Decoding the "Sphinx-Like Silence": State Residency, Petition Circulation, and the First Amendment
Decoding the "Sphinx-Like Silence": State Residenc y, Petition Circulation, and the First Amendment
Ryan A. Partelow 0 1
0 Fordham University School of Law
1 Thi s Note is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
Recommended Citation Ryan A. Partelow, Decoding the "Sphinx-Like Silence": State Residency, Petition Circulation, and the First Amendment, 86 Fordham L. Rev. 2553 (). Available at: https://ir.lawnet.fordham.edu/flr/vol86/iss5/11
Law; Election Law; Courts; Supreme Court of the United States; State and Local Government Law;
Legislation; First Amendment; Constitutional Law
Thi s note is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol86/iss5/11
Ryan A. Partelow*
State governments are the primary regulators of elections and ballot
access in the United States. State statutes determine who is eligible to be on
the ballot in each particular state, as well as who may assist these individuals
by gathering petition signatures. Candidates for political office, initiative
proponents, and their supporters have challenged some of these restrictions
as unconstitutional burdens on political speech. The U.S. Supreme Court has
had great difficulty in articulating a coherent standard of review in this area
of the law, which shows that the line between a state?s reasonable regulation
of the election process and an unconstitutional burden on First Amendment
rights is not easy to define.
One particular area where this issue has come into focus is state laws
requiring petition circulators to be state residents or, alternatively, eligible
to vote in the state. The majority of circuits have declared these restrictions
unconstitutional burdens on political speech, while one circuit has found
them a reasonable regulation of a state?s electoral process. This Note
explores the history and context of the Supreme Court?s struggle to establish
a consistent standard of review in ballot-access cases before examining the
nuances of the constitutionality of both residency and voter eligibility
requirements. This Note ultimately argues that the minority view is the more
correct reading of Supreme Court precedent and that residency requirements
are generally reasonable state regulations of elections, while voter eligibility
requirements are unconstitutional violations of the First Amendment.
* J.D. Candidate, 2019, Fordham University School of Law; B.A., 2012, American University
School of Public Affairs. I would like to thank Professor Zephyr Teachout for her invaluable
guidance throughout every stage of my writing process, Professor Jerry Goldfeder for his
insight and expertise, the editors and staff of the Fordham Law Review for their assistance,
and my partner, Emily Falcone, for her boundless patience, love, and support.
II. THE SPLIT: DO RESIDENCY AND VOTER ELIGIBILITY REQUIREMENTS VIOLATE THE FIRST AMENDMENT?................... 2573?
In spring 2016, the Libertarian Party of New York nominated Alex Merced
as its candidate for U.S. Senate.1 A marketing executive and longtime
libertarian activist and blogger, Merced kicked off his Senate campaign by
speaking at the Libertarian Party?s national convention in Orlando, Florida,
where Gary Johnson accepted the party?s nomination for President of the
1. Complaint para. 17, Merced v. Spano, No. 16CV3054 (SJ) (SMG), 2016 WL 3906646,
at *1 (E.D.N.Y. July 14, 2016).
United States.2 At the time of his speech to the convention, however, Merced
and his supporters were unsure whether he would qualify to appear on New
York?s ballot for the November general election.3
New York?s ballot-access laws have historically been criticized as some of
the most stringent and complicated in the country.4 In addition to requiring
candidates in Merced?s position to collect 15,000 signatures of registered
New York voters within a period of six weeks, each signature must be
witnessed by an individual who is either a ?duly qualified voter? in New
York, a New York Notary Public, or a New York Commissioner of Deeds.5
As such, although activists living outside of New York wished to help
Merced appear on the ballot, they were forbidden from acting as witnesses in
New York?s petitioning process.6
On June 13, a little over a week before the beginning of the petitioning
period, Merced and other Libertarians filed a lawsuit challenging the
constitutionality of New York?s ?duly qualified voter? and state-residency
requirements for petition witnesses.7 Seeking a preliminary injunction,
Merced alleged that these provisions in New York election law put third
parties and independent organizations, such as the Libertarian Party of New
York, at a severe disadvantage in accessing the ballot.8 Furthermore, Merced
maintained that the restrictions constituted a ?severe burden? on political
speech rights under the First Amendment because the requirements made it
more difficult for Merced and his supporters to disseminate their political
The State of New York contended that the restrictions were necessary to
advance its interest in limiting petition witnesses to state residents, which
would ensure that all witnesses would be answerable to New York courts.10
New York further argued the restrictions ?serve the compelling interest of
preventing those who do not have the right to vote from serving as witnesses?
in the election process.11
The court, noting that the Libertarian Party had filed petitions in
accordance with the law without complaint every two years since 1974,
denied Merced?s request for a preliminary injunction in July 2016.12 The
court simultaneously held, however, that Merced was likely to succeed on
the merits of his claim, and the suit is currently moving forward.13
Like all actions challenging ballot-access restrictions in the United States,
Merced?s suit asks the court to weigh two fundamental principles of federal
republican government?states? regulation of their own electoral systems
and individual constitutional rights to political speech and assembly. Since
the turn of the millennium, similar suits have challenged residency or voter
eligibility requirements for petition circulators across the United States.14
The issue of whether residency and voter eligibility requirements for
petition circulators violate the First Amendment currently divides circuit
courts.15 This Note offers a way forward and weighs the constitutional
arguments on both sides and the profound policy implications of this
Part I of this Note examines the background, legal context, and history of
residency and voter eligibility requirements for petition circulators. Next,
Part II discusses the split among circuit courts on whether residency and voter
eligibility requirements violate the First Amendment. Part III then argues
that the majority view fundamentally misreads Supreme Court precedents
and creates the potential for even reasonable restrictions to be held
unconstitutional. This Note advocates for a more flexible standard in
evaluating restrictions on petition circulation. While each individual state
statute presents a unique set of circumstances that must be carefully
considered, state-residency requirements for petition circulators should
generally be upheld as constitutional, while voter registration and eligibility
requirements should not.
I. BALLOT-ACCESS, PETITION-CIRCULATION,
AND RESIDENCY REQUIREMENTS
Before examining the constitutionality of residency and voter eligibility
requirements, it is necessary to place the question in the proper context. Part
I.A provides a brief overview of the general framework of election law in the
United States. This includes variations in procedures for securing a place on
the ballot for both ballot initiatives and candidates for political office. Part
I.B discusses the U.S. Supreme Court?s complex and often confusing
standards for analyzing ballot-access cases under the First Amendment,
14. See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443?44 (6th Cir. 2016)
(discussing the holdings of numerous cases challenging similar restrictions).
15. See id. at 442?43 (noting the split between the Eighth and Tenth Circuits on the
constitutionality of residency requirements).
including relevant precedents that frame the current circuit split over
residency and voter eligibility requirements. Part I.C describes the
challenges legislatures and courts face as they attempt to administer elections
in the twenty-first century.
A. Election Law in America: The States? Playground
The U.S. Constitution grants state legislatures direct control in the first
instance over ?[t]he Times, Places and Manner of holding Elections.?16 As
such, election law in the United States is an assortment of rules and standards
that vary across state lines.17 State legislatures not only regulate their own
state elections but also federal elections within the state, subject to certain
constitutional and statutory constraints.18
The framers of the Constitution believed that state oversight of elections
would be ?both more convenient and more satisfactory? than direct federal
control.19 At the time of ratification, opponents of an overbearing federal
government feared that direct federal control over elections could lead to
undue influence and favoritism for one group of people nationwide, such as
?the wealthy and the well-born.?20 In granting states authority over their own
electoral affairs in the Constitution, the framers reasoned that ?diversity
in . . . the people of the different parts of the Union, [would] occasion a
material diversity of disposition in their representatives towards the different
ranks and conditions in society.?21
The framers recognized the potential for hostile foreign powers to meddle
in the young republic?s electoral system.22 While the framers did not
explicitly tie this concern to the decision to have state governments oversee
federal elections, concerns about foreign influence permeated the debate on
Ultimately, in giving state governments power over federal elections, the
framers fundamentally believed that state legislatures were the closest
government body to the people. Thus, state legislatures would likely be the
easiest to hold accountable should the people feel that the legislature was
failing to uphold their interests or attempting to subjugate the people?s voice
through unfair election laws.24
A century after the Constitution?s ratification, state-level populist and
progressive reformers made such a push to hold state governments
accountable. These activists proposed a way for the people to bypass
legislatures that had become beholden to special interest groups and refused
to pass laws that were favored by a majority of state residents.25 As a result,
many states enacted ballot-initiative laws that allowed voters to directly place
legislative propositions on a referendum ballot for approval by popular
vote.26 Drawing influence from Switzerland?s constitution, Athenian
democracy, and the New England ?town meeting,? the initiative process
aimed to give legislative and political power directly to the electorate, which
served as a bulwark against corrosive corruption and intransigence in state
The initiative process represented a monumental shift that continues to
play a major role in modern politics. Fourteen states allow voters to directly
legislate via the ballot initiative, sixteen allow the enactment of constitutional
amendments via the initiative, and twenty-four states have a process known
as a ?popular referendum? whereby voters may affirm or reject a law passed
by the legislature.28
For an initiative question to be approved by the state?s voters, its
proponents must first secure it a place on the ballot. States ordinarily require
that proponents circulate petitions, a process of collecting a statutorily
Elbridge Gerry?s fear, shared by many influential delegates, that ?[f]oreign powers will
intermeddle in our affairs, and spare no expence to influence them? and that ?[p]ersons having
foreign attachments will be sent among us & insinuated into our councils, in order to be made
i[n]struments for their purposes?). For a more thorough analysis of the framers? fears of
foreign influence in the years preceding and immediately following the Constitution?s
ratification, see Zephyr Teachout, Extraterritorial Electioneering and the Globalization of
American Elections, 27 BERKELEY J. INT?L. L. 162, 168?70 (
24. See THE FEDERALIST No. 60 (Alexander Hamilton); see also THE FEDERALIST No. 46,
at 296 (James Madison) (Clinton Rossiter ed., 1961) (?[T]he prepossessions of the people, on
whom both [federal and state governments] will depend, will be more on the side of the State
governments, than of the federal government.?).
25. See JOSEPH F. ZIMMERMAN, THE INITIATIVE: CITIZEN LAWMAKING 1?3 (2d ed. 2014).
26. See id. at 1.
27. See id. at 4.
28. For a chart of which states allow which processes, see Initiative and Referendum
States, NAT?L CONF. ST. LEGISLATURES,
http://www.ncsl.org/research/elections-andcampaigns/chart-of-the-initiative-states.aspx [https://perma.cc/9WUB-BPFZ] (last visited
Mar. 15, 2018). The described methods of initiative and referendum are not mutually
exclusive, and several states allow for multiple methods. Id. Missouri, for example, allows
constitutional amendments and statutory law to be enacted via the initiative, as well as popular
referendum of statutes approved by the legislature. See MO. REV. STAT. ?? 116.030?.040
mandated number of registered voters? signatures.29 Although not used
exclusively, states often require petitioning as a prerequisite for ballot access
for both ballot initiatives and candidates for political office.30
The number of required signatures for any given petition can vary greatly
depending on the state, type of petition, and, where applicable, the office
sought by a particular candidate.31 Requirements can also differ depending
on whether a candidate seeks the nomination of a political party or plans to
run as an independent.32 These signature requirements theoretically ensure
that the candidate or initiative has ?some preliminary showing of a significant
modicum of support? among the state?s voters before being placed on the
ballot.33 States contend that without these requirements, frivolous candidates
and measures with no real popular appeal could clutter the ballot and lead to
voter confusion and difficulty in administering the democratic process.34
States place many restrictions on the petitioning process, including limits
on who is eligible and qualified to physically collect the required signatures,
a position commonly known as a ?petition circulator.?35 Restrictions on
circulator eligibility can vary in scope and language.36
29. See Laws Governing Petition Circulators, NAT?L CONF. ST. LEGISLATURES,
http://www.ncsl.org/research/elections-and-campaigns/laws-governing-petitioncirculators.aspx [https://perma.cc/7LQB-9YHQ] (last visited Mar. 15, 2018).
30. See MICHAEL DIMINO ET AL., VOTING RIGHTS AND ELECTION LAW 678 (2d ed. 2015).
New Hampshire, for example, gives party candidates for state offices the choice of collecting
individual forms to be filled out by registered voters, or paying a modest fee, ranging from $2
to $100, depending on the office sought. N.H. REV. STAT. ANN. ? 655:19-c (2016).
31. See COSTAS PANAGOPOULOS & AARON C. WEINSCHENK, A CITIZEN?S GUIDE TO U.S.
ELECTIONS: EMPOWERING DEMOCRACY IN AMERICA 97 (2016).
32. Compare, e.g., N.Y. ELEC. LAW ? 6-136(2)(g) (McKinney 2017) (requiring candidates
seeking a party nomination for a congressional seat to collect 1250 signatures), with id. ?
6142(2)(e) (requiring independent candidates running for the same elected office to collect 3500
33. Jenness v. Fortson, 403 U.S. 431, 442 (1971); see also JAMES A. GARDNER, WHAT
ARE CAMPAIGNS FOR?: THE ROLE OF PERSUASION IN ELECTORAL LAW AND POLITICS 50 (
But see JAMIN B. RASKIN, OVERRULING DEMOCRACY: THE SUPREME COURT VERSUS THE
AMERICAN PEOPLE 110 (2003) (arguing that the petition requirement does not promote the
state?s interest in requiring a ?modicum of support? because ?[i]n every state it is clear that
the voter?s signature does not express political support for the candidate?).
34. See Munro v. Socialist Workers Party, 479 U.S. 189, 194?95 (1986); Jenness, 403
U.S. at 442.
35. See Petition Circulator, BALLOTPEDIA, https://ballotpedia.org/Petition_circulator
[https://perma.cc/99KR-YLK5] (last visited Mar. 15, 2018). States may also refer to
circulators as ?witnesses? when the law requires them to submit an affidavit verifying their
collected signatures. See, e.g., Running for Office, N.Y. ST. BOARD ELECTIONS,
https://www.elections.ny.gov/RunningOffice.html [https://perma.cc/EB38-3XRY] (last
visited Mar. 15, 2018).
