Pierce v. Stapleton, Cause No. CV 18-63-H-CCL

505 F.Supp.3d 1059

Nathan PIERCE ; Montana Coalition for Rights; Montana Coalition for Citizen Voting; Sherri Ferrell ; and, Liberty Initiative Fund, Plaintiffs,

v.Corey STAPLETON, in his official capacity as the Secretary of State for the State of Montana; and, Tim Fox, in his official capacity as Attorney General of Montana, Defendants.

Cause No. CV 18-63-H-CCL

United States District Court, D. Montana, Helena Division.

Signed December 4, 2020

Christopher John Gallus, Helena, MT, Paul A. Rossi, Pro Hac Vice, IMPG Advocates, Inc., Mountville, PA, for Plaintiffs.

Matthew T. Cochenour, Hannah E. Tokerud, Patrick M. Risken, Montana Attorney General, Helena, MT, for Defendants.

OPINION & ORDER

Charles C. Lovell, Senior United States District Judge

Plaintiffs Nathan Pierce, Montana Coalition for Rights, Montana Coalition for Citizen Voting, Sherri Ferrell, and Liberty Initiative Fund filed this action challenging the constitutionality of Montana Code Annotated § 13-37-102(2), which requires that signature gatherers for an initiative, referendum, or constitutional convention be Montana residents and that they not be paid based upon the number of signatures gathered. The challenge is premised upon the First and Fourteenth Amendments of the United States Constitution.

Plaintiffs claim the residency requirement of MCA § 13-27-102(2)(a) violates the First Amendment by limiting their ability to recruit out-of-state petition circulators and, in turn, makes it difficult to get their petition on the ballot Plaintiffs also claim the prohibition on paying petition circulators per signature, contained at MCA § 13-27-102(2)(b), violates the First Amendment by increasing costs and reducing the pool of petition circulators to hourly workers. Defendants ask the Court to uphold the constitutionality of the challenged statute, asserting the statute advances and protects the First Amendment interests of the citizens of Montana, including the constitutional right to self-government.

Additionally, Plaintiffs claimed in their Amended Complaint that MCA § 13-27-102(2) violates Equal Protection principles because the statute's prohibitions apply only to initiative petitions, and not to candidate petitions.¹ Plaintiffs also asserted petition circulation constitutes interstate commerce and that the prohibition on nonresident circulators violates the Commerce Clause.² Although Defendants briefed these claims in their request for summary judgment,³ Plaintiffs affirmatively abandoned these same claims in their Response.⁴ Accordingly, Defendants will be granted summary judgment on claims V, VI, and VII, of the Amended Complaint.

Pending now before the Court are cross-motions for summary judgment on Claims I, II, III, and IV. The Court finds the matter is appropriate for determination without a hearing. Further, the Court finds Montana's challenged law to be constitutional. Accordingly, Defendant's Motion for Summary Judgment (Doc. 36) will be GRANTED; and, Plaintiff's Motion for Summary Judgment (Doc. 40) will be DENIED.

I. Background

A. History of MCA § 13-27-102(2)(2007)

In adopting Montana's 1972 Constitution, the people of the State "reserved unto themselves the exclusive right of" self-government and to thereby "alter or abolish the constitution whenever" they deem necessary. State ex rel. Montanans For Preservation of Citizens' Rights v. Waltermire (1988), 231 Mont. 406, 412, 757 P. 2d 746, 750. The Montana Constitution reserves unto Montana citizens the right to amend the constitution and to enact laws by initiative. Mont. Const. art. XIV, § 9 ; Mont. Const. art. III, § 4.

The initiative process begins by a person or entity submitting a ballot initiative to the Secretary of State's Office, which in turn, sends the ballot initiative to Montana Legislative Services for review.⁵ If Legislative Services approves the petition, the petition is then sent to the Attorney General for legal sufficiency review which must be completed within 30 days.⁶ If the ballot initiative passes this legal sufficiency review, the Secretary of State notifies the ballot initiative sponsor and the petition signature gathering can start.⁷ The ballot initiative process, whether statutory or constitutional, requires an initiative proponent to gather a specific percentage of voter signatures to qualify their initiative for the ballot.⁸ The first day to circulate approved initiative petitions for an election cycle is approximately 1-year before the signatures in support of a petition must be submitted.⁹

