Maine Taxpayers Action Network v. Secretary of State

DANA, J.,

concurring in the judgment.

[¶ 22] I concur in the result, but I would affirm the decision of the Secretary of State for a different reason:

[¶ 23] The Court upholds the disenfranchisement of over three thousand citizens as a sanction for “James Powell’s” criminal conduct. The policy rationale for imposing such a sanction has a legislative ring. I reach the same result, however, because “James Powell” was not a “circulator” as that term is defined in the Maine Constitution.

[¶24] The Constitution requires that a circulator’s “name must appear on the voting list of the city, town or plantation of the circulator’s residence .... ” Me. Const. art. IV, pt. 3, § 20. In the present case, the circulator fraudulently registered to vote as “James Powell.” The circulator’s actual name, which is currently unknown, does not “appear on the voting list” of the municipality of his residence, and, therefore, he is not a circulator pursuant to Me. Const, art. IV, pt. 3, § 20.

[¶ 25] MTAN contends that the registrar of the municipality is the “exclusive” authority on a voter’s qualifications,10 and, *83therefore, the Secretary of State has no authority to determine whether “James Powell” was a properly registered voter.11 The issue, however, is not whether a person named “James Powell” is a properly registered voter, but whether the circulator’s “name” “appear[s] on the voting list of the city, town or plantation of the circu-lator’s residence_” Me. Const, art. IV, pt. 3, § 20. Because the circulator (whose identity is unknown) did not register to vote using his correct name, his name did not appear on the voting list of his local community as required by the Constitution.

[¶ 26] MTAN contends that Maine’s “registered voter” requirement violates the right to free speech as guaranteed by the First and Fourteenth Amendment. See U.S. Const, amends. I, XIV, § 1. MTAN relies on the United States Supreme Court’s decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 197, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), in which the Court struck down a Colorado statute requiring circulators to be registered voters. As the Supreme Court stated, however, there is “ ‘no litmus paper test’ [to] separate valid ballot-access provisions from invalid interactive speech restrictions ....” Id. at 192, 119 S.Ct. 636 (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)). The Court has also stated:

Decision in this context, as in others, is very much a ‘matter of degree,’ very much a matter of ‘considering] the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. What the result of this process will be in any specific case may be very difficult to predict with great assurance.

Storer, 415 U.S. at 730, 94 S.Ct. 1274 (citations omitted).

[¶ 27] In Buckley, 525 U.S at 193, 119 S.Ct. 636, the Supreme Court considered the actual effect of the voter registration requirement in Colorado, in light of evidence in the record that there were at least 400,000, id., and possibly as many as 964,000, id. at 193 n. 15, 119 S.Ct. 636, unregistered, but voter-eligible residents in Colorado at the time Buckley was decided. Based on this evidence, and “given the uncontested numbers,” the Court found that Colorado’s registered voter requirement “decreases the pool of potential circulators ...,” id. at 194, 119 S.Ct. 636, to an impermissible degree, and “cuts down the number of message carriers in the ballot-access arena without impelling cause,” id. at 197, 119 S.Ct. 636.

[¶ 28] There is no evidence in the record to support the assertion that Maine’s voter registration requirement will have a similar impact on the number of potential cir-culators as the Colorado requirement. Indeed, a recent decision by a federal court in Maine has upheld the Maine voter registration requirement against First Amendment and equal protection challenge, stating:

The Secretary [of State] in this case adduces undisputed evidence that the estimated voting-age population of Maine (i.e., Maine residents age 18 and over) was 944,785 as of July 1997, com*84pared with a pool of Maine registered voters totalling 938,753 as of November 1998. Earlier data is comparable, showing a voting-age population of 943,797 in 1996 and a total of 953,368 registered voters as of November 1997. Thus, approximately 98.8 percent of Maine’s voter-eligible population is registered to vote. These numbers do not in themselves sustain a claim of severe burden.

Initiative & Referendum Inst. v. Sec’y of State, No. CIV. 98-104-B-C, 1999 WL 33117172, at *15 (D.Me. Apr.23, 1999).12

[¶ 29] Maine’s voter registration requirement serves a purpose of providing a convenient and administratively efficient means of identifying and locating circula-tors as part of the validation process, if necessary, or to investigate potential misconduct. See id. at *15 — *16. In the absence of any evidence to suggest that Maine’s voter registration requirement presents a severe burden on the right of free speech, I would uphold the voter registration requirement and affirm the Secretary of State’s decision to invalidate the 3,054 signatures on the ground that the circulator’s name does not appear on a list of registered voters as required by Me. Const, art. IV, pt. 3, § 20.

. Section 121 provides: "The registrar has the exclusive power, subject to section 163, to determine whether a person who applies for registration as a voter meets the qualifications prescribed by this Title.” 21-A M.R.S.A. § 121 (Supp.2001). Section 161 also provides that "[tjhe registrar has the exclusive power to prepare and revise the voting list.” Id. § 161. Section 161(4) provides: “If the registrar is in doubt as to the qualifications of *83a person to vote, the registrar shall fix a reasonable time and place for a hearing and give written notice to the voter at the last known address provided by the voter .... ” Id. § 161(4).

. On the other hand, we have stated that “[flraud opens all doors,” Opinion of the Justices, 116 Me. 557, 581-82, 103 A. 761, 772 (1917), and that credible evidence of fraud may give the executive officer responsible for petition review the authority to make an independent investigation.

. In an attached footnote, the District Court noted that ''[t]he total number of registered voters appears to exceed the estimated voting-age population because local registrars do not always purge the names of registered voters who move or die.” Initiative & Referendum Inst. v. Sec’y of State, No. CIV. 98-104-B-C, 1999 WL 33117172, at *15 n. 16 (D.Me. Apr.23, 1999).