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Laws Governing Petition Circulators

Laws Governing Petition Circulators

Last updated Nov. 15, 2012

The initiative states have a variety of approaches to regulating petition circulators.  Among the most common are residency and age requirements, requiring circulators to disclose whether they are paid or volunteer, requiring that circulators witness petition signatures and attest to their validity, banning the payment of circulators per signature, and prohibiting unethical behavior.

Residency and Age Requirements

More than half of the 24 I&R states require that petition circulators be eligible to vote in the state.  This includes requiring that they be at least 18 years of age and a resident of the state.  The philosophy behind such requirements is that the people who circulate petitions to change state law or the constitution should have a vested interest in the issue.  To receive a table detailing the age and residency requirements of petition circulators, email your request to NCSL.

Disclosing Paid/Volunteer Status

Some people believe that paid petition circulators are more prone to committing acts of fraud and dishonesty in the petitioning process.  This point of view holds that because they are motivated by the desire to gather more signatures, and thus earn more money, they may be more likely to misrepresent the content of a petition, forge signatures, etc.  The U.S. Supreme Court has said it is a violation of the 1st Amendment to ban paying circulators, so some states instead require circulators to disclose their paid/volunteer status prominently to potential petition signers.  The following 7 states require that circulators disclose to petition signers whether they are paid or volunteer:

  • Arizona – on the petition (§19-102(B) and (C))
  • California – on the petition (Elec. Code §101)
  • Missouri – in an affidavit filed with the secretary of state (Mo.Rev.Stat. §116.080(2))
  • Nebraska – on the petition (Neb.Rev.Stat. §32-628(4))
  • Ohio – on the petition (§3519.05)
  • Oregon – on the petition (ORS §250.045(5))
  • Wyoming – on the petition (Wyo. Stat. §22-24-110(a)(v))

In Arizona, signatures gathered in violation of this requirement are declared void and are not counted toward the legal sufficiency of a petition.

Witness and Affidavit Requirements

A majority of the 24 initiative states require circulators to witness petition signatures and sign an oath or affidavit to that effect.  The following 18 states have such requirements (to obtain an MSWord table detailing these requirements, please email a request to NCSL).

                        Alaska                                                  Nebraska

                        Arizona                                                Nevada

                        Arkansas                                             North Dakota

                        California                                            Ohio

                        Colorado                                             Oregon

                        Idaho                                                   South Dakota

                        Illinois                                                 Utah

                        Maine                                                  Washington

                        Missouri                                              Wyoming

                        Montana                                            

The following states’ constitutions and statutes are silent on this question:

Massachusetts (see MGL Chap. 53, §22A and Const. Art. XLVIII and associated amendments)

Michigan (see MCL §168.471 – 168.488)

Mississippi (see MCA §23-17-1 et seq. and Const. Art. 15, §273)

Oklahoma  (see OS §34-1 et seq.)

Florida law specifically permits the signing of petitions outside the presence of a circulator: Secretary of State Election Division, Admin. Rule 1S-2.009(9):

“Petition forms may be reproduced in newspapers, magazines, and other forms of printed mass media, provided such forms are reproduced in the same format as approved by the Division.  The petition forms may be included within a larger advertisement, provided the forms are clearly defined by a solid or broken line border.”

 

Conversations with officials in the Secretaries of State’s offices in Massachusetts on 3/12/99 revealed that initiative petition circulators often leave petitions on bulletin boards or tables, thus gathering signatures without witnessing them.

In Oregon, proponents have found a way around the witness requirements – according to a report by the Initiative and Referendum Institute, a copy of the petition cover sheet and signature sheet are sent via mail or the Internet (Gloger, Andrew M.  Paid Petitioners After Prete, Initiative & Referendum Institute, May 2006).  The recipient then signs both the signature line and the circulator affidavit, and becomes in effect the circulator of the petition they signed.

Banning Payment-per-Signature for Petition Circulators

It is common for initiative sponsors to pay circulators on a per-signature basis to gather petition signatures.  Payments typically range from $1 to $3 per signature, and occasionally are as high as $10 per signature.  Critics argue that this encourages fraud—since a circulator who collects more signatures will earn more money, circulators who are paid per signature are more likely to commit acts of fraud such as forging signatures or misrepresenting the content of the petition in order to encourage people to sign. 

In six states (Montana, Nebraska, North Dakota, Oregon, South Dakota and Wyoming), initiative sponsors are banned from paying petition circulators per signature.  Instead, they may pay a flat fee or an hourly salary.  These laws have been challenged in the courts with mixed results.  North Dakota and Oregon’s provisions have been upheld by the U.S. 9th and 8th Circuit Courts, respectively.  However, similar provisions in Idaho, Maine, Mississippi and Washington were held unconstitutional by federal district courts. 

