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Opinion 97058

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




Introduction




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

petition papers.




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

three courts.




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

process.




. . .




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

Nebraskans.




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

requirement.




. . .




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

1895.




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.

Constitution.




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

three reasons.




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

referendum petitions.




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

cases:




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.




Id.




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

requirement.




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.




Sincerely,

DON STENBERG

Attorney General




Steve Grasz

Deputy Attorney General