We the People PAC v. Bellows

• Decision Date: 07 July 2022
• Docket Number: 21-1149
• Citation: 40 F.4th 1
• Parties: WE THE PEOPLE PAC; Billy Bob Faulkingham, State Representative; Liberty Initiative Fund ; Nicholas Kowalski, Plaintiffs, Appellees, v. Shenna BELLOWS, in her official capacity as the Secretary of State of Maine, Julie Flynn, in her official capacity as the Deputy Secretary of State of Maine for the Bureau of Corporations, Elections and Commissions, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

40 F.4th 1

WE THE PEOPLE PAC; Billy Bob Faulkingham, State Representative; Liberty Initiative Fund ; Nicholas Kowalski, Plaintiffs, Appellees,

v.Shenna BELLOWS,^* in her official capacity as the Secretary of State of Maine, Julie Flynn, in her official capacity as the Deputy Secretary of State of Maine for the Bureau of Corporations, Elections and Commissions, Defendants, Appellants.

No. 21-1149

United States Court of Appeals, First Circuit.

July 7, 2022

Jason Anton, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, Thomas A. Knowlton, Deputy Attorney General, and Jonathan Bolton, Assistant Attorney General, were on brief, for appellants.

Paul A. Rossi, with whom IMPG Advocates was on brief, for appellees.

Before Barron, Chief Judge, Kayatta, Circuit Judge, and Saris,^** District Judge.

BARRON, Chief Judge.

Maine allows for direct popular participation in the state's lawmaking process through two distinct means: a "people's veto," as it is commonly known, and a "direct initiative." Me. Const. art. IV, pt. 3, §§ 17 - 18. To place either type of measure on the state ballot, a "written petition" that contains a minimum number of signatures from those who are "qualified to vote for Governor" in Maine must be filed with the Secretary of State of Maine. Id. § 20.

Maine law refers to a person who "solicits signatures for the petition by presenting the petition to the voter, asking the voter to sign the petition and personally witnessing the voter affixing the voter's signature to the petition" as a "circulator." Me. Stat. tit. 21-A, § 903-A. Maine law further provides that the "circulator" must be a Maine resident who is also registered to vote in Maine. Id.

This appeal arises from a suit that challenges both the residency and the voter-registration requirements. The suit alleges that each requirement, by restricting who may be a circulator, violates the First Amendment to the United States Constitution as incorporated against the states by the Due Process Clause of the Fourteenth Amendment. See Grosjean v. Am. Press Co., 297 U.S. 233, 245, 56 S.Ct. 444, 80 L.Ed. 660 (1936).

The suit was brought in 2020 in the United States District Court for the District of Maine by a nonprofit organization, a political action committee, a Maine State Representative, and a professional collector of signatures for petitions who resides in Michigan. The plaintiffs named as the defendants the Secretary of State of Maine in his official capacity and the Deputy Secretary of State of Maine for the Bureau of Corporations in hers.

On the same day that the plaintiffs filed their suit, they also moved for a temporary restraining order and/or a preliminary injunction to prevent the residency requirement and the voter-registration requirement from being enforced. The District Court denied the request for the temporary restraining order but ultimately granted the motion for the preliminary injunction. The defendants now appeal from that latter ruling. We affirm.

I.

A.

The portions of the Maine Constitution that pertain to the "people's veto" provide that "[t]he effect of any Act, bill, resolve or resolution or part or parts thereof" that the Maine Legislature passes "shall be suspended upon the filing" of a "written petition," and that the measure thereafter must be "voted on by the people." Me. Const. art. IV, pt. 3, § 17 (emphasis added); see also Me. Senate v. Sec'y of State, 183 A.3d 749, 753 (Me. 2018) (describing the "people's veto"). The portions of the Maine Constitution that pertain to "direct initiative[s]" state that "[t]he electors may propose to the Legislature for its consideration any bill, resolve or resolution," though "not an amendment of the State Constitution, by written petition." Me. Const. art. IV, pt. 3, § 18 (1) (emphasis added). These provisions also state that, unless the proposed direct initiative is "enacted without change by the Legislature," it must be "submitted to the electors together with any amended form, substitute, or recommendation of the Legislature," who then may "choose between the competing measures or reject both." Id. § 18 (2).

Under the Maine Constitution, the "written petition" referred to in the provisions quoted above must contain a specified number of valid signatures of eligible Maine voters and be filed with the Maine Secretary of State ("the Secretary"). The total number of signatures "shall not be less than 10% of the total vote for Governor cast in the last gubernatorial election." Id. §§ 17 (1), 18 (2).

