OCTOBER TERM, 1998
Syllabus
BUCKLEY, SECRETARY OF STATE OF COLORADO
v. AMERICAN
CONSTITUTIONAL LAW FOUNDATION, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 97-930. Argued October 14, 1998-Decided January 12, 1999
Colorado allows its citizens to make laws directly through
initiatives placed on election ballots. The complaint in this
federal action challenged six of the State's many controls on the
initiative-petition process. Plaintiffs-respondents, the American
Constitutional Law Foundation, Inc., and several individuals
(collectively, ACLF), charged that the following prescriptions of
Colorado's law governing initiative petitions violate the First
Amendment's freedom of speech guarantee: (1) the requirement that
petition circulators be at least 18 years old, Colo. Rev. Stat. §
1-40-112(1); (2) the further requirement that they be registered
voters, ibid.; (3) the limitation of the petition circulation
period to six months, § 1-40-108; (4) the requirement that petition
circulators wear identification badges stating their names, their
status as "VOLUNTEER" or "PAID," and if the latter, the name and
telephone number of their employer, § 1-40-112(2); (5) the
requirement that circulators attach to each petition section an
affidavit containing,
inter alia, the circulator's name and
address, § 1-40-111(2); and (6) the requirements that initiative
proponents disclose (a) at the time they file their petition, the
name, address, and county of voter registration of all paid
circulators, the amount of money proponents paid per petition
signature, and the total amount paid to each circulator, and (b) on
a monthly basis, the names of the proponents, the name and address
of each paid circulator, the name of the proposed ballot measure,
and the amount of money paid and owed to each circulator during the
month, § 1-40-121. The District Court struck down the badge
requirement and portions of the disclosure requirements, but upheld
the age, affidavit, and registration requirements, and the
six-month limit on petition circulation. The Tenth Circuit affirmed
in part and reversed in part. That court properly sought guidance
from this Court's recent decisions on ballot access, see,
e.
g.,
Timmons v.
Twin Cities Area New Party, 520 U. S. 351, and on
handbill distribution, see,
e. g.,
McIntyre v.
Ohio Elections Comm'n, 514 U. S. 334. The Tenth
Circuit upheld, as reasonable regulations of the ballotinitiative
process, the age restriction, the six-month limit on petition
circulation, and the affidavit requirement. The court struck down
the
183
requirement that petition circulators be registered voters, and
also held portions of the badge and disclosure requirements invalid
as trenching unnecessarily and improperly on political expression.
This Court agreed to review the Court of Appeals dispositions
concerning the registration, badge, and disclosure requirements.
See 522 U. S. 1107.
Precedent guides this review. In
Meyer v.
Grant,
486 U. S. 414,
this Court struck down Colorado's prohibition of payment for the
circulation of ballot-initiative petitions, concluding that
petition circulation is "core political speech" for which First
Amendment protection is "at its zenith."
Id., at 422, 425.
This Court has also recognized, however, that "there must be a
substantial regulation of elections if they are to be fair and
honest and if some sort of order ... is to accompany the democratic
processes."
Storer v.
Brown, 415 U. S. 724, 730; see
Timmons, 520 U. S., at 358;
Anderson v.
Celebrezze, 460 U. S. 780, 788.
Held: The Tenth Circuit correctly separated necessary or
proper ballotaccess controls from restrictions that unjustifiably
inhibit the circulation of ballot-initiative petitions. Pp.
191-205.
(a) States have considerable leeway to protect the integrity and
reliability of the ballot-initiative process, as they have with
respect to election processes generally. "[N]o litmus-paper test"
will separate valid ballot-access provisions from invalid
interactive speech restrictions, and this Court has come upon "no
substitute for the hard judgments that must be made."
Storer, 415 U. S., at 730. But the First Amendment requires
vigilance in making those judgments, to guard against undue
hindrances to political conversations and the exchange of ideas.
See
Meyer, 486 U. S., at 421. The Court is satisfied that,
as in
Meyer, the restrictions in question significantly
inhibit communication with voters about proposed political change,
and are not warranted by the state interests (administrative
efficiency, fraud detection, informing voters) alleged to justify
those restrictions. This judgment is informed by other means
Colorado employs to accomplish its regulatory purposes. Pp.
191-192.
(b) Beyond question, Colorado's registration requirement
drastically reduces the number of persons, both volunteer and paid,
available to circulate petitions. That requirement produces a
speech diminution of the very kind produced by the ban on paid
circulators at issue in
Meyer. Both provisions "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."
Meyer, 486 U. S., at 422, 423.
The ease with which qualified voters may register to vote does
not lift the burden on speech at petition circulation time. There
are individuals for whom, as the trial record shows, the choice not
to register
184
Syllabus
implicates political thought and expression. The State's strong
interest in policing lawbreakers among petition circulators by
ensuring that circulators will be amenable to the Secretary of
State's subpoena power is served by the requirement, upheld below,
that each circulator submit an affidavit setting out, among several
particulars, his or her address. ACLF did not challenge Colorado's
right to require that all circulators be residents, a requirement
that more precisely achieves the State's subpoena service
objective. Assuming that a residence requirement would be upheld as
a needful integrity-policing measure-a question that this Court,
like the Tenth Circuit, has no occasion to decide because the
parties have not placed the matter of residence at issue-the added
registration requirement is not warranted. Pp. 192-197.
(c) The Tenth Circuit held the badge requirement invalid insofar
as it requires circulators to display their names. The District
Court found from evidence ACLF presented that compelling
circulators to wear identification badges inhibits participation in
the petitioning process. Colorado's interest in enabling the public
to identify, and the State to apprehend, petition circulators who
engage in misconduct is addressed by the requirement that
circulators disclose their names and addresses on affidavits
submitted with each petition section. Unlike a name badge worn at
the time a circulator is soliciting signatures, the affidavit is
separated from the moment the circulator speaks, when reaction to
the message is immediate and may be the most intense, emotional,
and unreasoned. Because the badge requirement compels personal name
identification at the precise moment when the circulator's interest
in anonymity is greatest, it does not qualify for inclusion among
"the more limited [election process] identification requirement[s]"
to which this Court alluded in
McIntyre, 514 U. S., at 353.
Like the Tenth Circuit, this Court expresses no opinion on the
constitutionality of the additional requirements that the badge
disclose whether the circulator is paid or volunteer, and if paid,
by whom. Pp. 197-200.
(d) The Tenth Circuit invalidated the requirement that
ballotinitiative proponents file a final report when the initiative
petition is submitted insofar as that requirement compels
disclosure of each paid circulator by name and address, and the
total amount paid to each circulator. That court also rejected
compelled disclosure in monthly reports of the name and address of
each paid circulator, and the amount of money paid and owed to each
circulator during the month in question. In ruling on these
disclosure requirements, the Court of Appeals looked primarily to
this Court's decision in
Buckley v.
Valeo, 424 U. S. 1. In
Buckley, the Court stated that "exacting scrutiny" is
necessary when compelled disclosure of campaign-related payments is
at issue, but nevertheless upheld, as substantially related to
important governmental
185
interests, the reporting and disclosure provisions of the
Federal Election Campaign Act of 1971. Mindful of
Buckley,
the Tenth Circuit did not upset Colorado's disclosure requirements
as a whole. Notably, the Court of Appeals upheld the State's
requirements for disclosure of pay
ors, in particular,
proponents' names and the total amount they have spent to collect
signatures for their petitions. Disclosure of the names of
initiative sponsors, and the amounts they have spent to gather
support for their initiatives, responds to Colorado's substantial
interest in controlling domination of the initiative process by
affluent special interest groups. The added benefit of revealing
the names of paid circulators and amounts paid to each circulator,
the lower courts fairly determined from the record as a whole, has
not been demonstrated. This Court expresses no opinion whether
other monthly report prescriptions regarding which the Tenth
Circuit identified no infirmity would, standing alone, survive
review. Pp.201-204.
(e) Through less problematic measures, Colorado can and does
meet the State's substantial interest in regulating the
ballot-initiative process. To deter fraud and diminish corruption,
Colorado retains an arsenal of safeguards. To inform the public
about the source of funding for ballot initiatives, the State
legitimately requires sponsors of ballot initiatives to disclose
who pays petition circulators, and how much. To ensure grass roots
support, Colorado conditions placement of an initiative proposal on
the ballot on the proponent's submission of valid signatures
representing five percent of the total votes cast for all
candidates for Secretary of State at the previous general election.
Furthermore, in aid of efficiency, veracity, or clarity, Colorado
has provided for an array of process measures not contested here by
ACLF. Pp. 204-205.
120 F.3d
1092, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which
STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined. THOMAS, J.,
filed an opinion concurring in the judgment,
post, p. 206.
O'CONNOR, J., filed an opinion concurring in the judgment in part
and dissenting in part, in which BREYER, J., joined,
post,
p. 215. REHNQUIST, C. J., filed a dissenting opinion,
post,
p. 226.
Gale A. Norton, Attorney General of Colorado, argued the
cause for petitioner. With her on the briefs were
Richard A.
Westfall, Solicitor General, and
Maurice G.
Knaizer, Deputy Attorney General.
Neil D. O'Toole argued the cause for respondents. With
him on the brief for respondents American Constitutional
186
Law Foundation, Inc., et al. was
John A. Sbarbaro. Kerry
S.
Hada filed a brief for respondents David Aitken et al.
Bill Orr, respondent,
pro se, and
Mr. O'Toole
filed a brief.*
JUSTICE GINSBURG delivered the opinion of the Court. Colorado
allows its citizens to make laws directly through initiatives
placed on election ballots. See Colo. Const., Art. V, §§ 1(1), (2);
Colo. Rev. Stat. §§ 1-40-101 to 1-40-133 (1998). We review in this
case three conditions Colorado places on the ballot-initiative
process: (1) the requirement that initiative-petition circulators
be registered voters, Colo. Rev. Stat. § 1-40-112(1) (1998); (2)
the requirement that they wear an identification badge bearing the
circulator's name, § 1-40-112(2); and (3) the requirement that
proponents of an initiative report the names and addresses of all
paid circulators and the amount paid to each circulator, §
1-40-121.
Precedent guides our review. In
Meyer v.
Grant,
486 U. S. 414 (1988), we struck down Colorado's prohibition of
payment for the circulation of ballot-initiative petitions.
Petition circulation, we held, is "core political speech," because
it involves "interactive communication concerning political
change."
Id., at 422 (internal quotation marks omitted).
*Briefs of
amici curiae urging reversal were filed for
the State of Washington et al. by
Christine O.
Gregoire, Attorney General of Washington, and
Jean M.
Wilkinson and
William Berggren Collins, Assistant
Attorneys General, and by the Attorneys General for their
respective States as follows:
Bruce M. Botelho of Alaska,
Grant Woods of Arizona,
Daniel E. Lungren of
California,
Alan G.
Lance of Idaho,
Thomas J.
Miller of Iowa,
Carla J.
Stovall of Kansas,
Andrew Ketterer of Maine,
Mike Moore of Mississippi,
W A. Drew Edmondson of Oklahoma,
Betty D. Montgomery
of Ohio,
Hardy Myers of Oregon, and
Mark Barnett of
South Dakota; and for the Council of State Governments et al. by
Richard Ruda and
Ronald
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
David C.
Warren, Steven R. Shapiro, and
Mark Silverstein; and
for the Initiative & Referendum Institute by
Stephen J.
Safranek.
Barnaby W Zall filed a brief for National Voter Outreach,
Inc., as
amicus curiae.
187
First Amendment protection for such interaction, we agreed, is
"at its zenith."
Id., at 425 (internal quotation marks
omitted). We have also recognized, however, that "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 processes."
Storer v.
Brown,
415 U. S. 724,
730 (1974); see
Timmons v.
Twin Cities Area New
Party, 520 U. S.
351, 358 (1997);
Anderson v.
Celebrezze, 460 U. S. 780, 788
(1983). Taking careful account of these guides, the Court of
Appeals for the Tenth Circuit upheld some of the State's
regulations, but found the three controls at issue excessively
restrictive of political speech, and therefore declared them
invalid.
American Constitutional Law Foundation, Inc. v.
