Wright on the Sixth Circuit Court of Appeals' Decision that Ohio Law Requiring Petition-Circulators be Paid on Flat-Fee Basis Found Unconstitutional: Citizens for Tax Reform v. Deters
The State of Ohio's right to combat election fraud does not outweigh its citizens' First Amendment free speech protections. In Citizens for Tax Reform v. Deters, 2008 U.S. App. LEXIS 4645 (6th Cir. 2008), the Sixth Circuit affirmed the United States District Court for the Southern District of Ohio’s finding that Ohio Revised Code Section 3599.111, which required payment of petition-circulators on a per-time only basis, created an unconstitutional abridgement of free speech. Danyelle S.T. Wright discusses the Sixth Circuit’s decision and explores its implications. She writes:
The State of Ohio enacted a provision making it a felony to pay anyone for gathering signatures on electronic related petitions on any basis other than time worked (i.e., no pay per-signature or per-volume basis allowed). Citizens for Tax Reform (“CTR”) and Jeffrey P. Ledbetter, a former Treasurer of CTR (collectively referred to as “CTR”), brought suit challenging the constitutionality of the provision, Ohio Revised Code Section 3599.111, on the grounds that prohibiting payment to petition circulators on a per-signature or per-volume basis violated their core political speech rights.
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The [circuit] Court distinguished three other circuit decisions, explaining that unlike the statutes in those cases, Ohio Revised Code Section 3599.111 prohibited all methods of payment and was therefore much more restrictive because it did not provide any alternative methods of payment to petition circulators. Specifically, where the other state statutes permitted payment to petition circulators under methods such as hourly wage, establishing minimum signature requirements, terminating circulators who do not perform, adjusting circulator salaries, or paying bonuses, Ohio Revised Code Section 3599.111 prohibited all payment methods except for time worked. In addition, the Court also distinguished the other circuit court decisions because violations constituted misdemeanors, whereas a violation of Ohio Revised Code Section 3599.111 was a felony.
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The Sixth Circuit Court of Appeals’ decision prohibits the Ohio legislature from restricting methods of payment to petition-circulators if they are not narrowly drafted to justify a compelling state interest. In order to pass constitutional muster, the provisions must not unduly burden petitioners’ core political speech rights.
• Courts will not uphold statutes that are not narrowly tailored to advance a compelling state interest. Thus, in order to inoculate future legislation from constitutional challenges, the Ohio legislature should strongly consider enacting anti-election fraud legislation that does not completely ban per-signature payments. In other words, do as other states have done and permit payment by other methods, such as paying an hourly wage, establishing minimum signature requirements, or paying bonuses.
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