36. The restrictions this Note analyzes frequently occur alongside other limitations on the
petitioning process. For example, scholarship has focused on state restrictions on payments
to petition circulators. See, e.g., Jessica A. Levinson, Taking the Initiative: How to Save Direct
Democracy, 18 LEWIS & CLARK L. REV. 1019, 1022, 1061 (
) (arguing that states should
have the constitutional power to prohibit payments to circulators); Jennifer S. Senior,
Comment, Expanding the Court?s First Amendment Accessibility Framework for Analyzing
Ballot Initiative Circulator Regulations, 2009 U. CHI. LEGAL F. 529, 536?37 (discussing the
effects of payment restrictions on different types of interest groups).
Some states have imposed requirements that circulators be ?residents? of
the state.37 Other states mandate that circulators be eligible voters or
?qualified electors.?38 This ordinarily means that circulators must be U.S.
citizens, legal residents of the state,39 and must not have some other
restriction preventing them from exercising their right to vote, such as a
felony conviction in certain states.40 A voter eligibility requirement usually
allows a qualified person to circulate petitions even if they are not registered
to vote.41 In states that do not have requirements outside of residency, age,
and U.S. citizenship, however, a voter eligibility requirement can effectively
function as a residency requirement.42
States have put forward various justifications for these and other similar
ballot-access restrictions. The Supreme Court has recognized asserted state
interests in protecting election integrity,43 preventing fraud in the election
process,44 and ensuring that circulators are answerable to the subpoena power
of the state?s courts.45 The Court has also been sympathetic to a state?s
interest in protecting political stability.46 Other justifications include
ensuring that candidates and ballot-initiative questions have sufficient
grassroots support in the community before being placed on the ballot to
avoid a cluttered and confusing ballot that prevents voters from making
informed choices.47 Courts have not always found these interests justified,
or even legitimate, in instances when the restrictions unduly impose on
individual constitutional rights.48
B. Constitutional Restraints on State Election Law:
Dissecting the Chaos of the Court?s
Ballot-Access Standard of Review
While a state?s ability to regulate elections and ballot access is subject to
constitutional constraints, courts, practitioners, and scholars have struggled
to find consistency in the Supreme Court?s jurisprudence. Part I.B.1
discusses the evolution of the Court?s framework for ballot-access cases and
their complex and often conflicting standards of review. Part I.B.2 then
outlines Buckley v. American Constitutional Law Foundation, Inc.,49 the
landmark decision through which circuit courts have evaluated the
constitutionality of residency and voter eligibility requirements.
1. The Supreme Court?s Ballot-Access Framework:
A Sisyphean Effort to Develop a Consistent Standard of Review
While the cases in the Supreme Court?s ballot-access framework are
marked by inconsistent and contradictory standards of review, it is essential
to have a firm grasp on the evolution of these precedents before applying
them as they are crucial to determining the constitutionality of residency and
voter eligibility requirements for petition circulators.50
Evaluating the constitutionality of a state ballot-access restriction requires
weighing the state?s asserted interest in enacting the restriction against the
First Amendment rights to political speech and assembly.51 Within the
confines of these rights, states play an important role in regulating elections.
As the Court noted in Storer v. Brown,52 ?as 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
In weighing these competing state and individual interests, however, the
Court has been astonishingly inconsistent in what it considers the appropriate
standard of review.54 Legal scholars and political scientists have written at
length about how this inconsistency has led to unpredictability in the Court?s
jurisprudence over time.55
In its earliest ballot-access cases, the Court applied a form of tiered
scrutiny derived from equal protection case law.56 In these cases, the Court
often weighed ballot-access restrictions as violations of both First
Amendment protections and equal protection rights.57 The Court?s holdings,
even in these early decisions, were unpredictable. They waffled between the
applicable tiers of scrutiny even when dealing with strikingly similar
ballotaccess restrictions.58 Some commentators have suggested that the
inconsistent application of three-tiered scrutiny in these early cases might be
due to the Justices? desire to reach the right result in their holdings.59 This
54. See infra notes 58, 67.
55. See, e.g., Terry Smith, Election Law: Election Laws and First Amendment
Freedoms?Confusion and Clarification by the Supreme Court, 1988 ANN. SURV. AM. L. 597,
610 (describing the Court?s standard of review in terms of ?confusion and unpredictability?);
Bradley A. Smith, Note, Judicial Protection of Ballot-Access Rights: Third Parties Need Not
Apply, 28 HARV. J. ON LEGIS. 167, 187 (
) (labeling the Court?s ballot-access jurisprudence
as ?erratic?). But see Porto, supra note 50, at 282, 284 (recognizing that, while the Court has
?left in doubt the appropriate standard of review,? the ?ballot access decisions have been
substantially more consistent . . . than political scientists and legal commentators have
56. The traditional three tiers of scrutiny are ?strict scrutiny,? where a state must
demonstrate that the contested regulation is narrowly tailored to a compelling state interest,
?intermediate scrutiny,? where the state must demonstrate that the provision is substantially
related to an important state interest, and ?rational basis,? meaning the regulation must be
rationally related to a legitimate government interest. See ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 565?68 (5th ed. 2015).
57. The Equal Protection Clause provides. ?No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.? U.S. CONST. amend. XIV, ? 1. In these cases,
the Court would usually hold a restriction to be both a violation of First Amendment freedoms
and the Equal Protection Clause but occasionally entertained challenges based on equal
protection alone, without mentioning the First Amendment implications. Compare Jenness v.
Fortson, 403 U.S. 431, 439?440 (1971) (declining to find a violation of either the First
Amendment or equal protection), and Williams v. Rhodes, 393 U.S. 23, 30?34 (1968)
(discussing the challenged restriction in terms of both First Amendment rights and equal
protection), with Bullock v. Carter, 405 U.S. 134, 149 (1972) (finding an equal protection
violation without reference to the First Amendment).
58. See, e.g., Storer v. Brown, 415 U.S. 724, 736?37 (1974) (upholding a California
statute requiring independent candidates to collect signatures of at least 5 percent of the voters
in the previous general election in order to appear on the ballot using the ?compelling state
interest? language of strict scrutiny review, but making no reference to whether the contested
restrictions were narrowly tailored to support that interest); Bullock, 405 U.S. at 145?47 (using
the language of the rational basis test but seeming to apply a form of intermediate scrutiny to
a Texas law requiring candidates to pay a large filing fee); Jenness, 403 U.S. at 438?40
(applying rational basis review to a Georgia regulation requiring independent candidates to
collect signatures of a minimum of 5 percent of registered voters in order to appear on the
ballot); Williams, 393 U.S. at 25, 31 (applying strict scrutiny to an Ohio statute requiring third
parties ?to obtain petitions signed by qualified electors totaling 15% of the number of ballots
cast in the last preceding gubernatorial election?).
59. See Joshua A. Douglas, Is the Right to Vote Really Fundamental?, 18 CORNELL J.L. &
PUB. POL?Y 143, 169 (2008) (?Perhaps the Court is not seeking to achieve consistency . . . .
Perhaps the Justices believe that election law cases simply fall on a continuum that, for
whatever reason, forecloses consistency between decisions.?); Young, supra note 50, at 212
results-oriented approach, however, ultimately came at the expense of a
predictable and consistent framework through which to weigh the
constitutional implications of ballot-access restrictions.60
The Court seemingly tried to remedy this inconsistency in the early 1980s.
The Justices began to depart from a rigid application of three-tiered scrutiny
and instead applied a more ad hoc ?balancing? or ?sliding scale? test, best
exemplified by Anderson v. Celebrezze.61 This approach arose from the
Court?s assertion, beginning in the mid-1970s, that courts could not rigidly
apply a one-size-fits-all ?litmus-paper? test to decide whether a ballot-access
restriction was constitutionally permissible.62 Instead, the Court needed a
more tailored balancing of the conflicting state and individual interests.63
The Anderson balancing test involves ?an analytical process that parallels
[the Court?s] work in ordinary litigation? by considering ?the character and
magnitude? of the burden on the plaintiff?s First and Fourteenth Amendment
rights.64 The Court then weighs this burden against ?the precise interests put
forward by the State as justifications for the burden imposed by its rule.?65
A tribunal ?must not only determine the legitimacy and strength of each . . .
interest, it also must consider the extent to which those interests make it
necessary to burden the plaintiff?s rights.?66
From the late 1980s to the present, the Court has appeared to synthesize
the Anderson balancing approach with the tiered-scrutiny approach but has
lacked consistency in its application.67 In cases where the Court finds that a
restriction imposes a severe burden on core political speech, for instance, it
will generally apply either the traditional strict scrutiny test68 or a standard it
refers to as ?exacting? scrutiny.69
(?In [these] cases, the Court achieved the correct result, yet it did so at the expense of a
60. See Young, supra note 50, at 212.
61. 460 U.S. 780 (1983).
62. Storer, 415 U.S. at 730.
63. See Daniel H. Lowenstein, The Supreme Court Has No Theory of Politics?and Be
Thankful for Small Favors, in THE U.S. SUPREME COURT AND THE ELECTORAL PROCESS 283,
295 (David K. Ryden ed., 2d ed. 2002) (?[Anderson] calls for judges to consider all of the
factors that bear on a particular problem, giving each due weight under the particular
circumstances.?); see also Brian Boyd, Comment, Stepping over What Towers to the Sky: The
Role of Animus Review in Election Law, 47 U. TOL. L. REV. 495, 504?05 (2016) (discussing
the question of the ?relative weight of burdens and interests? inherent in Anderson).
64. Anderson, 460 U.S. at 789.
67. Compare, e.g., Norman v. Reed, 502 U.S. 279, 288?89 (1992) (relying heavily on the
traditional strict scrutiny language in Illinois State Board of Elections v. Socialist Workers
Party, 440 U.S. 173 (1979), while only briefly mentioning the balancing precedents from
Anderson), with Burdick v. Takushi, 504 U.S. 428, 434, 438 (1992) (relying almost
exclusively on the Anderson balancing/sliding scale precedents while noting that regulations
placing ?severe? restrictions on First Amendment rights would need to be ?narrowly drawn to
advance a state interest of compelling importance? (quoting Norman, 502 U.S. at 289)).
68. Republican Party of Minn. v. White, 536 U.S. 765, 774?75 (2002); see also DIMINO
ET AL., supra note 30, at 533 (??Severe? restrictions are subjected to strict scrutiny.?).
69. See McIntyre v. Ohio Elections Comm?n, 514 U.S. 334, 347 (1995); Meyer v. Grant,
486 U.S. 414, 420 (1988).
Exacting scrutiny is another ambiguous and confusing term with an
imprecise meaning that varies with the circumstances in which it is applied.70
One view of exacting scrutiny understands it to require a state to demonstrate
that the challenged law involves a substantial relationship to an important
government interest?arguably a mere synonym for intermediate scrutiny.71
The Court itself has previously conflated intermediate and exacting scrutiny,
most notably in campaign-finance jurisprudence.72
In other cases, the Court has defined exacting scrutiny using language
more in line with a traditional strict scrutiny test.73 This has led some courts,
and even some Supreme Court Justices, to use the terms ?strict? and
Professor R. George Wright has attempted to make sense of the apparent
disparate uses of exacting scrutiny.75 He proposes that the Court
intentionally uses the phrase as a broader term of art, which allows the
Justices more flexibility in balancing state and individual interests.76
Through this framework, the Justices can avoid tipping the balance to favor
one outcome over another, as frequently alleged in cases involving a rigid
Regardless of whether the Court uses ?exacting? or ?strict? scrutiny
terminology, if a state?s restriction creates a ?severe? burden on core political
70. See R. George Wright, A Hard Look at Exacting Scrutiny, 85 UMKC L. REV. 207, 210
(2016) (?[B]asic confusions and ambiguities regarding exacting scrutiny have already
71. See, e.g., Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 137 (2d Cir. 2014)
(applying exacting scrutiny to find that a restriction was ?substantially related to [a] recognized
governmental interest?); Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 549 (4th Cir.
2012) (?[A]n intermediate level of scrutiny known as ?exacting scrutiny? is the appropriate
72. See, e.g., Citizens United v. FEC, 558 U.S. 310, 366?67 (2010); Buckley v. Valeo,
424 U.S. 1, 64, 94 (1976) (per curiam).
73. See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (
) (stating that a regulation
will only survive exacting scrutiny if it ?promotes a compelling interest and is the least
restrictive means to further the articulated interest?); McIntyre, 514 U.S. at 347 (?[W]e apply
?exacting scrutiny,? and we uphold the restriction only if it is narrowly tailored to serve an
overriding state interest.?).
74. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 215 (1999)
(O?Connor, J., concurring in part and dissenting in part) (describing an opinion applying
?exacting? scrutiny as applying ?strict? scrutiny (citing Meyer v. Grant, 486 U.S. 414, 422
(1988)); see also Nader v. Blackwell, 545 F.3d 459, 475 (6th Cir. 2008) (using an opinion
applying ?strict scrutiny? as an example of ?exacting scrutiny?(citing Am. Constitutional Law
Found., 525 U.S. at 210?11 (Thomas, J., concurring))); Bernbeck v. Moore, 126 F.3d 1114,
1116 (8th Cir. 1997) (referencing ?[t]he strict or exacting scrutiny standard?).
75. See generally Wright, supra note 70.
76. See id. at 214 (?Exacting scrutiny offers the flexibility, in light of the stakes and
circumstances, of a broad and genuinely multi-dimensional sliding scale test . . . whose
extremes can extend . . . beyond the limits set by both strict scrutiny on one end and typical
forms of minimum scrutiny on the other.?).
77. See id. at 214 n.45; see also Randy Elf, The Constitutionality of State Law Triggering
Burdens on Political Speech and the Current Circuit Splits, 29 REGENT U. L. REV. 35, 79
(2016) (noting that ?strict scrutiny buttons down the holding more tightly? than exacting
scrutiny); Anthony Johnstone, A Madisonian Case for Disclosure, 19 GEO. MASON L. REV.