Meyer, 120 F.3d
1092 (1997). We granted certiorari, 522 U. S. 1107 (1998), and
now affirm that judgment.
I
The complaint in this action was filed in 1993 in the United
States District Court for the District of Colorado pursuant to 42
U. S. C. § 1983; it challenged six of Colorado's many controls on
the initiative-petition process. Plaintiffs, now respondents,
included American Constitutional Law Foundation, Inc., a nonprofit,
public interest organization that supports direct democracy, and
several individual participants in Colorado's initiative process.
In this opinion we refer to plaintiffs-respondents, collectively,
as ACLF.l
1 Individual plaintiffs included: David Aitken, who, as chairman
of the Colorado Libertarian Party, had organized the circulation of
several initiative petitions; Jon Baraga, statewide petition
coordinator for the Colorado Hemp Initiative; Craig Eley and Jack
Hawkins, circulators of petitions for the Safe Workplace Initiative
and Worker's Choice of Care Initiative; Lonnie Haynes, an
initiative-supporting member of ACLF; Alden Kautz, a circulator of
numerous initiative petitions; Bill Orr, executive director of ACLF
and a qualified but unregistered voter, who regularly participated
in the petition process and wanted to circulate petitions; and
William David Orr, a minor who wanted to circulate petitions. See
American Constitutional Law Foundation, Inc. v.
Meyer, 120 F.3d
1092, 1096-1097 (CAW 1997); Brief for Respondents David Aitken
et al. 2, 3, 5, 6.
188
ACLF charged that the following prescriptions of Colorado's law
governing initiative petitions violate the First Amendment's
freedom of speech guarantee: (1) the requirement that petition
circulators be at least 18 years old, Colo. Rev. Stat. §
1-40-112(1) (1998);2 (2) the further requirement that they be
registered voters,
ibid.;3 (3) the limitation of the
petition circulation period to six months, § 1-40-108;4 (4) the
requirement that petition circulators wear identification badges
stating their names, their status as "VOLUNTEER" or "PAID," and if
the latter, the name and telephone number of their employer, §
1-40-112(2); 5 (5) the requirement that circulators attach to each
petition section 6 an affidavit con-
2 Section 1-40-112(1) provides:
"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."
3 To be a registered voter, one must reside in Colorado. See §
1-2101(1)(b). ACLF did not challenge the residency requirement in
this action.
4 Section 1-40-108(1) provides in relevant part:
"No petition for any ballot issue shall be of any effect unless
filed with the secretary of state within six months from the date
that the titles, submission clause, and summary have been fixed and
determined pursuant to the provisions of sections 1-40-106 and
1-40-107 .... "
5 Section 1-40-112(2) provides:
"(a) All circulators who are not to be paid for circulating
petitions concerning ballot issues shall display an identification
badge that includes the words 'VOLUNTEER CIRCULATOR' in bold-faced
type which is clearly legible and the circulator's name.
"(b) All circulators who are to be paid for circulating
petitions concerning ballot issues shall display an identification
badge that includes the words 'PAID CIRCULATOR' in bold-faced type
which is clearly legible, the circulator's name, and the name and
telephone number of the individual employing the circulator."
6 A petition section is a "bound compilation of initiative forms
... which ... include ... a copy of the proposed [ballot] measure;
... ruled lines numbered consecutively for registered electors'
signatures; and a final page that contains the affidavit required
by section 1-40-111(2)." § 1-40-102(6).
189
taining,
inter alia, the circulator's name and address
and a statement that "he or she has read and understands the laws
governing the circulation of petitions," § 1-40-111(2); 7 and (6)
the requirements that initiative proponents disclose (a) at the
time they file their petition, the name, address, and county of
voter registration of all paid circulators, the amount of money
proponents paid per petition signature, and the total amount paid
to each circulator, and (b) on a monthly basis, the names of the
proponents, the name and address of each paid circulator, the name
of the proposed ballot measure, and the amount of money paid and
owed to each circulator during the month, § 1-40-121.8
7 Section 1-40-111(2) provides:
"To each petition section shall be attached a signed, notarized,
and dated affidavit executed by the registered elector who
circulated the petition section, which shall include his or her
printed name, the address at which he or she resides, including the
street name and number, the city or town, the county, and the date
he or she signed the affidavit; that he or she has read and
understands the laws governing the circulation of petitions; that
he or she was a registered elector at the time the section of the
petition was circulated and signed by the listed electors; that he
or she circulated the section of the petition; that each signature
thereon was affixed in the circulator's presence; that each
signature thereon is the signature of the person whose name it
purports to be; that to the best of the circulator's knowledge and
belief each of the persons signing the petition section was, at the
time of signing, a registered elector; and that he or she has not
paid or will not in the future pay and that he or she believes that
no other person has paid or will pay, directly or indirectly, any
money or other thing of value to any signer for the purpose of
inducing or causing such signer to affix his or her signature to
the petition. The secretary of state shall not accept for filing
any section of a petition that does not have attached thereto the
notarized affidavit required by this section. Any signature added
to a section of a petition after the affidavit has been executed
shall be invalid."
8 Section 1-40-121 provides in relevant part:
"(1) The proponents of the petition shall file ... the name,
address, and county of voter registration of all circulators who
were paid to circulate any section of the petition, the amount paid
per signature, and the total
190
The District Court, after a bench trial,9 struck down the badge
requirement and portions of the disclosure requirements, but upheld
the age and affidavit requirements and the six-month limit on
petition circulation. See
American Constitutional Law
Foundation, Inc. v.
Meyer, 870 F. Supp. 995, 1001-1004
(Colo. 1994). The District Court also found that the registration
requirement "limits the number of persons available to circulate
... and, accordingly, restricts core political speech."
Id.,
at 1002. Nevertheless, that court upheld the registration
requirement. In 1980, the District Court noted, the registration
requirement had been adopted by Colorado's voters as a
constitutional amendment. See
ibid. For that reason, the
District Court believed, the restriction was "not subject to any
level of scrutiny."
Ibid.
The Court of Appeals affirmed in part and reversed in part. See
120 F.3d
1092 (CAlO 1997). That court properly sought guidance from our
recent decisions on ballot access, see,
e. g.,
Timmons v.
Twin Cities Area New Party, 520 U. S. 351 (1997), and
on handbill distribution, see
McIntyre v.
Ohio Elections
Comm'n, 514 U. S.
334 (1995). See 120 F. 3d, at 1097, 1103. Initiative-petition
circulators, the Tenth Circuit recognized, resemble handbill
distributors, in that both seek
amount paid to each circulator. The filing shall be made at the
same time the petition is filed with the secretary of state
....
"(2) The proponents of the petition shall sign and file monthly
reports with the secretary of state, due ten days after the last
day of each month in which petitions are circulated on behalf of
the proponents by paid circulators. Monthly reports shall set forth
the following:
"(a) The names of the proponents;
"(b) The name and the residential and business addresses of each
of the paid circulators;
"(c) The name of the proposed ballot measure for which petitions
are being circulated by paid circulators; and
"(d) The amount of money paid and owed to each paid circulator
for petition circulation during the month in question."
9 The record included evidence submitted in support of
cross-motions for summary judgment and at a bench trial. See
American Constitutional Law Foundation, Inc. v.
Meyer, 870 F. Supp. 995, 997 (Colo. 1994).
191
to promote public support for a particular issue or position.
See id., at 1103. Initiative-petition circulators also resemble
candidate-petition signature gatherers, however, for both seek
ballot access. In common with the District Court, the Tenth Circuit
upheld, as reasonable regulations of the ballot-initiative process,
the age restriction, the six-month limit on petition circulation,
and the affidavit requirement. See id., at 1098-1100, 1101.10 The
Court of Appeals struck down the requirement that petition
circulators be registered voters, and also held portions of the
badge and disclosure requirements invalid as trenching
unnecessarily and improperly on political expression. See id., at
1100, 1101-1105.
II
As the Tenth Circuit recognized in upholding the age
restriction, the six-month limit on circulation, and the affidavit
requirement, States allowing ballot initiatives have considerable
leeway to protect the integrity and reliability of the initiative
process, as they have with respect to election processes generally.
See Biddulph v. Mortham,
89 F.3d
1491,
10 The Tenth Circuit recognized that "age commonly is used as a
proxy for maturity," and that "maturity is reasonably related to
Colorado's interest in preserving the integrity of ballot issue
elections." 120 F. 3d, at 1101. Such a restriction, the Court of
Appeals said, need not satisfy "[e]xacting scrutiny," for it is
both "neutral" and "temporary"; it "merely postpones the
opportunity to circulate."
Ibid. As to the six-month limit,
the Court of Appeals observed that an orderly process requires time
lines; again without demanding "[e]laborate ... verification," the
court found six months a "reasonable window," a sensible,
"nondiscriminatory ballot access regulation."
Id., at 1099
(internal quotation marks omitted). Finally, the court explained
that the affidavit requirement properly responded to the State's
need to "'ensure that circulators, who possess various degrees of
interest in a particular initiative, exercise special care to
prevent mistake, fraud, or abuse in the process of obtaining
thousands of signatures of only registered electors throughout the
state.'''
Id., at 1099-1100 (quoting
Loonan v.
Woodley, 882 P. 2d 1380, 1388-1389 (Colo. 1994) (en bane)).
We denied ACLF's cross-petition regarding these issues. See 522 U.
S. 1113 (1998).
192
1494, 1500-1501 (CAll 1996) (upholding single subject and
unambiguous title requirements for initiative proposals to amend
Florida's Constitution), cert. denied, 519 U. S. 1151
(1997);
Taxpayers United For Assessment Cuts v.
Austin,
994 F.2d
291, 293-294, 296-297 (CA6 1993) (upholding Michigan procedures
for checking voters' signatures on initiative petitions).l1 We have
several times said "no litmus-paper test" will separate valid
ballot-access provisions from invalid interactive speech
restrictions; we have come upon "no substitute for the hard
judgments that must be made."
Storer, 415 U. S., at 730; see
Timmons, 520 U. S., at 359;
Anderson, 460 U. S., at
789-790. But the First Amendment requires us to be vigilant in
making those judgments, to guard against undue hindrances to
political conversations and the exchange of ideas. See
Meyer, 486 U. S., at 421. We therefore detail why we are
satisfied that, as in
Meyer, the restrictions in question
significantly inhibit communication with voters about proposed
political change, and are not warranted by the state interests
(administrative efficiency, fraud detection, informing voters)
alleged to justify those restrictions.12 Our judgment is informed
by other means Colorado employs to accomplish its regulatory
purposes.
III
By constitutional amendment in 1980, see Colo. Const., Art. V, §
1(6), and corresponding statutory change the next
11 Nothing in this opinion should be read to suggest that
initiativepetition circulators are agents of the State. Although
circulators are subject to state regulation and are accountable to
the State for compliance with legitimate controls, see,
e.
g., Colo. Rev. Stat. §§ 1-40-111, 1-40-130 (1998), circulators act
on behalf of themselves or the proponents of ballot
initiatives.
12 Our 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." See
post, at 206 (THOMAS, J., concurring in
judgment).
193
year, see 1981 Colo. Sess. Laws, ch. 56, § 4, Colorado added to
the requirement that petition circulators be residents, the further
requirement that they be registered voters.13 Registration,
Colorado's Attorney General explained at oral argument,
demonstrates "commit[ment] to the Colorado law-making process," Tr.
of Oral Arg. 10, and facilitates verification of the circulator's
residence, see id., at 10, 14. Beyond question, Colorado's
registration requirement drastically reduces the number of persons,
both volunteer and paid, available to circulate petitions. We must
therefore inquire whether the State's concerns warrant the
reduction. See
Timmons, 520 U. S., at 358.
When this case was before the District Court, registered voters
in Colorado numbered approximately 1.9 million. At least 400,000
persons eligible to vote were not registered. See 2 Tr. 159
(testimony of Donetta Davidson, elections official in the Colorado
Secretary of State's office); 14 120 F. 3d, at 1100 ("Colorado
acknowledges there are at least 400,000 qualified but unregistered
voters in the state.").15
13 Colorado law similarly provides that only registered voters
may circulate petitions to place candidates on the ballot. See
Colo. Rev. Stat. § 1-4-905(1) (1998) (only "eligible elector" may
circulate candidate petitions); § 1-1-104(16) ("eligible elector"
defined as "registered elector").
