Pierce v. Jacobsen

• Decision Date: 10 August 2022
• Docket Number: 21-35173
• Citation: 44 F.4th 853
• Parties: Nathan PIERCE; Montana Coalition for Rights; Montanans for Citizen Voting; Sherri Ferrell; Liberty Initiative Fund, Plaintiffs-Appellants, v. Christi JACOBSEN, in her official capacity as the Secretary of State for the State of Montana; Austin Knudsen, in his official capacity as the Attorney General of the State of Montana; Jeff Mangan, in his official capacity as the Commissioner of the Montana Commission on Political Practices, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.4th 853

Nathan PIERCE; Montana Coalition for Rights; Montanans for Citizen Voting; Sherri Ferrell; Liberty Initiative Fund, Plaintiffs-Appellants,

v.Christi JACOBSEN, in her official capacity as the Secretary of State for the State of Montana; Austin Knudsen, in his official capacity as the Attorney General of the State of Montana; Jeff Mangan, in his official capacity as the Commissioner of the Montana Commission on Political Practices, Defendants-Appellees.

No. 21-35173

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2022 Portland, Oregon

Filed August 10, 2022

Paul A. Rossi (argued), IMPG Advocates, Mountville, Pennsylvania, for Plaintiffs-Appellants.

Christian Corrigan (argued), Associate Solicitor; Hannah E. Tokerud, and Patrick M. Risken, Assistant Attorneys General; Austin Knudsen, Attorney General; Office of the Attorney General, Helena, Montana; for Defendants-Appellees.

Before: Richard A. Paez and Jacqueline H. Nguyen, Circuit Judges, and John R. Tunheim,^* District Judge.

TUNHEIM, District Judge:

The Montana State Constitution gives Montanans the power to enact laws, amend the constitution, and call a constitutional convention through an initiative petition process. The process requires gathering sufficient signatures on petitions in order to place a measure before voters on the ballot. Montana law, however, limits signature gathering to Montana residents and bars paying signature gatherers based upon the number of signatures obtained.

Plaintiffs—a collection of organizations and individuals interested in petitioning in Montana—allege that both of these restrictions violate their speech and association rights under the First Amendment. The district court granted summary judgment to Defendants, upholding both restrictions. It held that strict scrutiny did not apply because Plaintiffs failed to demonstrate either restriction imposed a severe burden on their rights. It went on to find that both restrictions sufficiently furthered Montana's important regulatory interest to survive less exacting review.

We reverse the district court's holding with regards to the residency requirement because it (1) imposes a severe burden on the exercise of First Amendment rights and (2) is not narrowly tailored to further Montana's compelling interest. We affirm the district court's holding with regards to the pay-per-signature restriction because we conclude that (1) on the basis of the record produced here, Plaintiffs have not demonstrated that the pay-per-signature ban imposes a severe burden on First Amendment rights and (2) the state has established that an important regulatory interest is furthered by this restriction.

I. Background

Montanans may enact laws, amend the Montana Constitution, and call for a state constitutional convention through an initiative process that culminates in a statewide vote on whether to approve the proposal. Mont. Const. art. III, § 4 ; id. art. XIV, §§ 2, 9. To qualify an initiative for the ballot, an initiative's proponent must gather sufficient valid signatures from Montana voters, among other steps. Id. art. III, § 4 ; id. art. XIV, §§ 2, 9. After the election is held with the initiative on the ballot, "[t]he sufficiency of the initiative petition shall not be questioned." Id. art. III, § 4, cl. 3.

In 2006, state officials found that the signature gathering process for three initiatives "was permeated by a pervasive and general pattern and practice of fraud." Montanans for Justice v. Montana ex rel. McGrath , 334 Mont. 237, 146 P.3d 759, 770 (2006). The proponents of the 2006 initiatives relied primarily on out-of-state signature gatherers paid on a per-signature basis. Id. at 764. These signature gatherers routinely and falsely attested to personally gathering signatures that they did not in fact personally gather, provided false addresses on affidavits, and employed deceitful "bait and switch" tactics to induce Montana voters to unknowingly sign petitions for multiple initiatives. Id. at 770. The initiatives were disqualified from the ballot to protect the viability and integrity of the initiative process. Id. at 777–78.

