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A sign touting a 2016 ballot initiative

A collection of groups trying to qualify ballot initiatives this year is challenging a Montana statute that outlaws out-of-state residents from gathering signatures for petitions, and prohibits anyone from being paid based on the number of signatures they gather.

The law came about after the 2006 election cycle, when some nonresident signature gatherers who were paid per signature tricked people into signing more ballot initiative petitions than they intended.

In Montana, people who gather signatures for statewide ballot issues must be a state resident. Signature gatherers may be volunteers or paid, but they can't be paid based on how many signatures they get.

This is different than the process for qualifying political parties and candidates for the ballot; non-Montana residents can gather signatures for those types of petitions and there's no law dictating how they can be paid.

The groups filed a lawsuit in federal court in Helena last week against the secretary of state and attorney general, whose offices are involved in approving initiatives for the ballot.

While Montana Secretary of State Corey Stapleton is named in the suit and is being defended by the Attorney General's office, he said Monday he doesn't disagree with the group's argument against the residency requirement.

Stapleton said he thinks the law is "likely unconstitutional and a tad bit unneighborly."

The groups want an injunction to let them pay nonresidents per signature gathered to qualify three ballot issues. A hearing on the injunction Monday in front of U.S. District Court Judge Charles C. Lovell was continued to May 22 at 9:15 a.m.

The lawsuit is brought by:

• Nathan Pierce and the Montana Coalition for Rights, which are trying to qualify Ballot Issue No. 15 to reserve to the people the power to amend or repeal laws passed by initiative;

• Montanans for Citizen Voting, which is trying to qualify CI-117, a constitutional initiative to limit voting to individuals who are U.S. citizens and Montana residents at least 30 days before the election;

• Good Neighbors for Montana, which is trying to qualify Ballot Issue No. 16, an initiative to change the state Constitution so that a person accused of violating a law involving a civil or misdemeanor penalty could know the identify of their accuser.

• Sherri Ferrell, who lives in Florida and is a trained, professional petition circulator who has worked in 10 states over the last decades, including Montana. The groups say they want to hire Ferrell, who demands to be paid per signature gathered.

CI-117 was received by the Secretary of State's Office on March 1 and is the only one that’s been approved for signature gathering. Ballot Issue 15 was submitted April 23 and Ballot Issue 16 was submitted April 26. The groups must gather 50,968 signatures by June 22 to qualify for the ballot.

Paul Jacob works with groups including the Liberty Initiative Fund, which is working on CI-117, and Citizens in Charge, which advocates to changes laws like Montana's.

“When people are petitioning to put something on the ballot, that is a core First Amendment act and it deserves the highest protection in law,” Jacob said Wednesday. “There are a number of very high-quality petition circulators around the country who do this on a regular basis. Groups want to use the best people they can, not just in terms of being able to get the most signatures but also knowing what the rules are and getting them done in a way they count.” 

The lawsuit also cited "lazy work habits" of nonprofessional signature gatherers.

In a motion filed Monday, the state argues the lawsuit is a "last-minute request to disrupt the law" and the injunction should be denied because of the June deadline.

"Granting a temporary restraining order at this late date will result in disorder … and will harm the public generally and other petition gatherers specifically," the motion states.

The motion also says the Montana Coalition for Rights was "so late in starting the process for its Initiative 15 that it is not even approved for signature gathering. … Not only is it not currently approved for signature gathering, it likely never will be in this election cycle." That's because the Attorney General's Office would still need to conduct a legal sufficiency review, which takes about 30 days.

The motion also points out signature gathering for initiative petitions is a "big business" and can draw lots of full-time, out-of-state petition gatherers "looking for this lucrative work."

In 2006, three initiatives hired 43 out-of-state signature gatherers who traveled the state collecting signatures for $2.50 apiece. One gatherer was paid $84,103, another $70,170 and another $69,214, according to court documents.

Court documents also detail that a "significantly large percentage" of the paid, out-of-state signature gatherers used tactics to get people who knowingly signed one petition to unknowingly sign the other two. This happened by telling someone who wanted to sign one petition that they needed to sign in three places, for example. That would let the signature gatherers turn what would have been a $2.50 payment into $7.50.

The signature gatherers also all gave false addresses and weren't able to be found later.

A District Court at the time found the signature-gathering process was permeated by fraud, and invalidated the signatures and the certification of the initiatives for the ballot, a decision later affirmed by the state Supreme Court.

The Montana Legislature later passed the law requiring any signature gatherer for ballot initiatives to be a resident, and prohibited paying per signature gathered.

Jacob said he’s aware of what happened in Montana in 2006, but believes the fix to that is to enforce existing rules.

“Instead if someone violates the rules, way too often that’s used to make the rules even more draconian and punish the very people the whole process was designed to empower.”

He also criticized a Legislature's ability to create legislation that, he believes, limits the rights of citizens to change laws through the ballot initiative process.

"I think the public has to consider that any restriction on the referendum process, you really have to kick the tires because sometimes the goal may be a laudable one but the result is the people who should be able to access this petition process and bring their ideas to the public are blocked from doing so."

The secretary of state, meanwhile, said he doesn't disagree with the group's argument against the residency requirement.

"When I look back, whether it was right then or just over 11 years I've evolved and grown an little bit in my thoughts, I actually do think we probably need to take a look at this law and change it," Stapleton said Wednesday, acknowledging he voted for the change while in the state Senate in 2007.

Stapleton pointed to companies that are based out of state but do business in Montana and questioned whether they should be kept out of the initiative process on issues they want a voice in. He also said that out-of-staters can lobby the Legislature when it is debating bills, which he said creates inconsistency between the two processes.

Stapleton said he did have concerns about removing the pay-per-signature provision. "I don't question the money, the abuse, but this was a reactive law. The money argument is fair ... those are fair conversations to have. My issue is not with the money."

According to the National Conference of State Legislators, more than half of the 24 states that have an initiative and referendum process have some sort of residency or age requirement. Seven states, including Montana, have bans on paying per signature.

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