Jones v. Secretary of State, 092220 MESC, Cum-20-227

Docket Nº:Cum-20-227
Opinion Judge:PER CURIAM
Party Name:DAVID A. JONES et al. v. SECRETARY OF STATE et al.
Attorney:James G. Monteleone, Esq. (orally), and Matthew J. Saldana, Esq., Bernstein Shur, Portland, for appellants The Committee for Ranked Choice Voting et al. Aaron M. Frey, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellant Secreta...
Judge Panel:Panel: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
Case Date:September 22, 2020
Court:Supreme Judicial Court of Maine
 
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2020 ME 113

DAVID A. JONES et al.

v.

SECRETARY OF STATE et al.

No. Cum-20-227

Supreme Court of Maine

September 22, 2020

Argued: September 15, 2020

James G. Monteleone, Esq. (orally), and Matthew J. Saldana, Esq., Bernstein Shur, Portland, for appellants The Committee for Ranked Choice Voting et al.

Aaron M. Frey, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellant Secretary of State

Patrick N. Strawbridge, Esq. (orally), Consovoy McCarthy PLLC, Boston, Massachusetts, for appellees David A. Jones, et al.

Panel: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.

PER CURIAM

[¶1] Intervenors The Committee for Ranked Choice Voting and three individuals (collectively, "Committee") and the Secretary of State appeal from a judgment of the Superior Court (Cumberland County, McKeon, J.) vacating the Secretary of State's determination that an inadequate number of valid signatures had been submitted to place on the ballot a people's veto of An Act to Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine, P.L. 2019, ch. 539. See Me. Const, art. IV, pt. 3, § 17. Upon a petition for review of the Secretary of State's decision filed by David A. Jones, Jonathan Kinney, and Joshua Morris (collectively, "Jones"), the court concluded that it was unconstitutional for the State to require that every circulator who collected signatures be registered to vote in the circulator's municipality of residence at the time of circulation. On the limited record presented to us, we conclude that Jones has not demonstrated that the requirement in Maine's Constitution and statutes that a circulator be a registered voter in the circulator's municipality of residence when collecting signatures violates the First Amendment. Accordingly, we vacate the court's judgment.1

I. BACKGROUND

[¶2] On July 15, 2020, the Secretary of State issued a written determination of the validity of a petition for the people's veto of An Act to Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine, P.L. 2019, ch. 539.2 He concluded that an insufficient number of valid signatures had been submitted in support of the petition.3 See Me. Const, art. IV, pt. 3, § 17, cl. 1 (requiring "not... less than 10% of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition" for a people's veto to be placed on the ballot). For the petition to be valid, 63, 067 signatures were necessary, and the Secretary of State determined that only 61, 334 of the signatures submitted were valid.

[¶3] On July 27, 2020, Jones filed a petition for review of the Secretary of State's final agency action in the Superior Court. See 21-A M.R.S. § 905(2) (2020); M.R. Civ. P. 80C. The next day, Jones filed a motion requesting that the court remand the matter for the Secretary of State to take additional evidence to resolve multiple factual discrepancies. The Committee moved to intervene.

[¶4] On August 3, the court [McKeon, J.) granted the motion to intervene and held a status conference. By agreement of the parties, the court granted the motion to remand and ordered the Secretary of State to take additional evidence and reconsider his decision, with a supplement to his determination and the administrative record to be filed by August 11, and also ordered a schedule of briefing that would conclude on August 2l.4

[¶5] On August 12, 2020, the Secretary of State issued an amended determination of the validity of the petition in which he concluded, among other things, that the signatures submitted from some signature collectors were not valid because those collectors had not been registered voters on the voting lists of their municipalities of residence at the time that they collected signatures.5See Me. Const, art. IV, pt. 3, § 20; 21-A M.R.S. § 903-A (2020); id. § 903-A(4)(C). The Secretary of State concluded that some other signatures that he had originally determined to be invalid were valid but still determined that there were insufficient valid signatures-only 61, 292-for the people's veto to be placed on the ballot.

[¶6] On August 21, after receiving briefs, the court held a telephonic hearing and remanded the matter to the Secretary of State to complete an investigation related to one town office by noon on August 24, with briefs to be submitted from the other parties on the same day. The court also ordered that the parties would have until August 24 to submit briefs on the effect of Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), on the validity of the signatures that the Secretary of State had disqualified because the signature collectors were not registered as voters in their municipalities of residence at the time they collected signatures.

