We The People PAC v. Bellows

40 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: July 7, 2022
• Docket: 21-1149P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1149

WE THE PEOPLE PAC; BILLY BOB FAULKINGHAM, State Representative; LIBERTY INITIATIVE FUND; NICHOLAS KOWALSKI,

Plaintiffs, Appellees,

v.

SHENNA BELLOWS,* in her official capacity as the Secretary of State of Maine, JULIE FLYNN, in her official capacity as the Deputy Secretary of State of Maine for the Bureau of Corporations, Elections and Commissions,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Barron, Chief Judge, Kayatta, Circuit Judge, and Saris,** District Judge.

Jason Anton, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, Thomas A. Knowlton, Deputy Attorney General, and Jonathan Bolton, Assistant Attorney General, were on

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Shenna Bellows was substituted for Matthew Dunlap on February 23, 2021. **Of the United States District Court for the District of Massachusetts, sitting by designation. brief, for appellants. Paul A. Rossi, with whom IMPG Advocates was on brief, for appellees.

July 7, 2022 BARRON, Chief Judge. Maine allows for direct popular

participation in the state's lawmaking process through two

distinct means: a "people's veto," as it is commonly known, and

a "direct initiative." Me. Const. art. IV, pt. 3, §§ 17-18. To

place either type of measure on the state ballot, a "written

petition" that contains a minimum number of signatures from those

who are "qualified to vote for Governor" in Maine must be filed

with the Secretary of State of Maine. Id. § 20.

Maine law refers to a person who "solicits signatures

for the petition by presenting the petition to the voter, asking

the voter to sign the petition and personally witnessing the voter

affixing the voter's signature to the petition" as a "circulator."

Me. Stat. tit. 21-A, § 903-A. Maine law further provides that the

"circulator" must be a Maine resident who is also registered to

vote in Maine. Id.

This appeal arises from a suit that challenges both the

residency and the voter-registration requirements. The suit

alleges that each requirement, by restricting who may be a

circulator, violates the First Amendment to the United States

Constitution as incorporated against the states by the Due Process

Clause of the Fourteenth Amendment. See Grosjean v. Am. Press

Co., 297 U.S. 233, 245 (1936).

- 3 - The suit was brought in 2020 in the United States

District Court for the District of Maine by a nonprofit

organization, a political action committee, a Maine State

Representative, and a professional collector of signatures for

petitions who resides in Michigan. The plaintiffs named as the

defendants the Secretary of State of Maine in his official capacity

and the Deputy Secretary of State of Maine for the Bureau of

Corporations in hers.

On the same day that the plaintiffs filed their suit,

they also moved for a temporary restraining order and/or a

preliminary injunction to prevent the residency requirement and

the voter-registration requirement from being enforced. The

District Court denied the request for the temporary restraining

order but ultimately granted the motion for the preliminary

injunction. The defendants now appeal from that latter ruling.

We affirm.

I.

A.

The portions of the Maine Constitution that pertain to

the "people's veto" provide that "[t]he effect of any Act, bill,

resolve or resolution or part or parts thereof" that the Maine

Legislature passes "shall be suspended upon the filing" of a

"written petition," and that the measure thereafter must be "voted

- 4 - on by the people." Me. Const. art. IV, pt. 3, § 17 (emphasis

added); see also Me. Senate v. Sec'y of State, 183 A.3d 749, 753

(Me. 2018) (describing the "people's veto"). The portions of the

Maine Constitution that pertain to "direct initiative[s]" state

that "[t]he electors may propose to the Legislature for its

consideration any bill, resolve or resolution," though "not an

amendment of the State Constitution, by written petition." Me.

Const. art. IV, pt. 3, § 18(1) (emphasis added). These provisions

also state that, unless the proposed direct initiative is "enacted

without change by the Legislature," it must be "submitted to the

electors together with any amended form, substitute, or

recommendation of the Legislature," who then may "choose between

the competing measures or reject both." Id. § 18(2).

Under the Maine Constitution, the "written petition"

referred to in the provisions quoted above must contain a specified

number of valid signatures of eligible Maine voters and be filed

with the Maine Secretary of State ("the Secretary"). The total

number of signatures "shall not be less than 10% of the total vote

for Governor cast in the last gubernatorial election." Id.

§§ 17(1), 18(2).

The Maine Constitution defines a "circulator" as "a

person who solicits signatures for written petitions." Id. § 20.

It states that a circulator "must be a resident of [Maine] and

- 5 - whose name must appear on the voting list of the city, town or

plantation of the circulator's residence as qualified to vote for

Governor." Id. A Maine statute provides that the "written

petition" referenced in these provisions of the Maine Constitution

"may be circulated by any Maine resident who is a registered voter

acting as a circulator of" such a petition. Me. Stat. tit. 21-A,

§ 903-A.

At the time that the written petition is filed with the

Secretary, the circulator "must sign the petition." Id. § 902.

The circulator also must "verify by oath or affirmation" that she

"personally witnessed all of the signatures" collected "and that

to the best of the circulator's knowledge and belief each signature

is the signature of the person whose name it purports to be." Id.

The circulator must file alongside the written petition

an executed affidavit that includes "[t]he circulator's printed

name, the physical address at which the circulator resides and the

date the circulator signed the affidavit." Id. § 903-A(4)(A).

The affidavit must include attestations that "the circulator was

a resident of [Maine] and a registered voter in [Maine] at the

time of circulating the petition." Id. § 903-A(4)(C). If the

circulator "[k]nowingly fails to truthfully execute and timely

file" an affidavit, that individual "commits a Class E crime."

Id. § 904(6).

- 6 - The Secretary must "determine the validity of the

petition . . . within 30 days from the date" that the petition is

filed with her. Id. § 905(1). In undertaking that review, the

Secretary may invalidate signatures that are obtained from

individuals who are not residents of Maine or that are collected

by circulators who were not in compliance with the residency and

voter-registration requirements. See, e.g., Hart v. Sec'y of

State, 715 A.2d 165, 166 (Me. 1998); Jones v. Sec'y of State, 238

A.3d 982, 985 (Me. 2020).

Additional provisions of the Maine Constitution concern

the duration of the petition circulation process. See Me. Const.

art. IV, pt. 3, §§ 17(1), 18(1). They require that the requisite

number of signatures for a written petition must be secured within

a specified period after the circulation process begins for a

direct initiative petition, and after the legislative session at

which the challenged action occurred for a people's veto petition.

Id.

B.

Except where noted otherwise, the following facts are

not in dispute in this appeal. In 2019, the We the People PAC

("We the People"), a political action committee registered in the

State of Maine, and state Representative Billy Bob Faulkingham,

who represents the 136th district in the Maine State House of

- 7 - Representatives and is a member of We the People, sought to

sponsor, and also circulated a petition in support of, a direct

initiative entitled, "An Act to Clarify the Eligibility of Voters."

The proposed direct initiative sought to "force the state

legislature to adopt verbatim [a] proposed ban on all non-citizen

voting in the State of Maine or place the question on the next

general election ballot . . . to be decided by the voters of

Maine."1

For the initiative to be placed on the ballot, the

Secretary first must "furnish[]" or "approve[]" a "form[]" that is

then circulated for signatures by qualified voters. Me. Const.

art. IV, pt. 3, § 20. This form, once approved, is the "written

petition." See id.

Maine law provides, however, that "the written petition"

for a direct initiative "may not be filed in the office of the

Secretary of State later than 18 months after the date the petition

form was furnished or approved by the Secretary of State." Id.

§ 18(1). Maine law further provides that only those signatures

collected within the year leading up to the date on which the

1Maine law already limits the franchise in state and local elections to United States citizens who are or will be at least eighteen years of age at the time of the upcoming general election. Me. Const. art. II, § 1; Me. Stat. tit. 21-A, §§ 111(1), 111-A. The proposed initiative would have "amend[ed] the voter qualification statute to emphasize" these requirements to be a voter "in an election in a municipality."

- 8 - petition is filed with the Secretary count as valid. See Id.

§ 18(2) ("A signature is not valid if it is dated more than one

year prior to the date that the petition was filed in the office

of the Secretary of State."). Moreover, Maine law provides that

the signed petition must be filed with municipal authorities or

state election officials "for determination of whether the"

signatures are of "qualified voters" by the tenth day before the

signed petition is filed with the Secretary. Id. § 20.

In light of these provisions, the proponents, to have

placed their proposed direct initiative on the November 2020 ballot

would have to have filed their signed petition with the Secretary

by February 3, 2020 (and for municipal or election official

certification ten days before that); to have placed their proposed

direct initiative on the November 2021 ballot, the proponents would

have to have filed their signed petition with the Secretary by

January 21, 2021 (and for municipal or election official

certification ten days before that); and to have placed their

proposed direct initiative on the November 2022 ballot, the

proponents would have to have filed their signed petition with the

Secretary by February 26, 2021 (and for municipal or election

official certification ten days before that). See id. §§ 18, 20.

