Maine Taxpayers Action Network v. Secretary of State
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 64
Docket:	Cum-02-187
Argued:	April 4, 2002
Decided:	April 17, 2002

Panel:	SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, CALKINS, and LEVY, JJ.
Majority:	SAUFLEY, C.J., and CLIFFORD, RUDMAN, CALKINS, and LEVY, JJ.
Concurrence:	DANA, J.

MAINE TAXPAYERS ACTION NETWORK

v.

SECRETARY OF STATE

SAUFLEY, C.J.

	[¶1]  Maine Taxpayers Action Network challenges the Secretary of State's
decision to invalidate over three thousand signatures gathered by an imposter
who was paid by MTAN to circulate petitions in support of a ballot initiative. 
The imposter, who, unbeknownst to MTAN, had stolen the identity of another
person who did not reside in Maine, has now absconded from Maine and
cannot be found. 
	[¶2]  MTAN asks us to hold that when a circulator steals the identity,
including name, social security number, and birth date, of another person,
fraudulently obtains a driver's license, motor vehicle registration, and voter
registration using that stolen identity, and falsely swears to that identity in his
oath and affidavit in connection with an initiative petition, the Secretary of
State must nonetheless accept the signatures obtained by that circulator.  We
are unpersuaded by MTAN's argument, and we affirm the judgment of the
Superior Court affirming the decision of the Secretary of State.	

I.  BACKGROUND

	[¶3]  In October of 2000, with the approval of the Secretary of State
pursuant to constitutional and statutory citizen initiative procedures, the
Maine Taxpayers Action Network initiated a petition on behalf of a proposed
ballot initiative entitled "An Act to Impose Limits on Real and Personal
Property Taxes."  See Me. Const. art. IV, pt. 3, § 18;{1} 21-A M.R.S.A. §§ 901-906
(1993 & Supp. 2001).  The citizen initiative procedures permit Maine citizens to
propose legislation directly to the Legislature after obtaining the requisite
number of signatures on a petition.  Me. Const. art. IV, pt. 3, §§ 18(2), 20; 21-A
M.R.S.A. § 901 (Supp. 2001).  In this case, MTAN was required to gather 42,101
signatures to support its initiative.
	[¶4]  Signatures are collected by individuals known as "circulators."  Me.
Const. art. IV, pt. 3, § 20.{2}  Of the 53,795 signatures collected by MTAN, 3054
of them were obtained by a circulator known as James Powell.  Pursuant to Me.
Const. art. IV, pt. 3, § 20, and 21-A M.R.S.A. §§ 354(3), (4), (7),{3} 902 (1993 &
Supp. 2001), the man purporting to be James Powell swore to the following
oath after collecting the signatures: 

I hereby make oath that I am the Circulator of this petition, that
all signatures to this petition were made in my presence and, to
the best of my knowledge and belief, each signature is that of the
person it purports to be.{4}

The circulator known as James Powell was, however, an imposter who had
stolen the identity of the real James Powell, a man living in the state of
Washington.  The circulator used the real James Powell's name, social security
number, and birth date and place as his own to fraudulently obtain a driver's
license, motor vehicle registration, and voter registration.  The real identity of
the person posing as James Powell is unknown.  The imposter at some point
left the state and could not be located by investigators.  
	[¶5]  The Secretary of State invalidated 14,506 of MTAN's signatures. 
Included with the invalidated signatures are the 3054 collected by the
purported James Powell that were rejected because the circulator posing as
Powell was not a resident of Maine and was not the person he purported to be. 
See 21-A M.R.S.A. § 905 (1993 & Supp. 2001).  This left MTAN 2812 signatures
short of the required 42,101.  
	[¶6]  MTAN filed a petition for review of the Secretary's decision in the
Superior Court pursuant to 21-A M.R.S.A. § 905(2) (1993).  Following a joint
motion by the parties, the Superior Court (Cumberland County, Humphrey, J.)
remanded the matter to the Secretary for the taking of additional evidence. 
The Secretary then issued a decision giving three grounds for invalidating the
3054 signatures: (1) the circulator using the name of James Powell had sworn
to a false identity and was, therefore, not who he purported to be according to
his oath; (2) the circulator had used a false identity in registering to vote
himself, and was therefore not a properly registered voter in violation of Me.
Const. art. IV, pt. 3, § 20 and 21-A M.R.S.A. § 903-A (Supp. 2001); and (3) the
circulator was not a bona fide resident of Maine in violation of Me. Const. art.
IV, pt. 3, § 20.  The Superior Court did not reach the issue of whether the
person acting as Powell was a registered voter, but upheld the Secretary's
decision to invalidate the signatures on the grounds that he was not a resident
of Maine and that he falsely stated his identity in his oath on petition
documents.  MTAN appeals pursuant to 21-A M.R.S.A. § 905(3) (1993).{5}