[¶7] The parties submitted all required materials on August 24, and the Secretary of State additionally filed a supplement to his amended determination of the validity of the petition for a people's veto. The Secretary of State still concluded-although by a smaller margin-that there were not enough valid signatures for the people's veto to be placed on the ballot. He determined that only 62, 101 of the signatures submitted were valid-966 signatures short of the necessary 63, 067.

[¶8] On August 24, 2020, the court entered a judgment vacating the Secretary of State's determination that insufficient signatures had been collected. The court concluded that Buckley rendered the requirement that a circulator be a registered voter at the time he or she collected signatures to be a violation of the First Amendment of the United States Constitution and held that 988 signatures had been improperly invalidated on the basis of the circulator's registration status.

[¶9] Both the Secretary of State and the Committee appealed. See 21-A M.R.S. § 905(3) (2020); M.R. App. P. 2A, 2B. The Committee moved in the Superior Court for "clarification" of whether an automatic stay was in place. Jones opposed the motion, and the court ordered that it "would take no action on [the] motion." The Secretary of State and the Committee then filed motions with us to stay the execution of the Superior Court's judgment. We dismissed the motions as moot after concluding that Rule 62(e) imposed an automatic stay on the Superior Court's judgment pending appeal. See Jones v. Sec'y of State, 2020 ME 111, - A.3d -. The merits of the appeals are now before us.

II. DISCUSSION

[¶10] In this opinion, we consider (A) whether Maine's Constitution and statutes require circulators to be registered voters in the municipality where they reside at the time they collect signatures on a people's veto petition and (B) if they do so require, whether, on the record presented, the registration requirement violated the First Amendment to the United States Constitution.

A. Constitutional and Statutory Requirement of Circulator Registration

[¶11] We interpret Maine's Constitution and statutes de novo as questions of law. See Avangrid Networks, Inc. v. Sec'y of State, 2020 ME 109, ¶ 13, - A.3d -; Reed v. Sec'y of State, 2020 ME 57, ¶ 14, __A.3d__. We will interpret the constitutional or statutory provision according to its plain meaning if the language is unambiguous. See Avangrid Networks, Inc., 2020 ME 109, ¶ 14, __A.3d __; Reed, 2020 ME 57, ¶ 14, __A.3d__.

[¶12] As to the constitution, "[i]f the provision is ambiguous, we [will] determine the meaning by examining the purpose and history surrounding the provision." Avangrid Networks, Inc., ¶ 14, __A.3d__ (quotation marks omitted). With respect to the language of a statute within the expertise of an administering agency, however, if the provision is ambiguous, meaning that it is "reasonably susceptible to different interpretations," we defer to the agency's reasonable construction. Reed, 2020 ME 57, ¶ 14, __A.3d__ (quotation marks omitted). We have held before that the Secretary of State "is the constitutional officer entrusted with administering-and having expertise in-the laws pertaining to the direct initiative process." Id. ¶ 18. As we do with respect to the direct initiative process, we accord deference to the Secretary of State's reasonable interpretation of an ambiguous statute governing the people's veto process. See id.

[¶13] "'[C]irculator' 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." Me. Const, art. IV, pt. 3. § 20. A person thus does not meet the definition of a "circulator" for purposes of the Maine Constitution unless and until that person's name "appear[s] on the voting list" in the municipality where the person resides as qualified to vote for Governor. Id.

[¶14] By statute, petitions "may be circulated by any Maine resident who is a registered voter acting as a circulator of a petition." 21-A M.R.S. § 903-A. A circulator is specifically required to execute an affidavit swearing, among other things, "[t]hat the circulator was a resident of the State and a registered voter in the State at the time of circulating the petition." Id. §903-A(4)(C) (emphasis added). To vote, a person must "have established and maintain a voting residence in [a] municipality" and be registered to vote in that municipality. 21-A M.R.S. §§ 111(3), (4), 112 (2020). Only a municipal registrar can determine that a person is qualified to register as a voter in the municipality, see 21-A M.R.S. § 121 (2020), and a person's residency in that municipality is a necessary qualification for registration, see id. § 111(3), (4), 112. "A...

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