14 Volume 1 of the trial transcript is reprinted in Pro-Se
Plaintiff's App. I in No. 94-1576 (CAlO), and is cited hereinafter
as 1 Tr. Volume 2 of the trial transcript is reprinted in Pro-Se
Plaintiff's App. II in No. 94-1576 (CAlO), and is cited hereinafter
as 2 Tr.
15 In fact, the number of unregistered but voter-eligible
residents in Colorado at the time of the trial may have been closer
to 620,000. See U. S. Dept. of Commerce, Bureau of Census,
Statistical Abstract of the United States 282 (1993) (Table
453).
More recent statistics show that less than 65 percent of the
voting-age population was registered to vote in Colorado in 1997.
See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract
of the United States 289 (1997) (Table 463). Using those more
recent numbers, Colorado's registration requirement would exclude
approximately 964,000 unregistered but voter-eligible residents
from circulating petitions. The proportion of
194
Trial testimony complemented the statistical picture.
Typical of the submissions, initiative proponent Paul Grant
testified: "Trying to circulate an initiative petition, you're
drawing on people who are not involved in normal partisan politics
for the most part .... [L]arge numbers of these people, our natural
support, are not registered voters." 1 Tr. 128.
As earlier noted, see
supra, at 190, the District Court
found from the statistical and testimonial evidence: "The record
does show that the requirement of registration limits the number of
persons available to circulate and sign [initiative] petitions and,
accordingly, restricts core political speech." 870 F. Supp., at
1002. Because the requirement's source was a referendum approved by
the people of Colorado, however, the District Court deemed the
prescription "not subject to any level of [judicial] scrutiny."
Ibid. That misjudgment was corrected by the Tenth Circuit:
"The voters may no more violate the United States Constitution by
enacting a ballot issue than the general assembly may by enacting
legislation." 120 F. 3d, at 1100.
The Tenth Circuit reasoned that the registration requirement
placed on Colorado's voter-eligible population produces a speech
diminution of the very kind produced by the ban on paid circulators
at issue in
Meyer. See 120 F. 3d, at 1100. We agree. The
requirement that circulators be not merely voter eligible, but
registered voters, it is scarcely debatable given the uncontested
numbers, see
supra, at 193, and n. 15, decreases the pool of
potential circulators as certainly as that pool is decreased by the
prohibition of payment to circulators.16 Both provisions "limi[t]
the number of voices who
voter-eligible but unregistered residents to registered
residents in Colorado is not extraordinary in comparison to those
proportions in other States. See generally ibid.
16 Persons eligible to vote, we note, would not include
"convicted drug felons who have been denied the franchise as part
of their punishment," see
post, at 229 (REHNQUIST, C. J.,
dissenting), and could similarly be
195
will convey [the initiative proponents'] message" and,
consequently, cut down "the size of the audience [proponents] can
reach."
Meyer, 486 U. S., at 422, 423; see
Bernbeck
v.
Moore, 126 F.3d
1114, 1116
(CA8 1997) (quoting
Meyer); see also
Meyer, 486 U. S., at 423 (stating, further, that the
challenged restriction reduced the chances that initiative
proponents would gather signatures sufficient in number to qualify
for the ballot, and thus limited proponents' "ability to make the
matter the focus of statewide discussion"). In this case, as in
Meyer, the requirement "imposes a burden on political
expression that the State has failed to justify."
Id., at
428.
Colorado acknowledges that the registration requirement limits
speech, but not severely, the State asserts, because "it is
exceptionally easy to register to vote." Reply Brief 5, 6; see
Brief for Petitioner 30-31. The ease with which qualified voters
may register to vote, however, does not lift the burden on speech
at petition circulation time. Of course there are individuals who
fail to register out of ignorance or apathy. See
post, at
219-220 (O'CONNOR, J., concurring in judgment in part and
dissenting in part). But there are also individuals for whom, as
the trial record shows, the choice not to register implicates
political thought and expression. See 1 Tr. 14 (testimony of
ballot-initiative organizer Jack
barred from circulating petitions. The dissent's concern that
hordes of "convicted drug dealers,"
post, at 230, will swell
the ranks of petition circulators, unstoppable by legitimate state
regulation, is therefore undue. Even more imaginary is the
dissent's suggestion that if the merely voter eligible are included
among petition circulators, children and citizens of foreign lands
will not be far behind. See
post, at 231-232. This familiar
parade of dreadfuls calls to mind wise counsel: "Judges and lawyers
live on the slippery slope of analogies; they are not supposed to
ski it to the bottom." R. Bork, The Tempting of America: The
Political Seduction of the Law 169 (1990). That same counsel
applies to JUSTICE O'CONNOR'S floodgate fears concerning today's
decision, which, like
Meyer, separates petition circulators
from the proponents and financial backers of ballot initiatives.
See
post, at 226 (opinion concurring in judgment in part and
dissenting in part).
196
Hawkins). A lead plaintiff in this case, long active in
ballot-initiative support-a party no doubt" 'able and willing' to
convey a political message," cf.
post, at 219 (O'CONNOR, J.,
concurring in judgment in part and dissenting in part)-testified
that his refusal to register is a "form of ... private and public
protest." 1 Tr. 223 (testimony of William Orr, executive director
of ACLF). Another initiative proponent similarly stated that some
circulators refuse to register because "they don't believe that the
political process is responsive to their needs."
Id., at 58
(testimony of Jon Baraga). For these voter-eligible circulators,
the ease of registration misses the point.17
The State's dominant justification appears to be its strong
interest in policing lawbreakers among petition circulators.
Colorado seeks to ensure that circulators will be amenable to the
Secretary of State's subpoena power, which in these matters does
not extend beyond the State's borders. See Brief for Petitioner 32.
The interest in reaching law violators, however, is served by the
requirement, upheld below, that each circulator submit an affidavit
setting out, among several particulars, the "address at which he or
she resides, including the street name and number, the city or
town, [and] the county." Colo. Rev. Stat. § 1-40-111(2) (1998); see
supra, at 189, n. 7. This address attestation, we note, has
an immediacy, and corresponding reliability, that a voter's
registration may lack. The attestation is made at the time a
petition section is submitted; a voter's registration may lack that
currency.
17 JUSTICE O'CONNOR correctly observes that registration
requirements for primary election voters and candidates for
political office are "classic" examples of permissible regulation.
See
post, at 217 (opinion concurring in judgment in part and
dissenting in part). But the hired signature collector, as this
Court recognized in
Meyer, is in a notably different
category. When the Court unanimously struck down a ban on paying
persons to circulate petitions, it surely did not imply that the
State must therefore tolerate a private sponsor's hourly or
piecework payment of persons in exchange for their vote or
political candidacy.
197
ACLF did not challenge Colorado's right to require that all
circulators be residents, a requirement that, the Tenth Circuit
said, "more precisely achieved" the State's subpoena service
objective. 120 F. 3d, at 1100. Nor was any eligible-to-vote
qualification in contest in this lawsuit. Colorado maintains that
it is more difficult to determine who is a state resident than it
is to determine who is a registered voter. See Tr. of Oral Arg. 10,
14. The force of that argument is diminished, however, by the
affidavit attesting to residence that each circulator must submit
with each petition section.
In sum, assuming that a residence requirement would be upheld as
a needful integrity-policing measure-a question we, like the Tenth
Circuit, see 120 F. 3d, at 1100, have no occasion to decide because
the parties have not placed the matter of residence at issue-the
added registration requirement is not warranted. That requirement
cuts down the number of message carriers in the ballot-access arena
without impelling cause.
IV
Colorado enacted the prOVlSlon reqUIrmg initiativepetition
circulators to wear identification badges in 1993, five years after
our decision in
Meyer. 1993 Colo. Sess. Laws, ch. 183, §
1.18 The Tenth Circuit held the badge requirement invalid insofar
as it requires circulators to display their names. See 120 F. 3d,
at 1104. The Court of Appeals did not rule on the constitutionality
of other elements of the badge provision, namely, the "requirements
that the badge disclose whether the circulator is paid or a
volunteer, and if paid, by whom."
Ibid. Nor do we.
Evidence presented to the District Court, that court found,
"demonstrated that compelling circulators to wear iden-
18 Colorado does not require identification badges for persons
who gather signatures to place candidates on the ballot. See
generally Colo. Rev. Stat. § 1-4-905 (1998) (regulations governing
candidate-petition circulators).
198
tification badges inhibits participation in the petitioning
process." 870 F. Supp., at 1001. The badge requirement, a veteran
ballot-initiative-petition organizer stated, "very definitely
limited the number of people willing to work for us and the degree
to which those who were willing to work would go out in public." 1
Tr. 127 (testimony of Paul Grant).19 Another witness told of
harassment he personally experienced as circulator of a hemp
initiative petition. See 870 F. Supp., at 1001. He also testified
to the reluctance of potential circulators to face the
recrimination and retaliation that bearers of petitions on
"volatile" issues sometimes encounter: "[W]ith their name on a
badge, it makes them afraid." 1 Tr. 60 (testimony of Jon Baraga).
Other petition advocates similarly reported that "potential
circulators were not willing to wear personal identification
badges." 870 F. Supp., at 1001-1002.
Colorado urges that the badge enables the public to identify,
and the State to apprehend, petition circulators who engage in
misconduct. See Brief for Petitioner 36-37; Reply Brief 17. Here
again, the affidavit requirement, unsuccessfully challenged below,
see
supra, at 191, and n. 10, is responsive to the State's
concern; as earlier noted, see
supra, at 188-189, and n. 7,
each petition section must contain, along with the collected
signatures of voters, the circulator's name, address, and
signature. This notarized submission, available to law enforcers,
renders less needful the State's provision for personal names on
identification badges.
While the affidavit reveals the name of the petition circulator
and is a public record, it is tuned to the speaker's interest as
well as the State's. Unlike a name badge worn at the time a
circulator is soliciting signatures, the affidavit is separated
from the moment the circulator speaks. As the Tenth Circuit
explained, the name badge requirement "forces circu-
19 See 1 Tr. 133 (testimony of Paul Grant) ("I would not
circulate because I don't want to go to jail. And, I won't wear the
badge because I don't think it's right.").
199
lators to reveal their identities at the same time they deliver
their political message," 120 F. 3d, at 1102; it operates when
reaction to the circulator's message is immediate and "may be the
most intense, emotional, and unreasoned," ibid. The affidavit, in
contrast, does not expose the circulator to the risk of "heat of
the moment" harassment. Cf. 870 F. Supp., at 1004 (observing that
affidavits are not instantly accessible, and are therefore less
likely to be used "for such purposes as retaliation or
harassment").
Our decision in
McIntyre v.
Ohio Elections Comm'n,
514 U. S. 334 (1995), is instructive here. The complainant in
McIntyre challenged an Ohio law that prohibited the
distribution of anonymous campaign literature. The writing in
question was a handbill urging voters to defeat a ballot issue.
