a petition shall personally witness the signatures on the petition and shall sign the circulator's affidavit.” Neb.Rev.Stat. § 32–630(2). Thus, nonresidents cannot witness signatures.

The plaintiffs and intervenors argue that the out-of-state ban severely burdens the right to associate for political purposes. They contend that there has been no stateside petition effort in Nebraska since the imposition of the residency requirement, in contrast to the 70% success rate noted by the Eighth Circuit in Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir.2001) (discussed hereinafter), a case that originated in North Dakota with a similar ban on out-of-state petition circulators. The out-of-state ban prohibits the plaintiffs and intervenors from relying on nonresident professional petition circulators.

In 2010 the Libertarian Party implemented a local petition drive for the recall of the Omaha mayor. The intervenors contend they were forced to pay one of the KENO companies extra money to assist with this drive. AGT, the KENO petition circulation company, initially declined to help, but later agreed to do so. This company is geared towards gaming and KENO issues, and not towards initiatives of this type.

The State of Nebraska contends that the Unicameral passed this law in part to prohibit signature fraud. The State only offered three instances of potential petition process fraud from 1995–2010. One perpetrator was from Nebraska, one was out of state, and the residence of the remaining person is unknown. There is no further evidence of any significant petition fraud in Nebraska by out-of-state residents.

Further, the State of Nebraska also contends that it is difficult to timely subpoena out-of-state circulators. The State argues that at times it only has a two-week window for determining the validity of a petition, and it is difficult to obtain service and return the petition circulator in that period of time. Plaintiffs and intervenors argue that the State of Nebraska could locate or prosecute nonresident petition circulators.

All petition circulators in the State of Nebraska must submit each petition page for verification to the Secretary of State, and on the affidavit must list his or her name, street and number and city. See Neb.Rev.Stat. § 32–628(3). According to the plaintiffs and intervenors, this should enable the State of Nebraska to find out-of-state petitioners. In fact, in the case where Nebraska charged an out-of-state petition circulator with falsifying signatures on the petitions, Sergeant Sandra Myers of the Lincoln Police Department used the home address in Oklahoma which had been provided on the affidavit to locate the person charged with fraud. Filing No. 81, Ex. 40, Deposition of Sandra Myers (“Myers Dep”) 36–40; 52–55. However, it took the Tulsa police more than a year to serve the warrant on the fraud perpetrator. Filing No. 81–2, Ex. 40.

Mr. Lawrence Neal Erickson, Assistant Secretary of State for Elections for fifteen years and considered the election expert for the State of Nebraska, testified that he knew of no instances in which an out-of-state petition circulator was subpoenaed to Nebraska but could not be found. Filing No. 81, Attach. 1, Ex. 39, Deposition of Lawrence Neal Erickson (“Erickson Dep.”) 164. According to Mr. Erickson, the Secretary of State's signature verification process is “very reliable.” Id., Erickson Dep. 17–18, 42, 128–29.

The plaintiffs and intervenors offered declarations of numerous persons who testified that very few people are effective petition circulators. See Siadek Decl. ¶¶ 7–8, Filing No. 40; Filing No. 74: Siadek Decl.; Redpath Decl. ¶¶ 25–26; Second Declaration of Gene Siadek ¶ 33, Docket No. 74–4; Arno Decl. ¶ 14, Docket No. 74–6; Thigpen Decl. ¶ 11, Docket No. 74–9; Ferrell Decl. ¶¶ 7–13, Docket No. 74–14; Erickson Dep. 22–23, 157–58. Further, plaintiff and intervenors contend that many people will not circulate petitions under any circumstances. Filing No. 74, Attach. 1, Redpath Decl. ¶ 25; Filing No. 81, Myers Dep. 17–18.

Plaintiffs and intervenors also assert that professional petition circulators are experienced and know how to obtain the required number of signatures in a specific amount of time. Filing No. 74, Redpath Decl. ¶¶ 18–22; Benedict Decl. ¶¶ 19–22; Arno Decl. ¶¶ 12–15; Thigpen Decl. ¶ 11; Kohlhaas Decl. ¶¶ 10–14, 21–22; Declaration of Darryl Bonner ¶¶ 15–16, Bonner Decl.; Declaration of Andrew S. Jacobs ¶¶ 16–17, Jacobs Decl.; Declaration of Mark Read Pickens ¶¶ 21–22, Pickens Decl.; Ferrell Decl. ¶¶ 7–13; Gentry Decl. ¶¶ 2–7; Erickson Dep. 117 (higher signature validity rates for petition drives by paid circulators than those done partly or entirely by volunteers); Filing No. 81–2; deposition of John Hassett 77–78, 116–18 (“Hassett Dep.”) (higher signature validity rates for professional circulators compared with nonprofessional circulators);.

The State of Nebraska has not passed legislation that would require petition circulators to agree to be subject to ...