Citizens for Tax Reform v. Deters (518 F.3d 375, 2008)

OPINION

McKEAGUE, Circuit Judge.

As with the law in general, the First Amendment is a jealous mistress. It enables the people to exchange ideas (popular and unpopular alike), to assemble with the hope of changing minds, and to alter or preserve how we govern ourselves. But in return, it demands that sometimes seemingly reasonable measures enacted by our governments give way.

The State of Ohio enacted a provision making it a felony to pay anyone for gathering signatures on election-related petitions on any basis other than the time worked. It did so for the sensible purpose of reducing fraudulent signatures. The provision, however, runs afoul of the First Amendment because it creates a significant burden on a core political speech right that is not narrowly tailored. Accordingly, we affirm the district court’s grant of summary judgment against the State.

I

The district court set forth the background of this case:

Ohio Revised Code (“O.R.C.”) § 3599.111 (“the Statute”) states in relevant part as follows:

(B) No person shall receive compensation on a fee per signature or fee per volume basis for circulating any declaration of candidacy, nominating petition, initiative petition, referendum petition, recall petition, or any other election-related petition that is filed with or transmitted to a board of elections, the office of the secretary of state, or other appropriate public office.

(D) No person shall pay any other person for collecting signatures on election-related petitions or for registering voters except on the basis of time worked.

Plaintiffs Citizens for Tax Reform (“CTR”) and Jeffrey P. Ledbetter, a former Treasurer of CTR, filed a Verified Complaint on April 1, 2005 challenging the constitutionality of the O.R.C. § 3599.111 on the grounds that the prohibition of payment to petition circula-tors on a per-signature or per-volume basis violated their core political speech rights. (Doc. 1.) Plaintiffs named as defendants Joseph T. Deters, the Hamilton County, Ohio prosecutor, and Mathias H. Heck, Jr., the Montgomery County, Ohio prosecutor, both in their official capacities only, as persons responsible for the enforcement of the Statute. (Id.)

Prior to the effective date of the Statute, CTR had engaged a political consulting firm on the basis of a fixed fee contract to secure the necessary signatures to qualify a proposed constitutional amendment for the November 2005 Ohio general election. Pursuant to the contract, CTR was to pay the firm $1.70 per signature for a total of approximately 450,000 signatures. After the Statute became effective, CTR was not permitted to pay circulators on a per-signature or on any per-volume basis. The political consulting firm was no longer willing to collect signatures pursuant to the agreed-upon fixed-fee contract and it estimated that the cost for gathering the signatures would increase by more than $300,000. Plaintiffs asserted that the Statute increased the cost of qualifying their proposed amendment, made it more difficult to raise money necessary to fund the initiative effort, and that they had refrained from attempting to qualify the proposed amendment for the ballot so long as the Statute was in force. (Id.)

The Ohio Attorney General moved to intervene as a defendant in this action on March 11, 2005 in order to defend the constitutionality of § 3599.111 and the Court issued a Notation Order permitting the intervention on March 12, 2005. (Doc. 7.)

On March 19, 2005, Chief Judge Sandra Beckwith issued a Temporary Restraining Order enjoining the enforcement of O.R.C. § 3599.111. (Doc. 16.) Chief Judge Beckwith found that Plaintiffs “have introduced actual evidence that tends to show that the restriction on payment of petition circulators on a per-signature basis limits their ability to retain effective circulators and reduces the likelihood that they will succeed in placing their initiative on the November 2005 ballot.” (Id. at 9.) She further found that the State of Ohio did not adduce evidence of the necessity of the law to prevent fraud. She stated that the State’s evidence that fraud occurred when circulators were paid on a per-signature basis in Ohio was not sufficient to establish that the per-signature basis was cause of or an incentive to the fraud. (Id.) The State had not proven “that compensation on a per-signature basis generates fraud at a greater rate than other forms of compensation.” (Id.)

On May 4, 2005, March 22, 2006, and April 16, 2006, the Court issued Agreed Orders extending the temporary restraining order until October 15, 2005, extending it to cover the amendments to the law that took effect on May 2, 2005, and extending it pending a final disposition in this case. (Docs.20, 42, 46.)

Citizens for Tax Reform v. Deters, 462 F.Supp.2d 827, 828-30 (S.D.Ohio 2006) (“CTR”) (footnotes in original omitted).

Deters and Heck moved for summary judgment based on the intervention in the case by the State of Ohio. As CTR did not oppose the motion, the district court granted them summary judgment and dismissed them from the case. Id. at 830.

CTR and the State of Ohio filed cross motions for summary judgment. The State also filed a motion to dismiss based on mootness. The district court denied the State’s motion to dismiss, concluding that the State had not proven that CTR had disbanded and, even if it had, CTR’s case was saved from mootness under the exception for wrongs that are “capable of repetition, yet evading review.” Citizens for Tax Reform v. Deters, No. 05-212, 2006 WL 3420242, at *1 (S.D.Ohio Nov.27, 2006).

On the cross motions, the district court held that the Statute was unconstitutional. The district court found that CTR had established that the “Statute burdens their core political speech rights.” CTR, 462 F.Supp.2d at 832. Specifically, it agreed with a prior district court judge’s issuance of a temporary restraining order in the case based on CTR’s showing “that the Statute limits [its] ability to retain effective circulators and reduces the likelihood that petition proponents will be able to place their petitions on the ballot.” Id. The State countered that the Statute was justified as a means to combat irregularities and fraud in the election process. The district court dismissed much of the State’s evidence, however, as inconclusive or irrelevant. It concluded, “[W]hile the State of Ohio’s evidence might show that fraud has occurred when the payment per-signature method is used, it has not isolated the form of payment as being the cause of or an incentive to wide spread petition signature fraud in Ohio.” Id. at 838.