To file a petition after February 26, 2021, its supporters would

have had to apply to the Secretary for a new petition form, which,

- 9 - once approved, would have restarted their eighteen-month approval

clock. See id. § 20. They then could have collected signatures

on that form and would have had to have filed a signed petition by

January 31, 2022 for placement of a proposed direct initiative on

that same November 2022 ballot.

Having obtained their approved petition form on

August 26, 2019, the supporters of the initiative could begin

gathering signatures. They claimed in an interrogatory response

that they used only circulators who were Maine residents. The

petition for the initiative would have needed a minimum of 63,067

signatures to have been placed on the November 2020, 2021, or 2022

ballots, given the number of votes cast in the prior gubernatorial

election, which was held in 2018. See id. § 18(2).

By October 16, 2019, only 2,000 people had signed the

petition after it had been approved for circulation nearly two

months before. The campaign to collect signatures then lay dormant

for the following year.

The plaintiffs resumed the petition drive in mid-

October 2020, this time with the aid of not only Maine residents

but also out-of-state residents who assisted in the process of

securing signatures for the petition. The out-of-state residents

worked with in-state "witnesses" but did not themselves purport to

- 10 - serve as circulators. Between mid-October 2020 and late January

2021, 38,000 signatures for the petition were collected.

C.

The plaintiffs are We the People, Representative

Faulkingham, and the Liberty Initiative Fund, a nonprofit

organization that has been involved in petition circulation

efforts, including the petition circulated for the direct

initiative at issue here, as well as Nicholas Kowalski, a

professional collector of signatures for petitions who resides in

Michigan. The plaintiffs filed suit in the United States District

Court for the District of Maine on December 31, 2020. They named

as defendants then-Secretary of State Matthew Dunlap and Deputy

Secretary of State for the Bureau of Corporations, Elections and

Commissioners Julie Flynn, in their official capacities.2

The plaintiffs brought claims under state and federal

law, including under the First Amendment to the federal

Constitution, that challenged both the residency and voter-

registration requirements to be a circulator.3 The same day that

On February 23, 2021, Dunlap was substituted by Shenna 2

Bellows, the current Secretary of State of Maine. 3 The plaintiffs' complaint also challenged other provisions of Maine law that impose certain disclosure

- 11 - the plaintiffs filed their suit, they also moved for a temporary

restraining order and/or a preliminary injunction. The plaintiffs

in so moving requested that the District Court enjoin the

defendants from enforcing Maine Revised Statutes title 21-A,

§ 903-A, "to the extent it requires that petitions for a direct

initiative or people's veto may only be circulated by a registered

voter of Maine" and "may only be circulated by a resident of the

State of Maine, as applied to out-of-state circulators who first

submit to the jurisdiction of the State of Maine for any

investigation and/or prosecution of alleged violations of Maine's

election code with respect to" direct initiative or people's veto

petitions.

The District Court denied the plaintiffs' application

for a temporary restraining order on January 11, 2021. The

District Court concluded that "[e]ven though the plaintiffs raised

serious legal issues, because the caselaw in this area is nuanced,

because the plaintiffs failed to provide a sufficient uncontested

factual record, and because the plaintiffs delayed bringing this

lawsuit, they failed to sustain their burden to demonstrate that

requirements on circulators and proponents of direct initiative and people's veto petitions. Those requirements are not before us because the plaintiffs did not request that they be preliminarily enjoined in their motion for a temporary restraining order and/or preliminary injunction.

- 12 - they [were] likely to succeed on the merits of th[e] claim." We

the People PAC v. Bellows, 512 F. Supp. 3d 74, 77 (D. Me. 2021).

Then, on February 16, 2021 -- the day by which the

plaintiffs were required to submit their petition to local

officials to have their proposed direct initiative placed on the

November 2022 general election ballot -- the District Court ruled

on the motion for the preliminary injunction. See We the People

PAC v. Bellows, 519 F. Supp. 3d 13, 44 (D. Me. 2021). The District

Court noted that, in light of the defendants' argument that the

declarations that the plaintiffs had submitted in support of their

motion for a preliminary injunction lacked foundation, it would

"disregard[] any portions [of the declarations] that lack

foundation or consist of improper opinion." Id. at 17 n.2. But,

the District Court denied the defendants' additional objection to

the plaintiffs' responses to the defendants' interrogatories that

had been requested as part of the briefing on the motion for a

preliminary injunction. Id.

The defendants' objection rested on the contention that

the plaintiffs' responses to the interrogatories were "extremely

problematic" because they were "not attributed to particular"

individuals, were "not sworn," were "filled with hearsay and

argument," and were "not even signed by" every plaintiff. Id.

The District Court explained, however, that the plaintiffs'

- 13 - responses to the interrogatories had been signed by Representative

Faulkingham and by Liberty Initiative Fund's president, on behalf

of Liberty Initiative Fund, as well as by the plaintiffs' counsel.

Id. The District Court then added that there is "no requirement

that the interrogatory responses be signed by all the [p]laintiffs"

and that the plaintiffs had "represented" in response to an earlier

order of the District Court that they "w[ould] file sworn

interrogatory responses, curing the oath defect 'no later than

February 20, 2021.'" Id. (record citation omitted). The District

Court then ruled, "[b]ased on the [p]laintiffs' representation,"

that it "consider[ed] the [p]laintiffs' responses to the

[d]efendants' interrogatories as sworn." Id.4

Having made those rulings, the District Court assessed

whether the plaintiffs had met their burden with respect to the

The plaintiffs filed a sworn version of their 4

interrogatory responses on February 19, 2021. The defendants nonetheless contend on appeal that the "sworn version of [p]laintiffs' interrogatories" "still exhibited one of the flaws identified by the Secretary, and one not addressed by the district court: they were not attributed to particular [p]laintiffs." But, Liberty Initiative Fund, as well as Representative Faulkingham, on behalf of himself and We the People, each separately signed and attested to "knowledge, information, and belief" concerning all of the plaintiffs' responses to the interrogatories. Moreover, Kowalski signed and attested to his knowledge concerning the plaintiffs' response to "Interrogatory #16, the only interrogatory response which requires [his] verification." We also see no basis for crediting the defendants' conclusory assertion in their briefing to us that "[n]ot every [p]laintiff can swear to the entire contents of [p]laintiffs' wide-ranging interrogatory responses." Thus, we consider the interrogatory responses here.

- 14 - four factors that must be weighed to determine whether to grant a

motion for a preliminary injunction. See id. at 37. Those factors

include:

the movant's likelihood of success on the merits; whether and to what extent the movant will suffer irreparable harm in the absence of preliminary injunctive relief; the balance of relative hardships, that is, the hardship to the nonmovant if enjoined as opposed to the hardship to the movant if no injunction issues; and the effect, if any, that either a preliminary injunction or the absence of one will have on the public interest.

Ryan v. U.S. Immigr. & Customs Enf't, 974 F.3d 9, 18 (1st Cir.

2020). The District Court ruled that, with the benefit of "a more

substantial record including affidavits and declarations, as well

as interrogatories and statements of facts," preliminary

injunctive relief was appropriate. See We the People PAC, 519 F.

Supp. 3d at 37, 53.

The District Court determined that the plaintiffs

established that they were likely to succeed in showing that the

residency and voter-registration requirements were each subject to

strict scrutiny because each requirement imposed a "severe burden"

on the exercise of the plaintiffs' First Amendment rights. See

id. at 39, 41, 46, 50-51. The District Court further determined

that the plaintiffs established that they were likely to succeed

in showing that neither the residency requirement nor the voter-

registration requirement could survive such scrutiny because the

- 15 - defendants could not show that either requirement was narrowly

tailored to serve a compelling state interest. Id. at 46-48, 51.

The District Court next determined that the plaintiffs

had demonstrated that they were likely to suffer irreparable harm

absent a preliminary injunction. It noted that "even if the

[p]laintiffs d[id] not meet the February 16, 2021 deadline, they"

would be able to "renew their signature collection efforts to put

their initiative on the 2022 ballot." Id. at 52. Thus, the

District Court concluded that "while an injunction might make no

real difference for the current petition drive, th[e plaintiffs]

will continue to suffer harm in their next petition drive." Id.

As to the effect of any injunction on the public

interest, the District Court determined that while "the public has

strong competing interests on both sides" of the dispute, it "has

a greater interest in upholding its constitutionally protected

freedom of speech" than it does in "regulati[ng] . . . referendum

petitions and in protecting the integrity and grassroots nature of

the direct initiative and people's veto power." Id. at 52.

Finally, as to the "balance of equities," the District Court

recognized that the plaintiffs had "contributed to the urgent

nature of the preliminary injunction request" through "their

delay" in filing their lawsuit, but ultimately found their

"constitutional challenge both meritorious and important," such

- 16 - that the "balance of equities weigh[ed] in the [p]laintiffs'

favor." Id. at 52-53.

