We the People PAC v. Bellows
| Decision Date | 16 February 2021 |
| Docket Number | 1:20-cv-00489-JAW |
| Citation | 519 F.Supp.3d 13 |
| Court | U.S. District Court — District of Maine |
| Parties | WE THE PEOPLE PAC, et al., Plaintiffs, v. Shenna BELLOWS, in her official capacity as the Secretary of State of Maine, et al., Defendants. |
Paul A. Rossi, Pro Hac Vice, Impg Advocates, Mountville, PA, Stephen C. Whiting, the whiting law firm, Portland, ME, for Plaintiffs.
Phyllis Gardiner, Jason Anton, Office of the Attorney General Six State House Station, Augusta, ME, for Defendants.
ORDER ON MOTION FOR PRELIMINARY INJUNCTION
In 1988, the United States Supreme Court ruled that the circulation of an initiative petition represents core political speech where the protections of the First Amendment are at their zenith. To control the impact of out-of-state influence on ballot initiatives, the people of Maine through their Constitution and statutes have required petition circulators to be Maine residents and registered to vote in Maine. Based on a paper evidentiary record, the Court concludes that the First Amendment's free speech protections trump the state's regulatory authority and it enjoins the operation of these constitutional and statutory restrictions on petition circulation. The exercise of federal judicial power to enjoin state regulation of its ballot initiative process should be subject to an evidentiary hearing, if the parties desire it, and to appellate review, if they wish to pursue it. The Court framed its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling.
On December 31, 2020, We the People PAC, State Representative Billy Bob Faulkingham, Liberty Initiative Fund, and Nicholas Kowalski (Plaintiffs) filed a complaint against Shenna Bellows,1 in her official capacity as the Secretary of State of Maine, and Julie Flynn, in her official capacity as the Deputy Secretary of State of Maine for the Bureau of Corporations, Elections and Commissions (Defendants), seeking declaratory and injunctive relief prohibiting the Secretary of State from enforcing certain Maine State laws that regulate the circulation of ballot initiative petitions. Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl. ). That same day, the Plaintiffs moved for a temporary restraining order (TRO) and/or preliminary injunction, seeking to prohibit enforcement of laws that require petition circulators to be Maine residents and be registered to vote in Maine. Pls.’ Mot. for Emergency TRO and/or Prelim. Inj. (ECF No. 3) ; id. , Attach. 1, Pls.’ Mem. of Law in Supp. of Their Mot. for TRO and/or Prelim. Inj. . On January 8, 2021, the Defendants filed their response. Defs.’ Opp'n to Pls.’ Mot. for Emergency TRO (ECF No. 15) (Defs.’ Opp'n ). The next day, the Plaintiffs filed a reply. Pls.’ Reply to Defs.’ Br. in Opp'n to Pls.’ Mot. for TRO (ECF No. 17) .
On January 11, 2021, the Court dismissed the Plaintiffs’ motion for temporary restraining order, concluding the Plaintiffs had failed to demonstrate that they were likely to succeed on the merits, in large part due to the lack of a sufficient factual record. Order on Mot. for TRO (ECF No. 18) (TRO Order ). Notably, the Court's order "addresse[d] only the Plaintiffs’ motion for TRO, not their motion for preliminary injunction." Id. at 46 n.7. On January 14, 2021, the Court held a telephone conference with counsel, setting the deadlines for the parties’ declarations, interrogatories, and briefing. Min. Entry (ECF No. 20).
On January 21, 2021, the Plaintiffs filed their declarations, as well as a supplemental document production attaching an article and a YouTube link. See First Decl. of Christopher Arps (ECF No. 21) (Arps Decl. ); First Decl. of Michael Dane Waters (ECF No. 22) (Waters Decl. ); First Decl. of Alex Isada (ECF No. 23) (Isada Decl. ); The Second Decl. of Paul Jacob (ECF No. 24) (Second Jacob Decl. ); First Decl. of Timothy F. Mooney (ECF No. 25) (Mooney Decl. ); Second Decl. of James J. Tracey, Jr. (ECF No. 26) (Second Tracey Decl. ); First Decl. of Trenton Donn Pool (ECF No. 27) (Pool Decl. ); Suppl. Doc. Produc. (ECF No. 28).
On January 23, 2021, the Defendants filed their declarations. See Decl. of Jonathan Wayne in Supp. of Defs.’ Opp'n to Pls.’ Mot. for Prelim. Inj. (pursuant to
28 U.S.C. § 1746 )
(ECF No. 30) (Wayne Decl. ); Decl. of Ann Luther in Supp. of Defs.’ Opp'n to Pls.’ Mot. for Prelim. Inj. (pursuant to 28 U.S.C. § 1746 ) (ECF No. 31) (Luther Decl. ); Decl. of Eric McCabe Johnson in Supp. of Defs.’ Opp'n to Pls.’ Mot. for Prelim. Inj. (pursuant to 28 U.S.C. § 1746 ) (ECF No. 32) (Johnson Decl. ); Suppl. Decl. of Julie Flynn in Supp. of Defs.’ Opp'n to Pls.’ Mot. for Prelim. Inj. (pursuant to 28 U.S.C. § 1746 ) (ECF No. 33) (Suppl. Flynn Decl. ).
