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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Resource Development Council, et al. v. Kevin Meyer, et al. (9/3/2021) sp-7554
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are r equested to bring errors to the attention of the Clerk of the Appellate C ourts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
RESOURCE DEVELOPMENT )
COUNCIL FOR ALASKA, INC.; )
Supreme Court Nos. S-17834/17843
ALASKA TRUCKING ) (Consolidated)
ASSOCIATION, INC.; ALASKA )
MINERS ASSOCIATION, INC.; )
Superior Court No. 3AN-20-05901 CI
ASSOCIATED GENERAL )
CONTRACTORS OF ALASKA; )
O P I N I O N
ALASKA CHAMBER; and ALASKA )
SUPPORT INDUSTRY ALLIANCE, )
No. 7554 - September 3, 2021
)
Appellants and
)
Cross-Appellees,
)
)
v. )
)
VOTE YES FOR ALASKA'S FAIR )
SHARE, )
)
Appellee and )
Cross-Appellant, )
)
v. )
)
STATE OF ALASKA, OFFICE OF )
LIEUTENANT GOVERNOR, and )
LIEUTENANT GOVERNOR KEVIN )
MEYER, in an official capacity; and )
DIVISION OF ELECTIONS, and )
DIRECTOR GAIL FENUMIAI, in an )
official capacity, )
)
Appellees and )
Cross-Appellees. )
)
----------------------- Page 2-----------------------
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: Matthew Singer and Lee C. Baxter, Schwabe,
Williamson & Wyatt, P.C., Anchorage, for Appellants and
Cross-Appellees. Katherine Demarest and Margaret Paton
Walsh, Assistant Attorneys General, Anchorage, and
Kevin G. Clarkson, Attorney General, Juneau, for State of
Alaska Appellees. Robin O. Brena and Jack S. Wakeland,
Brena, Bell & Walker, P.C., Anchorage, for Appellee and
Cross-Appellant Vote Yes for Alaska's Fair Share.
Before: Bolger, Chief Justice, Winfree, Maassen, and
* [Borghesan,
Carney, Justices, and Matthews,Senior Justice.
Justice, not participating.]
MAASSEN, Justice.
MATTHEWS, Senior Justice, concurring in part.
I. INTRODUCTION
This case involves a challenge to the lieutenant governor's decision that the
sponsors of an initiative, "An Act changing the oil and gas production tax for certain
fields, units, and nonunitized reservoirs on the North Slope," had collected enough
signatures to allow the initiative to appear on the ballot in the 2020 general election.
Entities opposed to the initiative argue that signatures should not be counted because the
signature gatherers - the circulators - falsely certified that their compensation
complied with Alaska election law.
The statute governing circulator compensation allows them to be paid no
more than "$1 a signature." The superior court decided that this statute was
*
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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----------------------- Page 3-----------------------
unconstitutional because it imposed an unreasonable burden on core political speech -
"interactivecommunicationconcerning political change." Itthereforeconcluded thatthe
lieutenantgovernorproperlycounted thechallengedsignaturesandproperly certified the
initiative petition for the ballot. The entities opposed to the initiative filed this appeal.
We heard oral argument in August 2020 and on August 31 issued a
summary order affirming the superior court's judgment. This opinion explains our
decision.
II. FACTS AND PROCEEDINGS
A. Statutory Overview
The Alaska Constitution grants citizens the power to enact laws by
1 The initiative process begins when initiative sponsors submit an application
initiative.
to the lieutenant governor.2 If the application and proposed bill satisfy constitutional and
statutoryrequirements,thelieutenant governor certifiestheproposedinitiativeand prints
petition booklets to be circulated for signature gathering.3 During this step, the sponsors
attempt to collect the signatures of qualified voters "equal in number to 10 percent of
those who voted in the preceding general election," representing "at least three-fourths
of the house districts of the state," with each of those house districts providing signatures
"equal in number to at least seven percent of those who voted in the preceding general
1 Alaska Const. art. XI, § 1; see AS 15.45.010 ("Provision and scope for use
of the initiative").