The District Court issued an order on February 16, 2021,

that preliminarily enjoined Maine Revised Statutes title 21-A, §

903-A "to the extent it requires that petitions for a direct

initiative or people's veto may only be circulated by a registered

voter of Maine" and "to the extent it requires" that such petitions

"may only be circulated by a resident of the state of Maine, as

applied to out-of-state circulators who first submit to the

jurisdiction of the state of Maine for any investigation and/or

prosecution of alleged violations of Maine's election code with

respect to Referendum and/or People's Veto petitions filed with"

the defendants. Id. In a separate oral order, the District Court

stayed the plaintiffs' motion for a permanent injunction.

The defendants filed an interlocutory appeal of the

District Court's order issuing the preliminary injunction on

February 22, 2021. We have jurisdiction under 28 U.S.C.

§ 1292(a)(1). We review a district court's decision to issue a

preliminary injunction for an abuse of discretion, examining its

"findings of fact for clear error and its conclusions of law de

novo." Comcast of Me./N.H., Inc. v. Mills, 988 F.3d 607, 611 (1st

Cir. 2021).

- 17 - II.

Before diving into our analysis, it is first useful to

review the only two precedents of the Supreme Court of the United

States that address First Amendment challenges to a state's

restriction on who may act as a "circulator" in the petition

circulation process for a ballot initiative. The two precedents

are Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. American

Constitutional Law Foundation, Inc., 525 U.S. 182 (1999).

In Meyer, the Court addressed a First Amendment

challenge to a Colorado state law that prohibited the use of paid

circulators. 486 U.S. at 417. The Court found merit to the

challenge.

In explaining why, the Court first determined that the

prohibition implicated the First Amendment because it restricted

"'core political speech.'" Id. at 422. The Court explained that

the prohibition did so because "[t]he circulation of an initiative

petition 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. Indeed, the Court elaborated, "to

capture . . . signatures, [a circulator] will at least have to

persuade [potential signatories] that the matter is one deserving

- 18 - of the public scrutiny and debate that would attend its

consideration by the whole electorate." Id.

The Court then addressed the nature of the burden on

core political speech that Colorado's ban on paid circulators

imposed. The Court determined that the ban "restrict[ed] [the

initiative proponents'] political expression in two ways." Id.

at 422. First, such a prohibition "limits the number of voices

who will convey [the proponents'] message and the hours they can

speak and, therefore, limits the size of the audience they can

reach." Id. at 422-23. Second, the prohibition "makes it less

likely that [proponents] will garner the number of signatures

necessary to place the matter on the ballot." Id. at 423. In

consequence, the Court explained that a ban on paid circulators

"has the inevitable effect of reducing the total quantum of speech

on a public issue." Id.

The Court acknowledged that the plaintiffs in Meyer

"remain[ed] free to employ other means to disseminate their ideas."

Id. at 424. But, the Court emphasized, that fact did not

meaningfully diminish the burdensome nature of the ban's

restriction on core political speech, because the "prohibition of

paid petition circulators restrict[ed] access to the most

effective, fundamental, and perhaps economical avenue of political

discourse, direct one-on-one communication." Id. "The First

- 19 - Amendment," the Court explained, protects the proponents' "right

not only to advocate their cause but also to select what they

believe to be the most effective means for so doing." Id.

Based on this analysis of the burden that the ban imposed

on core political speech, the Court determined that the ban had to

survive "exacting scrutiny" to comport with the First Amendment.

Id. at 420. The Court fleshed out the "exacting" nature of that

scrutiny by observing that, because "the statute trenches upon an

area in which the importance of First Amendment protections is at

its zenith," the "burden that Colorado must overcome to justify

this criminal law is well-nigh insurmountable." Id. at 425

(internal quotation marks omitted).

The Court then moved on to the question of whether the

ban could survive such "exacting" scrutiny. The Court determined

that the fit between the interests that Colorado had put forth in

support of its ban and the means that the State had selected to

further that interest was too loose for the ban to pass that

"exacting scrutiny." Id. at 425-28.

Colorado asserted two interests: first, an "interest in

making sure that an initiative has sufficient grass roots support

to be placed on the ballot," and second, an "interest in protecting

the integrity of the initiative process." Id. at 425. The Court

dispatched with the asserted interest in ensuring "grass roots

- 20 - support" by explaining that this interest was "adequately

protected by [Colorado's] requirement that no initiative proposal

may be placed on the ballot unless the required number of

signatures has been obtained." Id. at 425-26. It then addressed

the interest in "protecting the integrity of the initiative

process." Id. at 426.

To support the contention that the ban on paid

circulators was properly designed to serve the "integrity"

interest, Colorado asserted "that compensation [for a circulator]

might provide the circulator with a temptation to disregard" the

"duty to verify the authenticity of signatures on the petition."

Id. at 426. But, the Court concluded, Colorado had offered "[n]o

evidence" to substantiate that contention and observed that a

"professional circulator['s] . . . qualifications for similar

future assignments may well depend on a reputation for competence

and integrity." Id. The Court also noted that Colorado had other

mechanisms in place to prevent signature fraud -- such as

provisions that criminalized forging signatures on a petition and

criminalized paying people to sign it -- that "seem[ed] adequate

to the task of minimizing the risk of improper conduct." Id. at

426-27. Accordingly, the Court held that the ban could not survive

the exacting scrutiny that applied because the ban was not

- 21 - "necessary" to serve the state's asserted interest in preserving

the integrity of the initiative process. Id. at 426.

Buckley was decided a little over a decade after Meyer.

It concerned a First Amendment challenge to other restrictions

that Colorado had imposed with respect to circulating a petition

for the state's direct initiative process. Buckley, 525 U.S.

at 186. Among the restrictions was a requirement that a circulator

be a registered voter in the state. Id. at 192-93.

The voter-registration requirement necessarily

required a circulator to be a resident of that state. Id. at 188

& n.3. However, no challenge to the residency requirement had

been brought. Id. The Court thus addressed only the portion of

the voter-registration requirement that required a circulator to

be not only eligible to vote in Colorado but also registered to do

so. Id. at 197.

In determining the type of First Amendment scrutiny to

apply to the voter-registration requirement, the Court emphasized

that "[s]tates 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." Id. at 191. The Court also emphasized that there is

"'no litmus-paper test'" that "separate[s] valid ballot-access

- 22 - provisions from invalid interactive speech restrictions." Id.

at 192 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)); see

also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359

(1997). Instead, the Court explained, there is "no substitute for

the hard judgments that must be made." Buckley, 525 U.S. at 192

(quoting Storer, 415 U.S. at 730).

At the same time, the Court reaffirmed Meyer's

recognition that "[p]etition circulation . . . is 'core political

speech,' because it involves 'interactive communication concerning

political change,'" and that "First Amendment protection for such

interaction . . . is 'at its zenith.'" Id. at 186-87 (quoting

Meyer, 486 U.S. at 425). Thus, the Court made a point of stating

that "the First Amendment requires . . . vigilan[ce] in making

those judgments" about what distinguishes a valid ballot-access

restriction from an impermissible speech restriction. Id. at 192.

The Court then determined that a most demanding form of

scrutiny applied to the state restriction at issue. The Court

concluded in that regard that the voter-registration requirement

"produces a speech diminution of the very kind produced by the ban

on paid circulators at issue in Meyer," id. at 194, which, the

Court had pointed out there, was subject to a form of scrutiny

that was "well-nigh insurmountable," Meyer, 486 U.S. at 425. The

Court in Buckley stated that this means of scrutinizing the

- 23 - restriction at issue was "entirely in keeping with" what the Court

described as "the 'now-settled approach' that state regulations

'impos[ing] "severe burdens" on speech . . . [must] be narrowly

tailored to serve a compelling state interest.'" Buckley, 525

U.S. at 192 n.12 (alterations and ellipsis in original) (quoting

id. at 206 (Thomas, J., concurring in the judgment)).

To support the application of that kind of scrutiny to

the voter-registration requirement, the Court stated that it was

"[b]eyond question" that the voter-registration requirement

"drastically reduces the number of persons, both volunteer and

paid, available to circulate petitions." Id. at 193. Indeed, the

Court noted, the record in that case showed that the requirement

rendered at least 400,000 Coloradans -- who were otherwise eligible

to vote in Colorado but were not registered to do so -- unable to

serve as petition circulators. Id. The Court also highlighted

testimony that the "'natural support'" for a petition comes in

part from "'[l]arge numbers'" of people not registered to vote.

Id. at 194.

Equally notably, the Court did not at any point in

assessing the degree of the burden imposed on core political speech

by the voter-registration requirement attempt to quantify the

number of persons that requirement excluded from the pool of

otherwise available circulators who would be likely to serve as

- 24 - circulators. See id. at 194-95. Nor did the Court attempt to

assess whether permitting those excluded from the pool to serve as

circulators would have increased the likelihood that the petition

drive in which the plaintiffs were engaged would have secured the

requisite number of signatures. See id. Instead, the Court

highlighted the fact that the voter-registration requirement at

issue "decrease[d] the pool of potential circulators as certainly

as that pool [was] decreased by the prohibition of payment to

circulators" without separately analyzing whether initiative

proponents nonetheless could qualify their initiative for the

ballot. Id.

