Laws Governing Petition Circulators
The initiative states have a variety of approaches to regulating petition circulators. Among the most common are residency and age requirements, paid vs. volunteer petition circulators, 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.
Paid vs. Volunteer Petitioners
Professional signature gathering has long been a part of initiative politics. Paid signature gatherers were common in both California and Oregon in the early 1900s. Banning paid signature gatherers was an idea that came about early in the initiative's history, and was seen as a way to stop wealthy individuals or groups from buying their way onto the ballot. Ohio, South Dakota and Washington passed bans on paid signature gatherers in 1913 and 1914. Oregon passed a ban in 1935, Colorado in 1941, and Idaho and Nebraska in 1988. Until the 1980s, courts upheld bans on paid signature gatherers. That changed in 1988, when the U.S. Supreme Court invalidated Colorado's ban in the Meyer vs. Grant, 486 U.S. 414 (1988) decision.
Several states have tried to ban payment per signature, but do permit payment on a salary or hourly basis. These restrictions have met with mixed review in the federal courts. Presently, seven states have such bans (Colorado, Montana, Nebraska, North Dakota, South Dakota and Oregon) and five states have had them held unconstitutional (Idaho, Maine, Mississippi, Ohio and Washington). Most recently, Colorado's restriction was temporarily enjoined on June 11, 2010, awaiting the outcome of a trial.
Today, the vast majority of petition campaigns use paid circulators, who are paid between $1 and $3 per signature. Very few campaigns attempt to qualify an initiative petition with volunteer circulators, and even fewer do so successfully. Paid drives, on the other hand, are much more successful. A campaign that has adequate funds to pay circulators has a nearly 100 percent chance of qualifying for the ballot in many states.
The increase in reliance on paid circulators has increased the cost of qualifying an initiative. In California, it now costs more than $1 million. In Oregon, costs for qualifying ballot measures for the 2000 election ranged from $65,000 to $400,000, with most spending in the neighborhood of $100,000 to $150,000. Average costs in other states generally range between $70,000 and $100,000.
The U.S. Supreme Court's opinions on petition circulators have made the prevention of fraud in the signature gathering process very difficult for states. Since the 1988 Meyer vs. Grant decision invalidated state bans on paid signature gatherers, it has become more difficult to regulate the signature gathering process. The argument that payment for signatures promotes fraud has met with mixed reactions in courts around the country. A federal judge in North Dakota agreed, and upheld North Dakota's ban on payment-per-signature (hourly or salaried payments are permissible in North Dakota). Federal judges in Maine and Washington, however, disagreed, and found no evidence of fraud among paid signature gatherers. Another worthy argument that is less often cited is that prohibiting payment for signatures protects the integrity of the initiative process by encouraging grassroots efforts that can succeed on nothing more than popular support and discourages signature gathering efforts that can succeed only with large sums of money. Nevertheless, the U.S. Supreme Court has removed the ban on paid signature gatherers from initiative reformers' agendas.
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:
The following states’ constitutions and statutes are silent on this question:
Massachusetts (see Mass. Gen. Laws ch. 53, §22A and Const. Art. XLVIII and associated amendments)
Michigan (see Mich. Comp. Laws §168.471 – 168.488)
Mississippi (see Miss. Code Ann. §23-17-1 et seq. and Const. Art. 15, §273)
Oklahoma (see Okla. Stat. §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
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)
Held unconstitutional in 1994 by a federal district court, LIMIT v. Maleng.
Prohibitions on Unethical Behaviors
States vary widely in the behavior they deem to be unethical by petition circulators. The prohibitions often include the following:
- 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.
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