ERO referendum petition saga: When are residency requirements permissible as restrictions on individuals performing political activity?

A few days ago I posted my analysis concluding that the City of Houston’s requirement that referendum petition circulators sign the petition themselves is likely unenforceable, because it’s unconstitutional to require a circulator to be a registered voter of the jurisdiction.  See Buckley v. Am. Const’l Law Found., 525 U.S. 182 (1999).  Charles Kuffner points out that in Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013), the Fifth Circuit upheld the Texas statute requiring “volunteer deputy registrars” (“VDRs”) to be Texas residents (and appointed as VDRs under a perfunctory statutory process), and wonders what gives. How are there different results in these similar circumstances?

It’s a smart point.  First, there is a distinction between a residency requirement and a requirement to be a registered voter.  Buckley has some discussion about how the registered-voter requirement may be more of a constitutional burden than a bare residency requirement, and in Voting for America the Fifth Circuit began by pointing out that a state residency requirement for petition circulators had been upheld by the Eighth Circuit.  See 732 F.3d at 389 (citing Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001)).  However, the plaintiffs challenging the voter registrar residency requirement argued that Buckley’s rule should apply to strike down the residency requirement as applied to VDRs who transport completed voter registration applications to the elections officials.  The Fifth Circuit squarely addressed the argument, but rejected it:

At oral argument, [the voter registration organizations] urged the court to draw a close parallel to the Supreme Court’s reasoning in Meyer, 486 U.S. at 422, 108 S.Ct. 1886, finding that the circulation of initiative petitions was a matter involving the core political speech rights of the circulators under the First Amendment. The analogy is improper. The circulation and submission of an initiative petition is closely intertwined with the underlying political ideas put forth by the petition. The petition itself is the protected speech. Moreover, the very nature of a petition process requires association between the third-party circulator and the individuals agreeing to sign. In the voter registration context, the underlying expressive conduct (encouraging democratic participation and voting) does not implicate a third-party’s right to process the application. Voter registration applications are individual, not associational, and may be successfully submitted without the aid of another. Here, the actual expression is not being limited.

Voting for America, Inc., 732 F.3d at 390 (quoting the previous motions panel in the same case that had granted a stay of the district court’s injunction, at Andrade II, 488 Fed.Appx. at 898 n. 13 (emphasis added)).  The Fifth Circuit continued:

Buckley and Meyer are further distinguishable because those cases involved laws that specifically regulated the process of advocacy itself, dictating who could speak (only unpaid circulators and registered voters) or how to go about speaking (with name badges and subsequent detailed reports). Thus, the Colorado law had “the inevitable effect of reducing the total quantum of speech,” limiting “the number of voices who will convey [Plaintiffs’] message and the hours they can speak and, therefore, limit[ing] the size of the audience they can reach.” Meyer, 486 U.S. at 422–23, 108 S.Ct. at 1892.

Id. at 390.

I think there are some distinctions between initiative/referendum petitions and voter registration drives for some purposes, but the court’s rationale in Voting for America is not terribly persuasive.  One can argue that persuading folks to vote is just as important to one’s cause or message as persuading a voter to sign a petition.  So it seems to raise the same speech concerns.  If the government’s concern is making sure VDRs are amenable to legal service, then the state could do that by requiring them to designate an agent for service, providing their residence address, etc. just as the Buckley court noted in the petition context.  Thus, to my mind, to the extent there is an inconsistency in these two lines of cases, it is Voting for America that gets it wrong.  And there are other cases holding residency requirements for petition circulators are unconstitutional burdens on First Amendment rights.  See, e.g., Libertarian Party v. Judd, 718 F.3d 308 (4th Cir. 2013).  That does not foreclose the distinction the Fifth Circuit draws, however, in the voter registration context.

I note that the plaintiffs on Monday filed an original petition for writ of mandamus (posted by Big Jolly) in the Fourteenth Court of Appeals, which does not challenge the constitutionality of the requirement for circulators to sign the petition.  It appears to raise the same arguments as the state petition.  The plaintiffs might have wanted to file in both courts simultaneously to ensure that at least one court has jurisdiction.  This is not an easy question–depending on how the courts view the factual posture of the situation, the court of appeals may be the only court with jurisdiction to issue relief.  If that’s the case, then you can’t wait for the district court to decide that and encourage you to file in the court of appeals, because by then the clock will have expired.  So the plaintiffs are smart to file simultaneously in both courts.  But I think challenging the circulator requirements should be the focus of this case, because Buckley is clear.  I think the state district court could declare the law on that issue, and issue an order requiring the city secretary (or the city, through whomever has the delegaged authority) to tell the City Council whether the petition requirements are met in the absence of the requirement that circulators sign the petition.  The court of appeals may have the jurisdiction to issue the same opinion and order in the mandamus proceeding.

*This post was updated to clarify that Voting for America upheld a bare residency requirement, not a requirement to be a registered voter.