Applying "exacting scrutiny" to Ohio's fraud prevention
justifications, we held that the ban on anonymous speech violated
the First Amendment. See id., at 347, 357. "Circulating a petition
is akin to distributing a handbill," the Tenth Circuit observed in
the decision now before us. 120 F. 3d, at 1103. Both involve a
one-on-one communication. But the restraint on speech in this case
is more severe than was the restraint in
McIntyre. Petition
circulation is the less fleeting encounter, for the circulator must
endeavor to persuade electors to sign the petition. See Tr. of Oral
Arg. 21, 25-26. That endeavor, we observed in
Meyer, "of
necessity involves both the expression of a desire for political
change and a discussion of the merits of the proposed change." 486
U. S., at 421.
The injury to speech is heightened for the petition circulator
because the badge requirement compels personal name identification
at the precise moment when the circulator's interest in anonymity
is greatest. See 120 F. 3d, at 1102. For this very reason, the name
badge requirement does not qualify for inclusion among the "more
limited [election process] identification requirement[s]" to which
we alluded in
McIntyre. 514 U. S., at 353 ("We recognize
that a State's enforce-
200
ment interest might justify a more limited identification
requirement, but Ohio has shown scant cause for inhibiting the
leafletting at issue here."); see id., at 358 (GINSBURG, J.,
concurring). In contrast, the affidavit requirement upheld by the
District Court and Court of Appeals, which must be met only after
circulators have completed their conversations with electors,
exemplifies the type of regulation for which
McIntyre left
room.20
In sum, we conclude, as did the Court of Appeals, that
Colorado's current badge requirement discourages participation in
the petition circulation process by forcing name identification
without sufficient cause. We reiterate this qualification: In its
final observation, the Court of Appeals noted that ACLF's
"arguments and evidence focus[ed] entirely on [the circulator
identification] requirement"; therefore, that court expressed no
opinion whether the additional requirements-that the badge disclose
the circulator's paid or volunteer status, and if paid, by
whom-"would pass constitutional muster standing alone." 120 F. 3d,
at 1104. We similarly confine our decision.
20 As the Tenth Circuit observed, see 120 F. 3d, at 1101,
neither
Riley v.
National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988), nor
Martin v.
City of Struthers, 319 U. S. 141 (1943),
supports the name identification Colorado requires petition
circulators to wear.
Riley invalidated a North Carolina law
restricting solicitation of charitable contributions by
professional fundraisers.
Martin invalidated a city
ordinance prohibiting knocking on the door or ringing the doorbell
of any residence for the purpose of distributing literature. The
Court observed in
Riley that an unchallenged portion of the
disclosure law required professional fundraisers to disclose their
professional status, i.
e., their
employer's
name and address, to potential donors. 487 U. S., at 799, and n.
11. In dictum in
Martin, the Court noted that "a stranger in
the community" could be required to establish his identity and
authority to act for the cause he purports to represent. 319 U. S.,
at 148, n. 14 (internal quotation marks omitted). Neither case
involved a name badge requirement or any other specification that
the solicitor's personal name be revealed. Nor was there in either
case a counterpart to the affidavit, which puts each petition
circulator's name and address on a public record.
201
v
Like the badge requirement, Colorado's disclosure provisions
were enacted
post-Meyer in 1993. See 1993 Colo. Sess. Laws,
ch. 183, § 1.21 The Tenth Circuit trimmed these provisions.
Colorado requires ballot-initiative proponents who pay circulators
to file both a final report when the initiative petition is
submitted to the Secretary of State, and monthly reports during the
circulation period. Colo. Rev. Stat. § 140-121 (1998), set out
supra, at 189-190, n. 8. The Tenth Circuit invalidated the
final report provision only insofar as it compels disclosure of
information specific to each paid circulator, in particular, the
circulators' names and addresses and the total amount paid to each
circulator. See 120 F. 3d, at 1104-1105. As modified by the Court
of Appeals decision, the final report will reveal the amount paid
per petition signature, and thus, effectively, the total amount
paid to petition circulators. See ibid.
The Court of Appeals next addressed Colorado's provision
demanding "detailed monthly disclosures." 120 F. 3d, at 1105. In a
concise paragraph, the court rejected compelled disclosure of the
name and addresses (residential and business) of each paid
circulator, and the amount of money paid and owed to each
circulator, during the month in question. See Colo. Rev. Stat. §§
1-40-121(2)(b), (d) (1998). The Court of Appeals identified no
infirmity in the required reporting of petition proponents' names,
or in the call for disclosure of proposed ballot measures for which
paid circulators were engaged. See §§ 1-40-121(2)(a), (c). We
express no opinion whether these monthly report prescriptions,
standing alone, would survive review.
In ruling on Colorado's disclosure requirements for paid
circulations, the Court of Appeals looked primarily to our
21 Colorado does not require similar disclosures for persons who
gather signatures to place candidates on the ballot. See generally
Colo. Rev. Stat. § 1-4-905 (1998) (regulations governing
candidate-petition circulators).
202
decision in
Buckley v.
Valeo, 424 U. S. 1 (1976)
(per
curiam). In that decision, we stated that "exacting scrutiny"
is necessary when compelled disclosure of campaign-related payments
is at issue. See id., at 64-65. We nevertheless upheld, as
substantially related to important governmental interests, the
recordkeeping, reporting, and disclosure provisions of the Federal
Election Campaign Act of 1971, 86 Stat. 3, as amended, 88 Stat.
1263, 2 U. S. C. § 431
et seq. (1970 ed., Supp. IV). See 424
U. S., at 66-68, 84. We explained in
Buckley that disclosure
provides the electorate with information "as to where political
campaign money comes from and how it is spent," thereby aiding
electors in evaluating those who seek their vote.
Id., at 66
(internal quotation marks omitted). We further observed that
disclosure requirements "deter actual corruption and avoid the
appearance of corruption by exposing large contributions and
expenditures to the light of publicity."
Id., at 67; see
also
Grosjean v.
American Press Co., 297 U. S. 233, 250 (1936)
(observing that an "informed public opinion is the most potent of
all restraints upon misgovernment").
Mindful of
Buckley, the Tenth Circuit did not upset
Colorado's disclosure requirements "as a whole." But see
post, at 233 (REHNQUIST, C. J., dissenting). Notably, the
Court of Appeals upheld the State's requirements for disclosure of
payors, in particular, proponents' names and the total
amount they have spent to collect signatures for their petitions.
See 120 F. 3d, at 1104-1105. In this regard, the State and
supporting
amici stress the importance of disclosure as a
control or check on domination of the initiative process by
affluent special interest groups. See Reply Brief 15 ("[T]here are
increasingly more initiatives that are the product of large monied
interests."); Brief for Council of State Governments et al. as
Amici Curiae 3 ("Today the initiative and referendum process
is dominated by money and professional firms."). Disclosure of the
names of initiative sponsors, and of the amounts they have spent
gathering
203
support for their initiatives, responds to that substantial
state interest. See 870 F. Supp., at 1003 ("What is of interest is
the payor, not the payees."); cf. this Court's Rule 37.6 (requiring
disclosure of "every person or entity ... who made a monetary
contribution to the preparation or submission of the brief").
Through the disclosure requirements that remain in place, voters
are informed of the source and amount of money spent by proponents
to get a measure on the ballot; in other words, voters will be told
"who has proposed [a measure]," and "who has provided funds for its
circulation." See
post, at 224 (O'CONNOR, J., concurring in
judgment in part and dissenting in part). The added benefit of
revealing the names of paid circulators and amounts paid to each
circulator, the lower courts fairly determined from the record as a
whole, is hardly apparent and has not been demonstrated.22
We note, furthermore, that ballot initiatives do not involve the
risk of
"quid pro quo" corruption present when money is paid
to, or for, candidates. See
Meyer, 486 U. S., at 427-428
(citing
First Nat. Bank of Boston v.
Bellotti,
435 U. S. 765,
790 (1978) ("The risk of corruption perceived in cases involving
candidate elections ... simply is not present in a popular vote on
a public issue."));
McIntyre, 514 U. S., at 352, n. 15. In
addition, as we stated in
Meyer, "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." 486
U. S., at 427. Finally, absent evidence to the contrary, "we are
not prepared to assume that a professional circulator-whose
qualifications for similar future assignments may
22JU8TICE O'CONNOR states that "[k]nowing the names of paid
circulators and the amounts paid to them [will] allo[w] members of
the public to evaluate the sincerity or, alternatively, the
potential bias of any circulator that approaches them."
Post, at 224 (opinion concurring in judgment in part and
dissenting in part). It is not apparent why or how this is so, for
the reports containing the names of paid circulators would be filed
with the Secretary of State and would not be at hand at the moment
the circulators "approac[h]."
204
well depend on a reputation for competence and integrityis any
more likely to accept false signatures than a volunteer who is
motivated entirely by an interest in having the proposition placed
on the ballot."
Id., at 426.23
In sum, we agree with the Court of Appeals appraisal:
Listing paid circulators and their income from circulation
"forc[es] paid circulators to surrender the anonymity enjoyed by
their volunteer counterparts," 120 F. 3d, at 1105; 24 no more than
tenuously related to the substantial interests disclosure serves,
Colorado's reporting requirements, to the extent that they target
paid circulators, "fai[l] exacting scrutiny," ibid.
VI
Through less problematic measures, Colorado can and does meet
the State's substantial interests in regulating the
ballot-initiative process. Colorado aims to protect the integrity
of the initiative process, specifically, to deter fraud
23 While testimony in the record suggests that "occasional fraud
in Colorado's petitioning process" involved paid circulators, it
does not follow like the night the day that "paid circulators are
more likely to commit fraud and gather false signatures than other
circulators." See
post, at 225 (O'CONNOR, J., concurring in
judgment in part and dissenting in part). Far from making any
ultimate finding to that effect, the District Court determined that
neither the State's interest in preventing fraud, nor its interest
in informing the public concerning the "financial resources ...
available to [initiative proponents]" or the "special interests"
supporting a ballot measure, is "significantly advanced by
disclosure of the names and addresses of each person paid to
circulate any section of [a] petition." 870 F. Supp., at 1003. Such
disclosure in proponents' reports, the District Court also
observed, risked exposing the paid circulators "to intimidation,
harassment and retribution in the same manner as the badge
requirement."
Ibid.
24 Because the disclosure provisions target only paid
circulators and require disclosure of the income from circulation
each receives, the disclosure reports are of course
"[d]istinguishable from the affidavit,"
post, at 221
(O'CONNOR, J., concurring in judgment in part and dissenting in
part), which must be completed by both paid and volunteer
circulators, and does not require disclosure of the amount paid
individually to a circulator.
205
and diminish corruption. See Brief for Petitioner 24, 42, 45;
Reply Brief 13, 14, 17. To serve that important interest, as we
observed in
Meyer, Colorado retains an arsenal of
safeguards. See 486 U. S., at 426-427; 120 F. 3d, at 1103, 1105;
see,
e. g., Colo. Rev. Stat. § 1-40-130(1)(b) (1998) (making
it criminal to forge initiative-petition signatures); § 1-40-132(1)
(initiative-petition section deemed void if circulator has violated
any provision of the laws governing circulation). To inform the
public "where [the] money comes from,"
Buckley, 424 U. S.,
at 66 (internal quotation marks omitted), we reiterate, the State
legitimately requires sponsors of ballot initiatives to disclose
who pays petition circulators, and how much. See
supra, at
202-203.
To ensure grass roots support, Colorado conditions placement of
an initiative proposal on the ballot on the proponent's submission
of valid signatures representing five percent of the total votes
cast for all candidates for Secretary of State at the previous
general election. Colo. Const., Art. V, § 1(2); Colo. Rev. Stat. §
1-40-109(1) (1998); see
Meyer, 486 U. S., at 425-426; 120 F.
3d, at 1105. Furthermore, in aid of efficiency, veracity, or
clarity, Colorado has provided for an array of process measures not
contested here by ACLF. These measures prescribe,
inter
alia, a single subject per initiative limitation, Colo. Rev.
Stat. § 1-40-106.5(1)(a) (1998), a signature verification method, §
1-40-116, a large, plainEnglish notice alerting potential signers
of petitions to the law's requirements, § 1-40-110(1), and the text
of the affidavit to which all circulators must subscribe, §
1-40-111(2).
***
For the reasons stated, we conclude that the Tenth Circuit
correctly separated necessary or proper ballot-access controls from
restrictions that unjustifiably inhibit the circulation of
ballot-initiative petitions. Therefore, the judgment of the Court
of Appeals is
Affirmed.
206
THOMAS, J., concurring in judgment
JUSTICE THOMAS, concurring in the judgment.
When considering the constitutionality of a state election
regulation that restricts core political speech or imposes "severe
burdens" on speech or association, we have generally required that
the law be narrowly tailored to serve a compelling state interest.
But if the law imposes "lesser burdens," we have said that the
State's important regulatory interests are generally sufficient to
justify reasonable, nondiscriminatory restrictions. The Court today
appears to depart from this now-settled approach. In my view,
Colorado's badge, registration, and reporting requirements each
must be evaluated under strict scrutiny. Judged by that exacting
standard, I agree with the majority that each of the challenged
regulations violates the First and Fourteenth Amendments, and
accordingly concur only in the judgment.