413, 419?20 (
) (?[U]nlike [strict scrutiny and rational basis review], ?exacting scrutiny?
does not put a thumb on either side of the constitutional scale.?).
speech, the hurdle the state must overcome is ?well-nigh insurmountable?
because protection of First Amendment rights in this instance is ?at its
zenith.?78 Conversely, in cases involving lesser burdens on speech rights, the
Court has acknowledged that a less stringent review is merited, which means
that the state?s regulatory interest will usually suffice to find the restriction
The Court used the ?exacting? scrutiny language in a foundational case
involving petition circulation, the unanimous decision Meyer v. Grant.80
Grant was significant in holding that petition circulation constitutes ?core
political speech? because it comprises ?interactive communication
concerning political change.?81 The challenged Colorado law prohibited all
forms of payment to ballot-initiative petition circulators.82 The Court found
that the law had the effect of ?reducing the total quantum of speech on a
public issue? by limiting the number of voices who could convey a political
message, and thus limiting the size of the audience those voices could reach
with that message.83 Additionally, the law made it less likely that the
initiative proponents could obtain the number of signatures necessary to place
their issue on the ballot, thus ?limiting their ability to make the matter the
focus of statewide discussion.?84 Because the inability to pay circulators
made circulation much more challenging, the Court found that the restriction
severely burdened the plaintiffs? First Amendment rights, which merited
The Court did not rely on language from any traditional form of tiered
scrutiny in its application of the ?exacting? scrutiny standard. Rather, the
Court stated that it was not convinced by Colorado?s argument that the
restriction was ?justified by its interest? in ensuring ballot proposals had
?sufficient grass roots support? or by the argument that the law was necessary
to ensure the integrity of the local balloting process.86 Similarly, the Court
found that contrary to Colorado?s assertions, there was no evidence that
paying petition circulators induced those circulators to commit fraud and that
Colorado already had less restrictive ways to address each of these interests.87
The Court did not explicitly state how lower courts could replicate this
application of ?exacting? scrutiny. Rather, the Court asserted that because
Colorado had failed to justify the burden on the plaintiffs? rights, the payment
prohibition was a clear violation of the First and Fourteenth Amendments.88
While the reasoning of Grant shrouds its subject in ambiguity, it provides
an important foundation for later decisions. While the Court?s later attempt
to build upon Grant obscured the ballot-access standard of review even
further, that subsequent case is more important in analyzing the
constitutionality of residency and voter eligibility requirements for petition
2. Buckley v. American Constitutional Law Foundation, Inc.
A decade later, the Court returned to the reasoning of the Grant decision
in Buckley v. American Constitutional Law Foundation, Inc. The Court
struck down three provisions of a Colorado law restricting the petitioning
process for ballot initiatives.89 That law included a requirement that
circulators be registered voters in Colorado.90 The Court maintained that it
was applying the Grant framework consistently with earlier jurisprudence.91
The majority opinion, however, failed to state the standard of review it was
applying, although it used language from precedents of cases that used the
tiered-scrutiny, balancing, and the combined approaches.92 The American
Constitutional Law Foundation Court further complicated this area of the law
by explicitly stating that the registration requirement involved a ?severe
burden on core political speech? but declining to formally define the resulting
standard of review.93
The Justices who did not join the majority opinion acknowledged this
complication.94 Justice Thomas, who concurred only in the judgment,
believed the majority deviated from the previous ballot-access framework as
settled in Grant and that the Court should have been clear in applying ?strict
89. Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186?87 (1999). The
Court?s opinion, authored by Justice Ginsburg and joined by Justices Kennedy, Scalia, Souter,
and Stevens, bridged the Court?s typical ideological divisions. See id. at 185. Justice Thomas
concurred only in the judgment, while Justice O?Connor, joined by Justice Breyer, concurred
in the judgment in part and dissented in part. Id. Chief Justice Rehnquist issued the lone
90. Id. at 197.
91. See id. at 186?87.
92. See id. at 187, 192 (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351
); Anderson v. Celebrezze, 460 U.S. 780 (1983); Storer v. Brown, 415 U.S. 724 (1974)).
93. See DANIEL P. TOKAJI, ELECTION LAW IN A NUTSHELL 226 (
) (?Without specifying
the level of scrutiny, the [American Constitutional Law Foundation] Court concluded that the
registration requirement was not justified . . . .?); see also Robin E. Perkins, Comment, A State
Guide to Regulating Ballot Initiatives: Reevaluating Constitutional Analysis Eight Years After
Buckley v. American Constitutional Law Foundation, 2007 MICH. ST. L. REV. 723, 740 (noting
the ?confusion surrounding the Supreme Court?s analysis in Buckley?); Young, supra note 50,
at 198 (?[T]he Court?s holding . . . further adds to the confusion over the application of the
proper standard of review in ballot access cases.?). But see Michael Carlin, Note, Buckley v.
American Constitutional Law Foundation, Inc.: Emblem of the Struggle Between Citizens?
First Amendment Rights and States? Regulatory Interests in Election Issues, 78 N.C. L. REV.
477, 485 n.51 (2000) (positing that while ?the Court did not explicitly state which level of
scrutiny it applied[,] . . . the Court clearly purported to apply strict scrutiny, a test that required
Colorado?s statutes to be ?narrowly tailored to serve a compelling state interest??(quoting Am.
Constitutional Law Found., 525 U.S. at 192 n.12)).
94. Am. Constitutional Law Found., 525 U.S. at 206 (Thomas, J., concurring).
scrutiny.?95 Justice Thomas noted that the Court?s opinion seemed to agree
that the restriction severely limited speech, but he argued that the Court erred
in not explicitly requiring Colorado to demonstrate that its registration
requirement was narrowly tailored to a compelling state interest.96 The
majority responded to Justice Thomas in a colloquy footnote that the holding
was not inconsistent with earlier precedent and stated that it was ?entirely in
keeping? with what Justice Thomas called the ?now-settled approach??that
restrictions severely burdening speech rights ?be narrowly tailored to serve a
compelling state interest.?97
Justice Sandra Day O?Connor, joined by Justice Breyer, also disagreed
with the Court?s application of precedent concerning the standard of
review.98 Justice O?Connor reasoned that the plaintiffs had not actually
demonstrated a severe burden on their political speech rights and that the
registration requirement was merely a ?neutral qualification? that did not
?directly prohibit otherwise qualified initiative petition circulators from
circulating petitions.?99 Distinguishing this from the ban on payment to
petition circulators struck down in Grant, she noted that, in that instance, ?the
statute directly silenced voices that were necessary, and ?able and willing? to
convey a political message.?100 Justice O?Connor concluded that the Court?s
precedents recommended applying ?a less exacting standard of review? to
this requirement, one closer to the traditional rational basis test.101
While the majority did not clearly state its standard of review regarding
the registration requirement, the Court applied language from a number of
earlier cases in reaching its decision.102 It reasoned that Colorado?s
registration requirement imposed a severe burden on political speech because
it distinguished between registered voters and those ?merely voter
eligible.?103 The restriction would ??limi[t] the number of voices who will
convey [the initiative proponents?] message? and, consequently, cut down
?the size of the audience [proponents] can reach.??104
The Court held that the requirement ?impose[d] a burden on political
expression that the State . . . failed to justify.?105 The state argued that the
requirement did not severely limit speech because it was ?easy to register to
vote,? but the Court was not persuaded because some individuals in the state
declined to register due to political principle.106 The Court went on to assert
that the state?s primary interest in ?policing lawbreakers among petition
circulators? was already achieved through other provisions in the law.107 As
such, the registration requirement was unconstitutional because it imposed a
severe burden by ?cut[ting] down the number of message carriers in the
ballot-access arena without impelling cause.?108
In striking down the registration requirement, the Court made a point of
acknowledging that it was not deciding the constitutionality of residency or
?eligible-to-vote? requirements for circulators because the plaintiffs did not
challenge that aspect of the Colorado law.109 The Court observed, however,
that ?assuming that a residence requirement would be upheld as a needful
integrity-policing measure,? the unconstitutional registration requirement
would not be needed to uphold the state?s interest in making circulators
answerable to state law.110
In the lone dissent, Chief Justice William Rehnquist accused the Court of
undermining states? efforts to ?prevent fraud in the circulation of candidate
petitions? and ?ensure that local issues of state law are decided by local
voters, rather than by out-of-state interests.?111 He argued that the Court
misread the Grant framework, upended it, and called into question ?any
regulation of petition circulation which runs afoul of the highly abstract and
mechanical test of diminishing the pool of petition circulators or making a
proposal less likely to appear on the ballot.?112
The Chief Justice also directly addressed the issue of residency
requirements. Decrying the Court?s ?sphinx-like silence as to whether [a
state] may even limit circulators to state residents,? Chief Justice Rehnquist
questioned whether the Court?s new default of ?voter eligible? individuals
would be allowed to circulate petitions under the Court?s new test.113 He also
addressed the important distinction between state residents and eligible
voters, which are a ?subset of [state] residents who have fulfilled the
requirements for registration, and have not committed a felony or been
otherwise disqualified from the franchise.?114 He believed a new default of
those who were ?voter eligible? in the wake of the Court?s decision was
106. Id. at 195?96.
107. Id. at 196 (?The interest in reaching law violators . . . is served by the requirement,
upheld below, that each circulator submit an affidavit setting out . . . the ?address at which he
or she resides.?? (quoting COLO. REV. STAT. ? 1-4-111(2) (1998))).
108. Id. at 197.
109. Id. (noting that the ?[plaintiff] did not challenge Colorado?s right to require that all
circulators be residents? and that ?[no] eligible-to-vote qualification [was] in contest in this
111. Id. at 226 (Rehnquist, C.J., dissenting); see also id. at 231 (noting that states should
have the authority to limit circulators to those who can ultimately vote on the initiative and
that concern about the rights of those consciously deciding not to register, or of convicted
felons, ?scarcely passes the ?laugh test??).
112. Id. at 227?28.
113. Id. at 228, 230.
114. Id. at 230?31.
untenable and unnecessarily burdensome on the state.115 The Chief Justice
posited that states would now be required to perform background checks on
petition circulators to ensure they were not felons or otherwise barred from
Further, the Chief Justice believed that the Court was not clear on whether
the term ?voter eligible? meant ?eligible to vote in the State? or ?eligible to
vote in any of the United States or its territories.?117 If the former, ?it
necessarily follows . . . that a State may limit . . . circulation to its own
residents.?118 The latter reading would mean that a state would have to run
background checks and perform a legal analysis for unregistered circulators
to determine whether they were eligible to vote in their place of residence.119
The Chief Justice also stated that he would not be opposed to the former
reading, although he noted that allowing all state residents to circulate
petitions would mean that ?political dropouts . . . and convicted drug dealers
[would] engage in this electoral activity.?120
Rehnquist believed that because the Court did not explicitly address
residency requirements, an extension of the Court?s logic would prompt
future courts to hold ?that being unable to hire out-of-state circulators would
?limi[t] the number of voices who will convey [the initiative proponents?]
message?? to declare residency requirements unconstitutional.121 He argued
that the conclusion of this chain of reasoning would not allow any restriction
on the circulation process to survive.122 He opined, for example, that a
prohibition on ?children or foreigners from circulating petitions . . . would
also limit the number of voices . . . and thus cut down on the size of the
audience the initiative proponents could reach.?123 According to the Chief
Justice, this logic would threaten to consume all restrictions not only on
ballot-initiative petitions but also candidate-nominating petitions.124
The majority responded to the Chief Justice?s concerns in a colloquy
footnote. It noted that the new Colorado default of those ?eligible to vote?
would not include felons, and his fear ?that hordes of ?convicted drug
dealers? will swell the ranks of petition circulators, unstoppable by
legitimate state regulation, is therefore undue.?125 The Court similarly
rebuked the Chief Justice?s fear of courts applying its logic to include
?children and citizens of foreign lands,? admonished his opinion as a
?familiar parade of dreadfuls,?126 and advised him that while ?[j]udges and
lawyers live on the slippery slope of analogies[,] they are not supposed to ski
it to the bottom.?127
Ultimately, although American Constitutional Law Foundation did not
clearly articulate its standard of review regarding the registration requirement
and further complicated this area of law, the opinion?s understanding of
earlier precedent forms the core backdrop against which circuit courts have
analyzed the constitutionality of residency and eligibility requirements.
C. Election Law Challenges in the Twenty-First Century
In the nineteen years since American Constitutional Law Foundation, U.S.
elections have been subject to several legal, technological, and cultural
developments that pose new challenges for legislatures, courts, and voters.
These challenges include cyber threats,128 ?fake news?129 and ?alternative
facts,?130 and targeted partisan redistricting.131 Such developments, coupled
with the Court?s striking down of section 4(b) of the Voting Rights Act,132
have prompted renewed concerns about voter suppression and the overall
integrity of the electoral process.133
127. Id. (quoting ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION
OF THE LAW 169 (1990)).
128. See Alexa Corse, Election Officials, Homeland Security Begin to Formalize
Cybersecurity Efforts, WALL ST. J. (July 28, 2017, 3:03 PM), https://www.wsj.com/articles/
129. See Amit Chowdhry, Facebook Launches a New Tool That Combats Fake News,
FORBES (Mar. 5, 2017, 5:34 PM), https://www.forbes.com/sites/amitchowdhry
/2017/03/05/facebook-fake-news-tool/#4638354e7ec1 [https://perma.cc/R67T-RGD5]; Steve
Coll, Donald Trump?s ?Fake News? Tactics, NEW YORKER (Dec. 11, 2017),
130. See Harriet Torry et al., White House Backs ?Alternative Facts?, WALL ST. J. (Jan. 22,
2017, 11:01 PM), https://www.wsj.com/articles/white-house-backs-alternative-facts-14851
131. See Sara N. Nordstrand, Note, The ?Unwelcome Obligation?: Why Neither State nor
Federal Courts Should Draw District Lines, 86 FORDHAM L. REV 1997, 2000?06 (2018)
(outlining a history of political gerrymandering and relevant Supreme Court decisions); Vann
R. Newkirk II, The Supreme Court Takes on Partisan Gerrymandering, ATLANTIC (Jun. 19,
132. Shelby County v. Holder, 133 S. Ct. 2612, 2631 (
133. See, e.g., Gilda R. Daniels, Unfinished Business: Protecting Voting Rights in the
Twenty-First Century, 81 GEO. WASH. L. REV. 1928, 1934?35 (
) (discussing the voting
rights implications of Shelby County); Anthony J. Gaughan, Illiberal Democracy: The Toxic
Mix of Fake News, Hyperpolarization, and Partisan Election Administration, 12 DUKE J.