In that respect, Buckley followed Meyer. There, the

Court noted the fact that the record showed that if initiative

proponents could pay circulators, more individuals would be "'able

and willing' to circulate petitions," Meyer, 486 U.S. at 423 n.6

(record citation omitted), and focused on the proposition that

proponents who are precluded from hiring circulators are forced to

either "'find a large number of volunteers . . . or abandon the

project,'" id. at 423 (quoting Urevich v. Woodard, 667 P.2d 760,

763 (Colo. 1983) (en banc)). The Court did not, however, attempt

to assess with any specificity the actual number of persons that

would apply to circulate the petition that the plaintiffs intended

to circulate. See id. at 422-23. Nor did the Court attempt to

- 25 - assess whether any of those individuals would be either necessary

to gathering the number of signatures required for a petition to

be successful or more effective at gathering that number of

signatures than those who had not been excluded from being

circulators by the voter-registration requirement. See id.5

The Court in Buckley turned next, as it had in Meyer, to

the question of whether the state's restriction on who may be a

circulator could survive the demanding form of scrutiny that

applied. And, the Court concluded, as in Meyer, that the

restriction could not. Buckley, 525 U.S. at 197.

The Court explained that it found wanting the fit between

the challenged law and Colorado's "dominant justification" for the

limitation, which "appear[ed] to be its strong interest in policing

lawbreakers among petition circulators" for the sake of ensuring

the integrity of the petition process. Id. at 196. The Court

concluded that, although Colorado stressed that the applicable

subpoena power of Colorado's Secretary of State "d[id] not extend

beyond the State's borders," the State's "interest in reaching law

5We understand Meyer, and the part of Buckley that assessed Colorado's voter-registration requirement which we discuss here, to have been identifying the requirements there to have imposed a severe burden on core political speech only in the context of reviewing a restriction on who may be a circulator. We thus do not understand either case to address a First Amendment challenge to any other kind of restriction that a state may impose that may make it more difficult to place a petition on the ballot. See Meyer, 486 U.S. at 421-23; Buckley, 525 U.S. at 194-96.

- 26 - violators . . . [was] served by the requirement . . . that each

circulator submit an affidavit setting out, among several

particulars, the 'address at which he or she resides.'" Id.

(quoting Colo. Rev. Stat. § 1-40-111(2) (1998)). The Court also

explained that provisions of Colorado law that criminalized

forging signatures on a petition, that voided certain sections of

petitions, and that "require[d] sponsors of ballot initiatives to

disclose who pays petition circulators, and how much," adequately

served the state's integrity interest. Id. at 205. Thus, the

Court held that, even "assuming that a residence requirement would

be upheld," the "registration requirement [was] not warranted."

Id. at 197.

Although the Court did not identify Colorado's interest

in "ensur[ing] grass roots support" as its "dominant

justification" for the voter-registration requirement we discuss

here, id. at 196, 205, the Court did explain at the close of its

opinion that Colorado had enacted other, "less problematic

measures" to "meet the State's substantial interests in regulating

the ballot-initiative process," including "ensur[ing] grass roots

support." Id. at 204-05. "To ensure grass roots support," the

Court explained, Colorado required that petitions be signed by a

certain percentage of the state's electorate. Id. at 205.

- 27 - III.

We begin with an analysis of the plaintiffs' "likelihood

of success on the merits," which "weighs most heavily in the

preliminary injunction calculus." Ryan, 974 F.3d at 18. The

defendants do not take issue with the District Court's conclusion

that if a state law "'impos[es] severe burdens'" on plaintiffs'

core political speech, then it "'must be narrowly tailored and

advance a compelling state interest,' while '[l]esser

burdens . . . trigger less exacting review.'" We the People PAC,

519 F. Supp. 3d at 39 (quoting Timmons, 520 U.S. at 358). They

also recognize the need to explain why Meyer and Buckley -- despite

their invalidation of the restrictions at issue in them -- do not

support the District Court's ruling granting the motion for the

preliminary injunction. Nonetheless, the defendants contend that

Meyer and Buckley are distinguishable and that the District Court

erred in concluding that the plaintiffs are likely to succeed in

their challenges to the two requirements at issue. We begin our

analysis by addressing the plaintiffs' challenge to the residency

requirement.6

6 We note that Meyer described the "'core political speech'" as "the expression of a desire for political change and a discussion of the merits of the proposed change" by a circulator

- 28 - A.

As we will explain, we agree with the District Court

that the plaintiffs are likely to succeed in showing that the

residency requirement does impose a severe burden on core political

speech, such that it may survive First Amendment review only if it

is narrowly tailored to serve a compelling state interest. We

then will explain why we also conclude that the District Court was

right to rule that the plaintiffs have met their burden to show

that they are likely to succeed in showing that the residency

requirement does violate the First Amendment, insofar as the

defendants must show that the residency requirement is narrowly

tailored to serve a compelling state interest.

1.

The residency requirement bars all but Maine residents

from being "circulator[s]." Me. Stat. tit. 21-A, § 903-A. The

requirement thus would appear to bar the petition proponents from

reaching into a pool of more than 250 million people of voting age

in her efforts to "persuade potential signatories." Meyer, 486 U.S. at 421-22. Moreover, in Buckley, the Court did not distinguish in assessing the burden on core political speech that the restriction there at issue imposed on those plaintiffs who themselves sought to circulate petitions from the burden that the restriction imposed on those plaintiffs who were proponents of the initiative itself. See Buckley, 525 U.S. at 187 n.1, 193-95. We follow suit and make no such distinction in assessing the burden on "core political speech" that the requirement at issue here imposes.

- 29 - to assist in the collection of signatures -- and to engage in the

face-to-face, interactive communication designed to bring about

political change that accompanies that collection of signatures -

- that the Supreme Court has deemed core political speech. See

Estimates of the Total Resident Population and Resident Population

Age 18 Years and Older for the United States, States, and Puerto

Rico: July 1, 2019, Population Estimates by Age (18+): July 1,

2019, U.S. Census Bureau, https://www.census.gov/data/tables/tim

e-series/demo/popest/2010s-state-detail.html (last visited

June 24, 2022).7

7 At oral argument, the defendants did suggest that the challenged statutes might be read to permit out-of-staters to advocate for a petition so long as there is an in-state resident who may witness the petition and certify its authenticity to the Secretary. But, this late-breaking contention appears to be in some tension with arguments that the defendants made below. See We the People PAC, 519 F. Supp. 3d at 43 (describing defendants' prior position in interrogatories and testimony). We note as well that Maine law defines the "circulator" as an individual who "solicits signatures for the petition by presenting the petition to the voter" and "asking the voter to sign the petition." Me. Stat. tit. 21-A, § 903-A; see also We the People PAC, 519 F. Supp. 3d at 29 ("The legality of using in-state witnesses is unclear."). Finally, the defendants do not develop an argument in their briefing to us that the relevant state statute, insofar as it may be construed to permit the use of in-state witnesses along with out-of-state advocates for the petition, would not severely burden core political speech. They instead merely state that "the same arguments apply" that they have made about why Maine law would not severely burden such speech if the statute could not be so construed. Thus, any argument that the statute does not severely

- 30 - That is not to say that Maine lacks a compelling interest

in limiting that pool of potential speakers in the way that the

residency requirement does. Nor is it to say that Maine cannot

show that such a limitation is narrowly tailored to serve that

interest. But, at this juncture of the analysis, our concern is

solely with the threshold question of whether the requirement

severely burdens core political speech, not whether the burden

that requirement imposes on such speech is, though severe,

justifiable because it is narrowly tailored to serve a compelling

interest. See Buckley, 525 U.S. at 192 n.12. And, with respect

to that threshold determination concerning the nature of the burden

that the requirement imposes, it is "[b]eyond question" that the

residency requirement imposes a restriction on the available pool

of circulators that is at least as "drastic[]" as the restrictions

at issue in either Meyer or Buckley. Buckley, 525 U.S. at 193

(considering the burden of eliminating from the pool of potential

circulators "[a]t least 400,000 persons eligible to vote" who "were

not registered"); see also Meyer, 486 U.S. at 422-23 & n.6

(describing testimony that "compensation resulted in more people

burden core political speech because it may be construed to permit the use of in-state witnesses along with out-of-state advocates for the petition is waived for the purposes of this appeal. See United States v. Kinsella, 622 F.3d 75, 87 (1st Cir. 2010).

- 31 - being 'able and willing' to circulate petitions" (record citation

omitted)).

The defendants are right, of course, that Buckley was

"careful . . . to differentiate between registration requirements,

which were before the Court, and residency requirements, which

were not," Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010) (Roberts,

C.J., in chambers). And it is the latter type of requirement that

is at issue here. But, it remains the case that Maine's ban on

the use of out-of-state circulators "drastically reduces the

number of persons, both volunteer and paid, available to circulate

petitions" and "decreases the pool of potential circulators as

certainly as that pool is decreased by the prohibition of payment

to circulators" just as the Court in Buckley found that the voter-

registration requirement there at issue did. Buckley, 525 U.S.

at 193-94.