I
States, of course, must regulate their elections to ensure that
they are conducted in a fair and orderly fashion. See,
e. g.,
Timmons v.
Twin Cities Area New Party, 520 U. S. 351, 358
(1997);
Burdick v.
Takushi, 504 U. S. 428, 433
(1992). But such regulations often will directly restrict or
otherwise burden core political speech and associational rights. To
require that every voting, ballot, and campaign regulation be
narrowly tailored to serve a compelling interest "would tie the
hands of States seeking to assure that elections are operated
equitably and efficiently."
Ibid. Consequently, we have
developed (although only recently) a framework for assessing the
constitutionality, under the First and Fourteenth Amendments, of
state election laws. When a State's rule imposes severe burdens on
speech or association, it must be narrowly tailored to serve a
compelling interest; lesser burdens trigger less exacting review,
and a State's important regulatory interests are typically enough
to justify reasonable restrictions.
Timmons, supra, at
358-359;
Burdick,
207
supra, at 434;
Anderson v.
Celebrezze,
460 U. S. 780,
788790 (1983).
Predictability of decisions in this area is certainly important,
but unfortunately there is no bright line separating severe from
lesser burdens. When a State's election law directly regulates core
political speech, we have always subjected the challenged
restriction to strict scrutiny and required that the legislation be
narrowly tailored to serve a compelling governmental interest. See,
e. g., Burson v.
Freeman, 504 U. S. 191, 198 (1992)
(Tennessee law prohibiting solicitation of voters and distribution
of campaign literature within 100 feet of the entrance of a polling
place);
Brown v.
Hartlage, 456 U. S. 45, 53-54 (1982)
(Kentucky's regulation of candidate campaign promises);
First
Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 786 (1978)
(Massachusetts law prohibiting certain business entities from
making expenditures for the purpose of affecting referendum
votes).
Even where a State's law does not directly regulate core
political speech, we have applied strict scrutiny. For example, in
Meyer v.
Grant, 486 U. S. 414 (1988), we
considered a challenge to Colorado's law making it a felony to pay
initiative petition circulators. We applied strict scrutiny because
we determined that initiative petition circulation "of necessity
involves both the expression of a desire for political change and a
discussion of the merits of the proposed change."
Id., at
421. In
Citizens Against Rent Control! Coalition for Fair
Housing v.
Berkeley, 454 U. S. 290 (1981), we
subjected to strict scrutiny a city ordinance limiting
contributions to committees formed to oppose ballot initiatives
because it impermissibly burdened association and expression.
Id., at 294.
When core political speech is at issue, we have ordinarily
applied strict scrutiny without first determining that the State's
law severely burdens speech. Indeed, in
McIntyre v.
Ohio
Elections Comm'n, 514 U. S. 334 (1995), the
Court suggested that we only resort to our severe/lesser burden
208
THOMAS, J., concurring in judgment
framework if a challenged election law regulates "the mechanics
of the electoral process," not speech.
Id., at 345; but see
Eu v.
San Francisco County Democratic Central Comm.,
489 U. S. 214,
222-223 (1989) (first determining that California's prohibition on
primary endorsements by the official governing bodies of political
parties burdened speech and association and then applying strict
scrutiny). I suspect that when regulations of core political speech
are at issue it makes little difference whether we determine burden
first because restrictions on core political speech so plainly
impose a "severe burden."
When an election law burdens voting and associational interests,
our cases are much harder to predict, and I am not at all sure that
a coherent distinction between severe and lesser burdens can be
culled from them. For example, we have subjected to strict scrutiny
Connecticut's requirement that voters in any party primary be
registered members of that party because it burdened the
"associational rights of the Party and its members."
Tashjian v.
Republican Party of Conn., 479 U. S. 208, 217
(1986). We similarly treated California's laws dictating the
organization and composition of official governing bodies of
political parties, limiting the term of office of a party chair,
and requiring that the chair rotate between residents of northern
and southern California because they "burden[ed] the associational
rights of political parties and their members,"
Eu, supra,
at 231. In
Storer v.
Brown, 415 U. S. 724 (1974), we
applied strict scrutiny to California's law denying a ballot
position to independent candidates who had a registered affiliation
with a qualified political party within a year of the preceding
primary election, apparently because it "substantially" burdened
the rights to vote and associate.
Id., at 729, 736.1 And in
Nor-
1 Although we did not explicitly apply strict scrutiny in
Storer, we said that the State's interest was "not only
permissible, but compelling," and that the device the State chose
was "an essential part of its overall mechanism." 415 U. S., at
736.
209
man v.
Reed, 502 U. S. 279 (1992), we
determined that Illinois' regulation of the use of party names and
its law establishing signature requirements for nominating
petitions severely burdened association by limiting new parties'
access to the ballot, and held both challenged laws, as construed
by the State Supreme Court, unconstitutional because they were not
narrowly tailored.
Id., at 288-290, 294. By contrast, we
determined that Minnesota's law preventing a candidate from
appearing on the ballot as the choice of more than one party
burdened a party's access to the ballot and its associational
rights, but not severely, and upheld the ban under lesser scrutiny.
Timmons, 520 U. S., at 363. We likewise upheld Hawaii's
prohibition on write-in voting, which imposed, at most, a "very
limited" burden on voters' freedom of choice and association.
Burdick, 504 U. S., at 437.
II
Colorado argues that its badge, registration, and reporting
requirements impose "lesser" burdens, and consequently, each ought
to be upheld as serving important state interests. I cannot
agree.
A
The challenged badge requirement, Colo. Rev. Stat. § 140-112(2)
(1998), directly regulates the content of speech. The State
requires that all petition circulators disclose, at the time they
deliver their political message, their names and whether they were
paid or unpaid. Therefore, the regulation must be evaluated under
strict scrutiny. Moreover, the category of burdened speech is
defined by its contentColorado's badge requirement does not apply
to those who circulate candidate petitions, only to those who
circulate initiative or referendum proposals. See generally §
1-4-905 (candidate petition circulation requirements). Contentbased
regulation of speech typically must be narrowly tailored to a
compelling state interest. See,
e. g.,
Boos v.
210
THOMAS, J., concurring in judgment
Barry, 485
U. S. 312, 321 (1988). The State's dominant justification for
its badge requirement is that it helps the public to identify, and
the State to apprehend, petition circulators who perpetrate fraud.
Even assuming that this is a compelling interest, plainly, this
requirement is not narrowly tailored. It burdens all circulators,
whether they are responsible for committing fraud or not. In any
event, the State has failed to satisfy its burden of demonstrating
that fraud is a real, rather than a conjectural, problem. See
Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 664
(1994);
Colorado Republican Federal Campaign Comm. v.
Federal Election Comm'n, 518 U. S. 604, 647 (1996)
(THOMAS, J., concurring in judgment and dissenting in part).2
B
Although Colorado's registration requirement, Colo. Rev.
Stat. § 1-40-112(1) (1998), does not
directly regulate
speech, it operates in the same fashion that Colorado's prohibition
on paid circulators did in
Meyer-the requirement reduces the
voices available to convey political messages. We unanimously
concluded in
Meyer that initiative petition circulation was
core political speech. 486 U. S., at 421-422. Colorado's law making
it a felony to pay petition circulators burdened that political
expression, we said, because it reduced the number of potential
speakers. That reduction limited the size of the audience that
initiative proponents and circulators might reach, which in turn
made it less likely that initiative proposals would garner the
signatures necessary to qualify
2 The majority is correct to note,
ante, at 200, that the
Tenth Circuit declined to address whether Colorado's requirement
that the badge disclose whether a circulator is paid or a
volunteer, and if paid, the name and telephone number of the payer,
would be constitutionally permissible standing
alone.
Nevertheless, the District Court invalidated § 1-40112(2) in its
entirety,
American Constitutional Law Foundation, Inc. v.
Meyer, 870 F. Supp. 995, 1005 (Colo. 1994), and the Court of
Appeals affirmed that decision in full.
American Constitutional
Law Foundation, Inc. v.
Meyer, 120
F.3d 1092, 1096 (CAlO 1997).
211
for the ballot.
Id., at 422-423. I see no reason to
revisit our earlier conclusion. The aim of a petition is to secure
political change, and the First Amendment, by way of the Fourteenth
Amendment, guards against the State's efforts to restrict free
discussions about matters of public concern.3
Colorado primarily defends its registration requirement on the
ground that it ensures that petition circulators are residents,
which permits the State to more effectively enforce its election
laws against those who violate them.4 The Tenth Circuit assumed,
and so do I, that the State has a compelling interest in ensuring
that all circulators are residents. Even so, it is clear, as the
Court of Appeals decided, that the registration requirement is not
narrowly tailored. A large number of Colorado's residents are not
registered voters, as the majority points out,
ante, at 193,
and the State's asserted interest could be more precisely achieved
through a residency requirement.5
3 There is anecdotal evidence in the briefs that circulators do
not discuss the merits of a proposed change by initiative in any
great depth. Indeed, National Voter Outreach, Inc., an
amicus
curiae in support of respondents and, according to its
statement of interest, the largest organizer of paid petition
circulation drives in the United States, describes most
conversations between circulator and prospective petition signer as
"brief." Brief for National Voter Outreach, Inc., as
Amicus
Curiae 21. It gives an example of the typical conversation:
"'Here, sign this. It will really [tick off California Governor]
Pete Wilson.'''
Id., at 21, n. 17. In my view, the level of
scrutiny cannot turn on the content or sophistication of a
political message. Cf.
Colorado Republican Federal Campaign
Comm. v.
Federal Election Comm'n, 518 U. S. 604, 640 (1996)
("Even a pure message of support, unadorned with reasons, is
valuable to the democratic process").
4 Colorado's law requires that petition circulators be
registered electors, Colo. Rev. Stat. § 1-40-112(1) (1998), and
while one must reside in Colorado in order to be a registered
voter, § 1-2-101(1)(b), Colorado does not have a separate residency
requirement for petition circulators at this time.
5Whatever the merit of the views expressed by THE CHIEF JUSTICE,
post, at 227, 230 (dissenting opinion), the State did little
more than mention in passing that it had an interest in having its
own voters decide what issues should go on the ballot. See Brief
for Petitioner 31.
212
THOMAS, J., concurring in judgment
C
The District Court and the Court of Appeals both suggested that
by forcing proponents to identify paid circulators by name, the
reports made it less likely that persons would want to circulate
petitions. Therefore, both concluded, the reporting requirement had
a chilling effect on core political speech similar to the one we
recognized in
Meyer. American Constitutional Law Foundation,
Inc. v.
Meyer, 120 F. 3d 1092, 1096 (CAlO 1997);
American Constitutional Law Foundation, Inc. v.
Meyer, 870 F. Supp. 995, 1003 (Colo. 1994). The District
Court additionally determined that preparation of the required
monthly reports was burdensome for and involved additional expense
to those supporting an initiative petition.
Ibid.
In my view, the burdens that the reporting requirement imposes
on circulation are too attenuated to constitute a "severe burden"
on core political speech. However, "compelled disclosure, in
itself, can seriously infringe on privacy of association and belief
guaranteed by the First Amendment."
Buckley v.
Valeo,
424 U. S. 1, 64
(1976)
(per curiam). In
Buckley, because the
disclosure requirements of the Federal Election Campaign Act of
1971 encroached on associational rights, we required that they pass
a "strict test."
Id., at 66. The same associational
interests are burdened by the State's reporting requirements here,
and they must be evaluated under strict scrutiny.
Colorado argues that the "essential purpose" of the reports is
to identify circulators. Brief for Petitioner 44. It also claims
that its required reports are designed to provide "the press and
the voters of Colorado a more complete picture of how money is
being spent to get a measure on the ballot."
Ibid. Even
assuming that Colorado has a compelling interest in identifying
circulators, its law does not serve that interest. The State
requires that proponents identify only the names of
paid
circulators, not
all circulators. The interest in requiring
a report as to the money paid to each
213
circulator by name, as the majority points out,
ante, at
201, has not been demonstrated.
