AGO Opinion 97058
Constitutionality of Neb. Rev. Stat. § 32-1303(2), Requiring Recall Petition Circulators to be Registered Voters
DATE: November 5, 1997
SUBJECT: Constitutionality of Neb. Rev. Stat. § 32-1303(2), Requiring Recall Petition Circulators to be Registered Voters
REQUESTED BY: Secretary of State Scott Moore
WRITTEN BY: Don Stenberg, Attorney General
Steve Grasz, Deputy Attorney General
You have requested an Attorney General's Opinion concerning
the constitutionality of Neb. Rev. Stat. § 32-1303(2). This
statute regulates the circulation of recall petitions.
Specifically, you have inquired as to the status of this statute in
light of the court's decision in Bernbeck v. Moore, 936 F.Supp.
1543 (D.Neb. 1996).
Shortly after your opinion request was made, the United States
Court of Appeals for the Eighth Circuit affirmed the Bernbeck
decision. Bernbeck v. Moore, ___ F.3d ___, 1997 WL 629238 (8th
Cir. 1997). In addition, the Tenth Circuit Court of Appeals
recently addressed the validity of a Colorado statute requiring
initiative and referendum circulators to be registered voters.
American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3rd
1092 (10th Cir. 1997). Therefore, we will examine Neb. Rev. Stat.
§ 32-1303(2) in light of all these decisions.
Nebraska's Recall Petition Statute
Section 32-1303(2) requires that circulators of recall
petitions be registered voters. The statute specifically provides:
Petition circulators shall conform to the requirements of
sections 32-629 and 32-630. Each circulator of a recall
petition shall be a registered voter and qualified by his
or her place of residence to vote for the office in
question on the date of the issuance of the initial
Neb. Rev. Stat. § 32-1303(2) (Cum.Supp. 1996) (emphasis added).
No reported court decision has examined this specific Nebraska
statute. As a general rule of statutory construction, a statute is
presumed valid. Callan v. Balka, 248 Neb. 469, 481, 536 N.W.2d 47,
54 (1995). However, the validity of Section 32-1303(2)'s
requirement that recall petition circulators be registered voters
has clearly been called into question by recent decisions from
The Bernbeck Decision
The U.S. District Court for the District of Nebraska examined
Nebraska's voter registration requirement for initiative petition
circulators in Bernbeck v. Moore, 936 F.Supp. 1543 (D.Neb. 1996).
Because of its importance to the issue at hand, we will set forth
relevant portions of the District Court's decision at length:
As in Meyer [v. Grant 486 U.S. 414, 108 S.Ct. 1886
(1988)], I find and conclude that the statutory voter-
registration and related 30-day-waiting-period
restrictions on petition circulators reduce the
"available pool of circulators," 486 U.S. at 419, 108
S.Ct. at 1890, and "restrict political expression in two
ways." Id. at 422-23, 108 S.Ct. at 1892.
First, the restrictions "limit [ ] the number of
voices who will convey [the organizer's] message and the
hours they can speak and, therefore, limit [ ] the size
of the audience." Id. at 422-23, 108 S.Ct. at 1892.
. . .
Second, the restrictions "make [ ] it less likely
that [the organizers] will garner the number of
signatures necessary to place the matter on the ballot,
thus limiting their ability to make the matter the focus
of statewide discussion.
. . .
While Nebraska law gives the right to sign petitions
to those who are registered to vote (at the time the
petitions are turned in) and that restriction is not
challenged here, Nebraska's constitution gives the right
to circulate petitions to the "people," without any
limitation on whether they are registered to vote or
residents of Nebraska. Neb. Const. art. III, §§ 1, 2, 4.
Thus, there is no "compelling governmental interest"
in preventing someone like Dobrovolny, a rancher from
remote Atkinson, Nebraska from hiring nonvoters (wherever
their residence) to help him circulate petitions. The
asserted governmental interest is not "compelling"
because Nebraska's "self-executing" constitution imposes
no such limitation on Nebraskans like Dobrovolny or
petition circulators in general. And, as indicated
earlier, the Nebraska legislature has no legitimate power
to limit the state constitutional right to the initiative
. . .
Circulating a petition is much more like political
campaigning than it is voting for two reasons. First, a
circulator must persuade a Nebraskan to place his or her
signature on a petition, and even if the Nebraskan places
his or her signature on the petition, that signature is
not counted for any purpose until an impartial election
commissioner verifies the signature and determines the
signer is a registered voter. Second, the intent of the
petition circulator is to persuade the signer that the
measure is worthy of later consideration at the polls,
and the signer knows that he or she may sign a petition
yet vote against the measure when it comes time to cast
a ballot. Thus, what petition circulators primarily do
is promote discussion of political issues by and among
In no other case are Nebraskans who advocate or
oppose electoral measures prohibited from hiring or
recruiting people to help get their message out merely
because a prospective worker or volunteer is not
registered to vote.