CONST. L. & PUB. POL?Y 57, 59?62 (
) (describing how fabricated news stories, polarized
media, and partisan election laws threaten democratic principles); Ryan P. Haygood, The Past
as Prologue: Defending Democracy Against Voter Suppression Tactics on the Eve of the 2012
Elections, 64 RUTGERS L. REV. 1019, 1020?21 (
) (outlining partisan efforts to suppress
voter turnout in certain communities); Council on Foreign Relations, Cybersecurity Threats
to the Integrity of U.S. Elections, YOUTUBE (Dec. 6, 2017), https://www.youtube.com/
watch?v=6i6gyosshOA [https://perma.cc/Y4J3-JSBK] (discussing cyberthreats to election
infrastructure and hackers? efforts to manipulate public opinion).
concern that candidates and issues supported by these well-funded interests
have an enormous advantage in the electoral process.148
These issues provide important context for courts deciding the
constitutionality of residency and eligibility requirements for petition
circulators.149 Accordingly, the next Part discusses the split among circuit
courts on these constitutional questions.
II. THE SPLIT: DO RESIDENCY AND VOTER ELIGIBILITY REQUIREMENTS VIOLATE THE FIRST AMENDMENT?
In the wake of American Constitutional Law Foundation, circuits agree
that the holding applies to candidate-nominating petitions as well as
ballotinitiative petitions150 but are ultimately split on the question of whether the
holding of American Constitutional Law Foundation instructs that residency
and eligibility requirements for petition circulators violate the First
The Eighth Circuit has held state-residency requirements to be
constitutional,152 and the Second Circuit seemingly has agreed in dicta.153
Conversely, the majority of circuits, and all circuits that have directly
considered the question since 2001, have held these restrictions to be an
unconstitutional violation of the First Amendment.154 Part II.A discusses the
minority view, which reasons that these restrictions are constitutional. Part
II.B discusses the majority view and the relevant arguments that the
restrictions are unconstitutional under the First Amendment.
A. The Minority View: Residency and Voter Eligibility Requirements
Are Permissible Under the First Amendment
The Eighth Circuit is the only federal appellate court to explicitly hold that
state-residency requirements are constitutional.155 The Second Circuit,
although declining to explicitly rule on the constitutionality of residency
[https://perma.cc/TL2J-QV9H]; Alex Roarty, Super PACs? Next Target: Local Elections,
ATLANTIC (May 18, 2015),
148. See, e.g., LAWRENCE LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS?
AND A PLAN TO STOP IT 158?60 (2011); Russ Feingold, The Money Crisis: How Citizens
United Undermines Our Elections and the Supreme Court, 64 STAN. L. REV. ONLINE 145, 146
149. A thorough examination of these challenges in election administration is beyond the
scope of this Note.
150. See, e.g., Lerman v. Bd. of Elections, 232 F.3d 135, 148 (2d Cir. 2000) (?There is no
basis to conclude that petition circulation on behalf of a candidate involves any less interactive
political speech than petition circulation on behalf of a proposed ballot initiative . . . .?);
Krislov v. Rednour, 226 F.3d 851, 861?62 (7th Cir. 2000) (holding that circulating petitions
for candidate nominations versus ballot initiatives is ?not a particularly relevant distinction?).
151. See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016) (discussing
the ?existence of a circuit split?).
152. Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 615 (8th Cir. 2001).
153. See Lerman, 232 F.3d at 150 n.14.
154. See infra Part II.B.
155. See Husted, 810 F.3d at 443.
requirements, approvingly cited such a restriction in dicta of a related case.156
While the Second Circuit struck down a more stringent statutory provision,
it treated the state-residency requirement as de facto constitutional.157
Besides the circumstances of their holdings, the two cases are remarkably
different. The Eighth Circuit case, Initiative & Referendum Institute v.
Jaeger,158 involved a restriction on ballot-initiative petition circulators, as at
issue in American Constitutional Law Foundation, while the Second Circuit
case, Lerman v. Board of Elections,159 involved circulators for
candidatenominating petitions.160 Despite the similarity in their outcomes, these two
decisions differ greatly in scope, standard of review, and reading of the
proper precedent and application of American Constitutional Law
In discussing statutory requirements that petition circulators be in-state
residents, both circuits alluded to their view of American Constitutional Law
Foundation?s treatment of the issue. The circuits relied on the Court?s
reference to voter eligibility requirements as a more narrowly tailored?and
therefore constitutionally acceptable?approach through which a state could
exercise its interest in ?ensuring the integrity of the ballot access process.?161
Although conceding that the American Constitutional Law Foundation Court
did not explicitly rule on the constitutionality of state-residency or voter
eligibility requirements because the issue was not properly raised, both
circuits inferred that the Court had all but decided the issue in making this
Despite this contention, the Eighth Circuit conducted an independent
analysis of the constitutionality of the North Dakota state-residency
requirement because the plaintiffs facially challenged the restriction.163 The
Second Circuit declined to conduct a similar analysis for the New York
stateresidency restriction because the circuit considered the issue only in the
context of the more stringent jurisdictional residency requirement being
challenged before them.164
The Eighth Circuit read American Constitutional Law Foundation as
applying the balancing/sliding scale test, as opposed to tiered scrutiny.165
The court understood that a less stringent review was appropriate for the
residency requirement, due to its analysis of the burden that the restriction
imposed on the plaintiffs.166
The Eighth Circuit found that the residency restriction did not impose a
severe burden on speech or significantly reduce the number of available
messengers, which it saw as the key distinction from the restriction struck
down in American Constitutional Law Foundation.167 The residency
requirement allowed a pool of over 476,000 North Dakota residents to assist
with petitioning.168 In the court?s view, this stood in contrast with the
Colorado registration requirement struck down in American Constitutional
Law Foundation, where a significant number of state residents would have
been prevented from circulating petitions.169
Crucially, in analyzing this burden, the Eighth Circuit found no actual
evidence of the residency requirement ?making it more costly and time
consuming to collect signatures.?170 It noted that since the state had been
tracking the success rate of signature campaigns, roughly 70 percent of all
initiative campaigns were able to secure their place on the ballot.171 The
court weighed what it saw as a nearly nonexistent burden against the state?s
?compelling interest in preventing fraud?172 and ultimately found the
stateresidency requirement to be a reasonable regulation to advance the state?s
Conversely, the Second Circuit read American Constitutional Law
Foundation to imply that strict scrutiny was the applicable standard.174 In
ruling on New York?s jurisdictional residency requirement, the court found
the burdens imposed on petition circulators? speech to be severe.175 While
requiring that circulators reside in the political subdivision where the election
was taking place was not narrowly tailored to advance the state?s compelling
164. Lerman, 232 F.3d at 150 & n.14 (?Since the plaintiffs do not challenge these
[stateresidency] provisions, we need not resolve their constitutionality. We conclude only that these
requirements are more narrowly tailored to the state?s interest in ensuring the integrity of the
ballot access process than the [jurisdictional] witness residence requirement.?).
165. Jaeger, 241 F.3d at 616 (?The Supreme Court has developed a sliding standard of
review to balance these two interests.?).
166. Id. at 616?17 (?Severe burdens on speech trigger an exacting standard . . . whereas
lesser burdens receive a lower level of review. . . . [N]o severe burden has been placed on
those wishing to circulate petitions.?).
167. Id. at 617.
174. Lerman v. Bd. of Elections, 232 F.3d 135, 149 (2d Cir. 2000).
interest in preventing fraud, the circuit reasoned that a state-residency
requirement was a more narrowly tailored option to advance that interest.176
After deciding their respective standards of review, both circuits gave great
weight to the state?s ?compelling interest in preventing fraud? and abuse, as
well as the state?s related interest in ?ensuring that circulators answer to the
[state] subpoena power.?177 The Second Circuit placed particular emphasis
on the statewide subpoena power in holding that a state-residency
requirement, as opposed to an individual jurisdictional residency
requirement, was narrowly tailored to achieve this compelling state
The Eighth Circuit further reasoned that out-of-state residents who wished
to engage in political speech in North Dakota had many alternatives through
which to exercise that right.179 These included speaking to voters about
initiatives, training circulators, and even accompanying circulators to collect
the requisite number of signatures.180 The only restriction mandated by the
statute, the court concluded, was that nonresidents could not ?personally
collect and verify signatures,? a restriction clearly ?justified by the State?s
Although the Eighth Circuit did not address the merits of the argument
outright, the opinion acknowledged the state?s interest in preventing
wellfunded interest groups located outside the state from hijacking the initiative
process, as well as the interest in ensuring that an initiative actually had
sufficient grassroots support among the people of North Dakota before being
placed on the ballot.182
The Second Circuit did not find this state interest in preventing outsiders
from influencing the politics of a local jurisdiction to be ?legitimate at all.?183
In weighing New York?s argument, the court reasoned that ?a desire to fence
out non-residents? political speech?and to prevent both residents and
nonresidents from associating for political purposes across district boundaries?
simply cannot be reconciled with the First Amendment?s purpose of ensuring
?the widest possible dissemination of information from diverse and
Acknowledging the unclear nature of the standard of review in
ballotaccess cases,185 the Eighth Circuit concluded its opinion by noting that even
if a court were to apply Justice Thomas?s logic and find that strict scrutiny
176. Id. at 150 & n.14.
177. Jaeger, 241 F.3d at 616; Lerman, 232 F.3d at 149?50.
178. Lerman, 232 F.3d at 150.
179. Jaeger, 241 F.3d at 617.
183. Lerman, 232 F.3d at 152.
184. Id. (quoting Krislov v. Rednour, 226 F.3d 851, 866 (7th Cir. 2000)). Despite holding
in dicta that a state-residency requirement was a more narrowly tailored and acceptable
approach to regulate elections, the Second Circuit borrowed this argument from a Seventh
Circuit case that invalidated state-residency restrictions. Id. (citing Krislov, 226 F.3d at 866).
185. See Jaeger, 241 F.3d at 616 (citing Buckley v. Am. Constitutional Law Found., Inc.,
525 U.S. 182, 208 (1999) (Thomas, J., concurring)).
was the applicable standard for a state-residency requirement, that
requirement was sufficiently narrowly tailored to a compelling state interest
in preventing fraud to pass constitutional muster.186
The Eighth Circuit was confident in the soundness of its logic and its
conclusion that the Supreme Court had already all but decided the issue in
favor of constitutionality. That circuit, however, remains the only federal
court of appeals to explicitly uphold the constitutionality of a state?s
residency requirement for petition circulators in its holding. Likewise, the
Second Circuit?s statements on state-residency requirements have not yet
been overturned, and New York law still requires petition circulators to reside
in the state.187
B. The Majority View: Residency and Voter Eligibility
Requirements Violate the First Amendment
Jaeger notwithstanding, in the wake of American Constitutional Law
Foundation, a ?consensus . . . emerged [among circuits] that petitioning
restrictions . . . are subject to strict scrutiny analysis.?188 The Fourth,189
Sixth,190 Seventh,191 Ninth,192 and Tenth Circuits193 have applied this
reading of American Constitutional Law Foundation to strike down various
186. Id. (citing Kean v. Clark, 56 F. Supp. 2d 719, 728?29, 732?34 (S.D. Miss. 1999);
Initiative & Referendum Inst. v. Sec?y of State, No. Civ 98-104-B-C, 1999 WL 33117172, at
*16 (D. Me. Apr. 23, 1999)).
187. See N.Y. ELEC. LAW ?? 6-132, 6-140 (McKinney 2017). New York?s election law
requires that witnesses to petition signatures be a ?duly qualified voter,? a New York notary
public, or a New York Commissioner of Deeds. Id. The ?duly qualified voter? language has
been interpreted to require witnesses to actually be registered to vote, as opposed to merely
?eligible? to vote. See GOLDFEDER, supra note 4, at 20?21. In his lawsuit, Merced challenges
both this registration requirement as well as the notion that all witnesses must reside in New
York State. See Complaint, supra note 1, para. 29; see also Richard Winger, Oral Argument
Date Set in New York Lawsuit over Out-of-State Circulator Ban, BALLOT ACCESS NEWS (Aug.
188. Libertarian Party of Va. v. Judd, 718 F.3d 308, 316?17 (4th Cir. 2013).
189. See id. at 311, 318?19 (finding a Virginia law requiring signatures on nominating
petitions to be witnessed either by the candidate personally or by a ?resident of the
Commonwealth and who is not a minor or a felon whose voting rights have not been restored?
to be unconstitutional (quoting VA. CODE ANN. ? 24.2-543 (
190. Nader v. Blackwell, 545 F.3d 459, 462 (6th Cir. 2008) (striking down an Ohio law
limiting candidate-nomination petition circulators to registered voters in an individual
precinct, who were also in-state residents of Ohio, as applied to Green Party presidential
candidate Ralph Nader).
191. Krislov v. Rednour, 226 F.3d 851, 866 (7th Cir. 2000) (finding an Illinois statute
requiring candidate-nomination petition circulators to be both registered to vote and residents
of the same political subdivision that the candidate was seeking office for, which as applied to
one plaintiff functioned as a state-residency requirement, to violate the First Amendment).
192. Nader v. Brewer, 531 F.3d 1028, 1031 (9th Cir. 2008) (striking down an Arizona
statute that allowed only ?persons qualified to register to vote in Arizona? to circulate petitions
for political candidates).
193. Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1025?26, 1031 (10th Cir. 2008)
(finding an Oklahoma law requiring initiative-petition circulators to issue an affidavit that they
were an ?elector? of Oklahoma, defined as ?all citizens of the United States, over the age of
eighteen (18) years, who are bona fide residents of [Oklahoma],? to violate the First
Amendment (quoting OKLA. CONST. art. III, ? 1)).
state petitioning restrictions, including both residency and voter eligibility
requirements, as well as restrictions on both initiative and
candidatenominating petition circulators.