On February 2, 2021, the parties simultaneously filed their briefing regarding the Plaintiffs’ motion for preliminary injunction, attaching their responses to interrogatories. Pls.’ Suppl. Brief in Supp. of Pls.’ Mot. for Prelim. Inj. (ECF No. 36) ; id. , Attach. 2, Pls.’ Am./Corrected Answer to Defs.’ First Set of Interrogs. ; Defs.’ Opp'n to Pls.’ Mot. for Prelim. Inj. (ECF No. 35) ; id. , Attach. 2, Def. Julie Flynn's Resps. to Pls.’ First Set of Interrogs. . Attached to their brief, the Plaintiffs filed a document titled "Plaintiffs’ Statement of Undisputed Facts." Pls.’ Prelim. Inj. Br. , Attach. 1, Pls.’ Statement of Undisputed Facts (PSUF ). On February 4, 2021, the Defendants filed an objection to the Plaintiffs’ statement of undisputed facts. Defs.’ Obj. to Pls.’ Statement of Undisputed Facts (ECF No. 37).
On February 5, 2021, the Court held a telephonic conference of counsel regarding how the Court should consider the proffered facts. Min. Entry (ECF No. 39). On February 8, 2021, the Court held another conference of counsel and the parties agreed upon a process similar to the District of Maine's summary judgment process, whereby each side would submit statements of undisputed facts and then each side would have the opportunity to admit or deny each fact, with the Court resolving any disputed facts. Min. Entry (ECF No. 40). During the call, the Plaintiffs stated that they would proceed on their previously filed statement of undisputed facts. See PSUF. The Defendants filed their response to the Plaintiffs’ statement of undisputed facts on February 9, 2021. Defs.’ Resp. to Pls.’ Statement of Undisputed Facts (ECF No. 41) (DRPSUF). The same day, the Defendants filed their own statement of undisputed facts. Defs.’ Statement of Undisputed Facts (ECF No. 42) (DSUF). On February 10, 2021, the Plaintiffs filed their response to the Defendants’ statement of undisputed facts. Pls.’ Resp. to Defs.’ Statement of Undisputed Facts (ECF No. 43) (PRDSUF).
The Court recites this factual background from the Plaintiffs’ and the Defendants’ statements of undisputed facts, as well as their declarations and responses to interrogatories.2 While both parties submitted statements of undisputed facts, many facts are very much in dispute. The Court reviewed the statements of undisputed facts and responses and resolved any disputes.3
We the People PAC is a political action committee registered in Maine and is currently circulating a petition for an initiative of direct legislation prohibiting anyone who is not a citizen of the United States from voting in any election held within the state of Maine. PSUF ¶ 3; Compl. ¶ 16.
Liberty Initiative Fund is a 501(c)(4) nonprofit organization actively engaged in organizing and contributing funds to We the People PAC to circulate petitions to place the citizen-only voting initiative on the 2022 Maine general election ballot. PSUF ¶ 5; DRPSUF ¶ 5. Liberty Initiative Fund is the original proponent of the effort to institute bans on non-citizen voting through state ballot initiatives and referenda and is supporting We the People PAC's efforts to collect signatures for the petition. Compl. ¶ 17.
State Representative Billy Bob Faulkingham is a Maine resident and member of the Maine House of Representatives currently representing the 136th state house district. PSUF ¶ 4; DRPSUF ¶ 4. He is a member of We the People PAC and a proponent of We the People PAC's proposed non-citizen voting referendum. Pls.’ Mot. , Attach. 2, First Decl. of State Representative Billy Bob Faulkingham ¶¶ 3-4 (Faulkingham Decl. ).
Nicholas Kowalski is a professional petition circulator who resides in the state of Michigan and would like to help circulate We the People PAC's petition in Maine. PSUF ¶ 6; DRPSUF ¶ 6. Mr. Kowalski has circulated petitions in multiples states, including Michigan, Massachusetts, and California, and claims to have acquired unique skills, allowing him to "quickly screen-out unqualified signers, articulately communicate the substance of the petition and efficiently direct the potential signer on the correct method to properly sign the petition so that the signature will be counted as a valid signature." Pls.’ Mot. , Attach. 3, First Decl. of Nicholas Kowalski ¶¶ 3, 5 (Kowalski Decl. ). He states that he "routinely" collects signatures at a validity rate of more than 70% and accepts compensation based on the number of signatures he collects, guaranteeing that at least 70% of the signatures he collects will be counted as valid. Id. ¶¶ 10-12. As a condition to being able to lawfully circulate petitions in Maine, he is willing to consent to the personal jurisdiction of Maine for the purpose of any subpoena or other judicial process. Id. ¶ 20. We the People PAC intends to contract with Mr. Kowalski and other out-of-state professional circulators to obtain the requisite number of signatures. Faulkingham Decl. ¶ 11.
The Maine Secretary of State is vested with authority to enforce the statutory provisions...
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