. . . Prevention of signature fraud is indeed a
compelling governmental interest. Meyer, 486 U.S. at
426, 108 S.Ct. at 1894. However, there is no evidence
that registered voters are less likely to engage in
signature fraud than nonvoters, and in any event, other
provisions of Nebraska law are adequate to prevent
signature fraud without imposing a voter-registration
. . .
In summary, as in Meyer, Nebraska has many devices
for preventing signature fraud short of requiring
petition circulators to be registered voters. Such
devices include, but are not limited to, making signature
fraud a crime, requiring that each signature be verified
by election officials, requiring warnings on petitions,
and requiring circulator affidavits. Therefore, in the
absence of proof to the contrary (and there is none),
these "provisions seems adequate to the task of
minimizing the risk of improper conduct in the
circulation of a petition, especially since the risk of
fraud or corruption, or the appearance thereof, is more
remote at the petition stage of an initiative than at the
time of balloting." Meyer, 486 U.S. at 427, 108 S.Ct. at
Bernbeck v. Moore, 936 F.Supp. at 1561-1566. Thus, the District
Court concluded that Nebraska's voter registration requirement for
initiative and referendum petition circulators violated the U.S.
This decision was recently affirmed by the United States Court
of Appeals for the Eighth Circuit. Bernbeck v. Moore, ___ F.3d
___, 1997 WL 619238 (8th Cir. 1997). The Eighth Circuit stated,
"We agree with the district court that even if the interests
advanced by the State to support the registration requirement are
compelling, the law is not narrowly tailored to achieve those
interests." Id. at 3.
The Colorado Decision
In a case with many similarities to Bernbeck, a Colorado
statute requiring initiative and referendum circulators to be
registered voters was also recently invalidated. American
Constitutional Law Foundation, Inc. v. Meyer, 120 F.3rd 1092 (10th
Cir. 1997). The Colorado statute provided that "No section of a
petition for any initiative or referendum measure shall be
circulated by any person who is not a registered elector and at
least eighteen years of age at the time the section is circulated."
Id. at 1100 (quoting C.R.S.A. § 1-40-112(1)). In validating the
voter registration requirement the Tenth Circuit stated,
The registration requirement has a discriminatory
effect. It bars persons who are not registered voters
from circulating petitions, thereby excluding that group
of persons from participating in core political speech.
See Meyer, 486 U.S. at 421-22, 108 S.Ct. at 1981-92.
Colorado acknowledges there are at least 400,000
qualified but unregistered voters in the state. The
mandatory exclusion of unregistered circulators also
limits the number of voices to convey the proponent's
message, limiting the audience the proponents can reach
and making it less likely they will be able to gather the
required number of signatures to place a measure on the
ballot. Cf. Meyer, 486 U.S. at 422-23, 108 S.Ct. at
1892-93. Consequently, we apply exacting scrutiny.
Colorado fails to identify a compelling state
interest to which its registration requirement is
narrowly tailored. The state attempts to justify the
registration requirement by arguing it has a compelling
interest in ensuring circulators are residents so the
regulatory system may be more easily policed (the
secretary's authority to issue subpoenas to circulators
does not extend beyond Colorado's borders) and
circulators who violate the law may be more easily
prosecuted. Even if we assume the state's potentially
compelling interest in preserving the integrity of its
elections requires all circulators to be residents, a
question we need not decide, the registration requirement
is not narrowly tailored to ensure that circulators are
residents. Clearly, a large number of Colorado residents
are not registered voters. The state's asserted interest
could be more precisely achieved by simply imposing a
residency requirement for circulators. Because
Colorado's requirement that circulators be registered
voters is not narrowly tailored to a compelling state
interest, we find it unconstitutionally impinges on free
expression and reverse the district court.
Id. at 1100 (emphasis added).
Recall vs. Initiative
The Bernbeck and American Con. Law v. Meyer decisions, then,
clearly call into question the validity of Neb. Rev. Stat. § 32-
1303(2) which also requires petition circulators to be registered
voters. There is, however, a distinction between the voter
registration requirement which was at issue in Bernbeck and
American Con. Law and that contained in Neb. Rev. Stat. § 32-
1303(2) which should be considered. Bernbeck and American Con. Law
dealt with initiative petitions whereby citizens exercise their
constitutional right to participate in the legislative process.