A seventh state, Colorado, takes a novel approach.  HB 1326, passed by the General Assembly in 2009, makes it unlawful to pay a circulator more than 20 percent of his/her compensation on a per-signature basis (effective July 1, 2009). Colorado's law has been challenged in a federal district court and is not currently in effect, however.

Colorado (CRS §1-40-112(4))
[Note that enforcement of this provision was temporarily enjoined by federal district court judge Phillip Brimmer on June 11, 2010, pending a full trial.]
"It shall be unlawful for any person to pay a circulator more than twenty percent of his or her compensation for circulating petitions on a per signature or petition section basis."

Montana (MCA §13-27-102(2)(b))

"A person gathering signatures for the initiative, the referendum, or to call a constitutional convention…may not be paid anything of value based upon the number of signatures gathered"

Nebraska (NRS §32-630(3)(g))

No person shall pay a circulator based on the number of signatures collected.

North Dakota (N.D. Cent. Code §16.1-01-12(11))

“It is unlawful for a person to…[p]ay or offer to pay any person, or receive payment or agree to receive payment, on a basis related to the number of signatures obtained for circulating an initiative, referendum, or recall petition. This subsection does not prohibit the payment of salary and expenses for circulation of the petition on a basis not related to the number of signatures obtained, as long as the circulators file their intent to remunerate prior to submitting the petitions…” (Upheld in 2001 by the U.S. 8th Circuit Court of Appeals, Initiative & Referendum Institute v. Jaeger.)

Oregon (Or. Const. Art. IV §1b)

“It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition. Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained. [Created through initiative petition filed Nov. 7, 2001, and adopted by the people Nov. 5, 2002]” 

South Dakota (SDCL §12-13-38)

No person may employ, reward, or compensate any person to circulate a petition for an initiated measure, referred law, or proposed amendment to the South Dakota Constitution based on the number of registered voters who signed the petition. Nothing in this section prohibits any person from employing a petition circulator based on one of the following practices:

(1)    Paying an hourly wage or salary;

(2)    Establishing either express or implied minimum signature requirements for the petition circulator;

(3)    Terminating the petition circulator's employment, if the petition circulator fails to meet certain productivity requirements; and

(4)    Paying discretionary bonuses based on reliability, longevity, and productivity.

Any violation of this section is a Class 2 misdemeanor.

Wyoming (Wyo. Stat. §22-24-125)

“A circulator of an initiative or a referendum petition or a person who causes the circulation of an initiative or a referendum petition may not receive payment for the collection of signatures if that payment is based upon the number of signatures collected.  Nothing in this section prohibits a circulator of an initiative or a referendum petition or a person who causes the circulation of an initiative or a referendum petition from being paid a salary that is not based upon the number of signatures collected.”

Pay-Per-Signature Laws Held Unconstitutional

Idaho

Held unconstitutional in 2001 by a U.S. District Court. Idaho Coalition United for Bears v. Cenarrusa.

Maine (Me. Rev. Stat. tit. 21-A §904-A (REPEALED))

Held unconstitutional in 1999 by the U.S. District Court of Maine. On Our Terms ’97 PAC v. Secretary of State of State of Maine.

Mississippi (Miss. Code Ann. §23-17-57(3))

Held unconstitutional in 1997.  Term Limits Leadership Council v. Clark, 984 F.Supp. 470 (S.D. Miss. 1997)

Washington (REPEALED)

Held unconstitutional in 1994 by a federal district court, LIMIT v. Maleng.

Prohibitions on Unethical Behavior

States vary widely in the behavior they deem to be unethical by petition circulators.  The prohibitions often include the following. (To obtain an MSWord table detailing these requirements, please email a request to NCSL.)

  •             Offering payment to sign/not sign a petition
  •             Coercing to sign/not sign petition
  •             Misrepresenting contents of petition, or refusing to let signers read it
  •             Circulating a petition not in its entirety
  •             Forging names on a petition
  •             Permitting one person to sign for another
  •             Offering, seeking or receiving payment to abandon, sell or destroy a petition
  •             Using a petition for extortion or blackmail

Oregon is unique in that the chief proponents of an initiative proposal may be held liable for the unethical and illegal actions of their petition’s circulators.

For More Information

For more information on initiative and referendum, contact Wendy Underhill in NCSL’s Denver office, 303-364-7700.

 

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