The State contends that its asserted interest in providing the
press and the electorate with information as to how much money is
spent by initiative proponents to advance a particular measure is
similar to the governmental interests in providing the electorate
with information about how money is spent by a candidate and where
it comes from, and in deterring actual corruption and avoiding the
appearance of corruption that we recognized in
Buckley,
supra, at 66-67. However, we have suggested that ballot
initiatives and candidate elections involve different
considerations.
Bellotti, 435 U. S., at 791-792 ("[T]he
people in our democracy are entrusted with the responsibility for
judging and evaluating the relative merits of conflicting arguments
.... [I]f there be any danger that the people cannot evaluate the
information and arguments advanced by [one source], it is a danger
contemplated by the Framers of the First Amendment"); see also
Citizens Against Rent Control, 454 U. S., at 296-298.
Indeed, we recognized in
Meyer that "the risk of improper
conduct ... is more remote at the petition stage of an initiative."
486 U. S., at 427. Similarly, I would think, at the very least, the
State's interest in informing the public of the financial interests
behind an initiative proposal is not compelling during the
petitioning stage.
As it stands after the lower court decisions, proponents must
disclose the amount paid per petition signature and the total
amount paid to each circulator, without identifying each
circulator, at the time the petition is filed. Monthly disclosures
are no longer required.6 Because the respondents did
6 The Court of Appeals did not specifically identify any
constitutional problem with the monthly reports to the extent that
they require disclosure of proponents' names and proposed ballot
measures for which persons were paid to circulate petitions. But
the District Court invalidated the entire monthly reporting
requirement, 870 F. Supp., at 1005, and the Court of Appeals
affirmed its decision in full. See 120 F. 3d, at 1096.
214
THOMAS, J., concurring in judgment
not sufficiently brief the question, I am willing to assume, for
purposes of this opinion, that Colorado's interest in having this
information made available to the press and its voters-before the
initiative is voted upon, but not during circulation-is compelling.
The reporting provision as modified by the courts below ensures
that the public receives information demonstrating the financial
support behind an initiative proposal before voting.
I recognize that in
Buckley, although the Court purported
to apply strict scrutiny, its formulation of that test was more
forgiving than the traditional understanding of that exacting
standard. The Court merely required that the disclosure provisions
have a "substantial relation," 424 U. S., at 64, to a "substantial"
government interest, id., at 68.7 (The majority appears to dilute
Buckley's formulation even further, stating that Colorado's
reporting requirement must be "substantially related to important
governmental interests."
Ante, at 202.) To the extent that
Buckley suggests that we should apply a relaxed standard of
scrutiny, it is inconsistent with our state election law cases that
require the application of traditional strict scrutiny whenever a
state law "severely burdens" association, and I would not adhere to
it. I would nevertheless decide that the challenged portions of
Colorado's disclosure law are unconstitutional as evaluated under
the
Buckley standard.
***
To conclude, I would apply strict scrutiny to each of the
challenged restrictions, and would affirm the judgment of
7 I have previously noted that the Court in
Buckley
seemed more forgiving in its review of the contribution provisions
than it was with respect to the expenditure rules at issue, even
though we purported to strictly scrutinize both.
Colorado
Republican, 518 U. S., at 640, n. 7 (THOMAS, J., concurring in
judgment and dissenting in part).
215
the Court of Appeals as to each of the three provisions before
us. As the majority would apply different reasoning, I concur only
in the Court's judgment.
JUSTICE O'CONNOR, with whom JUSTICE BREYER joins, concurring in
the judgment in part and dissenting in part.
Petition circulation undoubtedly has a significant political
speech component. When an initiative petition circulator approaches
a person and asks that person to sign the petition, the circulator
is engaging in "interactive communication concerning political
change."
Meyer v.
Grant, 486 U. S. 414, 422
(1988). It was the imposition of a direct and substantial burden on
this one-on-one communication that concerned us in
Meyer v.
Grant. To address this concern, we held in that case that
regulations directly burdening the one-on-one, communicative aspect
of petition circulation are subject to strict scrutiny.
Id.,
at 420.
Not all circulation-related regulations target this aspect of
petition circulation, however. Some regulations govern the
electoral process by directing the manner in which an initiative
proposal qualifies for placement on the ballot. These latter
regulations may indirectly burden speech but are a step removed
from the communicative aspect of petitioning and are necessary to
maintain an orderly electoral process. Accordingly, these
regulations should be subject to a less exacting standard of
review.
In this respect, regulating petition circulation is similar to
regulating candidate elections. Regulations that govern a candidate
election invariably burden to some degree one's right to vote and
one's right to associate for political purposes. Such restrictions
are necessary, however, "if [elections] are to be fair and honest."
Storer v.
Brown, 415 U. S. 724, 730
(1974). To allow for regulations of this nature without overly
burdening these rights, we have developed a flexible standard to
review regulations of the electoral process.
216
Opinion of O'CONNOR, J.
The Court succinctly described this standard in
Burdick
v.
Takushi, 504 U. S. 428 (1992):
"[W]hen [First and Fourteenth Amendment] rights are subjected to
severe restrictions, the regulation must be narrowly drawn to
advance a state interest of compelling importance. But when a state
election law provision imposes only reasonable, nondiscriminatory
restrictions upon the First and Fourteenth Amendment rights of
voters, the State's important regulatory interests are generally
sufficient to justify the restrictions." Id., at 434
(internal quotation marks and citations omitted).
Applying this test, in
Burdick, we upheld as reasonable
Hawaii's prohibition on write-in voting, holding that it imposed
only a limited burden upon the constitutional rights of voters. See
id., at 433-441. See also
Timmons v.
Twin Cities
Area New Party, 520 U. S. 351, 362-370
(1997) (upholding Minnesota law that banned fusion candidacies on
the ground that the State had asserted a "sufficiently weighty"
interest). The application of this flexible standard was not
without precedent. Prior to
Burdick, the Court applied a
test akin to rational review to regulations that governed only the
administrative aspects of elections. See
Rosario v.
Rockefeller, 410 U. S. 752, 756-762
(1973) (upholding requirement that voters enroll as members of a
political party prior to voting in a primary election on the ground
that the regulation did not impose an onerous burden and advanced a
legitimate state interest).
Under the
Burdick approach, the threshold inquiry is
whether Colorado's regulations directly and substantially burden
the one-on-one, communicative aspect of petition circulation or
whether they primarily target the electoral process, imposing only
indirect and less substantial burdens on communication. If the
former, the regulation should be subject to strict scrutiny. If the
latter, the regulation should be subject to review for
reasonableness.
217
I
I agree with the Court that requiring petition circulators to
wear identification badges, specifically name badges, see Colo.
Rev. Stat. § 1-40-112(2)(b) (1998), should be subject to, and
fails, strict scrutiny. Requiring petition circulators to reveal
their names while circulating a petition directly regulates the
core political speech of petition circulation. The identification
badge introduces into the one-on-one dialogue of petition
circulation a message the circulator might otherwise refrain from
delivering, and the evidence shows that it deters some initiative
petition circulators from disseminating their messages. Under the
logic of
Meyer, the regulation is subject to more exacting
scrutiny. As explained by the Court, see
ante, at 198-200,
Colorado's identification badge requirement cannot survive this
more demanding standard of review because the requirement is not
narrowly tailored to satisfy Colorado's interest in identifying and
apprehending petition circulators who engage in misconduct. I also
agree that whether Colorado's other badge requirement-that the
badges identify initiative petition circulators as paid or
volunteer-is constitutional is a question that the court below did
not resolve, and this issue is not properly before us. See
ante, at 197. Accordingly, like the Court, I do not address
it.
II
Unlike the majority, however, I believe that the requirement
that initiative petition circulators be registered voters, see
Colo. Rev. Stat. § 1-40-112(1) (1998), is a permissible regulation
of the electoral process. It is indeed a classic example of this
type of regulation. We have upheld analogous restrictions on
qualifications to vote in a primary election and on candidate
eligibility as reasonable regulations of the electoral process. See
Rosario v.
Rockefeller, supra, at 756-762 (upholding
qualifications to vote in primary);
Storer v.
Brown,
supra, at 728-737 (upholding candidate eligibility
218
Opinion of O'CONNOR, J.
requirement). As THE CHIEF JUSTICE observes, Colorado's
registration requirement parallels the requirements in place in at
least 19 States and the District of Columbia that candidate
petition circulators be electors, see
post, at 232, and the
requirement of many States that candidates certify that they are
registered voters. * Like these regulations, the registration
requirement is a neutral qualification for participation in the
petitioning process.
When one views the registration requirement as a neutral
qualification, it becomes apparent that the requirement only
indirectly and incidentally burdens the communicative aspects of
petition circulation. By its terms, the requirement does not
directly prohibit otherwise qualified initiative petition
circulators from circulating petitions. Cf.
Rosario v.
Rockefeller, supra, at 758 (holding that time limits on
enrollment in political parties did not violate the right of
association because individuals were not prohibited from enrolling
in parties). Moreover, as THE CHIEF JUSTICE illustrates in his
dissent, this requirement can be satisfied quite easily. See
post, at 228. The requirement, indeed, has been in effect in
Colorado since 1980, see
American Constitutional Law Foundation,
Inc. v.
Meyer, 870 F. Supp. 995, 999 (Colo. 1994), with
no apparent impact on the ability of groups to circulate petitions,
see 2 Tr. 159 (testimony of Donetta Davidson that the number of
initiative proposals placed on the ballot has increased over the
past few years).
In this way, the registration requirement differs from the
statute held unconstitutional in
Meyer. There, we reviewed a
statute that made it unlawful to pay petition circulators, see
Meyer v.
Grant, 486 U. S., at 417, and held that the
statute directly regulated and substantially burdened speech by
*See,
e. g., Va. Const., Art. V, § 3; Cal. Elec. Code
Ann. § 201 (West Special Pamphlet 1996); Ind. Stat. Ann. § 3-8-5-14
(1998); Mass. Gen. Laws Ann., ch. 53, § 9 (West Supp. 1998); Nev.
Rev. Stat. Ann. § 293.180 (1997); N. H. Rev. Stat. Ann. § 655:28
(1996); N. J. Stat. Ann. § 40:45-8 (West 1991); N. C. Gen. Stat. §
163-323 (Supp. 1997); Okla. Stat., Tit. 26, § 5-111 (1997).
219
excluding from petition circulation a class of actual
circulators that were necessary "to obtain the required number of
signatures within the allotted time."
Ibid. That is, the
statute directly silenced voices that were necessary, and "able and
willing" to convey a political message.
Id., at 422423, and
n. 6. In contrast, the registration requirement does not effect a
ban on an existing class of circulators or, by its terms, silence
those who are "able and willing" to circulate ballot initiative
petitions. Indeed, it does not appear that the parties to this
litigation needed unregistered but votereligible individuals to
disseminate their political messages. Cf. id., at 417.
The respondents have offered only slight evidence to suggest
that the registration requirement negatively affects the
one-on-one, communicative aspect of petition circulation. In
particular, the respondents argue that the registration requirement
burdens political speech because some otherwisequalified
circulators do not register to vote as a form of political protest.
See
ante, at 195-196. Yet the existence and severity of this
burden is not as clearly established in the record as the
respondents, or the Court, suggests.
For example, witness Jack Hawkins, whose testimony the Court
cites for the proposition that "the choice not to register
implicates political thought and expression," see
ante, at
195, did not testify that anyone failed to register to vote as a
political statement. He responded "[y]es, that's true" to the
leading question "are there individuals who would circulate your
petition who are non-registered voters because of their political
choice?" 1 Tr. 14. But he went on to explain this "political
choice" as follows:
"They have interesting views of why they don't want to register
to vote. They're under a misconception that they won't be called
for jury duty if they're not registered to vote and they're really
concerned about being a jurist, but in Colorado you can be a
jurist if you drive a car or pay taxes or anything else. So,
they're under a
220
Opinion of O'CONNOR, J.
misconception, but I can't turn them around on that."
Id., at 15-16 (emphasis added).
