Independence Institute v. Gessler
United States District Court for the District of Colorado
936 F. Supp. 2d 1256 (2013)

- Written by Joe Cox, JD
Facts
Colorado passed a statute limiting compensation of ballot-initiative petition circulators per signature or petition-section signing to not more than 20 percent of the circulators’ total pay. This statute went afoul of various parties involved in the petition-circulation process, and a group of those parties including Independence Institute (collectively, Independence Institute) (plaintiffs) filed suit challenging the so-called hybrid-payment limitation, arguing that the restriction was an impermissible restriction under the First Amendment of free political speech. The state, through Colorado Secretary of State Scott Gessler (defendant), defended the restrictions as necessary based on the state’s interest in avoiding fraudulent petition activity. An extensive amount of evidence was entered into the record. Testimony indicated that the pool of petition circulators tended to be either (1) low-volume, high-validity professionals who obtained few signatures and essentially circulated petitions as an additional income source; (2) medium-volume professionals who usually worked part-time and averaged 15 to 30 signatures per hour; and (3) high-volume itinerant professionals who traveled from state to state in search of their primary income from petition circulation. The petition industry required at least a week or two to train new workers, and most trainees did not become effective petition circulators. Additionally, evidence indicated that most itinerant professionals would avoid working in Colorado under the hybrid model because they could earn more money elsewhere. In such an environment, more workers would be required by those attempting to circulate petitions, and the work would be less efficient. A total cost increase of at least 18 percent would be expected under the hybrid model. Additional evidence was entered regarding validity rates, most of which seemed to indicate little to no impact on validity between pay-per-hour and pay-per-signature workers. However, most of the petitions with lower validity rates were not connected with itinerant professional circulators or fraud but were often the rest of new circulators learning the details of the job. The government argued that the incentive to commit fraud would be stronger under a pay-per-signature model, and that this justified a minimal impact upon free-political-speech rights. Independence Institute argued that the limitation should be considered through the lens of strict scrutiny and should fail.
Rule of Law
Issue
Holding and Reasoning (Brimmer, J.)
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