2 AS 15.45.020.
3 AS 15.45.070 ("Review of application for certification"); AS 15.45.030
("Formofapplication");AS15.45.090("Preparation ofpetition"); AS15.45.080 ("Bases
of denial of certification"); 6 Alaska Administrative Code (AAC) 25.240 (2021)
("Initiative, referendum, and recall petitions").
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----------------------- Page 4-----------------------
4
election in the house district."
Signature gatherers, called circulators, are required to follow the rules set
5 Subsection (c) of that statute is central to this appeal. It provides:
out in AS 15.45.110.
"A circulator may not receive payment or agree to receive payment that is greater than
$1 a signature, and a person or an organization may not pay or agree to pay an amount
that is greater than $1 a signature, for the collection of signatures on a petition." Alaska
Statute 15.45.110(e) provides that a violation of subsection (c) is a class B
misdemeanor.6
The signatures collected in the petition booklets are submitted "as a single
instrument" called the petition.7 Within 60 days of submission, the lieutenant governor
must review the petition to determine whether it was properly filed.8 Alaska
Statute 15.45.130 imposes a number of requirements on the process, including that
circulators certify their compliance with AS 15.45.110(c). Alaska Statute 15.45.130
states, in relevant part:
Before being filed, each petition shall be certified by an
affidavit by the person who personally circulated the petition.
In determining the sufficiency of the petition, the lieutenant
governor may not count subscriptions on petitions not
properly certified at the time of filing or corrected before the
subscriptions are counted. The affidavit must state in
4 AS 15.45.140(a).
5
See AS. 15.45.130 (requiring circulator affidavits stating circulator's
qualifications and attesting to circulator's compliance with signature-gathering
requirements).
6 "A person or organization that violates (c) or (d) of this section is guilty of
a class B misdemeanor." AS 15.45.110(e).
7 6 AAC 25.240(c).
8 AS 15.45.150.
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----------------------- Page 5-----------------------
substance . . . (6) that the circulator has not entered into an
agreement with a person or organization in violation of
AS 15.45.110(c) . . . .
(Emphasis added.)
B. Factual Background 9
Vote Yes for Alaska's Fair Share (Fair Share) filed a petition to place its
initiative, 19OGTX, "An Act changing the oil and gas production tax for certain fields,
units, and nonunitized reservoirs on the North Slope," on the statewide ballot. The
lieutenant governor approved Fair Share's application in October 2019, and the Division
accordingly printed petition booklets for circulation. Fair Share hired a professional
signature-gathering company, Advanced Micro Targeting, Inc., to circulate the petition
booklets and obtain therequired signatures. FairShareeventually submitted 786 petition
booklets in support of the initiative; 544 of these were from circulators employed by
Advanced Micro Targeting.
In March 2020 the lieutenant governor sent a letter informing Fair Share
that its initiative petition had been "properly filed" and would be placed on the 2020
general election ballot.
C. Proceedings
Six entities opposed to the initiative (which we refer to collectively as
"Resource Development Council," the first one named) filed a complaint in superior
court challenging the lieutenant governor's decision that the initiative could be placed
on the ballot. Resource Development Council asserted that the circulators employed by
Advanced Micro Targeting were paid more than $1 a signature in violation of
AS 15.45.110(c). It alleged that Fair Share paid Advanced Micro Targeting $72,500,
9 At the motion to dismiss stage of litigation the court must treat "all factual
allegations [of the complaint] as true." Larson v. State, Dep't of Corr. , 284 P.3d 1, 6
(Alaska 2012).
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that Advanced MicroTargetingoffered to pay circulators "$3,500-$4,000 per month plus
bonus, and that it expected 80-100 signatures per day, six days per week in return for
such compensation." Resource Development Council characterized the legal issue as "a
math question": Assuming a circulator works 26 days in a month and gathers 90
signatures a day, a circulator who is paid $3,750 a month receives $1.60 a signature,
more than the amount allowed by statute.