Buckley did arguably also address whether the reduction

in the pool of potential circulators, even though drastic, was in

effect a material one. 525 U.S. at 193-94. Buckley highlighted

testimony in the record that indicated that the pool of otherwise

eligible voters who were not registered was a pool from which there

was reason to think circulators would be drawn, because that

testimony identified such unregistered voters as providing

- 32 - "natural support" for petition drives. Id. at 194 (record citation

omitted).

But, there is evidence of that sort here as well. The

District Court found that there were a significant number of

"professional petition circulators" residing outside of Maine and

that the plaintiffs had identified only six professional

circulators who were Maine residents. We the People PAC, 519 F.

Supp. 3d at 42. The District Court further found that, as common

sense would suggest, professional circulators would enhance the

capacity of proponents of a petition drive to secure signatures.

See id. at 43. Indeed, record evidence concerning the plaintiffs'

experience with the petition drive that they did conduct supported

that conclusion. See id. at 42-44.

The defendants do contend that the District Court should

not have credited the plaintiffs' assertion that only six

professional circulators could be identified in Maine, see We the

People PAC, 519 F. Supp. 3d at 42, on the ground that the

plaintiffs "offered few specifics as to how they settled on this

figure" beyond "inadmissible hearsay." But, the District Court

considered that argument, along with the defendants' evidence that

the number could be much higher. See id. at 28 nn.16-17. And,

the District Court credited the plaintiffs' "assertion that they

could only identify six professional petition circulators in

- 33 - Maine," while excluding as hearsay only some evidence supporting

that conclusion. Id. at 28 n.17.

The District Court did not clearly err in making this

finding. The record includes the declaration of the plaintiffs'

initiative campaign manager, who attested to having "personal

knowledge" concerning the attitudes of what he described as "the

few professional petition circulators who are residents" of Maine.

The defendants also contend that "there are likely

thousands" of Maine residents who may not "make a living

circulating petitions" as professional circulators but would be

willing to circulate petitions "for pay." They then further

contend that, for this reason, the District Court erred in ruling

that the residency requirement likely imposes a severe burden on

core political speech.

The relevant question, though, is not how many Maine

residents might be willing to circulate a petition if paid to do

so. The relevant question is whether the residency requirement

excludes from the pool of potential circulators a sufficiently

significant number of individuals -- including professional

circulators that could enhance the reach of the campaign -- who

may reside outside of Maine.

The defendants do also argue that the plaintiffs are not

likely to succeed in showing that the requirement imposes a severe

- 34 - burden on core political speech because "the record is replete

with evidence of successful citizen initiative and people's veto

campaigns in Maine." For example, they point to the fact that

"one recent campaign collected approximately 100,000 signatures

using 616 Maine circulators during the same three-month period

that [the p]laintiffs' campaign was active."

We are not persuaded by this argument. We have no reason

to doubt that, despite the residency requirement, petition drives

may employ Maine residents as circulators and may even succeed by

doing so. But, Meyer and Buckley each rejected a contention that

the existence of an alternative means of securing the requisite

number of signatures for a petition in and of itself "lift[s] the

burden on speech at petition circulation time." Buckley, 525 U.S.

at 195; see also Meyer, 486 U.S. at 424. Indeed, the Court

concluded in Meyer that the "burden on First Amendment expression"

was not mitigated "because other avenues of expression remain[ed]

open" to the proponents; it explained that the Constitution

protects the right "not only to advocate the[] cause but also to

select what [the proponent] believe[s] to be the most effective

means for so doing." 486 U.S. at 424; see also We the People PAC,

519 F. Supp. at 42-43.

Nor are we persuaded by the defendants' argument that

the District Court erred in concluding that the requirement likely

- 35 - imposed a severe burden on political speech by relying on the

mistaken (or, at least, unsupported) premise that out-of-state

circulators -- and especially out-of-state professional

circulators -- are more effective than in-state circulators when

the plaintiffs had made no showing to substantiate it. The

District Court did not point to the burden that the residency

requirement placed on the use of "out-of-state professional

petition circulators" to make the point that out-of-state

residents would, as a general matter, make for better circulators

than in-state circulators. The District Court pointed to that

burden instead to make the separate point that Maine's residency

requirement drained from the "pool" of potential circulators those

who were professionals in the work of circulating petitions -- and

may therefore be more efficient than non-professional circulators

-- and who also resided outside Maine. We the People PAC, 519 F.

Supp. 3d at 42-43.

The defendants next assert that the District Court erred

in concluding that strict scrutiny likely applied because "[t]here

is also no record evidence that Maine's residency requirement

unconstitutionally increased the cost" of the plaintiffs' petition

drive. But, even assuming that the defendants are right that out-

of-state circulators cost "a premium," the fact that the plaintiffs

may be willing to pay such a premium only highlights the severity

- 36 - of Maine's "limit[ation]" on "the number of voices who will convey

[the plaintiffs'] message and the hours that they can speak and,

therefore, . . . [on] the size of the audience they can reach,"

Meyer, 486 U.S. at 422-23.

Finally, we observe, as the District Court did, that the

conclusion that the plaintiffs are likely to succeed in showing

that the residency requirement must be subjected to strict scrutiny

draws substantial support from lower court precedent. We the

People PAC, 519 F. Supp. 3d at 40-41. See Yes On Term Limits,

Inc. v. Savage, 550 F.3d 1023, 1025, 1028 (10th Cir. 2008)

(applying "strict scrutiny" to a "ban on non-resident [initiative]

petition circulators"); Libertarian Party of Va. v. Judd, 718 F.3d

308, 311-12, 317 (4th Cir. 2013) (holding that "[s]trict scrutiny

is the proper standard" to apply to state-residency requirement to

circulate candidate-nominating petitions); Nader v. Brewer

(Brewer), 531 F.3d 1028, 1031-32, 1036 (9th Cir. 2008) (same);

Wilmoth v. Sec'y of N.J., 731 F. App'x 97, 99, 103 (3d Cir. 2018)

(same, as applied to circulator-plaintiffs); see also Nader v.

Blackwell (Blackwell), 545 F.3d 459, 462 (6th Cir. 2008); id.

at 478-79 (Moore, J., and Clay, J., each separately concurring in

part and in the judgment) ("hold[ing] that the residency

restriction" on circulators of candidate-nominating petitions

"severely limits political speech" of the plaintiff-candidate);

- 37 - cf. Krislov v. Rednour, 226 F.3d 851, 855, 862 (7th Cir. 2000)

(applying "exacting scrutiny" to a voter-registration requirement

for circulators of candidate-nominating petitions that also

imposed a state-residency requirement).

The defendants are right that all but one of these

precedents addressed residency requirements for circulators of

candidate-nominating petitions. See Libertarian Party of Va., 718

F.3d at 311-12; Brewer, 531 F.3d at 1031; Blackwell, 545 F.3d at

462; Wilmoth, 731 F. App'x at 99; Krislov, 226 F.3d at 856. But,

the defendants do not explain why that feature of those cases

renders those precedents off point in evaluating a functionally

analogous restriction on who may circulate a petition for a direct

initiative. Indeed, all but one of the candidate-nominating

precedents apply or rely on cases that apply the Meyer-Buckley

framework to analyze the level of scrutiny that applies. See

Libertarian Party of Va., 718 F.3d at 316-17; Brewer, 531 F.3d

at 1035-36; Wilmoth, 731 F. App'x at 102-03; Krislov, 226 F.3d

at 859-62. The one precedent that arguably may be read to not so

hold, moreover, provides no basis for concluding that the Meyer-

Buckley framework is inapplicable or leads to a different result

here simply because a candidate-nominating petition is not

involved. See Blackwell, 545 F.3d at 459, 474-75 (lead opinion of

- 38 - Boggs, C.J.); id. at 478 (Moore, J., and Clay, J., each separately

concurring in part and in the judgment).

The defendants do cite to Initiative & Referendum

Institute v. Jaeger, an Eighth Circuit decision that upheld a

state-residency requirement for circulators of initiative

petitions. 241 F.3d 614, 615 (8th Cir. 2001). That case does

state that certain evidence in the record there "demonstrates that

no severe burden has been placed on those wishing to circulate

petitions." Id. at 617. But, even if the Eighth Circuit may be

read to hold that the residency requirement was not subject to

strict scrutiny because it imposed no severe burden on core

political speech, see id. at 616 (explaining that "the State ha[d]

a compelling interest in preventing fraud and the regulation [did]

not unduly restrict speech" and thus "conclud[ing] that the

residency requirement [was] constitutional."); Wilmoth, 731 F.

App'x at 102 (describing Jaeger as having "appl[ied] strict

scrutiny review"), it invoked the "high success rate" of signature

campaigns as "demonstrat[ing] that no severe burden has been placed

on those wishing to circulate petitions." Jaeger, 241 F.3d at 617.

Such reasoning conflicts, however, with Meyer, which applied

exacting scrutiny after pointing to "the possibility that even

more petitions would have been successful if paid circulators had

been available." Meyer, 486 U.S. at 418 n.3, 420.