This near-universal application of strict scrutiny largely flowed from the
Tenth Circuit, which had issued the decision the Court affirmed in American
Constitutional Law Foundation.194 In its opinion, the Tenth Circuit explicitly
applied strict scrutiny to the Colorado registration requirement to find it
unconstitutional.195 In subsequent cases, the judges of the Tenth Circuit
reasoned that because the American Constitutional Law Foundation Court
had affirmed their decision, the Court had clearly endorsed strict scrutiny as
the applicable standard for ballot-access cases meeting similar criteria.196
Nearly all circuits weighing similar restrictions on petition circulation in the
following years opted to follow the Tenth Circuit?s lead.197
A common element among the circuits applying strict scrutiny is their
frequent citation to Justice Thomas?s American Constitutional Law
Foundation concurrence in the judgment as guiding precedent for future
cases.198 In relying on Justice Thomas?s assertions that strict scrutiny is the
applicable standard of review, circuits have repeatedly referred to the
colloquy in footnote twelve from the majority opinion in American
Constitutional Law Foundation.199 These circuits seem to reference this
footnote to suggest that the American Constitutional Law Foundation
majority approved of Justice Thomas?s discussion of the Grant framework
and thus cited to Justice Thomas?s concurrence as a clearer distillation of the
majority?s thoughts on the appropriate standard of review.200
Citing language from American Constitutional Law Foundation and
Grant, the majority-view circuits reasoned that state-residency and voter
eligibility requirements imposed a severe burden on First Amendment rights
by significantly reducing the number of available petition circulators, much
like the Colorado registration requirement struck down in American
Constitutional Law Foundation.201 Using this burden analysis, the circuits
reasoned that the holding meant that strict scrutiny was the applicable
standard of review.202
Next, the circuits weighed whether the statutes were narrowly tailored to
serve a compelling state interest.203 The states in these cases argued several
such interests they considered to be compelling.204 Many of the circuits
recognized, and some of the plaintiffs even stipulated, that these interests
were compelling, especially the state interests in election integrity and
preventing fraud and abuse.205
For other interests, however, the circuits were not as accepting. The Tenth
Circuit stated that it did not view Oklahoma?s stated interest in ?restricting
the process of self-government to members of its own political community?
to be compelling in the context of restrictions on petition circulation.206 It
reasoned that finding such a compelling interest could have ?far reaching
consequences,? such as laws prohibiting nonresidents from driving
Oklahoma voters to the polls.207
The Seventh Circuit recognized a legitimate state interest in ?ensur[ing]
that only [state] residents have a say in electing their representatives.?208 The
Circuit found, however, that Illinois did not have a similar compelling
interest in ?preventing citizens of other States from having any influence on
[its] elections? whatsoever.209 It noted that residency requirements for
circulators were ?harmful to the unity of our Nation? because ?[a]llowing
citizens of the other forty-nine States to circulate petitions increases the
opportunity for the free flow of political ideas.?210 The Circuit further
reasoned that nonresidents could possibly introduce ?ideas which are novel
to a particular geographic area, or which are unpopular.?211 ?[T]he First
Amendment,? the court held, ?was designed to secure the widest possible
dissemination of information from diverse and antagonistic sources and to
assure unfettered interchange of ideas for the bringing about of political and
social change desired by the people.?212
Regardless of whether the circuits found a compelling interest that would
possibly justify the restrictions, the circuits universally found the restrictions
to be insufficiently narrowly tailored to those interests to survive strict
scrutiny review.213 The Seventh Circuit, for example, noted that the
residency requirement was not narrowly tailored to an interest in ensuring
that only state residents elected state representatives, as Illinois already had
restrictions stating that only registered Illinois voters could sign petitions and
vote in its elections.214 The residency requirement, therefore, was
Similarly, the Tenth Circuit, in analyzing Oklahoma?s residency restriction
in the context of its stated interest in fraud prevention, found that the state
had failed to demonstrate that nonresidents, as a class, were more likely to
engage in fraudulent activity, or less likely to answer a subpoena, than
To further illustrate that the restrictions were not sufficiently narrowly
tailored, some circuits cited possible alternatives to advance the states?
interest in preventing fraud that would be less burdensome on First
Amendment rights. A common suggestion was for the states to require
circulators to file affidavits swearing that they would be answerable to the
jurisdiction to address any irregularities or stricken signatures on their
petitions.217 The circuits found that the provisions at issue were not narrowly
tailored because the states failed to provide any legitimate reasons why these
proposed less-restrictive alternatives were unworkable.218
By universally determining that the restrictions failed to be narrowly
tailored to a compelling state interest, the majority-view circuits declared the
212. Id. (quoting Buckley v. Valeo, 424 U.S. 1, 49 (1976) (per curiam)).
213. See supra notes 189?93.
214. See supra notes 189?93.
215. See supra notes 189?93.
216. Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1031 (10th Cir. 2008) (?Because
the record contains insufficient evidence to conclude that non-residents, as a class, threaten
the integrity or reliability of the initiative process, Oklahoma has failed to prove that banning
all non-resident circulators is a narrowly tailored means of meeting its compelling interest.?);
see also Nader v. Brewer, 531 F.3d 1028, 1037 (9th Cir. 2008) (noting that the state did not
?ever contend that its history of fraud was related to non-resident circulators, a history that
might justify regulating non-residents differently from residents?).
217. See Libertarian Party of Va. v. Judd, 718 F.3d 308, 318 (4th Cir. 2013); Savage, 550
F.3d at 1030; Brewer, 531 F.3d at 1037.
218. Judd, 718 F.3d at 318 (?[T]he Board has produced no concrete evidence . . .
explaining why the plaintiffs? proposed solution . . . would be unworkable or impracticable.?);
Savage, 550 F.3d at 1031 (?Oklahoma has . . . failed to prove the ineffectiveness of plausible
alternatives to the blanket ban on non-residents.?); Brewer, 531 F.3d at 1037 (?The state
responds that petition circulators could conceivably be spread throughout the country, and that
given the narrow timeframe for petition challenges in Arizona, such a . . . system would be
unworkable. The state does not provide any evidence, however, to support this
contention . . . .?).
restrictions to be unconstitutional violations of the First and Fourteenth
III. RESOLVING THE SPLIT: A WAY FORWARD
Although the split on this issue is admittedly one sided, the Eighth Circuit
view should not be so easily cast aside. As recently as 2016, the Sixth Circuit
considered the split on the constitutionality of these restrictions to be open
ended and unresolved, and it found the Eighth Circuit?s view to be a
reasonable interpretation.220 While circuit courts have unanimously struck
down residency and eligibility requirements under the First Amendment
since 2001, this issue has far greater significance than these circuit decisions
have suggested. Ultimately, although it has been given short shrift by its
sister circuits and lacks depth in some aspects, the Eighth Circuit view is
ultimately the most reasonable application of American Constitutional Law
Part III.A discusses the shortcomings of the majority approach to
determining the appropriate standard of review and advocates for a return to
an ad hoc balancing analysis in ballot-access cases. Part III.B applies this
suggested method to draw a constitutional distinction between residency and
voter eligibility requirements. It posits that residency requirements are a
reasonable state regulation of the electoral process, while voter eligibility
requirements present an unconstitutional violation of the First Amendment.
Finally, Part III.C discusses the practical and philosophical reasons
underlying this approach, as addressed in Chief Justice Rehnquist?s dissent.
A. Revisiting the Eighth Circuit View:
A Proper Reading of American Constitutional Law Foundation and a
Return to Balancing
Establishing a consistent ballot-access standard of review is a monumental
task that has eluded the Court since it first held that these cases were
justiciable.221 It is crucial that the method for choosing this standard
promotes enough flexibility to account for the enormous variations and
intricacies between the state and individual interests in ballot-access cases.
Part III.A.1 reconciles the holding of American Constitutional Law
Foundation with a renewed emphasis on the Anderson sliding-scale
approach. Part III.A.2 argues for a more realistic assessment of the state and
individual interests presented in ballot-access litigation.
1. Rejecting Strict Scrutiny:
An Individualized Balancing Reading
The circuit courts? emphasis on the proper standard of review has distorted
the real question at issue in every one of these ballot-access cases?whether
the challenged restriction presents an unconstitutional burden on political
speech and whether the asserted state interest justifies that burden. Because
each challenged ballot-access restriction presents a unique set of
circumstances and factors that speak to the state and individual interests at
issue,222 this area of the law is particularly well suited to a specific and
Despite the near-universal finding of residency and eligibility
requirements as severe burdens on core political speech mandating strict
scrutiny review,223 this reading of American Constitutional Law Foundation
fundamentally misreads the Court?s precedents. A close reading of the
majority-view circuit opinions shows that the use of strict scrutiny does not
arise from a detailed understanding of American Constitutional Law
Foundation, Grant, and other earlier case law. Rather, this approach is best
explained by the circuit courts? desire to establish a clear and concise
framework for deciding the appropriate standard of review in ballot-access
cases. While these courts? search for clarity is understandable, the holding
of American Constitutional Law Foundation is not nearly as simple or clear
cut as the majority-view circuits make it out to be.
It is apparent that over the course of the Supreme Court?s history, the Court
has seemed to favor a more individualized and flexible approach to
ballotaccess restrictions, even if it has not done so explicitly.224 The Court has
even stated that it would be a mistake to overly rely on strict scrutiny and that
a more flexible approach is crucial to properly weigh the competing interests
inherent in these cases.225
While not explicitly referencing its standard of review, even while finding
a ?severe burden,? the American Constitutional Law Foundation majority
ultimately appears to favor the ?exacting? scrutiny approach from Grant.226
Although the Court does not explicitly state the standard of review, it makes
several references to Grant and ultimately states its aim to replicate Grant?s
Many of the majority-view circuits have viewed Grant?s ?exacting?
scrutiny language as interchangeable with traditional strict scrutiny.228
Justice O?Connor?s and Justice Thomas?s concurrences in the judgment
appear to understand the terms as being interchangeable.229 Additionally,
because the flexible Grant ?exacting? scrutiny standard has sometimes
required that a statute be ?narrowly tailored to a compelling state interest,?
this has understandably confused many courts and commentators.230
The majority-view circuits, as well as several commentators, have cited
American Constitutional Law Foundation?s footnote twelve as proof that the
American Constitutional Law Foundation majority applied strict scrutiny to
the Colorado registration requirement and that the Court shared Justice
Thomas?s view of the ballot-access framework.231 The Court?s one-off
contention that its ?decision is entirely in keeping with the ?now-settled
approach? that state regulations ?impos[ing] ?severe burdens? on speech . . .
[must] be narrowly tailored to serve a compelling state interest,?? however,
is not dispositive that this was the test the Court applied.232 Indeed, apart
from this footnote, the traditional strict scrutiny language does not appear at
all in the majority opinion.233
This colloquy footnote, using quotation marks around ?now settled? when
referring to Justice Thomas?s concurrence in the judgment,234 serves merely
to put Justice Thomas and lower courts at ease. The footnote states that the
Court?s American Constitutional Law Foundation opinion did not overrule
decades of earlier precedent?it was not a definitive declaration that strict
scrutiny is the applicable standard in cases involving a severe burden on core
Because of the great weight given to footnote twelve, most of the
majorityview circuits have cited to Justice Thomas?s concurrence, which explicitly
outlines strict scrutiny as the applicable standard.236 Indeed, if one assumes
that ?strict scrutiny? and ?exacting scrutiny? are interchangeable terms,
Justice Thomas?s opinion provides a clear, rigid, and concise framework
through which lower courts can analyze similar restrictions to those at issue
in American Constitutional Law Foundation and Grant.
Because of this reading of the opinion, many circuits seem to suggest that
footnote twelve somehow transforms Justice Thomas?s concurrence into an
opinion that more concisely explains the Court?s holding. It is important to
note, however, that Justice Thomas?s view was solely his own, and he
explicitly concurred only in the judgment.237 Attractive as Justice Thomas?s
summary of the ballot-access framework may be in its simplicity, lower
courts? reliance on his opinion is misplaced.
The American Constitutional Law Foundation majority peppered its
opinion with several references to the precedents of other cases that weighed
ballot-access restrictions under multiple standards of review, including the
more ad hoc balancing test from Anderson.238 Even if the American
Constitutional Law Foundation Court stated that ?exacting scrutiny? was the
appropriate standard of review for the registration requirement, this could
have been an indication of favoring a more flexible and evenhanded approach
to weighing the restrictions.239 Justice Ginsburg?s majority opinion,
although it featured inconsistent precedents from prior cases, spanned the
Court?s wide ideological gap and gained the support of four other Justices.240
Because the majority opinion is controlling doctrine, it merits a more careful
examination by lower courts than it has received.
Instead, the most logical way for lower courts to apply American
Constitutional Law Foundation would be to rely on the balancing test from
Anderson to weigh the ?character and magnitude? of the burdens imposed on
the plaintiff.241 Then, depending on the level of the ?burden,? the courts
should apply ?exacting? scrutiny in cases involving severe or heavy burdens
and ?rational basis? review to those with lesser burdens. The definition of
?exacting scrutiny? should then involve its own sliding-scale test of sorts by
using language from traditional intermediate scrutiny for ?severe? burdens
and reserving the language from traditional strict scrutiny for the most blatant
cases of infringement where the plaintiff has demonstrated a concrete and
egregious burden on her rights. The Court does this sort of leveled ?sliding
scale? already, even though it has not done so explicitly?there are no
definitive criteria for finding a ?severe burden? on speech.242 Melding the
237. See supra note 89.
238. Am. Constitutional Law Found., 525 U.S. at 187, 192.
239. See supra notes 70?77 and accompanying text. Indeed, the American Constitutional
Law Foundation majority explicitly outlined ?exacting scrutiny? as the appropriate standard
of review for another of the contested Colorado restrictions and defined the term using the
?substantially related to important governmental interests? language of traditional
intermediate scrutiny. See Am. Constitutional Law Found., 525 U.S. at 201?02 (citing Buckley
v. Valeo, 424 U.S. 1, 66?68, 84 (1976) (per curiam)).