In 2007, the Montana legislature amended the initiative petitioning process to require that signature gatherers (1) must be Montana residents and (2) "may not be paid anything of value based upon the number of signatures gathered." Mont. Code Ann. § 13-27-102(2) (2021). These requirements do not apply to signature gatherers for candidates for office. See id ; see also id. §§ 13-10-201, 203(2). In the seven election cycles since these requirements have been in effect, fourteen initiatives have qualified for the ballot.

In 2018, plaintiffs Montanans for Citizen Voting ("MCV") and Montana Coalition for Rights ("MCR") began the process of qualifying initiatives for placement on the ballot. MCV solicited bids from petition circulation firms to gather the required signatures. It received a bid from Advanced Micro Targeting ("AMT")—a firm with experience in Montana—for $500,000. AMT noted that it does not pay by the signature because it encourages fraud. It also received a bid from Silver Bullet for $469,000. Silver Bullet's bid noted that if the residency requirement and pay-per-signature restriction were eliminated, the estimated cost would be $1 less per signature—about $80,000 less in total. MCV and MCR claim they determined that using out-of-state gatherers and paying by the signature would increase the likelihood of gathering sufficient signatures, increase efficiency, and decrease the cost of the petition drive. They did not attempt to gather signatures for the 2018 or 2020 election cycles.

MCV and MCR, joined by plaintiffs Nathan Pierce, Liberty Initiative Fund, and Sherri Ferrell¹ (collectively, "Plaintiffs"), brought this action in federal district court against the Montana Secretary of State, the Montana Attorney General, and the Commissioner of the Montana Commission on Political Practices (collectively, "Montana") alleging the restrictions violated the First Amendment. Plaintiffs sought declaratory and injunctive relief.² The parties filed cross motions for summary judgment.

The district court granted summary judgment to Montana and denied it to Plaintiffs. The court found that Plaintiffs offered only conclusory speculation about the burden the restrictions created, noting that they did not try to gain ballot access and so were unable to adequately demonstrate whether the restrictions limited the number of voices available or whether a reasonably diligent campaign would have been able to secure ballot access. Therefore, the court concluded that the restrictions did not impose a severe burden on speech and that less exacting review—not strict scrutiny—applied. Applying less exacting review, the court upheld both restrictions, finding that any burdens imposed on Plaintiffs' rights were justified by the state's interests in protecting the integrity of the initiative process and preventing fraud. Plaintiffs filed a motion to amend or alter the judgment, but the court denied the motion. Plaintiffs timely appealed.

On appeal, Plaintiffs argue the district court should have applied strict scrutiny to both restrictions because each severely burdens free speech rights, and that under strict scrutiny, neither restriction is narrowly tailored to further a compelling state interest.

II. Standard of Review and Jurisdiction

We review de novo the district court's grant of summary judgment. Courthouse News Serv. v. Planet , 947 F.3d 581, 589 (9th Cir. 2020). In a First Amendment case, we independently review factual findings. Id. We have jurisdiction pursuant to 28 U.S.C. § 1291.

III. Discussion

The First Amendment, as made applicable to the states by the Fourteenth Amendment, prohibits states from enacting laws "abridging the freedom of speech." McIntyre v. Ohio Elections Comm'n , 514 U.S. 334, 336 & n.1, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Although there is no constitutional right to enact state laws or constitutional amendments through an initiative process, if a state allows for initiatives through a petitioning process, the gathering of signatures and circulating of initiative petitions are protected by the First Amendment. Meyer v. Grant , 486 U.S. 414, 424–25, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). The solicitation of signatures on an initiative petition is "core political speech" involving "interactive communication concerning political change." Id. at 422, 108 S.Ct. 1886.

The First Amendment does not, however, bar all restrictions on circulating petitions, and states have "considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally." Buckley v. Am. Const. L. Found., Inc. , 525 U.S. 182, 191, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). Indeed, "States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election-and campaign-related disorder." Timmons v. Twin Cities Area New Party , 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997).

When an election law is challenged, the severity of the burden the law imposes on the exercise of constitutional rights is weighed against the strength of the state interests the law serves. Nader v. Brewer , 531 F.3d 1028, 1034 (9th Cir. 2008). "Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Timmons , 520 U.S. at 358, 117 S.Ct. 1364 (internal quotation marks and citation omitted). There is no bright-line test to distinguish between valid and invalid restrictions on petition circulation; instead, we must weigh the facts and make our own "hard judgments." Prete v. Bradbury , 438 F.3d 949, 961 (9th Cir. 2006) (quoting Buckley ...