- 39 - The defendants independently rely on an unpublished

decision from the federal District Court for the District of Maine,

see Initiative & Referendum Inst. v. Sec'y of State of Me., No.

Civ. 98–104, 1999 WL 33117172 (D. Me. Apr. 23, 1999), which the

Eighth Circuit cited approvingly, see Jaeger, 241 F.3d at 617-18.

The district court declined in that case to apply strict scrutiny

to Maine's state-residency requirement for circulators. See

Initiative & Referendum Inst., 1999 WL 33117172, at *16. But, the

district court there did not assess whether the residency

requirement would drastically reduce the available pool of

circulators, which is the relevant question here. Id. at *16 &

n.18.

The defendants are right that there are other circuit

court decisions that have not applied strict scrutiny to

restrictions that pertain to petition circulators. See

Libertarian Party of Ohio v. Husted, 751 F.3d 403, 413-18 (6th

Cir. 2014) (declining to apply strict scrutiny to state law

requiring "circulators of candidacy or nomination petitions to

disclose the name and address of" their employer); Prete v.

Bradbury, 438 F.3d 949, 963, 968 (9th Cir. 2006) (restriction on

specific payment scheme for circulators imposes only "lesser

burden" on speech). But, the nature of the restrictions in those

cases differs from that of the residency requirement at issue here.

- 40 - Finally, the defendants highlight the fact that Maine's

highest court declined to apply strict scrutiny to the provisions

of the Maine Constitution that require circulators of direct

initiatives to be state residents. See Hart, 715 A.2d at 168.

But, significantly, Hart, which was decided before Buckley,

distinguished Meyer on the ground that the plaintiff in Hart "had

three years to gather the necessary signatures and failed to

demonstrate any necessity for employing nonresidents in

circulating the petitions." Id. (citation omitted). Yet, as we

have explained, it is clear after Meyer and Buckley that the

determination of whether a restriction on who may be a circulator

imposes a severe burden on core political speech is not dependent

on whether it is necessary for the ballot measure's proponents to

be able to enlist those who are subject to the restriction to

obtain the requisite number of signatures. See Meyer, 486 U.S.

at 418 n.3; Buckley, 525 U.S. at 195.

Thus, the record supports the conclusion that the sheer

"reduc[tion in] the number of persons . . . available to circulate

petitions" as a result of the residency requirement at issue here

is at least as "drastic[]" as it was as a result of the registration

requirement that the Court addressed in Buckley, 525 U.S. at 193

& n.15 (considering the exclusion of less than one million people

"eligible" but not "registered" to vote). Similarly, the record

- 41 - supports the conclusion that the residency requirement imposes a

material limitation on the proponents' ability "to select what

they believe to be the most effective means" to "advocate their

cause" as in Meyer, 486 U.S. at 424. Accordingly, we are not

persuaded by the defendants' arguments that the District Court

erred in concluding that the plaintiffs are likely to succeed in

showing that strict scrutiny applies to the requirement because it

imposes a severe burden on core political speech.

2.

We move on, then, to the next stage of the inquiry, which

concerns whether the residency requirement serves a compelling

state interest in a narrowly tailored manner. The defendants

assert two compelling interests: "ensuring that circulators can be

located easily and efficiently" to combat petition fraud, and

"protecting the very means by which Mainers exercise their right

to legislate," by ensuring "that a power held by Mainers is

administered -- and policed -- by Mainers." We consider each

interest in turn, as well as the extent to which the residency

requirement is narrowly tailored to serve each one. We conclude,

as we will explain, that the District Court did not err in holding

that the plaintiffs are likely to succeed in their First Amendment

challenge to the residency requirement, notwithstanding the

- 42 - defendants' arguments about why that requirement survives even

strict scrutiny.

The District Court did not question the first of the

defendants' asserted compelling interests, which the District

Court described as Maine's "strong interest in protecting its

elections." We the People PAC, 519 F. Supp. 3d at 46. The District

Court concluded instead that, even if Maine's interest in

"monitor[ing] and prosecut[ing] petition fraud" is compelling, the

plaintiffs are likely to succeed in demonstrating that the

defendants cannot show that the residency requirement is narrowly

tailored to serve that interest. Id. We agree.

As we have seen, Meyer rejected the argument that

Colorado's ban on paid circulators was narrowly tailored to serve

a like interest. 486 U.S. at 426-27. Meyer pointed as support

for that conclusion to "[o]ther provisions" of Colorado law that

expressly imposed penalties for petition fraud as "adequate to the

task of minimizing the risk of improper conduct in the circulation

of a petition, especially since the risk of fraud or corruption,

or the appearance thereof, is more remote at the petition stage of

an initiative than at the time of balloting." Id. Those

provisions made it "a crime to forge a signature on a petition, to

- 43 - make false or misleading statements relating to a petition, or to

pay someone to sign a petition." Id. at 427 (citations omitted).

Buckley is no different. It rejected an argument that

Colorado's voter-registration requirement was narrowly tailored to

serve the state's interest in preserving election integrity,

explaining that Colorado's "interest in reaching law violators"

was served by a requirement "that each circulator submit an

affidavit setting out, among several particulars, the 'address at

which he or she resides.'" 525 U.S. at 196 (quoting Colo. Rev.

Stat. § 1–40–111(2) (1998)).

Nothing indicates that there is a better fit here between

the interest in election integrity that Maine asserts and the

restriction on who can be a circulator that Maine has imposed

through its residency requirement, at least "as [that requirement

is] applied to out-of-state circulators who first submit to the

jurisdiction of the state of Maine" for alleged violations of Maine

law. We the People PAC, 519 F. Supp. 3d at 53; cf. Tenn. Wine &

Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2457, 2461-

62, 2475 (2019) (holding that state's residency requirement for

the issuance of a license to operate a liquor store could not

survive Twenty-First Amendment scrutiny, despite the state's

contention that the requirement ensured amenability to process in

state courts and state regulatory oversight, because

- 44 - "alternatives" such as "requiring a nonresident to . . . consent

to suit" and "on-site inspections" remained available). Nor are

we persuaded by the defendants' arguments to the contrary.

The defendants contend that Maine's interest in the

integrity of its elections "is not limited to the ability to force

circulators to return to the state," because that interest also

extends to "being able to quickly and efficiently contact

circulators to, for example, investigate potential signature

fraud." For that reason, the defendants contend, even though Maine

could subpoena out-of-state circulators, that option "is hardly a

realistic" one for the Secretary to exercise during the thirty-

day petition review period.

But, Maine law already requires circulators to disclose

in an affidavit "the physical address" at which they reside. Me.

Stat. tit. 21-A, ch. 11, § 903-A(4)(A). Furthermore, a requirement

that circulators provide up-to-date contact information and submit

to legal process is, like the requirement that circulators provide

an "address attestation" identified in Buckley, an alternative

that "has an immediacy, and corresponding reliability" that a mere

requirement that the circulator be a Maine resident "lack[s]," 525

U.S. at 196.

The defendants also do not explain why -- in this day

and age -- resident circulators are so much easier to contact than

- 45 - nonresident circulators that a flat-out ban on out-of-staters is

necessary. Nor have the defendants explained why Maine could not

further its interest on this score just as effectively by requiring

out-of-state circulators to provide up-to-date contact

information. See Buckley, 525 U.S. at 196.

A substantial body of out-of-circuit precedent accords

with this analysis, as the District Court pointed out. See We the

People PAC, 519 F. Supp. 3d at 46-47; see also Brewer, 531 F.3d at

1037 ("Federal courts have generally looked with favor on

requiring petition circulators to agree to submit to

jurisdiction . . . and the courts have viewed such a system to be

a more narrowly tailored means than a residency requirement to

achieve the same result."); Yes on Term Limits, Inc., 550 F.3d at

1029-30; Libertarian Party of Va., 718 F.3d at 318. Such contrary

precedent as there is, moreover, does not lead us to conclude that

the District Court's application of the narrow tailoring

requirement was mistaken.

The defendants are right that the Eighth Circuit held in

Jaeger that North Dakota's residency requirement for petition

circulators was constitutional because the state "ha[d] a

compelling interest in preventing fraud," and that the requirement

"allow[ed]" the state "to protect the petition process from fraud

and abuse by ensuring that circulators answer to [its] subpoena

- 46 - power." 241 F.3d at 616. But, the plaintiffs in that case did

not propose, and the Eighth Circuit did not consider, the narrower

means of achieving that interest that we find available here:

requiring out-of-state circulators to provide up-to-date contact

information and to submit to legal process in the state. See id.;

Brief of Appellants at 38-42, Initiative & Referendum Institute v.

Jaeger, 241 F.3d 614 (8th Cir. 2001) (No. 99-3434).