Likewise, witness Jon Baraga, who testified that some potential
circulators are not registered to vote because they feel the
political process is not responsive to their needs, see
ante, at 196, went on to testify that many of the same
people would register to vote if an initiative they supported were
placed on the ballot. See 1 Tr. 58. Considered as a whole, this
testimony does not establish that the registration requirement
substantially burdens alternative forms of political
expression.
Because the registration requirement indirectly and incidentally
burdens the one-on-one, communicative aspect of petition
circulation,
Burdick requires that it advance a legitimate
state interest to be a reasonable regulation of the electoral
process. Colorado maintains that the registration requirement is
necessary to enforce its laws prohibiting circulation fraud and to
guarantee the State's ability to exercise its subpoena power over
those who violate these laws, see
ante, at 196, two patently
legitimate interests. See,
e. g., Timmons v.
Twin Cities
Area New Party, 520 U. S., at 366
367; Schaumburg v.
Citizens for a Better Environment, 444 U. S. 620, 636-637
(1980). In the past, Colorado has had difficulty enforcing its
prohibition on circulation fraud, in particular its law against
forging petition signatures, because violators fled the State. See
2 Tr. 115 (testimony of Donetta Davidson). Colorado has shown that
the registration requirement is an easy and a verifiable way to
ensure that petition circulators fall under the State's subpoena
power. See Tr. of Oral Arg. 14; see also Appellee's Supplemental
App. in Nos. 94-1576 and 94-1581 (CAlO), p. 268 (describing
requirement that signatories be registered voters as necessary for
verification of signatures). For these reasons, I would uphold the
requirement as a reasonable regulation of Colorado's electoral
process.
221
III
Most disturbing is the Court's holding that Colorado's
disclosure provisions are partially unconstitutional. Colorado
requires that ballot-initiative proponents file two types of
reports: monthly reports during the period of circulation and a
final report when the initiative petition is submitted. See Colo.
Rev. Stat. § 1-40-121 (1998). The monthly reports must include the
names of paid circulators, their business and residential
addresses, and the amount of money paid and owed to each paid
circulator during the relevant month. See § 1-40-121(2). The final
report also must include the paid circulators' names and addresses,
as well as the total amount paid to each circulator. See §
1-40-121(1). The Tenth Circuit invalidated the reports to the
extent they revealed this information. See
ante, at 201. The
Court affirms this decision, without expressing an opinion on the
validity of the reports to the extent they reveal other
information, on the ground that forcing the proponents of ballot
initiatives to reveal the identities of their paid circulators is
tenuously related to the interests disclosure serves and
impermissibly targets paid circulators. See
ante, at 202203.
I, however, would reverse the Tenth Circuit on the ground that
Colorado's disclosure provision is a reasonable regulation of the
electoral process.
Colorado's disclosure provision is a step removed from the
one-on-one, communicative aspects of petition circulation, and it
burdens this communication in only an incidental manner. Like the
mandatory affidavit that must accompany every set of signed
petitions, the required disclosure reports "revea[l] the name of
the petition circulator and [are] public record[s] ... [, but are]
separated from the moment the circulator speaks," see
ante,
at 198. This characteristic indeed makes the disclosure reports
virtually indistinguishable from the affidavit requirement, which
the Court suggests is a permissible regulation of the electoral
process, see
ante, at 200, and similarly lessens any
chilling effect the reports might
222
Opinion of O'CONNOR, J.
have on speech, see
ante, at 198-199 (observing that
injury to speech is heightened when disclosure is made at the
moment of speech). If anything, the disclosure reports burden
speech less directly than the affidavits because the latter are
completed by the petition circulator, while the former are
completed by the initiative proponent and thus are a step removed
from petition circulation. In fact, the Court does not suggest that
there is any record evidence tending to show that such remote
disclosure will deter the circulation of initiative petitions. To
the extent the disclosure requirements burden speech, the burden
must be viewed as incremental and insubstantial in light of the
affidavit requirement, which also reveals the identity of
initiative petition circulators.
As a regulation of the electoral process with an indirect and
insignificant effect on speech, the disclosure provision should be
upheld so long as it advances a legitimate government interest.
Colorado's asserted interests in combating fraud and providing the
public with information about petition circulation are surely
sufficient to survive this level of review. These are among the
interests we found to be substantial in
Buckley v.
Valeo. See
424
U. S. 1, 67, 68 (1976)
(per curiam) (holding that the
Government has a substantial interest in requiring candidates to
disclose the sources of campaign contributions to provide the
electorate with information about "the interests to which a
candidate is most likely to be responsive," to "deter actual
corruption and avoid the appearance of corruption," and "to detect
violations of the contribution limitations"). Moreover, it is
scarcely debatable that, as a general matter, financial disclosure
effectively combats fraud and provides valuable information to the
public. We have recognized that financial disclosure requirements
tend to discourage those who are subject to them from engaging in
improper conduct, and that "[a] public armed with information ...
is better able to detect" wrongdoing. See
id., at 67; see
also
Grosjean v.
Amer-
223
ican Press Co., 297 U. S. 233, 250 (1936)
(observing that an "informed public opinion is the most potent of
all restraints upon misgovernment"). " 'Publicity is justly
commended as a remedy for social and industrial diseases. Sunlight
is said to be the best of disinfectants; electric light the most
efficient policeman.'''
Buckley v.
Valeo, supra, at
67, and n. 80 (quoting L. Brandeis, Other People's Money 62
(1933)). "[I]n the United States, for half a century compulsory
publicity of political accounts has been the cornerstone of legal
regulation. Publicity is advocated as an automatic regulator,
inducing self-discipline among political contenders and arming the
electorate with important information." H. Alexander & B.
Haggerty, The Federal Election Campaign Act: After a Decade of
Political Reform 37 (1981). " '[T]otal disclosure'" has been
recognized as the" 'essential cornerstone'" to effective campaign
finance reform, id., at 39, and "fundamental to the political
system," H. Alexander, Financing Politics: Money, Elections, and
Political Reform 164 (4th ed. 1992).
In light of these many and substantial benefits of disclosure,
we have upheld regulations requiring disclosure and reporting of
amounts spent by candidates for election, amounts contributed to
candidates, and the names of contributors, see
Buckley v.
Valeo, 424 U. S., at 60-84, while holding that the First
Amendment protects the right of the political speaker to spend his
money to amplify his speech, see id., at 44-59. Indeed, laws
requiring the disclosure of the names of contributors and the
amounts of their contributions are common to all States and the
Federal Government. See id., at 62-64 (describing disclosure
provisions of Federal Election Campaign Act of 1971); Alexander,
Financing Politics,
supra, at 135 ("All fifty states have
some disclosure requirements, and all except two [South Carolina
and Wyoming] call for both pre- and post-election reporting of
contributions and expenditures"). Federal disclosure laws were
first enacted in 1910, and early laws, like Colorado's current
provision, required the disclosure of the names of contributors and
the
224
Opinion of O'CONNOR, J.
recipients of expenditures. See
Buckley v.
Valeo,
424 U. S., at 61. Such public disclosure of the amounts and sources
of political contributions and expenditures assists voters in
making intelligent and knowing choices in the election process and
helps to combat fraud.
The recognized benefits of financial disclosure are equally
applicable in the context of petition circulation. Disclosure
deters circulation fraud and abuse by encouraging petition
circulators to be truthful and self-disciplined. See generally id.,
at 67. The disclosure required here advances Colorado's interest in
law enforcement by enabling the State to detect and to identify on
a timely basis abusive or fraudulent circulators. Moreover, like
election finance reporting generally, Colorado's disclosure reports
provide facts useful to voters who are weighing their options.
Members of the public deciding whether to sign a petition or how to
vote on a measure can discover who has proposed it, who has
provided funds for its circulation, and to whom these funds have
been provided. Knowing the names of paid circulators and the
amounts paid to them also allows members of the public to evaluate
the sincerity or, alternatively, the potential bias of any
circulator that approaches them. In other words, if one knows a
particular circulator is well paid, one may be less likely to
believe the sincerity of the circulator's statements about the
initiative proposal. The monthly disclosure reports are public
records available to the press and public, see Brief for Petitioner
44, are "contemporaneous with circulation,"
American
Constitutional Law Foundation, Inc. v.
Meyer, 120 F.3d
1092, 1105 (CAlO 1997), and are more accessible than the other
"masses of papers filed with the petitions," see 870 F. Supp., at
1004.
It is apparent from the preceding discussion that, to combat
fraud and to inform potential signatories in a timely manner,
disclosure must be made at the time people are being asked to sign
petitions and before any subsequent vote on a measure that
qualifies for the ballot. It is, indeed, during
225
this period that the need to deter fraud and to inform the
public of the forces motivating initiative petitions "is likely to
be at its peak ... ; [this] is the time when improper influences
are most likely to be brought to light."
Buckley v.
Valeo, supra, at 68, n. 82. Accordingly, the monthly
reports, which are disseminated during the circulation period and
are available to the press, see Brief for Petitioner 44, uniquely
advance Colorado's interests. The affidavit requirement is not an
effective substitute because the affidavits are not completed until
after all signatures have been collected and thus after the time
that the information is needed. See Colo. Rev. Stat. § 1-40-111(2)
(1998) ("Any signature added to a section of a petition after the
affidavit has been executed shall be invalid"). In addition, the
public's access to the affidavits is generally more restricted than
its access to monthly disclosure reports, for as the District Court
found, the public will have "greater difficulty in finding [the]
names and addresses [of petition circulators] in the masses of
papers filed with the petitions as compared with the monthly
reports." 870 F. Supp., at 1004.
To be sure, Colorado requires disclosure of financial
information about only paid circulators. But, contrary to the
Court's assumption, see
ante, at 203-204, this targeted
disclosure is permissible because the record suggests that paid
circulators are more likely to commit fraud and gather false
signatures than other circulators. The existence of occasional
fraud in Colorado's petitioning process is documented in the
record. See 2 Tr. 197-198 (testimony of retired FBI agent Theodore
P. Rosack); id., at 102, 104-116 (testimony of Donetta Davidson).
An elections officer for the State of Colorado testified that only
paid circulators have been involved in recent fraudulent activity,
see id., at 150-151 and 161 (testimony of Donetta Davidson); see
also id., at 197-198 (testimony of Theodore P. Rosack) (describing
recent investigation of fraud in which only paid circulators were
implicated). Likewise, respondent William C. Orr, the executive
226
director of the American Constitutional Law Foundation, Inc.,
while examining a witness, explained to the trial court that
"volunteer organizations, they're self-policing and there's not
much likelihood of fraud .... Paid circulators are perhaps
different."
Id., at 208-209.
Because the legitimate interests asserted by Colorado are
advanced by the disclosure provision and outweigh the incidental
and indirect burden that disclosure places on political speech, I
would uphold the provision as a reasonable regulation of the
electoral process. Colorado's interests are more than legitimate,
however. We have previously held that they are substantial. See
Buckley v.
Valeo, supra, at 67, 68. Therefore, even
if I thought more exacting scrutiny were required, I would uphold
the disclosure requirements.
Because I feel the Court's decision invalidates permissible
regulations that are vitally important to the integrity of the
political process, and because the decision threatens the
enforceability of other important and permissible regulations, I
concur in the judgment only in part and dissent in part.
CHIEF JUSTICE REHNQUIST, dissenting.
The Court today invalidates a number of state laws designed to
prevent fraud in the circulation of candidate petitions and to
ensure that local issues of state law are decided by local voters,
rather than by out-of-state interests. Because I believe that
Colorado can constitutionally require that those who circulate
initiative petitions
to registered voters actually
be
registered voters themselves, and because I believe that the
Court's contrary holding has wide-reaching implication for state
regulation of elections generally, I dissent.
I
Ballot initiatives of the sort involved in this case were a
central part of the Progressive movement's agenda for reform at the
turn of the 20th century, and were advanced as a means of limiting
the control of wealthy special inter-
227
ests and restoring electoral power to the voters. See,
e.
g., H. Croly, Progressive Democracy 236-237, 248-249, 254-255
(Transaction ed. 1998); H. Commager, The American Mind 338 (1950);
Persily, The Peculiar Geography of Direct Democracy, 2 Mich. L.
