We the People PAC v. Bellows

512 F.Supp.3d 74

WE THE PEOPLE PAC, et al., Plaintiffs,

v.Shenna BELLOWS, in her official capacity as the Secretary of State of Maine, et al., Defendants.

1:20-cv-00489-JAW

United States District Court, D. Maine.

Signed January 11, 2021

Paul A. Rossi, Pro Hac Vice, IMPG Advocates, Mountville, PA, Stephen C. Whiting, The Whiting Law Firm, Portland, ME, for Plaintiffs.

Phyllis Gardiner, Jason Anton, Office of the Attorney General, Augusta, ME, for Defendants.

ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

A political action committee, an out-of-state professional petition circulator, a Maine State representative, and a non-profit organization filed a complaint against the state of Maine Secretary of State, seeking declaratory and injunctive relief prohibiting on First Amendment grounds the Secretary of State from enforcing provisions of the Maine Constitution and Maine statutory law that restrict the circulation of ballot initiative petitions to petition circulators who are Maine residents and who are registered to vote in Maine. Even though the plaintiffs raised serious legal issues, because the caselaw in this area is nuanced, because the plaintiffs failed to provide a sufficient uncontested factual record, and because the plaintiffs delayed bringing this lawsuit, they failed to sustain their burden to demonstrate that they are likely to succeed on the merits of this claim and to show entitlement to emergency and extraordinary injunctive relief. Thus, the Court dismisses without prejudice the motion for a temporary restraining order.

I. BACKGROUND

A. Procedural Background

On December 31, 2020, We the People PAC, State Representative Billy Bob Faulkingham, Liberty Initiative Fund, and Nicholas Kowalski (Plaintiffs) filed a complaint against Matthew Dunlap,¹ in his official capacity as the Secretary of State of Maine, and Julie Flynn, in her official capacity as the Deputy Secretary of State of Maine for the Bureau of Corporations, Elections and Commissions (Defendants), seeking declaratory and injunctive relief prohibiting the Secretary of State from enforcing certain Maine State laws that regulate the circulation of ballot initiative petitions. Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl. ). That same day, the Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction (TRO), prohibiting enforcement of laws that require petition circulators to be Maine residents and be registered to vote in Maine. Pls.' Mot. for Emergency TRO and/or Prelim. Inj. (ECF No. 3); id. , Attach. 1, Pls.' Mem. of Law in Supp. of Their Mot. for TRO and/or Prelim. Inj. (Pls.' Mem. ). On January 6, 2021, the Court held a telephone conference of counsel with counsel for the Plaintiffs and the Defendants, at which the Court set deadlines for the Defendants to respond to the Plaintiffs' motion by the end of the day on January 8, 2021. Min. Entry (ECF No. 13). On January 8, 2021, the Defendants filed their response. Defs.' Opp'n to Pls.' Mot. for Emergency TRO (ECF No. 15) (Defs.' Opp'n ).² On January 9, 2021, the Plaintiffs filed a reply. Pls.' Reply to Defs.' Br. in Opp'n to Pls.' Mot. for TRO (ECF No. 17) (Pls.' Reply ).³

B. Factual Background

The Court recites this factual background from the Complaint and declarations submitted by the Plaintiffs and the Defendants.

1. The Parties

We the People PAC is a political action committee registered in Maine and is currently circulating a petition for an initiative of direct legislation prohibiting anyone who is not a citizen of the United States from voting in any election held within the state of Maine. Compl. ¶ 16. Liberty Initiative Fund is a 501(c)(4) nonprofit organization actively engaged in supporting the proposed ban on non-citizen voting in Maine. Id. ¶ 18. Liberty Initiative Fund is the original proponent of the effort to institute bans on non-citizen voting through state ballot initiatives and referenda and is supporting We the People PAC's efforts to collect signatures for the petition. Id.

State Representative Billy Bob Faulkingham is a Maine resident and member of the Maine House of Representatives currently representing the 136th state house district. Compl. ¶ 17. He is a member of We the People PAC and a proponent of We the People PAC's proposed non-citizen voting referendum. Id. ; Pls.' Mot. , Attach. 2, First Decl. of State Representative Billy Bob Faulkingham at ¶¶ 3-4 (Faulkingham Decl. ).

Nicholas Kowalski is a professional petition circulator who resides in the state of Michigan and would like to help circulate We the People PAC's petition in Maine. Compl. ¶ 19. Mr. Kowalski has circulated petitions in multiples states, including Michigan, Massachusetts, and California, and claims to have acquired unique skills, allowing him to "quickly screen-out unqualified signers, articulately communicate the substance of the petition and efficiently direct the potential signer on the correct method to properly sign the petition so that the signature will be counted as a valid signature." Pls.' Mot. , Attach. 3, First Decl. of Nicholas Kowalski at ¶¶ 3, 5 (Kowalski Decl. ).