The defendants also rely for their position on the Maine

Law Court's opinion in Hart, which they describe as having found

that the residency requirement "serves the Secretary's important

interest in making 'circulators easier to locate if there is a

question as to the validity of the signatures collected'" (quoting

Hart, 715 A.2d at 168). But, the plaintiffs in that case did not

argue in their brief to that court that Maine could instead require

circulators to submit to legal process or provide their contact

information to the state. See Hart, 715 A.2d at 168; Brief of

Appellants, Hart v. Sec'y of State, 715 A.2d 165 (Me. 1998), 1998

WL 35076164, at *16-18; see also Brief of Appellee, Hart v. Sec.

of State, 715 A.2d 168 (Me. 1998), 1998 WL 34501218, at *9-20.

Indeed, aside from the single sentence in its opinion in which the

Maine Law Court stated that the residency requirement "provide[d]

the State with jurisdiction over the circulators and ma[de] the

circulators easier to locate," the Law Court did not further

- 47 - explain its basis for concluding that interest was one that Maine's

residency requirement was narrowly tailored to serve. See Hart,

715 A.2d at 168.

The defendants also point to the role that circulators

play in what the Maine Law Court described in Hart as "preserving

the integrity of the law-making process." Hart, 715 A.2d at 168.

In Meyer, however, the Court was "not prepared to assume" that a

paid circulator was "any more likely to accept false signatures"

than a circulator who was "motivated entirely by an interest in

having the proposition placed on the ballot." 486 U.S. at 426.

We see no reason here to make the assumption that Meyer declined

to make simply because a paid circulator is not a Maine resident.

We thus reject the contention that the District Court

erred in ruling that the plaintiffs were likely to succeed in

showing that the residency requirement is not narrowly tailored to

serve the state's interest in protecting the integrity of its

elections. And that is so even if we account for Maine's asserted

interest in efficiently locating circulators.

The defendants separately argue that Maine has a

compelling interest "in limiting participation in its political

process to its residents" (quoting Initiative & Referendum Inst.,

1999 WL 33117172 at *15). Here, the District Court rejected what

- 48 - it described as the defendants' "grassroots interest" argument.

See We the People PAC, 519 F. Supp. 3d at 47-48. It did so on the

ground that, as in Meyer, 486 U.S. at 425-26, and Buckley, 525

U.S. at 205, Maine already requires that successful initiative

petitions consist of a minimum number of signatures, and that it

further requires that the petition "be signed by Maine citizens

and approved by Maine voters on election day before becoming law."

We the People PAC, 519 F. Supp. 3d at 47-48. We agree.

The defendants argue otherwise based in part on Holt

Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68-69 (1978).

There, the Court explained that its precedents "have uniformly

recognized that a government unit may legitimately restrict the

right to participate in its political processes to those who reside

within its borders." Id. at 68-69. But, Holt concerned

participation in the political process through voting rather than

through the circulation of a petition. Id. at 61-63, 66-69. Thus,

the fact that Holt upheld a limitation on the voting rights of

non-residents does not show that a limitation on the right of non-

residents to circulate a petition is constitutional, as Buckley

itself makes clear. See Buckley, 525 U.S. at 196 n.17.

The defendants also rely on the unpublished opinion in

Initiative & Referendum Institute v. Secretary of State, in which

the District Court for the District of Maine stated that "Maine's

- 49 - interest in limiting participation in its political process to its

residents is compelling" and that Maine could permissibly require

petition circulators to be Maine residents due to the "vital role"

that circulators play "in the process of self-government." 1999

WL 33117172 at *15 (citing Holt, 439 U.S. at 68-69). Although the

defendants do not expand on this "self-government" argument, they

do advance the related contention that "[t]he initiative power is

a legislative right reserved in Maine's Constitution for Maine's

residents, and the exercise of that power is not limited to signing

a petition or voting for an initiative, but rather includes the

circulation of petitions."

But, in Meyer the Court rejected the argument "that

because the power of the initiative is a state-created right,

[Colorado] is free to impose limitations on the exercise of that

right." 486 U.S. at 424. The Court explained that "the power to

ban initiatives entirely" does not "include[] the power to limit

discussion of political issues raised in initiative petitions."

Id. at 425. Nor, as we have already explained, is this a case in

which either the state measures imposing the restrictions or the

defendants' interpretation of them provides any legal clarity as

to whether out-of-state circulators are permitted to engage in

petition circulation when accompanied by an in-state "witness,"

see We the People PAC, 519 F. Supp. 3d at 29-30, such that it is

- 50 - evident that the residency requirement does not severely burden

"core political speech," id. at 53.

The defendants relatedly contend that the residency

requirement is narrowly tailored to serve their interest in

"limiting the responsibility of circulation" to "those who possess

the right to advance and pass citizen legislation and must live

under any resulting law." They cite for this proposition to the

Maine Law Court's decision in Hart, which found that Maine's

residency requirement "enhances the integrity of the initiative

process by ensuring that citizens initiatives are brought by

citizens of Maine." 715 A.2d at 168.

But, in light of Meyer and Buckley, we fail to see why

banning non-resident circulators is narrowly tailored to serve

that interest. After all, only the individuals who must live under

any resulting law may sign the petition, see Me. Const. art. IV,

pt. 3, § 20, and only Maine voters may vote to approve any measure

that does reach the ballot by way of a successful petition. See

We the People PAC, 519 F. Supp. 3d at 47. In addition, as the

District Court noted, the defendants have not argued that Mainers

are "especially vulnerable to blandishments from out-of-state

circulators." Id. at 48.

- 51 - 3.

Thus, on the record before us, the residency requirement

likely "inhibit[s] communication with voters about proposed

political change" and is likely "not warranted by the state

interests . . . alleged to justify [it]." Buckley, 525 U.S. at

192. We therefore agree with the District Court that the

plaintiffs have established that they are likely to succeed in

proving that the residency requirement violates the First

Amendment.

We turn now to Maine's voter-registration requirement

for the circulation of petitions. We first conclude that the

District Court did not err in ruling that this requirement also

likely is subject to strict scrutiny. We then further conclude

that, given the interests that Maine has asserted, the plaintiffs

have met their burden to show that the requirement is not likely

to survive that level of scrutiny.

With respect to the burden that the voter-registration

requirement imposes, it is problematic -- as the plaintiffs suggest

-- to consider only the portion of that requirement that concerns

the act of registering in the abstract. The requirement is not to

be a registered voter somewhere. It is a requirement to be

- 52 - registered to vote in Maine, Me. Stat. tit. 21-A, § 903-A, which

is possible only if one is otherwise eligible to vote in Maine,

see Me. Const. art. II, § 1, and which means that the requirement

necessarily excludes those not meeting the residency requirement.

In challenging the District Court's ruling as to the

registration requirement, the defendants begin by contending that

"if the residency requirement does not impose a severe burden,

then the registration requirement does not do so, either." But,

they develop no argument in favor of the converse -- namely, that

if the residency requirement does likely impose a severe burden,

the registration requirement does not. Instead, they merely argue

that the additional burden imposed by the registration requirement

beyond the residency requirement is minimal, such that it does not

result in the imposition of a severe burden on core political

speech insofar as the residency requirement itself does not.

To that point, the defendants contend that

"[r]egistering to vote in Maine is both easy and straightforward."

They also assert that only three percent of eligible Maine

residents are not registered to vote, which, by their own account,

excludes at least the 32,000 Maine residents who are eligible but

- 53 - not registered to vote from serving as circulators.8 And, in

support of that contention, the defendants point to two cases that

have upheld Maine's voter-registration requirement after

concluding that it did not impose a severe burden on core political

speech given the relatively small number of Mainers who were

excluded from serving as circulators. See Initiative & Referendum

Inst., 1999 WL 33117172, at *15; Jones, 238 A.3d at 992 ("[T]he

individual circulators whose petitions are in dispute here were

not opposed to registering to vote and indeed became registered

voters in their municipalities, albeit after they circulated the

disputed petitions.").

But, even if we were to assume that a restriction that

would exclude tens of thousands of possible circulators would not

for that reason alone severely burden core political speech, see

Buckley, 525 U.S. at 193, 194-95 (describing burden imposed by

voter-registration requirement that excluded 400,000 Coloradan

residents from serving as circulators (citing Meyer, 486 U.S.

at 422)), the residency requirement, as we have explained, does

8 As the District Court observed, that number may even be higher, as Maine's Constitution requires not merely that prospective circulators be registered to vote in Maine but also that they be registered to vote in the specific "city, town or plantation" in which they reside. Me. Const., art. IV, pt. 3, § 20; We the People PAC, 519 F. Supp. 3d at 32, 50, 51. Although the defendants contend that the District Court did not rely on any evidence for the proposition that the number therefore "must be" higher, id. at 51, the inference that it would be is reasonable.

- 54 - likely impose a severe burden on core political speech. Thus, in

light of that ruling, we have no basis here, given the defendants'

own contentions, to conclude that the voter-registration

requirement does not likely do so as well.

The defendants appear to acknowledge that, if the

residency requirement cannot survive strict scrutiny, then neither

can the voter-registration requirement insofar as it "serves the

residency requirement." Nonetheless, the defendants contend that

the registration requirement can survive such scrutiny even if the

residency requirement cannot, because it is a standalone means of

"serv[ing] the same integrity interest that residency does."