240. See supra note 89.
241. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
242. See Joshua A. Douglas, Note, A Vote for Clarity: Updating the Supreme Court?s
Severe Burden Test for State Election Regulations That Adversely Impact an Individual?s
Right to Vote, 75 GEO. WASH. L. REV. 372, 373 (2007) (noting that the Court?s process of
determining whether a burden is severe ?is nebulous and unclear, resulting in vague decisions
that fail to distinguish between constitutional and unconstitutional state election regulations?).
standards together in this way, as in American Constitutional Law
Foundation and Grant, would provide some guidance to lower courts, while
allowing the flexibility to achieve the right result for each individual
While this proposed approach would require further review and testing, it
fits within the Court?s earlier framework while recognizing the reality that
different regulatory schemes across state lines ?make it difficult to rely
heavily on precedent in evaluating such restrictions.?244 The proposed
approach offers a way to avoid reliance on rigid tiered scrutiny, which is
better suited to the Court?s equal protection framework, or on the Anderson
balancing test, which has been criticized as too loosely defined to offer any
meaningful guidance for courts on how to rule.245 This combined standard
would solve the Court?s consistency problem, while focusing the analysis
back to the root question of ballot-access cases?whether the regulatory
interests of the state sufficiently justify the burden on individual
2. Recalibrating the ?Sliding Scale?: A Twenty-First Century
Understanding of State Interests and Burdens on Political Speech
In addition to emphasizing flexibility and individualized balancing in the
Court?s standard of review, tribunals should also reexamine the precise state
and individual interests balanced under this approach. It is crucial for courts
not only to renew their efforts to return to the root questions of ballot-access
litigation under the First Amendment but also to give both the state and
individual interests an appropriate amount of weight in the actual context of
twenty-first century elections.
Following the analysis of the American Constitutional Law Foundation
Court, the majority-view circuits reasoned that residency and voter eligibility
restrictions constitute a ?severe burden? on core political speech because they
drastically reduce the number of individuals able to convey the plaintiffs?
message.246 This analysis of the burden assumes that these requirements
would impact plaintiffs and circulators in similar ways to how the registration
requirement impacted state residents of Colorado who were not registered to
vote. The majority-view circuits, therefore, fundamentally broaden the scope
of American Constitutional Law Foundation?s holding by misconstruing the
scope of the ?denominator? for this test.247
A close reading of the American Constitutional Law Foundation majority
opinion shows that the Court meant the burden test to apply to reducing the
number of messengers in the state, as opposed to reducing the number of
messengers in the abstract, as the majority-view circuits contend.248
Tailoring the burden analysis to state residents focuses on the limits placed
on the speech rights of citizens with a demonstrable stake in the outcome of
the petitioning process and the electoral politics of their state of residence.
Furthermore, the Grant Court, which accepted that a state restriction
imposed a severe burden by ?limit[ing] the number of voices? able to convey
a political message, analyzed the payment ban in the context of state
residents.249 The unanimous Grant Court expressed concern that the
restriction ?limit[ed] [plaintiffs?] ability to make the matter the focus of
statewide discussion.?250 The majority-view circuits? far broader application
of the burden analysis fundamentally misunderstands this notion, seemingly
applying the test in an abstract or universal context.
As Justice O?Connor noted in her American Constitutional Law
Foundation opinion, even though petition circulation is unquestionably
political speech, the issue whether a burden is ?severe? is by itself an
ambiguous question without a clear answer.251 The Court must develop
better criteria for determining whether a restriction in fact imposes a ?severe?
burden on core political speech, such as a list of determinative factors.252
Even if the majority-view circuits properly weighed the burden on the
plaintiffs? core political speech as severe, these circuits also gave insufficient
weight to the states? asserted interests.253 Given the challenges inherent in
administering elections in the twenty-first century,254 courts should give
additional weight to the states? interest in protecting the integrity of the
democratic process. The technological, legal, and cultural changes of the
twenty-first century have allowed the framers? worst fears about corrupting
influence and foreign interference in American democracy to take root,
which underscores the paramount need for states to uphold their
constitutional duty to maintain the integrity of elections.255
While undervaluing the state?s interest in protecting the integrity of
elections, many courts equate this interest with, and give great weight to, the
248. Compare, e.g., Nader v. Brewer, 531 F.3d 1028, 1036 (9th Cir. 2008) (noting that
Arizona?s in-state-residency requirement for circulators ?excludes from eligibility all persons
who support the candidate but who . . . live outside the state of Arizona. Such a restriction
creates a severe burden.?), with Buckley v. Am. Constitutional Law Found., Inc., 525 U.S.
182, 193?96 & n.15 (1999) (describing the potential impact of Colorado?s registration
requirement on individuals who resided in and were eligible to vote in Colorado but were not
249. Meyer v. Grant, 486 U.S. 414, 422?23 (1988).
250. Id. at 423 (emphasis added).
251. See Am. Constitutional Law Found., 525 U.S. at 215?18 (O?Connor, J., concurring in
part and dissenting in part).
252. Joshua Douglas, for instance, has proposed that if the challenged restriction affects
more than 10,000 voters, or, alternatively, more than 5 percent of the voters in the jurisdiction,
the regulation should be considered ?per se severe.? Douglas, supra note 242, at 386.
253. See supra Part II.B.
254. See supra Part I.C.
255. See supra notes 22?23, 128?39 and accompanying text; see also Lily Rothman, Fear
of Foreign Intervention in U.S. Politics Goes Back to the Founding Fathers, TIME (Dec. 17,
2016), http://time.com/4604464/foreign-interference-history/ [https://perma.cc/LLL2-ZP9L].
state?s interest in preventing ?fraud.?256 Preventing fraud, however, connotes
protecting against a more specific, and blatant, corruption of the electoral
process than the general interest in election integrity. States have previously
used this interest in preventing fraud to justify legislation that has the effect,
if not the purpose, of targeting certain groups of voters.257 If given too much
weight, this asserted interest has the potential to allow states to further use
their election regulation powers for improper?if not outright
discriminatory?purposes. While courts should not disregard this interest,
they must perform a more intensive analysis of the state?s claims. For
example, they could require a demonstration of actual fraud or abuse
prevented by the challenged statute.258
Some courts have also given short shrift to a state?s interest in ensuring
that voters within the state decide the outcomes of elections.259 Although
some of the majority-view circuits have held that this interest is not legitimate
or compelling, this contention overlooks the possibility of well-financed
outside groups corrupting a state?s ballot process.260 While the Seventh and
Second Circuits have found this beneficial,261 the idea of outsiders bringing
in novel or originally unpopular ideas is a quaint fantasy and does not reflect
the real potential of national interests essentially purchasing the right to have
their favored initiative questions and candidates placed on the ballot in any
state. There is a real possibility of these groups using their resources to access
a state?s ballot in a way that less well-funded, local grassroots interests could
Because of this, a state has a strong interest in candidates and initiative
proponents demonstrating a ?modicum of support? in the community before
being allowed access to the ballot.262 This principle has been integral to
elections since the founding of the republic and is embedded in the structure
of both state and federal elections.263 Just as progressive reformers sought to
implement the ballot initiative as a way for state residents to reclaim their
government from well-funded interest groups, the framers gave states control
over elections to avoid favoring the wealthy and privileged in American
256. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (discussing a need for
?integrity [in] our electoral processes? as well as with concerns about ?voter fraud?); Nader v.
Brewer, 531 F.3d 1028, 1037 (9th Cir. 2008) (?A state?s interest in ensuring the integrity of
the election process and preventing fraud is compelling.? (citing Purcell, 549 U.S. at 4)).
257. See supra note 145 and accompanying text.
258. This is distinguished from the related state interest in ensuring that circulators are
answerable to that state?s subpoena power, which is properly considered compelling. The
ability of states to easily reach individuals working within their electoral systems is more
closely in line with the broader interest in electoral integrity. See supra note 45 and
259. See supra notes 183?84, 207?12 and accompanying text.
260. See Whyte, supra note 147.
261. See supra notes 183?84, 207?12 and accompanying text.
262. See supra note 33.
263. See supra Part I.A.
264. See supra Part I.A.
Of course, each contested restriction under the American Constitutional
Law Foundation framework has nuances that require both the interests of the
state and burdens on the plaintiffs to be calculated in an individualized
manner. While the analysis of these burdens and interests will vary
depending on the context in which they are raised, it is important for courts
to weigh these factors in a way that reflects both the reality of elections in the
twenty-first century and the framers? intent in establishing the constitutional
structure of election law.
B. Practical Applications: The Differing Results for Residency and Voter Eligibility Requirements
Courts that have weighed the constitutionality of voter eligibility and
residency requirements have treated the two types of requirements as
indistinguishable from one another for purposes of constitutional analysis.265
Under the standard proposed in this Note, however, the analysis should be
conducted differently, as each presents unique burdens and interests that must
be properly considered. Part III.B.1 conducts a constitutional analysis of
residency requirements and concludes that they should be upheld as a
reasonable exercise of the state?s regulatory authority. Part III.B.2
undertakes a similar analysis for voter eligibility requirements and finds them
to be an unconstitutional infringement on freedom of speech.
1. Residency Requirements: A Logical Place to Draw the Constitutional Line
The American Constitutional Law Foundation Court maintained a
?sphinx-like silence? on the constitutionality of state-residency
requirements.266 Although the clear majority of circuits that have heard
challenges to state-residency requirements for petition circulators have found
them to be an unconstitutional infringement on First Amendment rights, this
analysis has come from the flawed notion that traditional strict scrutiny is the
applicable standard of review.267
The Eighth Circuit?s understanding of the burdens on the plaintiffs,
although sparse on analysis, is the most correct given the challenges of
twenty-first century election law. Rather than assuming that limiting petition
circulators to state residents is a de facto severe burden by reducing the
number of available messengers, courts should conduct their own
individualized sliding-scale analysis of each contested restriction to
determine the burdens imposed on the plaintiffs. By the Eighth Circuit?s
understanding, the North Dakota state-residency requirement did not impose
a ?severe burden? on core political speech because there were hundreds of
265. Compare, e.g., Libertarian Party of Va. v. Judd, 718 F.3d 308, 316?17 (4th Cir. 2013)
(analyzing the constitutionality of a voter-eligibility requirement), with Nader v. Brewer, 531
F.3d 1028, 1037 (9th Cir. 2008) (analyzing the constitutionality of a residency requirement).
266. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 228 (1999)
(Rehnquist, C.J., dissenting).
267. See supra Part III.A.1.
thousands, if not millions, of potential circulators available statewide who
would be able to assist any plaintiff in circulating petitions.268
As noted by the Eighth Circuit, nonresidents who have a political interest
in candidates and initiative questions in other states still have many effective
ways to assert their views and influence the process.269 The only limit placed
on their speech by these restrictions is that nonresidents cannot physically
collect the required signatures.270 Such a requirement, although certainly
burdensome for petition circulators, does not constitute a ?severe? restriction
meriting strict scrutiny.
Because a residency requirement would not impose a severe restriction on
political speech, a lesser form of scrutiny is merited.271 Under either the
?intermediate? form of ?exacting? scrutiny or a rational basis review, such a
restriction is sustained by the state?s regulatory interest.272
As the Eighth Circuit observed in Jaeger, a residency requirement is
tailored to multiple state interests.273 And, as mentioned previously, a
stateresidency requirement is clearly tied to the state?s interest in protecting
integrity in the electoral process and ensuring that petition circulators are able
to answer to state subpoena power.274 Even if there are technically other
options that are more ?narrowly tailored? to that interest, the alternatives
posited by the majority-view circuits would be significantly more difficult
for the states to administer.
Furthermore, while signing a petition does not necessarily constitute an
endorsement of a candidate or initiative question,275 collecting signatures on
behalf of that candidate or initiative certainly does. By requiring
circulators?who use their time and energy to secure a place on the ballot for
an initiative or candidate?to be residents of the state with an investment in
the community, this provision allows a state to effectively ensure that
candidates have enthusiasm and support at the state level.
Additionally, residency requirements significantly advance the state?s
interest in local administration of its own elections. Allowing outside
influences to gather signatures would invariably tip the scales in favor of
candidates and ballot issues that are supported by well-funded national
interests outside the state.276 Opening up the petitioning process to all U.S.
citizens could allow these interests to ship batches of circulators into states
and essentially allow money, rather than the people of a state, to dictate who
is on the ballot.
Finally, the Supreme Court indicated in American Constitutional Law
Foundation that it viewed a residency requirement to be a more tailored (and
268. See supra notes 169?72 and accompanying text.
269. See supra notes 179?81 and accompanying text.
270. See supra notes 179?81 and accompanying text.
271. See supra note 79.
272. See supra note 79.
273. See supra notes 177, 182 and accompanying text.
274. See supra Part III.A.2.
275. See RASKIN, supra note 33, at 110.
276. See supra Part III.A.2.
thus more constitutionally acceptable) approach for asserting a state interest
than the Colorado registration requirement it ultimately struck down.277
These statements indicate the Court?s views on the constitutionality of
residency requirements and should provide some direction to lower courts on
how to properly frame the issue. While the Eighth and Second Circuits
incorporated these statements into their opinions on this question, the
majority-view circuits have given these statements little to no weight.278
These statements should certainly not be the definitive element in analyzing
the constitutionality of such restrictions, but lower courts would be remiss to
ignore these indications from the Supreme Court.
It is possible that a state-residency requirement could be held
unconstitutional in certain contexts even under this individualized balancing
approach.279 Indeed, the aim of this new approach is to allow for an ad hoc
determination of a statute?s constitutionality based on the individual
circumstances and factors at play in a given state. The differences across
state lines ?make it difficult to rely heavily on precedent in evaluating such
restrictions, because there is great variance among the states? schemes.?280
As a general rule, however, a mere state-residency requirement for petition
circulators does not pose the logistical hurdles and limitations on interactive
political speech in the way that even other common restrictions might.
Given the history of states arbitrarily restricting who is eligible to
participate in their electoral process and the recent efforts by several states to
suppress votes, many advocates will find the argument for allowing states to
limit circulators to state residents to be counterintuitive.281 Limiting
circulators to state residents, however, helps states to protect, among other
things, important election integrity interests while minimizing the potential
harm to First Amendment rights. A state-residency requirement does not
constitute a severe burden on core political speech and may also serve as a
bulwark against well-moneyed interests further corrupting the electoral
process at the state level. From a legal, historical, and policy perspective, the
Eighth Circuit?s application of American Constitutional Law Foundation to
state-residency requirements merits a more thorough examination before
being cast aside in favor of the more popular view.
277. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 211 (1999).