II.  DISCUSSION

A.  Standard of Review

	[¶7]  "We review the decision of the Secretary of State directly, reviewing
for abuse of discretion, errors of law, or findings not supported by evidence." 
Palesky v. Sec'y of State, 1998 ME 103, ¶ 9, 711 A.2d 129, 132 (citation
omitted).  MTAN does not challenge the Secretary's factual findings regarding
the wholly false identity used by the alleged James Powell.  It contends,
however, that requiring a circulator to actually be who he purports to be, and
requiring that a circulator be a registered voter and resident of this state, place
an undue burden on the political process in contravention of the First
Amendment applied through the Fourteenth Amendment to the United States
Constitution.{6}  See U.S. Const. amends. I, XIV, § 1.  
	[¶8]  The circulation of direct initiative petitions is "core political
speech," and any state regulation of the initiative process must be "narrowly
tailored" to carry out a compelling state purpose.  Wyman v. Sec'y of State, 625
A.2d 307, 311 (Me. 1993); Hart v. Sec'y of State, 1998 ME 189, ¶ 9, 715 A.2d
165, 167-68, cert. denied 525 U.S. 1139 (1999).  We are also cognizant, as the
United States Supreme Court has stated, that, "as a practical matter, there
must be a substantial regulation of elections if they are to be fair and honest
and if some sort of order, rather than chaos, is to accompany the democratic
processes."  Storer v. Brown, 415 U.S. 724, 730 (1974).  Accordingly, there is no
litmus test for determining whether an election regulation imposes an
impermissible burden on free speech, and states are accorded considerable
leeway in the regulation of the initiative process in order to promote their
legitimate state purposes.  Buckley v. American Constitutional Law Found., Inc.,
525 U.S. 182, 192 (1999) (citing Storer, 415 U.S. at 730).  Because MTAN has
challenged the constitutionality of the Secretary's evaluation of petitions
collected by the imposter, we review the Secretary's actions de novo.  Town of
Baldwin v. Carter, 2002 ME 52, ¶ 8, --- A.2d ---, ---; see also Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S 485, 508 n.27 (1984).

B.  History and Petition Process

	[¶9]  The citizens' initiative provisions of the Maine Constitution, Me.
Const. art. IV, pt. 3, § 18, were enacted in 1907.  Resolves 1907, ch. 121. 
Although section 18 provides the framework for the petition procedure, see
supra note 1, it is section 20 alone that outlines the procedure for the
circulation of those petitions and the collection of signatures.  Me. Const. art.
IV, pt. 3, § 20; see supra note 2.
	[¶10]  The initiative provisions of the Maine Constitution also grant the
Maine Legislature the authority to carry out those constitutional mandates
through legislation.  The Legislature has exercised that authority by
delineating the procedure by which a party may introduce an initiative.  21-A
M.R.S.A. § 901 (Supp. 2001).  The party must first, as MTAN did, submit an
application with the text of the proposed law to the Secretary.  Id.  The
Secretary then reviews and approves the petition form prior to its circulation. 
Id.  
	[¶11]  Circulators then proceed to collect the requisite number of
signatures.  A voter who wishes to support the initiative first signs his or her
name to the petition, and either the voter or the circulator then prints the
voter's name and address.  21-A M.R.S.A. § 354(3), (4) (1993 & Supp. 2001). 
After collecting the signatures, the circulator must take an oath before a
notary public certifying that he is the circulator and that all signatures on the
petition are those of whom they purport to be.  Me. Const. art. IV, pt. 3, § 20;
21-A M.R.S.A. § 354(7), 902 (1993 & Supp. 2001).  The registrar of each
municipality then certifies that the names appearing on the petitions also
appear on the list of registered voters in that municipality.  21-A M.R.S.A. §
354(7)(C) (Supp. 2001); see also id. § 902.