The defendants assert in support of that contention that

the registration requirement serves this integrity interest by

"limit[ing] participation" in the initiative process "to those who

are invested enough to take the trouble to register to vote"

(quoting Initiative & Referendum Inst., 1999 WL 33117172, at *15).

The requirement does so, they further assert, because it "ensures

that each circulator has a vested interest in the initiative they

hope to pass, in that each will be able to vote on that initiative

should it qualify for the ballot."

The defendants cite as support for this contention to

Initiative & Referendum Institute v. Secretary of State, 1999 WL

- 55 - 33117172, at *15. But, the court there did not apply strict

scrutiny to the voter-registration requirement. Id. It thus did

not assess whether that restriction was narrowly tailored to serve

the state's purported interest in limiting participation in the

initiative process. Id. Moreover, we see no basis in the record

for assuming that circulators who are not registered to vote in

Maine will be less likely to abide by an oath to verify the validity

of the signatures that they witness, or otherwise to go about the

petitioning business in accordance with Maine's laws, than those

who are not. Cf. Meyer, 486 U.S. at 426 ("[W]e are not prepared

to assume that a professional circulator . . . is any more likely

to accept false signatures than a volunteer . . . ."); Buckley,

525 U.S. at 203-04.

So, for these reasons, we agree with the District Court

that it is likely that the voter-registration requirement does not

appropriately fit the asserted integrity interest. And, to the

extent that the integrity interest the defendants advance here is

just a way of restating the interest in limiting the "initiative

power" to "Maine's residents" that they advance in defense of the

residency requirement, it is problematic for the same reason that

such a contention is in that context.

In the absence of a compelling state interest to which

the voter-registration requirement is narrowly tailored, we cannot

- 56 - conclude that it survives strict scrutiny. See Buckley, 525 U.S.

at 192 n.12. Thus, as is the case with the residency requirement,

we conclude that the District Court did not err in holding that

the plaintiffs are likely to succeed on the merits of their First

Amendment challenge to the voter-registration requirement. And,

we note that this decision is in accord with decisions of our

sister circuits, as none in the wake of Buckley has upheld such a

restriction after applying strict scrutiny. See Blackwell, 545

F.3d at 478 (Moore, J., concurring in part and in the judgment)

("We hold that the voter-registration requirement . . . is a

severe restriction on political speech which cannot survive strict

scrutiny."); Krislov, 226 F.3d at 856, 866 (striking requirement

that circulators "be registered to vote in the same political

subdivision for which the candidate is seeking office" as not

meeting "exacting scrutiny").

IV.

There remains to address the other factors in the

preliminary injunction analysis -- first, the potential for

"irreparable harm," second, "the balance of relative hardships,"

and third, the question whether an injunction would be in the

"public interest." See Ryan, 974 F.3d at 18. We begin with the

last two factors, as the analysis of them is straightforward. We

continue to review for abuse of discretion, mindful that "[a]part

- 57 - from error of law, an abuse of discretion occurs when the district

court considers improper criteria, ignores criteria that deserve

significant weight, or gauges only the appropriate criteria but

makes a clear error of judgment in assaying them." Rosario-

Urdaz v. Riviera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003).

In arguing that the District Court erred in determining

that the "balance of relative hardships" and "public interest"

factors favored granting the preliminary injunction, Ryan, 974

F.3d at 18, the defendants contend that the plaintiffs unduly

delayed in filing their lawsuit and that the District Court should

not have permitted them "to manufacture a need for extraordinary

relief through their own lack of diligence." See Respect Maine

PAC, 622 F.3d at 16 (concluding "this 'emergency' is largely one

of [plaintiffs'] own making" where, "well aware of the requirements

of the election laws," they "chose" not to sue until approximately

three months prior to an election date). The defendants further

contend that "this case concerns a core right held by all Maine

residents" and that the preliminary injunction therefore harms the

"public -- namely, Mainers" and their "interest in protecting the

integrity of a legislative power reserved to them under their state

constitution."

- 58 - But, the District Court did not abuse its discretion in

ruling that, even though the plaintiffs' delay in filing their

lawsuit "put the Court in the undesirable position of considering

an important constitutional challenge on an expedited basis," the

"constitutional challenge" before it was "both meritorious and

important." We the People PAC, 519 F. Supp. 3d at 52. Moreover,

the District Court recognized the public's "strong competing

interests" in "the regulation of referendum petitions and in

protecting the integrity and grassroots nature of the direct

initiative and people's veto power" on the one hand, and in

"ensuring the freedom of speech and constitutionality of election

laws" on the other. Id. It then reasonably concluded that "the

public has a greater interest in upholding its constitutionally

protected freedom of speech." Id.

That leaves only the defendants' arguments with respect

to "the potential for irreparable harm in the absence of an

injunction." González-Droz v. González-Colon, 573 F.3d 75, 79

(1st Cir. 2009). With respect to the plaintiffs' then-ongoing

campaign for which they had not gathered sufficient signatures,

the District Court concluded that the plaintiffs had "shown a

severe burden and [we]re not required to further prove that it is

impossible to gather enough signatures under the current law." We

- 59 - the People PAC, 519 F. Supp. 3d at 52; see also id. at 51 ("The

loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury." (quoting Elrod v.

Burns, 427 U.S. 347, 373 (1976))). The defendants appear to agree

with that description of what the plaintiffs must show to satisfy

the irreparable harm requirement.

The District Court determined that the plaintiffs'

showing with respect to the likelihood of this "continuing

deprivation" of their First Amendment rights also shows that they

are likely to suffer "an irreparable harm." See id. The District

Court acknowledged in so ruling that it was issuing the preliminary

injunction on the day on which the plaintiffs' petition had to be

submitted to municipal officials for certification of signatures

so that it could be filed with the Secretary's office for placement

of that initiative on the November 2022 ballot. See id. at 44,

52. But, the District Court held that "while an injunction might

make no real difference for the [then-]current petition drive,"

the plaintiffs would "continue to suffer harm in their next

petition drive," and identified a "continuing deprivation" that

"acts as an irreparable harm" on that basis as well. Id. at 52.

The District Court then preliminarily enjoined the requirements as

to future drives. Id. at 53.

- 60 - The defendants argue to us that the District Court abused

its discretion in this regard by relying on "a hypothetical future

campaign" to conclude that the plaintiffs were at risk of

irreparable injury. They contend that the "contingency plan" to

initiate a new petition drive "cannot, as a matter of law . . .

establish a likelihood of irreparable harm" because it is too

uncertain. See In re Rare Coin Galleries, Inc., 862 F.2d 896, 902

(1st Cir. 1988) ("Speculation or unsubstantiated fears of what may

happen in the future cannot provide the basis for a preliminary

injunction.").

But, when asked in an interrogatory about the

implications of the timing of their lawsuit, the plaintiffs

explained that even if they did not make the February 2021

deadline, they would be able to "immediately refile the initiative

petition and still make the 2022 ballot if they file[d] signatures

from a new petition drive with signatures collected from March

2021 to January 2022." And while the defendants contend that this

statement did not constitute a "commitment to a new campaign" and

to apply for a new initiative petition form, but merely indicated

the plaintiffs' awareness of the relevant deadlines should they

choose to "'refile,'" the statement in context is fairly construed

as a representation that the plaintiffs' reasons for seeking a

- 61 - preliminary injunction would persist past the then-impending

February 16, 2021 deadline.9

We also are not persuaded by the defendants' challenge

to the finding of irreparable harm on the ground that, even if the

record does show that the plaintiffs intended to file future

petitions, "[t]he record does not touch upon preparations for any

future campaign, or predictions for how a new campaign, which could

be conducted during the summer of 2021 and in an improving pandemic

environment, would unfold." As we have explained in addressing

the "likelihood of success" prong of the analysis, the burden on

core political speech that the residency- and voter-registration

requirements each imposes arises from the drastic limitation on

the pool of out-of-state circulators that each inherently

imposes.10

The record also contains the signed declaration of the 9

President of plaintiff Liberty Initiative Fund stating that Liberty Initiative Fund "seeks relief from these restrictions not only so that [it] can reach enough people to place the Citizen Voting initiative on the 2022 ballot, but so that [it] can, working with We the People PAC and other Mainers, place other reform measures . . . on the ballot in 2022 and 2024." The defendants do not appear to have disputed this statement below, nor do they do so on appeal. The defendants separately contend that if the 10

plaintiffs truly "had premised their request for a preliminary injunction on long-term harm to a future campaign," then "the

- 62 - V.

The order issuing the preliminary injunction is

Affirmed.

Secretary would . . . have insisted on the development of a full preliminary injunction record and traditional sequential briefing." But, the defendants do not identify any arguments that they were unable to make or evidence that they were unable to collect as a result of the District Court's docket management practices. We also note that the defendants have not advanced any separate argument that, even if there has been a showing of irreparable harm with respect to the filing of future initiative petitions, that showing cannot support a preliminary injunction with respect to the petitioning process for any post-2022 ballot measures or with respect to the restrictions on circulators of petitions for a people's veto. The parties are free on remand to address any issue in that regard.

- 63 -