278. Compare supra notes 161?62, with supra Part II.B.
279. An individualized burden analysis might vary depending on the type and scope of
petition being circulated. Cases concerning petitions of national importance, such as for
presidential candidates or constitutional amendments, might differ from cases involving
petitions solely concerning the people of a specific state. See DIMINO ET AL., supra note 30, at
280. Nader v. Keith, 385 F.3d 729, 735 (7th Cir. 2004).
281. See, e.g., Editorial, Voter Suppression Is the Civil Rights Issue of This Era, WASH.
POST (Aug. 19, 2017),
2. ?Voter Eligibility? Requirements:
An Unconstitutional Burden on Political Speech
An individualized balancing approach draws attention to another important
distinction that courts have so far overlooked?the difference between
residency and voter eligibility requirements.282 While mostly treated as
indistinguishable by the majority-view circuits via the same broad legal
analysis, the two types of restrictions present significant differences in the
burdens and state interests advanced. Given the long history of states
restricting who is ?voter eligible? based on race, this distinction should not
While no longer the overt disqualifications of the Jim Crow era, the legacy
of states restricting who is ?voter eligible? on the basis of race persists, with
many states requiring that individuals with felony convictions lose their
status as eligible voters.284 In the years since American Constitutional Law
Foundation, both the legal profession and the general public have grown
increasingly aware of the racial disparities in American prison populations
and the inherent racial bias in the criminal justice system, with some
acknowledging the modern American penal system as an extension of
Concurrently, and perhaps relatedly, societal attitudes about recreational
drug use and drug addiction have changed dramatically since 1999.286 It is
not inconceivable, therefore, that a person with a felony drug conviction
might wish to circulate petitions for a candidate who pledges to fight the
opioid epidemic or for a ballot initiative to legalize recreational marijuana at
the state level.287 In this context, such a person might have standing to
challenge a voter eligibility requirement as unconstitutional and could show
a severe burden on core political speech that reduces the number of voices
eligible to circulate petitions statewide under the American Constitutional
Law Foundation framework in a way that a mere residency requirement
If an individual could demonstrate such a burden, this type of restriction
may actually present a situation that merits strict scrutiny.289 Throughout the
Court?s equal protection jurisprudence, strict scrutiny has been applied
almost exclusively in cases involving racial discrimination.290 A state would
be unable to demonstrate that a voter eligibility requirement would be
sufficiently narrowly tailored to its asserted interests, especially because a
residency requirement would achieve the exact same objectives without this
discriminatory targeting of former felons. While residency requirements are
a justifiable imposition on core political speech in twenty-first century
America, it is apparent from examining the context of eligibility requirements
that they constitute an undue, and potentially discriminatory, burden on
speech against a specific class of potential circulators.
C. Escaping the Coming Avalanche by ?Skiing to the Bottom?
of the Slippery Slope: Revisiting Chief Justice Rehnquist?s
Fear of the ?Sphinx-Like Silence?
In suggesting this return to a more individualized balancing approach, it is
important to mention that Chief Justice Rehnquist predicted many of these
issues in his scathing American Constitutional Law Foundation dissent.291
The majority-view circuits? broad application of the American Constitutional
Law Foundation test, which holds that any restriction reducing the number
of messengers constitutes a severe burden on political speech292 and is thus
subject to strict scrutiny, now threatens to consume even the most reasonable
restrictions on petition circulation.
To prevent the majority line of circuit cases from completely swallowing
the states? ability to pass legitimate ballot-access restrictions, courts should
draw a firm distinction between what is constitutionally permissible and what
is not. It is apparent that Chief Justice Rehnquist?s ?slippery slope?
prediction is no longer a mere ?familiar parade of dreadfuls?293 but has
materialized in the years since American Constitutional Law Foundation.294
Since 2001, all circuits considering cases on this issue have struck down
eligibility and residency requirements.295 This has resulted from a broad
understanding of the American Constitutional Law Foundation/Grant view
of a ?severe burden? and a resulting overuse of strict scrutiny.
288. The issue and logistics of how a formerly incarcerated individual could bring a claim
on such a distinction is beyond the scope of this Note.
289. See supra Part III.A.1.
290. See CHEMERINSKY, supra note 56, at 567.
291. Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 226?33 (1999)
(Rehnquist, C.J., dissenting); see also supra notes 111?24.
292. See supra Part II.B.
293. Am. Constitutional Law Found., 525 U.S. at 194?95 n.16.
294. See supra Part II.B.
295. See supra Part II.B.
Chief Justice Rehnquist predicted the American Constitutional Law
Foundation majority?s logic would lead to courts finding restrictions on
?children and foreigners? circulating petitions to be unconstitutional.296
While the American Constitutional Law Foundation majority dismissed the
Chief Justice?s ?unfounded?297 alarmism and accused him of ?skiing to the
bottom? of the slippery slope, the majority-view circuits? broad application
of the American Constitutional Law Foundation test suggests that this fear is
no longer farfetched. The majority-view circuits have found that any
restriction that reduces the number of messengers, in the abstract, is subject
to strict scrutiny, where the state?s burden is ?well-nigh insurmountable.?298
The next logical step for these courts would be to eliminate ?reasonable?
restrictions such as age and U.S. citizenship requirements for petition
circulators, as both inarguably greatly reduce the number of messengers able
to carry petitions under the majority-view circuits? broad interpretation.299
Restrictions on age and citizenship are especially ripe to be overturned;
foreign nationals and minors have been found to have equal rights to political
speech and expression under the First Amendment.300
Chief Justice Rehnquist?s American Constitutional Law Foundation
dissent was also the first to note the important difference between residency
and eligibility requirements,301 although his opinion is certainly in keeping
with his reputation of issuing ?a somber drumbeat of rejections of the claims
of blacks, women, workers and criminal defendants.?302 Chief Justice
Rehnquist argued that eligibility restrictions were the preferable state policy
because they would keep felons and drug dealers from circulating petitions
in communities.303 Although framed in the context of his trademark
contempt for drug dealers and convicted felons,304 Chief Justice Rehnquist?s
well-reasoned analysis of the distinction between these two types of
circulator restrictions provides twenty-first century courts and scholars with
the best place to draw the constitutional line. By heeding the Chief Justice?s
legal reasoning and predictions, courts can prevent reasonable ballot-access
restrictions from being consumed in the avalanche about to overtake the
The Supreme Court?s decision in American Constitutional Law
Foundation further complicated an inconsistent and confusing area of the
law. The majority of circuit courts hearing challenges to residency and voter
eligibility requirements under this framework have understandably searched
for clarity where none exists, which has resulted in their striking down
stateresidency and voter eligibility requirements under the First Amendment. The
Eighth Circuit, by contrast, has better understood the nuances and individual
balancing provisions of American Constitutional Law Foundation. The
Court?s use of the flexible and ambiguous ?exacting? scrutiny standard in
Grant, seemingly affirmed and applied again in American Constitutional Law
Foundation, indicates that the Court favored greater flexibility in weighing
the state?s interests against the infringement on individual First Amendment
rights. For a number of historical and policy reasons, as well as the potential
for the majority-view circuit decisions to consume even the most reasonable
ballot-access laws, a state-residency requirement represents the logical
constitutional line to draw in balancing these two competing interests.
REQUIREMENTS ............................................................................ 2556 ?
A. Election Law in America: The States' Playground................ 2557 ?
Ballot-Access Standard of Review ........................................ 2561? 1 . The Supreme Court's Ballot-Access Framework : A
Review ............................................................................ 2561? 2 . Buckley v. American Constitutional Law Foundation,
Inc.................................................................................... 2566 ?
C. Election Law Challenges in the Twenty-First Century........... 2570 ?
Under the First Amendment.................................................. 2573 ?
Requirements Violate the First Amendment.......................... 2577 ?
III. RESOLVING THE SPLIT: A WAY FORWARD ..................................... 2581 ?
Balancing .............................................................................. 2581? 1 . Rejecting Strict Scrutiny : An Individualized Balancing
Reading ........................................................................... 2582? 2. Recalibrating the ?Sliding Scale?: A Twenty-First
on Political Speech.......................................................... 2585 ?
and Voter Eligibility Requirements....................................... 2588? 1 . Residency Requirements : A Logical Place to Draw the
Constitutional Line.......................................................... 2588 ? 2 . ?Voter Eligibility? Requirements: An Unconstitutional
Burden on Political Speech ............................................. 2591 ?
Fear of the ?Sphinx- Like Silence?........................................ 2592 ?
CONCLUSION ........................................................................................... 2594? 2 . Libertarian Party National Convention , Day 2 Part 1, C-SPAN (May 29 , 2016 ),
https://www.c-span.org/video/?409917- 1 /libertarian-party -selects-gary- johnson- 2016-
nominee [https://perma.cc/AM3X-CQ4P] (statement of Alex Merced at timestamp 2:44:50). 3 . Complaint, supra note 1 , paras. 17 - 18 , 35 . 4. See, e.g., Katherine E . Schuelke, Note, A Call for Reform of New York State's Ballot
Access Laws , 64 N.Y.U. L. REV. 182 , 182 ( 1989 ) ; DeNora Getachew & Andrea Senteno,
Understanding the Labyrinth: New York's Ballot Access Laws , GOTHAM GAZETTE (June 29 ,
2009 ), http://www.gothamgazette.com/open-government/252- understanding- the-labyrinth-
new-yorks-ballot-access-laws [https://perma .cc/4TVC-4TAE]; Michael Specter, Once Again,
New York's Arcane Election Laws Shape Race , N.Y. TIMES (Feb. 28, 1992 ),
http://www.nytimes.com/ 1992 /02/28/nyregion/once-again -new-york-s-arcane-election-laws-
shape-race .html [https://perma.cc/H8F7-2AD8]. But see JERRY GOLDFEDER, GOLDFEDER'S
MODERN ELECTION LAW : BALLOT ACCESS IN NEW YORK 1 ( 2012 ) (noting that New York's
straightforward?) . 5. N.Y. ELEC . LAW ? 6 - 140 (McKinney 2017 ). 6. Complaint, supra note 1, paras. 17-18. 7. Id. paras. 14-25. 8. Id. paras. 25-26 , 31 - 34 . 9. Id. para. 34 . 10. Merced v. Spano, No. 16CV3054 (SJ) (SMG) , 2016 WL 3906646, at *2 ( E.D.N.Y.
July 14 , 2016 ). 16. U.S. CONST. art. I, ? IV. 17. See Eli Watkins, How to Register to Vote in Every US State and Territory , CNN (Oct.