The State timely appealed the district court’s denial of its motion for summary judgment.

II

A. Fed.R.Civ.P. 56

The court reviews de novo the district court’s grant of summary judgment. Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 619 (6th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 2100, 167 L.Ed.2d 814 (2007). Summary judgment should be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). To survive summary judgment, the non-mov-ant must provide evidence beyond the pleadings “set[ting] out specific facts showing a genuine issue for trial.” Fed. R.Civ.P. 56(e).

B. Balancing First Amendment Rights Against the Regulation of Elections

1. In General

The First Amendment to the U.S. Constitution reads in part, “Congress shall make no law ... abridging the freedom of speech, ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment extends these prohibitions against the States. Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). One of the main interests embodied in the First Amendment is that of a free, sovereign people using the power of persuasion, rather than force, to govern itself. Accordingly, the Supreme Court has held that the First Amendment places a high value on the right to engage freely “in discussions concerning the need for [political] change,” including change accomplished through petitions and elections. Meyer v. Grant, 486 U.S. 414, 421, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988).

First Amendment rights to free speech, to assemble, and to petition the government are not, of course, without boundary. With respect to elections, Article I, Section 4 of the Constitution grants to States the authority to determine “The Times, Places and Manner of holding Elections.” As the Supreme Court explained in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), “[I]t is ... clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder,” id. at 358, 117 S.Ct. 1364 (citing Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (“[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.” (internal quotation marks omitted))). “States allowing ballot initiatives 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. Constitutional L. Found., 525 U.S. 182, 191, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (citations omitted). When the boundaries of First Amendment rights push up against a State’s authority to regulate elections, cases like the present one arise.

CTR asserts that Ohio’s requirement that circulators be paid only on the basis of their time worked (the “per-time-only” requirement) places a severe burden on its First Amendment rights. The State counters that the burden is not severe and, even if it is, the burden is justified by the need to counter election fraud. In Tim-mons, the Supreme Court set forth the following framework for resolving these types of competing interests:

When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary. 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. No bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms.

520 U.S. at 358-59, 117 S.Ct. 1364 (internal quotation marks and citations omitted); see also Buckley, 525 U.S. at 192, 119 S.Ct. 636 (“We have several times said no litmus-paper test will separate valid ballot-access provisions from invalid interactive speech restrictions; we have come upon no substitute for the hard judgments that must be made.” (internal quotation marks omitted)).

2. Character and Magnitude of the Burden

a. Prior Decisions

The State of Ohio argues that its per-time-only requirement imposes, at most, only a moderate burden on CTR’s rights. It faults CTR for failing to show, in the State’s words, that the ban would cause “a significant, quantitative decrease in the number of circulators available” or that it “would decrease the number of issues successfully placed on the ballot.” Appellant’s Br. at 18. It asserts that we should apply a “less exacting review” and that, under this review, the requirement meets the standard for a “reasonable, nondiscriminatory restrictionf ].” Timmons, 520 U.S. at 358, 117 S.Ct. 1364. CTR argues, on the other hand, that the cumulative effect of the Statute on the petition process severely burdens CTR’s core political speech rights.

The Supreme Court first addressed the issue of payment to petition circulators in Meyer v. Grant. The State of Colorado had banned proponents of petitions from paying circulators, among other restrictions. The Court subjected Colorado’s payment ban to “exacting scrutiny.” Meyer, 486 U.S. at 420, 108 S.Ct. 1886 (citations omitted). The Court determined that the ban restricted political expression in two fundamental ways: (1) it “limit[ed] the number of voices who will convey [the petitioner’s] message and the hours they can speak and, therefore, limits the size of the audience they can reach”; and (2) “it makes it less likely that [the petitioner] will garner the number of signatures necessary to place the matter on the ballot, thus limiting [the petitioner’s] ability to make the matter the focus of the statewide discussion.” Id. at 422-23, 108 S.Ct. 1886.

The State of Colorado defended the measure in part by pointing out all of the other avenues of expression left open to petitioners. The Court rejected the argument, explaining that simply because more-burdensome avenues of speech existed did not mean that Colorado could simply shut down a less-burdensome one: “Colorado’s prohibition of paid petition cir-culators restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication.” Id. at 424, 108 S.Ct. 1886. The Court concluded that the burden Colorado had to overcome to justify its ban was “well-nigh insurmountable.” Id. at 425, 108 S.Ct. 1886.

Several years later the State of Colorado was again before the Supreme Court to justify several new petition regulations. In Buckley v. American Constitutional Law Foundation, the Court looked at three provisions: “(1) the requirement that initiative-petition circulators be registered voters”; “(2) the requirement that they wear an identification badge”; and “(3) the requirement that proponents of an initiative report the names and addresses of all paid circulators and the amount paid to each circulator.” 525 U.S. at 186, 119 S.Ct. 636. Using again the “exacting scrutiny” it applied in Meyer, id. at 204, 119 S.Ct. 636, the Court struck down all three as too heavy a burden in comparison to the State’s purported justifications of deterring fraud and corruption, id. at 205, 119 S.Ct. 636.

Since the Meyer and Buckley decisions, three circuits have considered whether bans on per-signature payments meet constitutional muster. The Eighth Circuit was the first when it considered North Dakota’s ban in Initiative & Referendum Institute v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (“IRI”). The court found the ban constitutional. It based its holding on the respective strengths of the proofs submitted:

Examining the record in this case, we conclude that the State has produced sufficient evidence that the regulation is necessary to insure the integrity of the initiative process. In 1987, the Legislature passed § 16.1-01-12(11) in response to problems that occurred with an initiative that had been placed on the ballot in November 1986. State Representative Linderman stated, in regard to a 1986 signature campaign, that “students were being paid 25