C.  Secretary of State's Authority

	[¶12]  The Secretary is vested with the authority to determine whether
any petition filed in support of a citizens initiative is valid.  21-A M.R.S.A.
§ 905(1) (Supp. 2001).{7}  The statute does not provide specific grounds for
invalidating a signature, but provides broadly that "[t]he Secretary of State
shall determine the validity of the petition and issue a written decision stating
the reasons for the decision . . . ."  Id.  Accordingly, we have recognized that
the Secretary may disqualify signatures for a failure to follow the requirements
of the Constitution or its statutory overlay.  In Hart, for example, we held that
the Secretary could invalidate signatures obtained by circulators who were not
Maine residents.  1998 ME 189, ¶ 13, 715 A.2d at 168.  Similarly, we have
upheld the Secretary's invalidation of signatures not contained on approved
petition forms and signatures lacking the certification of the registrar that the
names appearing on the petition were registered voters of the community. 
Palesky, 1998 ME 103, ¶¶ 12-13, 711 A.2d at 133.  Thus, it is well established
that the Secretary has the authority to invalidate petitions in toto when the
circulator has not complied with statutory or constitutional requirements.{8}

D.  Analysis

	[¶13]  From this context it is evident that the circulator's role in a
citizens' initiative is pivotal.  Indeed, the integrity of the initiative and
referendum process in many ways hinges on the trustworthiness and veracity of
the circulator.  In reviewing the signatures gathered by the circulators, the
Secretary has the ability to verify through municipal records that a signing
voter is actually registered and therefore permitted to vote.  In contrast, the
Secretary has no way, without engaging in a separate investigation, to verify
that a signing voter actually signed the petition.  Thus, the circulator's oath is
critical to the validation of a petition.  Indeed, the oath is of such importance
that the Constitution requires that it be sworn in the presence of a notary
public.  Me. Const. art. IV, pt. 3, § 20; Const. Res. 1975, ch. 2.  The failure to
sign the oath in the presence of the notary public is therefore an error of
constitutional import, and we have held that failure to be fatal to an entire
petition.  Palesky, 1998 ME 103, ¶¶ 10-11, 711 A.2d at 132-33.  
	[¶14]  We turn then to the question of whether the signing of an oath by
an imposter may similarly justify the invalidation of the petition in toto.    In
addition to obtaining truthful information from the circulator, the oath is
intended to assure that the circulator is impressed with the seriousness of his
or her obligation to honesty, see HCI Corp. v. Voikos Constr. Co., 581 A.2d 795,
798 (Me. 1990), and to assure that the person taking the oath is clearly
identified should questions arise regarding particular signatures, cf. Buckley,
525 U.S. at 196.  As early as 1917, we held that verification of the signatures
and the subsequent oath taken by the circulator is an "indispensable
accompaniment[] of a valid petition," and, accordingly, that the invalidation of
signatures lacking this prerequisite is necessary to preserve the integrity of the
initiative and referendum process.  Opinion of the Justices, 116 Me. 557, 569,
103 A. 761, 767 (1917); see also Opinion of the Justices, 132 Me. 523, 525, 174 A.
846, 847-48 (1934); Opinion of the Justices, 114 Me. 557, 568-74, 95 A. 869, 874-
76 (1915).  Thus, we are not persuaded by MTAN's contentions that there is no
requirement that the circulator be the person he purports to be.
	[¶15]  Nor are we convinced by MTAN's argument, relying on McIntyre v.
Ohio Elections Commission, 514 U.S. 334 (1995), that circulators have a First
Amendment right to anonymity.  Although in McIntyre, the United States
Supreme Court did recognize that the protection of anonymity in certain
political speech is a fundamental First Amendment requirement, that case
involved an Ohio law requiring that political handbills identify the person or
entity issuing the literature.  514 U.S. at 337-38, 357.  In contrast, this case
involves the initiative and referendum procedure.  Furthermore, in a later case
the Court noted that the holding of McIntyre "left room" for affidavit and oath
requirements for circulators of initiative petitions.  Buckley, 525 U.S. at 200. 
