1-40-112. Circulators – requirements – training

Editor’s note: (1) Subsection (1) is similar to former § 1-40-106 (3) as it existed prior to 1993, and the former § 1-40-112 was relocated to § 1-40-122 (1). (2) In Independence Institute v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013), the United States District Court for the District of Colorado found subsection (4) of this section unconstitutional under the First Amendment of the United States Constitution and permanently enjoined the Colorado Secretary of State from enforcing subsection (4) and any ancillary provision that enforces subsection (4), namely, sections 1-40-135 and 1-40-121, to the extent those sections apply to the restrictions on per-signature compensation.
 
ANNOTATIONS

Law reviews. For article, “Colorado’s Citizen Initiative Again Scrutinized by the U.S. Supreme Court”, see 28 Colo. Law. 71 (June 1999). For comment, “Buckley v. American Constitutional Law Foundation, Inc.: The Struggle to Establish a Consistent Standard of Review in Ballot Access Cases Continues”, see 77 Den. U. L. Rev. 197 (1999).

George L. Blum, Annotation, Constitutionality, Construction, and Application of Statute or Regulatory Action Respecting Political Advertising–Print Media Cases, 51 A.L.R.6th 359 (2010).

Jay M. Zitter, Annotation, Validity, Construction, and Application of State Statutes Regulating or Proscribing Payment in Connection With Gathering Signatures on Nominating Petitions for Public Office or Initiative Petitions, 40 A.L.R.6th 317 (2008).

Annotator’s note. Since § 1-40-112 is similar to § 1-40-106 as it existed prior to the 1993 amendment of title 1, article 40, which resulted in the relocation of provisions, see the annotations under former § 1-40-106 in the 1980 replacement volume.

Holding that the identification badge requirement violates the first and fourteenth amendments to the United States constitution. The requirement substantially affects the number of potential petition circulators which translates into a corresponding decrease in the amount of protected political speech. The state’s articulated interests, an interest in honesty in public discussion of governmental issues and in demonstrating grassroots support for an initiative, are not compelling and the restriction has not been narrowly drawn to further those interests. Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994), aff’d on other grounds, 120 F.3d 1092 (10th Cir. 1997), aff’d on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Holding that the badge requirement discourages participation in the petition circulation process by forcing name identification without sufficient cause. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Holding that the Secretary of State properly disqualified initiative petitions circulated by nonregistered voters;  Constitution and statute required that all circulators be registered electors, and, although Secretary was initially enjoined by federal court from enforcing constitutional provision, injunction was later vacated, and Secretary then had obligation to enforce law as if injunction had never been entered. McClellan v. Meyer, 1995, 900 P.2d 24.

Holding that because the requirement in subsection (1) that circulators be registered voters is not narrowly tailored to a compelling state interest, it unconstitutionally impinges on free expression. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff’d, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Holding that the age requirement is a neutral restriction that imposes only a temporary disability-it does not establish an absolute prohibition but merely postpones the opportunity to circulate petitions. Exacting scrutiny is not required. Because maturity is reasonably related to Colorado’s interest in preserving the integrity of ballot issue elections, the first amendment challenge fails. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff’d on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Holding that subsection (2) is not narrowly tailored to serve the state’s interest. Conditioning circulation upon wearing an identification badge is a broad intrusion, discouraging truthful, accurate speech by those unwilling to wear a badge, and applying regardless of the character or strength of an individual’s interest in anonymity. Additionally, the badges are but one part of the state’s comprehensive scheme to combat circulation fraud. Article 40 of title 1 provides other tools that are much more narrowly tailored to serve the state’s interest. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff’d on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Holding that the limitation in subsection (4) on per-signature compensation for petition circulators violates the first amendment of the United States constitution. Subsection (4) will deter most itinerant professionals from working in the state; eliminate low-volume professional circulators; and significantly increase the costs of a signature-gathering campaign. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Holding that the cost increase associated with subsection (4) is likely to lower the chances of underfunded proponents succeeding in the initiative and referendum process. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

The effect of subsection (4) will be the exclusion from the initiative process of those who, through experience and self-selection, are the most efficient and effective circulators. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Holding that to the extent subsection (4) prevents proponents from using individuals who would most effectively convey their message to the public, the statute places a substantial burden on the proponents’ first amendment rights, even if the statute only restricts proponents from using some, but not all, circulators. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Holding that given the availability of other effective and less burdensome statutory tools to safeguard the state’s interest in reducing fraud and the number of invalid petition signatures, subsection (4) poses an undue restriction on first amendment rights. Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Holding that the secretary of state is permanently enjoined from enforcing subsection (4) and any ancillary statute that enforces subsection (4), namely, § § 1-40-135 and 1-40-121 to the extent that those sections apply to the restriction on per-signature compensation found in subsection (4). Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013).

Holding that all circulators of initiative petitions must be registered electors, as required in both section 1 of article V of the state constitution and this section. Although the secretary of state was at one time enjoined by federal action from enforcing this requirement, after the injunction was lifted, she properly disallowed petitions circulated by nonregistered voters. McClellan v. Meyer, 900 P.2d 24 (Colo. 1995).

Holding that the training requirement is not a severe burden on first amendment rights. In instituting the training program, this state has a significant interest in ensuring that petition entities are knowledgeable about state law in order to inform paid or unpaid circulators about the state’s statutory requirements. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012).