Out-Of-State Petition Circulators

Mississippi's initiative process has been in the news lately, with the measure for voter ID qualifying for the November 2011 ballot. It's also possible that an abortion initiative will appear on that ballot.

Mississippi is the only state that had the initiative process and lost it. This happened in 1922 as the result of a state Supreme Court ruling. In November 1992, some 70 percent of the voters approved our current initiative process, and the U. S. Department of Justice in 1993 okayed it under the Voting Rights Act. Since then, only two initiatives have qualified for the ballot, prior to the voter ID measure. Both of these proposals were for term limits-- in 1995 and 1999-- and both were defeated.

As though the Magnolia State's initiative process were not already tough enough, the state legislature in 1998 made it even more difficult by requiring that petition circulators be residents of the state. However, if a lawsuit were brought against this requirement, I believe that the suit would be successful. In 1999, for example, the U. S. Supreme Court struck down a Colorado law that mandated that petition circulators be registered voters in the state (Buckley v. American Constitutional Law Foundation).

Furthermore, seven of the federal circuit courts of appeals have issued rulings regarding residency requirements for petition circulators. Richard Winger, publisher of Ballot Access News, says, "The 6th, 7th, 9th and 10th circuits have thrown out laws that bar out-of-state circulators. The 2nd and 3rd circuits have thrown out laws that require circulators for district office to live in the district.

"On the other hand, the 8th circuit upheld a ban on out-of-state circulators in North Dakota, although that decision didn’t apply strict scrutiny, so it is disobedient to the U. S. Supreme Court precedent on who can circulate. There is a case pending against Idaho’s ban on out-of-state circulators in U. S. District Court that may get a ruling any day now. The Constitution Party is about to file a lawsuit against Kansas’ ban on out-of-state circulators." Independence Institute v. Buescher, a federal suit filed on March 15, challenges Colorado's prohibition on out-of-state circulators.

There has not yet been a case on non-resident petition circulators in the 5th circuit, which consists of Mississippi, Louisiana, and Texas.