PAY PER SIGNATURE LAWS
Bans on performance based incentives in states that choose to make new laws rather than enforce the criminal forgery laws they already have.
Read Court Decision overturning ban on Ohio Pay-per-Signature law.
In six states (North Dakota, Oregon, South Dakota, Montana, Ohio and Wyoming), initiative
sponsors are banned from paying petition circulators per signature. North Dakota and
Oregon's provisions have been upheld by the U.S. 9th and 8th
Circuit Courts, respectively. Similar laws in Idaho,
Maine, Mississippi and Washington were held unconstitutional by federal
district courts. In 2007 South Dakota and Montana passed pay per signature bans with language designed to balance the issue, and these are untested. The South Dakota law is unique in its open allowance of performance incentives and productivity requirements, which appear to strike a balance. The Ohio law has been struck down by a federal court, and is pending appeal in the 6th Circuit court of appeals.
Circulators for statewide ballot measures cannot be employed, rewarded or compensated based on the number of registered voters who signed the petitions. (Effective 7-1-07)
12-13-28. Employment and
compensation of petition circulators. No person may employ,
reward, or compensate any person to circulate a petition for an initiated
measure, referred law, or proposed amendment to the South Dakota Constitution
based on the number of registered voters who signed the petition. Nothing in
this section prohibits any person from employing a petition circulator based on
one of the following practices:
(1) Paying an hourly wage or salary;
(2) Establishing either express or implied minimum signature requirements for the petition circulator;
(3) Terminating the petition circulator's employment, if the petition circulator fails to meet certain productivity requirements; and
(4) Paying discretionary bonuses based on reliability, longevity, and productivity.
Any violation of this section is a Class 2 misdemeanor.
"13-27-102. Who may petition and gather signatures
A petition for the initiative, the referendum, or to call a
constitutional convention may be signed only by a qualified elector of
the state of Montana.
See Complete Bill:
"It is unlawful for a person to…[p]ay or offer to pay any person, or receive payment or agree to receive payment, on a basis related to the number of signatures obtained for circulating an initiative, referendum, or recall petition. This subsection does not prohibit the payment of salary and expenses for circulation of the petition on a basis not related to the number of signatures obtained, as long as the circulators file their intent to remunerate prior to submitting the petitions…"
Upheld in 2001 by the U.S. 8th Circuit Court of Appeals, Initiative & Referendum Institute v. Jaeger.
"It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition. Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained. [Created through initiative petition filed Nov. 7, 2001, and adopted by the people Nov. 5, 2002]"
Upheld by a federal district judge and the 9th Circuit.
"A circulator of an initiative or a referendum petition or a person who causes the circulation of an initiative or a referendum petition may not receive payment for the collection of signatures if that payment is based upon the number of signatures collected. Nothing in this section prohibits a circulator of an initiative or a referendum petition or a person who causes the circulation of an initiative or a referendum petition from being paid a salary that is not based upon the number of signatures collected."
Held unconstitutional in 2001 by a U.S. District Court. Idaho Coalition United for Bears v. Cenarrusa.
Held unconstitutional in 1999 On Our Terms '97 PAC v. Secretary of State of State of Maine.(U.S. District Court of Maine.)
Held unconstitutional in 1997.
Term Limits Leadership Council v. Clark, 984 F.Supp. 470 (S.D. Miss. 1997)
Held unconstitutional in 1994 by a federal district court, LIMIT v. Maleng.
Ohio (invalidated by federal trial court-upheld 3/5/08 on appeal to 6th circuit)
Summary: Citizens for Tax Reform v. Deters
3599.111 Per signature or per volume voter registration compensation prohibited - penalty.
(B) No person shall receive compensation on a fee per signature or fee per volume basis for circulating any declaration of candidacy, nominating petition, initiative petition, referendum petition, recall petition, or any other election-related petition that is filed with or transmitted to a board of elections, the office of the secretary of state, or other appropriate public office.
(C) No person shall receive compensation on a fee per registration or fee per volume basis for registering a voter.
(D) No person shall pay any other person for collecting signatures on election-related petitions or for registering voters except on the basis of time worked.
(E)(1) Whoever violates division (B) of this section is guilty of receiving improper compensation for circulating a petition, a felony of the fifth degree.
(2) Whoever violates division (C) of this section is guilty of receiving improper compensation for registering a voter, a felony of the fifth degree.
Citizens for Tax Reform v. Deters et al., Case No. 1:05-CV-212, decided November 27, 2006, the United States District Court ruled the statute violates the First Amendment to the United States Constitution.
Professional signature-gathering companies showed that prohibition onpay per signature compensation would raise the costs and increase the time associated with obtaining the number of signatures required to qualify for the ballot. The Court also found that evidence of fraud in certain petition efforts did not establish a causal nexus between the fraud and the method of payment to circulators. Held: the statute did not justify the burden placed on the initiative proponents core political speech rights.
On December 27, 2006, the State of Ohio appealed the federal trial court's decision to the 6th Circuit Court of Appeals. Pending.
Gregory C. Schmid
Attorney at Law
Office: (989) 799-4641 Cell 239-9000