Resource Development Council alleged that the affidavits of Fair Share's
petition circulators, submitted with its petition booklets, were necessarily untruthful
because they certified that the circulators had complied with AS 15.45.110(c) despite
having received payment of more than $1 a signature. Resource Development Council
contended thatbecausetheaffidavits wereuntruthful, the lieutenant governor was wrong
to find the petition signatures "properly certified." It asked for a declaratory judgment
that "petition booklets that are supported by false circulator affidavits have not been
properly certified under AS 15.45.130 and that the signatures in those booklets may not
be counted" and injunctive relief ordering the lieutenant governor to "invalidate those
petition booklets and all subscriptions contained within those booklets as not properly
certified."
The State moved to dismiss the action, and Fair Share filed its own motion
to dismiss a few weeks later. After limited discovery, Resource Development Council
cross-moved for partial summary judgment.
The superior court held oral argument, then granted the State's and Fair
Share's motions to dismiss in a comprehensive written order. The court first concluded,
based on the plain language and legislative history of AS 15.45.110(c), that the payment
restriction of $1 per signature was unambiguous; the statute imposed a "hard limit" on
all forms of circulator compensation, including hourly wages and salaries. Thus, "if a
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----------------------- Page 7-----------------------
circulator received payment that ended up being greater than $1 per signature, no matter
how it was received, it seems the statute would prohibit it."
Given this reading of the statute, the court next considered whether the hard
limit on compensation violated the free speech protections of the Alaska and federal
10 Applying strict scrutiny, the court concluded that because the provision
constitutions.
was not narrowly tailored to meet the State's compelling interests, it was an
unconstitutional infringement on free speech. The court then rejected Resource
Development Council's request for an injunction invalidating the challenged signatures
on grounds that the petitions had not been "properly certified" as required by
AS 15.45.130. The court held that the term "properly certified" "means that the petition
is 'complete' and contains the proper signatures of Alaskan voters." It concluded that
invalidating signatures because of flaws in circulator affidavits would unduly penalize
Alaska voters who had no way of knowing how circulators were being paid or what they
said in their affidavits.
Finally, anticipating an appeal, the court gave an alternative ground for its
holding: that the mandate of AS 15.45.130 requiring the lieutenant governor to reject
signatures because of a circulator's failure to properly certify them was also an
unconstitutional restriction on free speech. The court concluded that the statutory
remedy - effectively disenfranchising voters who had no control over the circulator's
certification - was not narrowly tailored to address the State's legitimate interests and
instead "operate[d] like a sledgehammer on a mosquito."
10 See U.S. Const. amend. I ("Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition the government for a redress of grievances."); Alaska Const. art. I, § 5 ("Every
person may freely speak, write, and publish on all subjects, being responsible for the
abuse of that right.").
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Resource Development Council and Fair Share both appealed. Resource
Development Council challenges the superior court's decision that the lieutenant
governor properly certified thepetitions and allowed theinitiative to appear on the ballot.
Fair Share challenges the superior court's decision that AS 15.45.110(c) is
unconstitutional; it argues that the statute is susceptible of a constitutional construction
that allows circulators to be paid by methods other than per signature.
The State argues that the dispositive issue in this appeal is whether the
lieutenant governor "properly certified" the signatures; if so, it argues, we need not reach
arguments about the statute's constitutionality.
III. STANDARD OF REVIEW
11
We review grants of motions to dismiss de novo. We apply our own
"independent judgment to questions involving the constitutionality of a statute 'and will
adopt the rule of law which is most persuasive in light of precedent, reason, and
12
policy.' "
IV. DISCUSSION
Our analysis and conclusion largely follow those of the superior court. We
first conclude that the "$1 a signature" limit of AS 15.45.110(c), by the statute's plain
language and legislative history, is intended to be a hard cap on all types of
compensation. Second, we hold that the $1 a signature limit, as a hard cap, is an
unconstitutional restriction on core political speech. Finally, because AS 15.45.110(c),
an unconstitutional statute, is the basis for Resource Development Council's argument
that the petitions were not properly certified, we hold that the lieutenant governor did
properly certify the petitions.