In March of 2006, proponents of two constitutional initiatives and one statutory initiative began gathering signatures for submission to county election administrators for certification. Once the signed petitions were submitted, they were certified and then submitted to the Secretary of State. Because each of the ballot initiatives garnered more than the required number of signatures, they were then certified to the Governor in July of 2006. See, Montanans for Justice v. State , 2006 MT 277, ¶¶ 11-12, 334 Mont. 237, 146 P. 3d 759. In August of 2006, a complaint was filed in which it was alleged that the proponent signature gatherers violated statutory requirements governing ballot issue petitions by obtaining signatures in a deceptive manner and falsely swearing to the contents on the signature gatherers’ affidavits. Id. at ¶ 13. Following a bench trial in Montana's Eighth Judicial District, the state District Court found that the signature gathering process engaged in by proponents of the three initiatives was permeated by fraud and procedural noncompliance. Id. at ¶ 2. The District Court invalidated the signatures obtained by specific signature gatherers and invalidated the Secretary of State's certifications of the initiatives. Id.

The uncontroverted evidence established that while some Montana citizens were used to collect signatures, the initiative proponents relied primarily upon paid out-of-state signature gatherers to obtain an "overwhelming majority" of the signatures submitted. Id. at ¶ 11. Proponents paid over $633,000 to out-of-state signature gatherers for the three initiatives; each signature gatherer was paid between $0.50 and $2.50 per signature per initiative. Id. The District Court determined: (1) out-of-state signature gatherers routinely attested that they personally gathered or assisted in gathering signatures that were gathered by other persons outside of their presence and without their direct assistance; (2) all 43 of the out-of-state signature gatherers used false addresses on their certification affidavits; and, (3) at least some of the out-of-state signature gatherers employed deceitful "bait and switch" tactics. Id. at ¶ 44.¹⁰ The Montana Supreme Court affirmed the findings of the District Court and its order invalidating the initiative certifications. Id. at ¶¶ 59, 73, 79, 88.

In response to the fraud that had occurred, the 2007 Montana Legislature passed Senate Bill 96, which required a person circulating an initiative petition to be a Montana resident who is not paid anything of value based on the number of signatures gathered.¹¹

In the election cycles between 2008 and 2018, twelve petitions qualified for the ballot.¹² In the 2020 election cycle, two petitions were certified to appear on the general election ballot.¹³

B. Parties in the Present Matter

Plaintiff Nathan Pierce is a founder of the Montana Coalition for Rights, "an ad hoc or a loose coalition of Montanans" who engage in lobbying work and advancing ballot initiatives.¹⁴ This entity has been active since 2007, but has been repeatedly dissolved and reformed over the years.¹⁵ Montana Coalition for Rights sponsored Ballot Issue 15 in the 2018 election cycle, which sought to "prevent[ ] the legislature from immediately overturning ballot initiatives." The issue, however, did not progress to the point where signature gathering took place.¹⁶

Plaintiff Sherri Ferrell is a professional signature gatherer/petitioner and coordinator based in Florida who works across the United States.¹⁷ Although Ferrell worked in Montana once, qualifying candidate Newt Gingrich for the ballot, she has never performed initiative petitioning services in Montana.¹⁸

In April of 2018, Montanans for Citizen Voting ("MCV") was incorporated to secure ballot access for a "citizens voting" initiative, aimed at limiting voting in Montana to lawful citizens.¹⁹ Paul Jacob ("Jacob") is the President of Liberty Initiative Foundation, also called Liberty Initiative Fund, and Citizens in Charge.²⁰ Liberty Initiative Fund and/or Citizens in Charge have been involved in challenging residency requirements in Nebraska and Ohio, Liberty Initiative Fund has provided funding to get measures on ballots in various states, and Citizens in Charge has provided funding to assist with various lawsuits.²¹ In October or November of 2017, Jacob discussed the idea of a citizen voting initiative with Tim Mooney ("Mooney"). Mooney is a political consultant from Arizona, who owns a political consulting firm called Silver Bullet, which is incorporated in Wyoming.²² Jacob and Mooney discussed potential states that would be ideal for bringing forward such an initiative; they identified Montana as a state where the measure might be successful.²³ In late February or early March of 2018, Jacob discussed the citizen voting initiative with Montana attorney, Chris Gallus, and it was determined Montana would potentially be a good state to bring the constitutional measure forward.²⁴

Jacob came to Montana in March of 2018 to secure a committee of people that could push the Montanans for Citizen Voting initiative forward.²⁵ Jeff Essman and Nels Swandal were recruited to be part of the effort; Swandal was made the lead petitioner.²⁶ Jacob identified potential volunteers for the petition drive.²⁷

Jacob solicited bids for the petition drive. One of the bids was from Chuck Denowh, with Advanced Micro Targeting ("AMT"), a voter contact firm based in Texas.²⁸ The other...