The Maine Constitution defines a "circulator" as "a person who solicits signatures for written petitions." Id. § 20. It states that a circulator "must be a resident of [Maine] 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." Id. A Maine statute provides that the "written petition" referenced in these provisions of the Maine Constitution "may be circulated by any Maine resident who is a registered voter acting as a circulator of" such a petition. Me. Stat. tit. 21-A, § 903-A.

At the time that the written petition is filed with the Secretary, the circulator "must sign the petition." Id. § 902. The circulator also must "verify by oath or affirmation" that she "personally witnessed all of the signatures" collected "and that to the best of the circulator's knowledge and belief each signature is the signature of the person whose name it purports to be." Id.

The circulator must file alongside the written petition an executed affidavit that includes "[t]he circulator's printed name, the physical address at which the circulator resides and the date the circulator signed the affidavit." Id. § 903-A(4)(A). The affidavit must include attestations that "the circulator was a resident of [Maine] and a registered voter in [Maine] at the time of circulating the petition." Id. § 903-A(4)(C). If the circulator "[k]nowingly fails to truthfully execute and timely file" an affidavit, that individual "commits a Class E crime." Id. § 904(6).

The Secretary must "determine the validity of the petition ... within 30 days from the date" that the petition is filed with her. Id. § 905(1). In undertaking that review, the Secretary may invalidate signatures that are obtained from individuals who are not residents of Maine or that are collected by circulators who were not in compliance with the residency and voter-registration requirements. See, e.g., Hart v. Sec'y of State, 715 A.2d 165, 166 (Me. 1998) ; Jones v. Sec'y of State, 238 A.3d 982, 985 (Me. 2020).

Additional provisions of the Maine Constitution concern the duration of the petition circulation process. See Me. Const. art. IV, pt. 3, §§ 17 (1), 18 (1). They require that the requisite number of signatures for a written petition must be secured within a specified period after the circulation process begins for a direct initiative petition, and after the legislative session at which the challenged action occurred for a people's veto petition. Id.

B.

Except where noted otherwise, the following facts are not in dispute in this appeal. In 2019, the We the People PAC ("We the People"), a political action committee registered in the State of Maine, and state Representative Billy Bob Faulkingham, who represents the 136th district in the Maine State House of Representatives and is a member of We the People, sought to sponsor, and also circulated a petition in support of, a direct initiative entitled, "An Act to Clarify the Eligibility of Voters." The proposed direct initiative sought to "force the state legislature to adopt verbatim [a] proposed ban on all non-citizen voting in the State of Maine or place the question on the next general election ballot ... to be decided by the voters of Maine."¹

For the initiative to be placed on the ballot, the Secretary first must "furnish[ ]" or "approve[ ]" a "form[ ]" that is then circulated for signatures by qualified voters. Me. Const. art. IV, pt. 3, § 20. This form, once approved, is the "written petition." See id.

Maine law provides, however, that "the written petition" for a direct initiative "may not be filed in the office of the Secretary of State later than 18 months after the date the petition form was furnished or approved by the Secretary of State." Id. § 18(1). Maine law further provides that only those signatures collected within the year leading up to the date on which the petition is filed with the Secretary count as valid. See Id. § 18(2) ("A signature is not valid if it is dated more than one year prior to the date that the petition was filed in the office of the Secretary of State."). Moreover, Maine law provides that the signed petition must be filed with municipal authorities or state election officials "for determination of whether the" signatures are of "qualified voters" by the tenth day before the signed petition is filed with the Secretary. Id. § 20.

In light of these provisions, the proponents, to have placed their proposed direct initiative on the November 2020 ballot would have to have filed their signed petition with the Secretary by February 3, 2020 (and for municipal or election official certification ten days before that); to have placed their proposed direct initiative on the November 2021 ballot, the proponents would have to have filed their signed petition with the Secretary by January 21, 2021 (and for municipal or election official certification ten days before that); and to have placed their proposed direct initiative on the November 2022 ballot, the proponents would have to have filed their signed petition with the Secretary by February 26, 2021 (and for municipal or election official certification ten days before that). See id. §§ 18, 20. To file a petition after February 26, 2021, its supporters would have had to apply to the Secretary for a new petition form, which, once approved, would have restarted their eighteen-month approval clock. See id. § 20. They then could have collected signatures...