11 DeRemer v. Turnbull , 453 P.3d 193, 196 (Alaska 2019).
12
Valentine v. State, 215 P.3d 319, 322 (Alaska 2009) (quoting State v.
Murtagh, 169 P.3d 602, 606 (Alaska 2007)).
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A. Alaska Statute 15.45.110(c)'s "$1 A Signature" Limit On Circulator
Compensation Is A Hard Cap On All Types Of Compensation.
Our first task is to interpret the plain language of AS 15.45.110(c). The
provision reads: "A circulator may not receive payment or agree to receive payment that
is greater than $1 a signature, and a person or an organization may not pay or agree to
pay an amount that is greater than $1 a signature, for the collection of signatures on a
petition." The parties disagree on the statute's proper interpretation. The reading
advanced by Resource Development Council - and accepted by the superior court - is
that the statute prohibits a circulator from receiving payment that totals more than $1 per
signature collected regardless ofhowthecirculator is paid; thus, a circulator who collects
200 signatures may be paid no more than $200 regardless of the amount of time and
effort put into collecting those 200 signatures. The alternative interpretation, advanced
by the State and Fair Share, is that the $1 a signature limit applies only when the
circulator's compensation is based on the number of signatures collected. This
interpretation allows for other compensation methods - for example, an hourly wage
or a salary - that are not calculated on a per-signature basis and therefore may exceed
$1 a signature.
"When determining a statute's meaning, we consider three factors: 'the
language of the statute, the legislative history, and the legislative purpose behind the
13 "We begin with the text and its plain meaning, and we use a 'sliding-scale
statute.' "
approach' to interpret the language. '[T]he plainer the statutory language is, the more
convincing the evidence of contrary legislative purpose or intent must be.' "14
13 Cora G. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
461 P.3d 1265, 1277 (Alaska 2020) (quoting Alaska Ass'n of Naturopathic Physicians
v. State, Dep't of Commerce,Cmty. & Econ. Dev. , 414 P.3d 630, 634 (Alaska 2018)).
14 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
(continued...)
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1. Plain language
First, we agree with the superior court's conclusion that "[t]he plain
meaning of the words [of AS 15.45.110(c)] suggest[s] no ambiguity." The statutory cap
is not restricted to per-signature payment methods, though the legislature could have
drafted the statute that way; rather, the cap applies to a circulator's "payment" without
suggesting that theremight be exceptions. The statute's plain language supports only the
interpretation that the $1 per signature cap is a hard cap that applies regardless of how
the circulator is paid.
2. Legislative history
Considering the statute's unambiguous language, legislative history
supporting a contrary intent must be very convincing before we will conclude that the
15
statute means other than what it says.
But the legislative history only bolsters our
conclusion that the statute is intended to apply a hard cap to all forms of circulator
payment.
As introduced in the Senate in 1998, Senate Bill 313 prohibited circulator
payment calculated on a per-signature basis while expressly allowing other payment
methods:
A sponsor may not receive payment or agree to receive
payment, and a person or an organization may not pay or
agree to pay, for the collection of signatures on a petition if
any part of the payment is based on the number of signatures
collected. This subsection does not prohibit a sponsor from
14 (...continued)
2019) (alteration in original) (internal citation omitted) (first quoting Ward v. State,
Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012); then quoting State v. Fyfe, 370 P.3d
1092, 1095 (Alaska 2016)).
15 Id.
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being paid an amount that is not based on the number of
signatures collected .[16]
Senator Bert Sharp, the bill's sponsor, explained in committee that while the bill
prohibited per-signature compensation, "[p]ayment would still be allowed by the hour
or any other method."17 Likely referring to federal precedent,18 Senator Sharp observed
that a complete prohibition on "payments of any kind for obtaining signatures on an
initiative" had been declared unconstitutional, but that - according to the advice of
legislative counsel - "other states have at least prohibited payments by the signature,
and that has stood up in court so far." Had the bill been passed into law in the form
introduced by Senator Sharp, it would have categorically banned per-signature payment
while explicitly exempting other payment methods from regulation.