& Pol'y Rev. 11, 23 (1997). However, in recent years, the
initiative and referendum process has come to be more and more
influenced by out-of-state interests which employ professional
firms doing a nationwide business. See,
e. g., Lowenstein
& Stern, The First Amendment and Paid Initiative Petition
Circulators, 17 Hastings Const. L. Q. 175, 176 (1989); Broder,
Ballot Battle, Washington Post, Apr. 12, 1998, pp. A1, A6;
Slind-Flor, Election Result: Litigation over Propositions, National
Law Journal, Nov. 16, 1998, pp. A1, A8. The state laws that the
Court strikes down today would restore some of this initial purpose
by limiting the influence that such out-of-state interests may have
on the in-state initiative process. The ironic effect of to day's
opinion is that, in the name of the First Amendment, it strikes
down the attempt of a State to allow its own voters (rather than
out-of-state persons and political dropouts) to decide what issues
should go on the ballot to be decided by the State's registered
voters.
The basis of the Court's holding is that because the state laws
in question both (1) decrease the pool of potential circulators and
(2) reduce the chances that a measure would gather signatures
sufficient to qualify for the ballot, the measure is
unconstitutional under our decision in
Meyer v.
Grant, 486 U.
S. 414 (1988). See
ante, at 194-195.
Meyer, which
also dealt with Colorado's initiative regulations, struck down a
criminal ban on
all paid petition circulators. 486 U. S., at
428. But
Meyer did not decide that a State cannot impose
reasonable regulations on such circulation. Indeed, before today's
decision, it appeared that under our case law a State could have
imposed reasonable regulations on the circulation of initiative
petitions, so that some order could be established over the
inherently chaotic nature of
228
democratic processes. Cf.
Timmons v.
Twin Cities Area
New Party, 520 U.
S. 351, 358 (1997);
Burdick v.
Takushi, 504 U. S.
428, 433 (1992);
Storer v.
Brown, 415 U. S. 724, 730
(1974). Today's opinion, however, calls into question the validity
of
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. See
ante, at 194-195. It squarely holds that
a State may not limit circulators to registered voters, and
maintains a sphinx-like silence as to whether it may even limit
circulators to state residents.
II
Section 1-40-112(1) of Colorado's initiative petition law
provides that "[n]o 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." Colo. Rev. Stat. § 140-112(1) (1998).
This requirement is obviously intended to ensure that the people
involved in getting a measure placed on the ballot are the same
people who will ultimately vote on that measure-the electors of the
State. Indeed, it is difficult to envision why the State cannot do
this, but for the unfortunate dicta in
Meyer. The parties
agree that for purposes of this appeal there are 1.9 million
registered voters in Colorado, and that 400,000 persons eligible to
vote are not registered. See
ante, at 193. But registering
to vote in Colorado is easy-the only requirements are that a person
be 18 years of age or older on the date of the next election, a
citizen of the United States, and a resident of the precinct in
which the person will vote 30 days immediately prior to the
election. See Colo. Rev. Stat. § 1-2-101 (1998). The elector
requirement mirrors Colorado's regulation of candidate elections,
for which all delegates to county and state assemblies must be
registered electors, § 1-4-602(5), and
229
where candidates cannot be nominated for a primary election
unless they are registered electors, § 1-4-601(4)(a).
The Court, however, reasons that the restriction of circulation
to electors fails to pass scrutiny under the First Amendment
because the decision not to register to vote "implicates political
thought and expression."
Ante, at 195. Surely this can be
true of only a very few of the many residents who do not register
to vote, but even in the case of the few it should not invalidate
the Colorado requirement. Refusing to read current newspapers or to
watch television may have "First Amendment implications," but this
does not mean that a state university might not refuse to hire such
a person to teach a course in "today's media." The examples of
unregistered people who wish to circulate initiative petitions
presented by the respondents (and relied upon by the Court) are
twofold l-people who refuse to participate in the political process
as a means of protest, and convicted drug felons who have been
denied the franchise as part of their punishment. For example,
respondent Bill Orr, apparently the mastermind of this litigation,
argued before the District Court that "It's my form of ... private
and public protest. I don't believe that representative organs of
Government are doing what they're supposed to be doing." 1 Tr. 223.
And respondent Jon Baraga, a person affiliated with the "Colorado
Hemp Initiative," which seeks to legalize marijuana in Colorado,
testified that "there are a great many folks who are refused to
participate as registered voters in the political
1 The respondents also presented the example of children who
wished to circulate petitions. Indeed, one of the respondents in
this case-William David Orr-was a minor when this suit was filed
and was apparently included in the action to give it standing to
challenge the age restriction element of Colo. Rev. Stat. §
1-40-112(1) (1998). Because the Court of Appeals held that the age
restriction on petition circulation was constitutional, it is
unnecessary to point out the absurdity of the respondents' minority
argument.
230
process who would like to see our measure gain ballot status and
would like to help us do that."
Id., at 57.
Thus, the Court today holds that a State cannot require that
those who circulate the petitions to get initiatives on the ballot
be electors, and that a State is constitutionally required to
instead allow those who make no effort to register to
vote-political dropouts-and convicted drug dealers to engage in
this electoral activity. Although the Court argues that only those
eligible to vote may now circulate candidate petitions, there is no
Colorado law to this effect. Such a law would also be even harder
to administer than one which limited circulation to residents,
because eligible Colorado voters are that subset of Colorado
residents who have fulfilled the requirements for registration, and
have not committed a felony or been otherwise disqualified from the
franchise. A State would thus have to perform a background check on
circulators to determine if they are not felons. And one of the
reasons the State wished to limit petition circulation to electors
in the first place was that it is far easier to determine who is an
elector from who is a resident, much less who is "voter eligible."
2
In addition, the Court does not adequately explain what "voter
eligible" means. If it means "eligible to vote in the State for
which the petitions are circulating" (Colorado, in this case), then
it necessarily follows from today's holding that a State may limit
petition circulation to its own residents. I would not quarrel with
this holding. On the other hand, "voter eligible" could mean "any
person eligible to vote in any of the United States or its
territories." In this case,
2 The Court dismisses this state interest as "diminished," by
noting that the affidavit requirement identifies residents.
Ante, at 197. Yet even if the interest is diminished, it
surely is not eliminated, and it is curious that the Court relies
on the affidavit requirement to strike down the elector
requirement, but does not use it to preserve that part of the
disclosure requirements that also contain information duplicated by
the affidavits. Cf. Part V,
ante.
231
a State would not merely have to run a background check on
out-of-state circulators, but would also have to examine whether
the unregistered circulator had satisfied whatever are the criteria
for voter eligibility in his place of residence, be it Georgia or
Guam, Peoria or Puerto Rico.
State ballot initiatives are a matter of state concern, and a
State should be able to limit the ability to circulate initiative
petitions to those people who can ultimately vote on those
initiatives at the polls. If eligible voters make the conscious
decision not to register to vote on the grounds that they reject
the democratic process, they should have no right to complain that
they cannot circulate initiative petitions to people who
are
registered voters. And the idea that convicted drug felons who have
lost the right to vote under state law nonetheless have a
constitutional right to circulate initiative petitions scarcely
passes the "laugh test."
But the implications of today's holding are even more stark than
its immediate effect. Under the Court's interpretation of
Meyer, any ballot initiative regulation is unconstitutional
if it either diminishes the pool of people who can circulate
petitions or makes it more difficult for a given issue to
ultimately appear on the ballot. See
ante, at 194-195. Thus,
while to day's judgment is ostensibly circumscribed in scope, it
threatens to invalidate a whole host of historically established
state regulations of the electoral process in general. Indeed,
while the Court is silent with respect to whether a State can limit
initiative petition circulation to state residents, the implication
of its reading of
Meyer-that being unable to hire
out-of-state circulators would "limi[t] the number of voices who
will convey [the initiative proponents'] message,"
ante, at
194-195 (bracketing in original)-is that under today's decision, a
State cannot limit the ability to circulate issues of local concern
to its own residents.
May a State prohibit children or foreigners from circulating
petitions, where such restrictions would also limit the number of
voices who could carry the proponents' message
232
and thus cut down on the size of the audience the initiative
proponents could reach? Cf.
Meyer, 486 U. S., at 422-423.
And if initiative petition circulation cannot be limited to
electors, it would seem that a State can no longer impose an
elector or residency requirement on those who circulate petitions
to place candidates on ballots, either. At least 19 States plus the
District of Columbia explicitly require that candidate petition
circulators be electors,3 and at least one other State requires
that its petition circulators be state residents.4 Today's decision
appears to place each of these laws in serious constitutional
jeopardy.
III
As to the other two laws struck down by the Court, I agree that
the badge requirement for petition circulators is unconstitutional.
McIntyre v.
Ohio Elections Comm'n, 514 U. S. 334
(1995). I also find instructive, as the Court notes,
ante,
at 197, n. 18, that Colorado does not require such badges for those
who circulate candidate petitions. See generally Colo. Rev. Stat. §
1-4-905 (1998).
I disagree, however, that the First Amendment renders the
disclosure requirements unconstitutional. The Court affirms the
Court of Appeals' invalidation of only the portion of the law that
requires final reports to disclose information
3 See Ariz. Rev. Stat. Ann. § 16-315 (1996); Cal. Elec. Code
Ann. §8106(b)(4) (West 1996); Colo. Rev. Stat. § 1-4-905 (1998);
Conn. Gen. Stat. § 9-410 (Supp. 1998); D. C. Code Ann. §
1-1312(b)(2) (1992); Idaho Code §§ 34-626, 34-1807 (Supp. 1998);
Ill. Compo Stat., ch. 10, §§ 5/7-10, 5/8-8, 5/10-4 (Supp. 1998);
Kan. Stat. Ann. § 25-205(d) (1993); Mich. Compo Laws § 168.544c(3)
(Supp. 1998); Mo. Rev. Stat. § 115.325(2) (1997); Neb. Rev. Stat.
§32-630 (Supp. 1997); N. Y. Elec. Law §§6-132, 6-140, 6-204, 6-206
(McKinney 1998); Ohio Rev. Code Ann. § 3503.06 (1996); 25 Pa. Cons.
Stat. §2869 (1994); R. I. Gen. Laws § 17-23-12 (1996); S. D. Compo
Laws Ann. § 12-1-3 (1995); Va. Code Ann. §24.2-521 (Supp. 1998); W.
Va. Code § 3-5-23 (1994); Wis. Stat. § 8.40 (1996); Wyo. Stat. §
22-5-304 (1992).
4 See Ga. Code Ann. §§ 21-2-132(g)(3)(A), 21-2-170(d)(1) (1993
and Supp. 1997).
233
specific to each paid circulator-the name, address, and amount
paid to each. Important to the Court's decision is the idea that
there is no risk of
"quid pro quo" corruption when money is
paid to ballot initiative circulators, and that paid circulators
should not have to surrender the anonymity enjoyed by their
volunteer counterparts. I disagree with this analysis because,
under Colorado law,
all petition circulators must surrender
their anonymity under the affidavit requirement. Colorado law
requires that each circulator must submit an affidavit which must
include the circulator's "name, the address at which he or she
resides, including the street name and number, the city or town,
[and] the county." Colo. Rev. Stat. § 1-40-111(2) (1998). This
affidavit requirement was upheld by the Tenth Circuit as not
significantly burdening political expression,
American
Constitutional Law Foundation v.
Meyer, 120 F.3d
1092, 1099 (1997), and is relied upon by the Court in holding
that the registered voter requirement is unconstitutional. See
ante, at 196. The only additional piece of information for
which the disclosure requirement asks is thus the amount paid to
each circulator. Since even after today's decision the identity of
the circulators as well as the total amount of money paid to
circulators will be a matter of public record, see
ante, at
201, I do not believe that this additional requirement is
sufficient to invalidate the disclosure requirements as a whole.
They serve substantial interests and are sufficiently narrowly
tailored to satisfy the First Amendment.
IV
Because the Court's holding invalidates what I believe to be
legitimate restrictions placed by Colorado on the petition
circulation process, and because its reasoning calls into question
a host of other regulations of both the candidate nomination and
petition circulation process, I dissent.
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