Section 32-1303(2), on the other hand, deals with the recall of
elected officials. The question, then, is whether the distinction
between initiative petition circulation and recall petition
circulation affects the ability of the State to regulate the
process by requiring recall petition circulators to be registered
voters. The remainder of this section will explore this
distinction and its constitutional implications.
Initiating legislation is clearly different from recalling an
elected official. The question is whether this difference is
constitutionally significant in the context of the regulation of
petition circulators. We note that in Bernbeck, the District Court
distinguished the circulation of initiative petitions from the
circulation of petitions seeking ballot access for new political
parties. Bernbeck, 936 F.Supp. at 1565. The District Court's
discussion on this point was in response to arguments from counsel
for the Secretary of State and also from a previous Attorney
General's Opinion discussing the validity of voter registration
requirements for circulators and citing three cases upholding such
voter registration requirements.
The District Court in Bernbeck, however, declined to adopt
this reasoning. In doing so, the Court discussed the distinction
between initiative petition circulation and the circulation of
petitions seeking ballot access.
Finally, Moore asserts I should follow two ballot-
access cases that found voter-registration requirements
for petition circulators valid. See Merritt v. Graves,
702 F.Supp. 828 (D.Kan. 1988) (voter-registration
requirement for circulator of petition to put political
party on ballot was constitutional); Libertarian Party of
Neb. v. Beermann, 598 F.Supp. 57 (D.Neb. 1984) (portion
of statute governing formation of new political parties
requiring petition circulators to be registered voters
was constitutional). I decline to follow those cases for
First, the cases cited by Moore are categorically
different from this case. Both cases relied upon by
Moore are so-called "ballot-access" cases where a
political party sought access to the ballot. Ballot
access cases are very different from cases involving
initiative (or referendum) petitions where the objective
is not to help one political party at the expense of
another, but to change the law or propose a new law.
In both Merritt and Libertarian Party, the courts
recognized it was necessary to require a circulator to be
a registered voter because of the unique nature of
ballot-access cases. Both courts reasoned that requiring
a circulator to be a registered voter, therefore making
the individual easier to identify as a past supporter of
a particular political party, reduced the likelihood that
a bogus circulator (a Republican party stalwart for
example) would circulate a third-party petition (on
behalf of the Libertarian party perhaps) in order to harm
yet another party (possibly the Democrats). Merritt, 702
F.Supp. at 833-34; Libertarian Party, 598 F.Supp. at 64-
65. No such concern exists with regard to initiative or
Bernbeck, 936 F.Supp. at 1565 (emphasis added).
Overriding Free Speech Considerations
Although the District Court identified a distinction between
initiative petitions and other petitions (which could possibly be
used to defend § 32-1303(2)), the Court then went on to give two
additional reasons why the voter registration requirement at issue
in Bernbeck was invalid despite the Merritt and Libertarian Party
Second, although it was decided shortly after Meyer
[v. Grant], Merritt made no mention of the Meyer case,
and Libertarian Party was decided prior to Meyer. As a
result, neither judge had the benefit of Meyer.
Third, Merritt refused to apply "strict scrutiny,"
702 F.Supp. at 835, and while it is not entirely clear
what standard was applied in Libertarian Party, if
"strict scrutiny" was used, it was a much-relaxed version
of it. 598 F.Supp. at 65. As a result, neither judge
applied the rigorous scrutiny Meyer [v. Grant] demands.
Thus, although it would be possible to make a distinction
between recall petition circulation and initiative petition
circulation, the distinction does not overcome all the First
Amendment problems identified by the District Court. We conclude
that in light of the constitutional problems identified by the
District Court, as well as the Eighth Circuit's affirmation of the
District court's reasoning, Neb. Rev. Stat. § 32-1303(2) is doomed
to the same fate as the initiative petition circulator registration
As in Bernbeck, the circulation of a recall petition "involves
the type of interactive communication concerning political change
that is appropriately described as `core political speech.'"
Bernbeck, ___ F.3d ___, 1997 WL 619238 at 2. The registration
requirement limits the number of voices who will convey the recall
message, and the size of the audience they can reach. Id.
In addition, a court would likely find that other anti-fraud
protections are adequate to prevent fraud without a voter
registration requirement. Id. at 3. Finally, we take due note of
the Eighth Circuit's reference to the fact that nonregistered
voters can participate in political campaigns, including campaigns
opposing recall efforts. Id. Therefore, a court would not likely
find Neb. Rev. Stat. § 32-1303(2) to be narrowly tailored to serve
a compelling State interest, and would declare the statute
unconstitutional as violating the First Amendment of the
Constitution of the United States.
Deputy Attorney General