12, 2016 , 11 :19 AM), http://www.cnn.com/ 2016 /08/14/politics/how-to -register-to-vote-in-
every-us-state-and-territory/index .html [https://perma.cc/QW5W-N9PU]. 18. See U.S. CONST. art. I, ? IV (?[T]he Congress may at any time by Law make or alter
I. B (describing the Court's ballot-access jurisprudence ). 19. THE FEDERALIST NO. 59 , at 150 ( Alexander Hamilton) (Michael A . Genovese ed.,
2009 ). 20 . THE FEDERALIST NO. 60 , at 155 ( Alexander Hamilton) (Michael A . Genovese ed.,
2009 ) ; see also J.R. POLE , POLITICAL REPRESENTATION IN ENGLAND AND THE ORIGINS OF THE
AMERICAN REPUBLIC 530-31 ( 1966 ) (?[James] Madison anticipated the division of the country
chief cause of conflict would be between those with and those without property . ?). 21. THE FEDERALIST NO. 60 , at 154 ( Alexander Hamilton) (Michael A . Genovese ed.,
2009 ). 22 . THE FEDERALIST NO. 68 , at 190 ( Alexander Hamilton) (Michael A . Genovese ed.,
2009 ) (warning of the desire of ?deadly adversaries of republican government . . . [and] foreign
powers to gain an improper ascendant in our councils? ). 23 . See , e.g., THE FEDERALIST NOS. 2 , 3 (John Jay), NO. 68 (Alexander Hamilton); see
also JAMES MADISON , Notes of Monday, August 13, in THE DEBATES IN THE FEDERAL
CONVENTION OF 1787 WHICH FRAMED THE CONSTITUTION OF THE UNITED STATES OF AMERICA
384 , 384 (Gaillard Hunt & James Brown Scott eds., 1920 ) (noting Massachusetts delegate 37 . See, e.g., ALASKA STAT. ? 15.45.105 ( 2016 ) (requiring an initiative-petition circulator
IDAHO CODE ANN. ? 34 - 1807 ( West 2017 ) (requiring initiative-petition circulators to be
?resident[s] of the state of Idaho and at least eighteen (18) years of age?). Although the Ninth
clear. See Nader v. Brewer , 531 F.3d 1028 , 1037 ( 9th Cir . 2008 ). 38 . See , e.g., N.D. CENT . CODE ANN. ? 16 . 1 -01-09 ( West 2017 ) (requiring a circulator to
certify her status as a ?qualified elector?). 39. Not all voter-eligibility requirements require in-state residency . Kansas only requires
in the United States and not have been convicted of a felony. KAN. STAT . ANN. ? 25 - 3608
( 2017 ). 40 . Felon Voting Rights, NAT'L CONF. ST. LEGISLATURES ,
[https://perma.cc/J8E9-A4T3] (last visited Mar . 15 , 2018 ). 41 . See , e.g., N.D. SEC'Y OF STATE , 2017 -2019 INITIATING AND REFERRING LAW IN NORTH
DAKOTA 11 ( 2017 ), https://vip.sos.nd.gov/pdfs/portals/initiating.pdf [https://perma.cc/F48Q-
53SK]. But see GOLDFEDER, supra note 4 , at 21, 38 (noting that the language of New York's
that the witness must in fact be registered to vote in New York). 42 . See , e.g., N.D. CENT . CODE ANN. ? 16 . 1 -01- 04 ( 2017 ) (stating that to qualify as an
also Initiative & Referendum Inst. v. Jaeger , 241 F.3d 614 , 615 - 16 ( 8th Cir . 2001 ). 43 . Timmons v. Twin Cities Area New Party , 520 U.S. 351 , 364 ( 1997 ). 44 . Purcell v. Gonzalez , 549 U.S. 1 , 4 ( 2006 ) (per curiam) . 45 . Buckley v. Am. Constitutional Law Found., Inc . 525 U.S. 182 , 196 ( 1999 ). 46 . See , e.g., Timmons , 520 U.S. at 366- 67 . 47 . See id. at 364; Munro v. Socialist Workers Party , 479 U.S. 189 , 194 - 96 ( 1986 ). 48. See infra notes 177-78 , 182 - 84 , 203 - 12 and accompanying text (analyzing circuit
restrictions) . 49 . 525 U.S. 182 ( 1999 ). 50 . For a more detailed and nuanced examination of the Court's ballot-access
Cases Continues , 77 DENV. L. REV. 197 ( 1999 ) ; see also Brian L. Porto, The Constitution and
7 BYU J. PUB . L. 281 , 281 - 308 ( 1992 ). 51. U.S. CONST. amend. I (?Congress shall make no law . . . abridging the freedom of
to the states via the Fourteenth Amendment . Gitlow v. New York, 268 U.S. 652 , 666 ( 1925 ). 52 . 415 U.S. 724 ( 1974 ). 53 . Id. at 730; see also Timmons v. Twin Cities Area New Party , 520 U.S. 351 , 358
( 1997 ); Anderson v . Celebrezze , 460 U.S. 780 , 788 ( 1983 ). 95. Id. 96. Id. 97. Id. at 192 n.12 (majority opinion) . 98 . Id. at 217-18 (O'Connor , J. , concurring in part and dissenting in part) . 99. Id. at 218 . 100. Id. at 218-19 (quoting Meyer v. Grant , 486 U.S. 414 , 423 & n.6 ( 1988 )). 101 . Id. at 215 , 220 (stating that precedent ?requires that [the provision] advance a
legitimate state interest to be a reasonable regulation of the electoral process?). 102. See id . at 186-87 (citing Timmons v. Twin Cities Area New Party , 520 U.S. 351
( 1997 ); Grant, 486 U.S. 414 ; Anderson v. Celebrezze , 460 U.S. 780 ( 1983 ); Storer v . Brown,
415 U.S. 724 ( 1974 )). 103 . Id. at 194- 95 . 104 . Id . (alteration in original) (quoting Grant, 486 U .S. at 422 , 423). The Court reasoned
that as many as 964,000 eligible but unregistered voters in Colorado would be barred from
circulating petitions . Id. at 193 n.15. 105. Id. at 195 (quoting Grant , 486 U.S. at 428). 156. See Lerman, 232 F.3d at 150 & n.14 . 157. See id. (declining to explicitly rule on the constitutionality of New York's state-
circulators reside in the electoral jurisdiction) . 158 . 241 F.3d 614 ( 8th Cir . 2001 ). 159 . 232 F.3d 135 ( 2d Cir . 2000 ). 160 . Compare Jaeger, 241 F. 3d at 616 (?The appellants are non-profits involved in the
Lerman , 232 F. 3d at 142 (?Lerman asserts injury in having been deprived of the opportunity
to gather signatures in behalf of his candidacy . ?) . 161 . See Jaeger, 241 F. 3d at 616 (citing Buckley v . Am. Constitutional Law Found ., Inc.,
525 U.S. 182 , 194 ( 1999 )); Lerman, 232 F.3d at 150 n.14 (citing Am. Constitutional Law
Found., 525 U.S. at 194- 97 ). 162. Jaeger , 241 F. 3d at 616 (citing Am. Constitutional Law Found ., 525 U.S. at 194-97);
Lerman , 232 F. 3d at 150 (citing Am. Constitutional Law Found ., 525 U.S. at 194); see also
supra notes 109-10 and accompanying text. 163. Jaeger, 241 F.3d at 616 . 194. Am . Constitutional Law Found. v. Meyer, Inc., 120 F.3d 1092 , 1100 ( 10th Cir . 1997 ),
aff'd sub nom . Buckley v. Am. Constitutional Law Found ., Inc., 525 U.S. 182 ( 1999 ). 195 . See id. 196 . See Chandler v. City of Arvada , 292 F.3d 1236 , 1241 - 42 ( 10th Cir . 2002 ); Campbell
v. Buckley, 203 F.3d 738 , 744 - 45 ( 10th Cir . 2000 ). 197 . See , e.g., Libertarian Party of Va. v. Judd , 718 F.3d 308 , 317 ( 4th Cir . 2013 ); Nader
v. Blackwell, 545 F.3d 459 , 474 - 75 ( 6th Cir . 2008 ); Nader v . Brewer , 531 F.3d 1028 , 1035
(9th Cir . 2008 ); Lerman v . Bd. of Elections , 232 F.3d 135 , 150 ( 2d Cir . 2000 ); Krislov v.
Rednour , 226 F.3d 851 , 866 ( 7th Cir . 2000 ). 198 . See , e.g., Blackwell , 545 F. 3d at 475 (citing Am. Constitutional Law Found ., 525 U.S.
at 210-11 (Thomas, J. , concurring)) ; Lerman, 232 F.3d at 145-46 (citing Am. Constitutional
Law Found ., 525 U.S. at 206 , 210 - 12 (Thomas, J. , concurring)) ; Krislov, 226 F.3d at 860
(citing Am. Constitutional Law Found ., 525 U.S. at 206 (Thomas, J. , concurring)) . 199 . See , e.g., Blackwell , 545 F. 3d at 475 (citing Am. Constitutional Law Found ., 525 U.S.
at 192 n.12); Chandler, 292 F. 3d at 1241 (citing Am. Constitutional Law Found ., 525 U.S. at
192 n.12); Lerman, 232 F. 3d at 146 (citing Am. Constitutional Law Found ., 525 U.S. at 192
n.12) . 200. See , e.g., Blackwell , 545 F. 3d at 475 (citing Am. Constitutional Law Found ., 525 U.S.
at 210-11 (Thomas, J. , concurring)); Chandler, 292 F. 3d at 1242 (citing Am . Constitutional
Law Found ., 525 U.S. at 207 (Thomas, J. , concurring)); Lerman, 232 F. 3d at 146 (citing Am.
Constitutional Law Found ., 525 U.S. at 210-12 (Thomas, J. , concurring)) . 201 . See Judd, 718 F.3d at 316 (citing Meyer v. Grant , 486 U.S. 414 , 422 - 23 ( 1988 ));
Blackwell , 545 F. 3d at 474-75 (citing Am. Constitutional Law Found ., 525 U.S. at 191 , 197);
Brewer , 531 F. 3d at 1036 (citing Am. Constitutional Law Found ., 525 U.S. at 194-95);
Chandler , 292 F. 3d at 1243 (citing Am. Constitutional Law Found ., 525 U.S. at 194-195);
Krislov , 226 F. 3d at 860 (citing Am. Constitutional Law Found ., 525 U.S. at 193 n.15; Grant ,
486 U.S. at 421- 22 ). 202. See Judd, 718 F. 3d at 317 (?[A]n election regulation that imposes a severe burden is
subject to strict scrutiny . . . . ? (quoting Brewer , 531 F.3d at 1035)); Blackwell, 545 F.3d at
475 (noting that the Court applies ?strict scrutiny? to such regulations); Brewer, 531 F .3d at
1036 (?Because the restriction creates a severe burden on plaintiffs' First Amendment rights,
strict scrutiny applies .?); Krislov, 226 F. 3d at 863 (stating that ?[l]aws which place a
compelling state interest?). 203. See supra note 56. 204. See supra notes 43-47 and accompanying text. 205 . See , e.g., Judd , 718 F. 3d at 317 (?The plaintiffs do not seriously dispute that the
prevention of election fraud is a compelling state interest .?); Brewer, 531 F.3d at 1037 (?A
compelling.?). 206 . Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 , 1028 n. 2 ( 10th Cir . 2008 ). 207 . Id . 208 . Krislov v. Rednour , 226 F.3d 851 , 865 ( 7th Cir . 2000 ). 209. Id. at 866. 210. Id. 211. Id. 219. Judd, 718 F.3d at 318-19; Savage, 550 F.3d at 1031; Brewer, 531 F.3d at 1038 . 220. See Citizens in Charge, Inc. v. Husted, 810 F.3d 437 , 443 ( 6th Cir . 2016 ) (noting that
residency requirement due to a reasonable belief that the statute was constitutional ). 221. See Kevin Cofsky, Note, Pruning the Political Thicket: The Case for Strict Scrutiny
of State Ballot Access Restrictions , 145 U. PA. L. REV . 353 , 366 ( 1996 ). See generally Young,
supra note 50 . 222. See , e.g., Storer v . Brown , 415 U.S. 724 , 730 ( 1974 ) (citing Dunn v . Blumstein , 405
U.S. 330 , 335 ( 1972 )) ; Williams v . Rhodes , 393 U.S. 23 , 30 ( 1968 ) (noting that each individual
the classification?). 223. See supra Part II.B. 224. See supra Part I.B.1; see also Wright, supra note 70 , at 210 (?Balancing and
burden imposed upon constitutional rights .?); Cofsky, supra note 221, at 381 (discussing the
remarkable span of precedents cited by the Court in developing the Anderson balancing test ). 225 . See Burdick v. Takushi , 504 U.S. 428 , 433 - 34 ( 1992 ) (citing Anderson v . Celebrezze,
460 U.S. 780 , 788 ( 1983 ); Bullock v . Carter , 405 U.S. 134 , 143 ( 1972 ) ; McDonald v . Bd. of
Election Comm'rs , 394 U.S. 802 ( 1969 )). 226 . Buckley v. Am. Constitutional Law Found ., Inc., 525 U.S. 182 , 192 n. 12 , 199 ( 1999 ). 227 . See id. at 186. 228. See supra notes 73-74 , 194 - 200 and accompanying text. 229. See supra notes 95-101 and accompanying text. 230. See supra notes 70-77 and accompanying text. 231. See supra notes 198-200 and accompanying text. 232 . Am . Constitutional Law Found., 525 U.S. at 192 n.12 (alteration in original) (quoting
id. at 206 (Thomas, J. , concurring)) ; see supra Part I.B . 2 . 233. Am . Constitutional Law Found., 525 U.S. at 192 n.12 (alteration in original) (quoting
id. at 206 (Thomas, J. , concurring)) . 234 . Id . 235 . See Kurt Wittenberg, Anderson v. Celebrezze: Ballot Access and the Due Process
Clause-an Alternative to Equal Protection Analysis, 33 DEPAUL L . REV. 411 , 428 ( 1984 )
preference for distinguishing them beyond sense and recognition?) . 236 . Am . Constitutional Law Found., 525 U.S. at 207 (Thomas, J. , concurring); see supra
note 200 . 243. For further analysis of a similar proposed test, see E. Jon A . Gryskiewicz, Note,
Ballot Access Law , 28 J.L. & POL . 185 , 226 - 28 ( 2013 ). 244 . Nader v. Keith , 385 F.3d 729 , 735 ( 7th Cir . 2004 ). 245 . See , e.g., Young, supra note 50 , at 213 ( ?[A] balancing approach , similar to that
courts, to effectively employ in subsequent cases with any consistency . ?). 246. See supra notes 201-02 and accompanying text. 247. See supra Part II.B. 282. See supra notes 37-42 and accompanying text. 283 . See generally ARI BERMAN, GIVE US THE BALLOT: THE MODERN STRUGGLE FOR
VOTING RIGHTS IN AMERICA ( 2015 ) (outlining the history of the voting rights movement from
the Civil Rights era through the present day) . 284 . See supra note 40; see also MICHELLE ALEXANDER, THE NEW JIM CROW: MASS
INCARCERATION IN THE AGE OF COLORBLINDNESS 159 (rev . ed. 2012 ) (describing felon-
Disenfranchisement , N.Y. TIMES (Nov. 18, 2014 ), https://www.nytimes.com/ 2014 /11/19/
opinion/the-racist-origins-of-felon-disenfranchisement .html [https://perma.cc/29CM-VJ69]. 285. See ALEXANDER , supra note 284, at 185-220 (describing the disproportionate effects
LOCKED IN 45-50 ( 2017 ) (exploring possible causes of racial disparities in state prisons); see
also 13TH (Kandoo Films 2016 ) (examining the interconnected history of race, slavery , and
mass incarceration in the United States) . 286 . See generally PEW RESEARCH CTR ., AMERICA'S NEW DRUG POLICY LANDSCAPE
( 2014 ), http://assets.pewresearch.org/wp-content/uploads/sites/5/legacy-pdf/ 04 -02-14% 20
Drug%20Policy%20Release .pdf [https://perma.cc/8NF3-JEGD]. 287 . While the debate over whether convicted felons forfeit speech rights has not been
Equal Protection , and Felon Disenfranchisement: A New Viewpoint, 65 FLA. L. REV. 111
( 2013 ) (analyzing the speech and voting rights of convicted felons through the lens of the First
Amendment and equal protection) . 296. See supra note 123 and accompanying text. 297 . Am . Constitutional Law Found., 525 U.S. at 194-95 n. 16 . 298. See Meyer v. Grant , 486 U.S. 414 , 425 ( 1988 ). 299 . This Note discusses restrictions on minors and foreign citizens as examples solely
on the petitioning process are in fact ?reasonable .? 300. See , e.g., McConnell v . FEC , 540 U.S. 93 , 231 - 32 ( 2003 ) (holding that a prohibition
Indep. Cmty. Sch. Dist. , 393 U.S. 503 , 511 - 13 ( 1969 ) (holding that minor students possess a
right to engage in political expression); Bridges v . Wixon , 326 U.S. 135 , 148 ( 1945 )
(?Freedom of speech . . . is accorded aliens residing in this country . ?). 301. See supra notes 114-19 . 302 . Adam Cohen , The Justice Dissents: 'The Partisan: The Life of William Rehnquist,'
by John A. Jenkins , N.Y. TIMES (Nov. 16, 2012 ) (book review) , http://www.nytimes.com/
2012 /11/18/books/review/the -partisan-the-life-of-william-rehnquist-by-john-a-jenkins .html
[https://perma.cc/YDF7-LNR4] ; see also JOHN A. JENKINS, THE PARTISAN: THE LIFE OF
WILLIAM REHNQUIST 71 ( 2012 ) (?Rehnquist certainly espoused views and exhibited
Always Become the Law of the Land ., L.A. TIMES (Sept. 29, 1991 ), http://articles.latimes.com/
print/1991-09-29/magazine/tm-4832_1_rehnquist-court [https://perma.cc/7HTX-2QBV] (?In
the early 1950s, he did not think the segregation of black school children was unconstitutional .
In the 1970s, he did not think discrimination against women violated the Constitution . Now,
he insists that any discrimination against white males violates the Constitution .?). 303. See supra notes 111 , 120 and accompanying text.