	[¶16]  In addition, MTAN's argument that, as long as the State is able to
locate the circulator during the circulation process, the State cannot insist on
further identification of the circulator or that the circulator remain in Maine
after the completion of the circulation process, misunderstands the nature of
our inquiry.  There is no question that a circulator cannot be required to
remain in the state.  If the departing circulator has not engaged in identity
fraud, however, the State is still likely to be able to find that person if inquiry
regarding one or more signatures is necessary.
	[¶17]  In fact, the Legislature considers the circulator's swearing of the
oath to be a sufficiently grave act that it has specifically criminalized the
providing of a false statement in connection with a petition.  21-A M.R.S.A.
§ 904 (1993).{9}  Section 904(3) provides that "[a] person who knowingly signs an
initiative or referendum petition with any name other than his own," commits
a Class E crime.
	[¶18]  In this case, there is no question that James Powell did not, in
fact, circulate the petitions; rather, some unidentified individual posing as
James Powell circulated the petitions.  Thus, the oath containing the sworn
statement that James Powell was the circulator for the petition is wholly
inaccurate.  The imposter did not merely use a nickname, or other authorized
or legal alternative; instead, he used the full, stolen identity of another person. 
Indeed, his identity theft was so complete that his departure from the State of
Maine left the Secretary and investigators from the Attorney General's Office
completely unable to locate him.  The Secretary might also have reasonably
concluded that a person who has gone to such lengths to fraudulently, and
perhaps criminally, conceal his own identity cannot be trusted with the crucial
constitutional responsibility of honestly and faithfully obtaining signatures to
a ballot initiative.  
	[¶19] The entire signature collection process is designed to allow citizens
interested in changing the laws to obtain the support of other citizens, through
their signatures, thus signalling sufficient support to trigger a statewide vote. 
If the circulator has provided a false identity, the veracity of his attestation to
other matters is seriously in question, his status as a citizen and registered
voter in this state, required by the constitution, become murky, and the ability
of the Secretary of State to find him for purposes of inquiring into any
irregularity in signatures contained on his petition becomes difficult or
impossible.  See, e.g., Buckley, 535 U.S. at 196; see also Hart, 1998 ME 189, ¶
13, 715 A.2d at 168 (noting that the purpose of the residency requirement is to
make circulators easier to locate "if there is a question as to the validity of the
signatures collected").  The depth of "James Powell's" identity fraud calls each
of those purposes into question.
	[¶20] We agree with the Secretary, then, that requiring circulators to
correctly identify themselves in their oath and affidavit is narrowly tailored to
carry out the state's reasonable interest in locating circulators within or
without the state's borders.  See, e.g., Burdick v. Takushi, 504 U.S. 428, 434
(1992) (stating that when "a state election law provision imposes only
'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth
Amendment rights of voters, 'the State's important regulatory interests are
generally sufficient to justify' the restrictions" (quoting Anderson v. Celebrezze,
460 U.S. 780, 788 (1983))).
	[¶21]  We conclude, therefore, that the Secretary had ample authority
and reason to question the authenticity of the signatures obtained by the
circulator posing as James Powell and ultimately to invalidate the petitions
circulated by this imposter.  Because we conclude that the Secretary of State
did not err in determining the facts regarding the imposter's false identity, did
not violate the constitutional rights of MTAN in requiring that a circulator be
who he claims to be, and did not abuse his discretion in invalidating the 3054
signatures based on the circulator's violation of the oath requirement, it is not
necessary to address the Secretary's further finding that the signatures could
be invalidated because the imposter was not a resident of Maine or a registered
voter.
	The entry is:
Judgment affirmed.
Click here for concurring opinion, attorneys and footnotes.