The Maine Secretary of State is vested with authority to enforce the statutory provisions challenged in this action. Compl. ¶ 20; Defs.' Opp'n , Attach. 1, Decl. of Julie Flynn in Supp. of Defs.' Opp'n to Pls.' Mot. for TRO (pursuant to 28 U.S.C. § 1746 ) ¶ 4 (Flynn Decl. ). Although Matthew Dunlap was the Secretary of State at the time the Plaintiffs filed their Complaint and motion for TRO, Shenna Bellows is now the Maine Secretary of State and is automatically substituted for Mr. Dunlap. Compl. ¶ 20; see supra n.1. Julie Flynn is the Maine Deputy Secretary of State in charge of the Bureau of Corporations, Elections and Commissions—the office where Plaintiffs are required to file their petitions. Compl. ¶ 21; Flynn Decl. ¶¶ 3-4. In her official capacity, Ms. Flynn has supervisory responsibility for the review of all petitions for direct initiatives and people's veto referenda, as well as overseeing all statewide elections and administering the Maine election laws. Flynn Decl. ¶ 4.

2. The People's Veto and Direct Initiative Process in Maine

a. The Maine Constitution

The Maine Constitution "establishes three separate branches of government": "the legislative, executive and judicial." Avangrid Networks, Inc. v. Sec'y of State , 2020 ME 109, ¶ 24, 237 A.3d 882, 891 (quoting ME. CONST. art. III, § 1). "Legislative power is, at its core, the ‘full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to this Constitution, nor to that of the United States." Id. ¶ 27 (quoting ME. CONST. art. IV, pt. 3, § 1 ).

The Maine Constitution contains two provisions that limit the Maine Legislature's authority to legislate. See McGee v. Sec'y of State , 2006 ME 50, ¶ 20, 896 A.2d 933, 940 ; Farris ex rel. Dorsky v. Goss , 143 Me. 227, 231, 60 A.2d 908, 910 ("The right of the people, as provided by Article XXXI of the constitution, to enact legislation and approve or disapprove legislations enacted by the legislature is an absolute one and cannot be abridged directly or indirectly by any action of the legislature"). The first is the so-called "people's veto", ME. CONST. , art. IV, pt. 3, § 17, and the second the so-called "direct initiative", ME. CONST. , Art. IV, Pt. 3, § 18. The "people's veto" provides Maine citizens with a means to veto laws passed upon the conclusion of a legislative session. ME. CONST. , art. IV, pt. 3, § 17. The "direct initiative" process empowers Maine citizens with the right to directly propose legislation which, if the Maine Legislature does not adopt verbatim by the next legislative session, is placed on the general election ballot as a referendum to be considered by the voters for adoption. ME. CONST. , art. IV, pt. 3, § 18. See McGee , 2006 ME 50, ¶ 25, 896 A.2d 933 ("[S]ection 18 cannot be said merely to permit the direct initiative of legislation upon certain conditions. Rather, it reserves to the people the right to legislate by direct initiative if the constitutional conditions are satisfied") (emphasis in original).

To exercise the people's veto or direct initiative powers, a Maine citizen must file a valid petition with a sufficient number of signatures with the Secretary of State. Under the Maine Constitution, the number of signatures shall not be less than 10% of the total vote for Governor cast in the last gubernatorial election. ME. CONST. , art. IV, pt. 3, §§ 17 - 18. For a direct initiative, the petition must be addressed to the Legislature and filed in the office of the Secretary of State by 5:00 p.m. on or before the fiftieth day after convening of the Legislature in the first regular session, or on or before the twenty-fifth day after the date of convening of the Legislature in the second regular session. ME. CONST. , art. IV, pt. 3, § 18. From the issuance of the approved petition form, petitioners have eighteen months to collect the requisite number of signatures. Id.

The Maine Constitution defines a "circulator" as "a person who solicits signatures for written petitions." ME. CONST. , art. IV, pt. 3, § 20. Not just anyone can circulate a petition in Maine. The Maine Constitution requires a circulator be "a resident of this State and whose name must appear on the voting list of the city, town or plantation of the circulator's residence as qualified to vote for Governor." Id.

b. Maine Statutory Law

In addition to these constitutional provisions, the Maine Legislature has enacted statutes regulating this petition procedure. See 21-A M.R.S. §§ 901 et seq. Echoing the Maine constitutional provision, 21-A M.R.S. § 903-A states "[p]etitions issued under this chapter may be circulated by any Maine resident who is a registered voter acting as a circulator of a petition." To enforce this restriction, Maine law requires the...