But the bill language was amended in committee to change the flat ban on
per-signature payment to the $1 a signature cap and to remove the language explicitly
applying limitations to per-signature payment only.19 The House Finance Committee's
discussion of the bill focused on the constitutionality of a total payment ban and the
merits of a signature-based compensation system. On the second day of discussion,
Chairman Gene Therriault explained that the proposed amendment - which was
ultimately adopted - "would allow you to pay per signature up to $1 per signature, but
it would cap it at that amount. So [he] wanted to make it clear to individuals that that cap
16 S.B. 313, 20th Leg,. 2d. Sess. (1998) (emphasis added).
17 Hearing on S.B. 313 Before the Sen. Jud. Comm., 20th Leg., 2d Sess. at
25:58 (Mar. 18, 1998) (testimony of Sen. Bert Sharp).
18 See Meyer v. Grant, 486 U.S. 414, 428 (1988) (holding Colorado's flat ban
on circulator payment unconstitutional).
19 H. Committee Substitute for Senate Bill (H.C.S.S.B.) 313, 20th Leg., 2d
Sess. (1998).
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on the payment has not been found to be unconstitutional. An outright ban of any
20
payment has been found to be unconstitutional."
Representative John Davies objected to the amendment; he favored
requiring an hourly or daily compensation method out of concern that per-signature
compensation schemes encourage "in your face and overly aggressive" circulators:
"If . . . they're going to get paid by the piece and by each signature, they're going to be
much more aggressive about going after every individual person out there than
otherwise."21 He saw the amendment as imposing a limit on all forms of compensation,
unlike the bill's original language: "[T]he amendment would limit the amount of money
that you could pay, [whereas] the existing language only limits the way in which you
make payment.22 Representative Davies thought the amendment language was more
23 But the amendment passed, and the
likely to be subject to a constitutional challenge.
bill as amended was enacted into law.24
In 2009 several representatives introduced a bill to amend the initiative
25 The proposed amendment included changes to the wording
statutes in various ways.
of AS 15.45.110(c): removing the "$1 a signature" cap, prohibiting any payment "based
on the number of registered voters who signed the petition," and expressly allowing
20 Hearing on S.B. 313 Before the H. Fin. Comm., 20th Leg., 2d Sess. at 32:40
(May 8, 1998) (statement of Rep. Gene Therriault).
21 Id. at 34:16 (statement of Rep. John Davies).
22 Id. at 36:33.
23 Id. at 36:48.
24 Id. at 38:00; Ch. 80, § 2, SLA 1998.
25 House Bill (H.B.) 36, 26th Leg., 1st Sess. (Jan. 20, 2009).
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circulator payment based on "an hourly wage or salary." 26 This language was deleted
27
before any hearings.
This legislative history falls far short of convincing us that the legislature,
when it enacted AS 15.45.110(c) in 1998, intended the payment cap to cover only one
type of circulator compensation - payment by the signature - while allowing other
payment methods. Legislative history in fact supports the superior court's conclusion
that the statute means what it says.
3. The canon of constitutional avoidance
"If an ambiguous text is susceptible to more than one reasonable
interpretation, of which only one is constitutional, the doctrine of constitutional
28
avoidance directs us to adopt the interpretation that saves the statute." Fair Share and
the State rely on this doctrine to argue that AS 15.45.110(c) should be narrowly
construed to avoid an unconstitutional interpretation. The superior court rejected this
analytical approach, concluding that the statute's plain language would not allow it.
We agree with the superior court. The plain language of Alaska's statute,
as explained above, applies the per-signature cap without exception. Because the plain
language of the statute is unambiguous and legislative history does not contradict the
statute's plain meaning, there is only one reasonable interpretation of the statute. If that
one reasonable interpretation means that the statute is unconstitutional - which is what
26 Id. § 5.
27
Sponsor Substitute for House Bill (S.S.H.B.) 36; 2009 House Journal 582;
see Ch. 73 SLA 2010. We have noted the difficulty in finding any "interpretive
significance" in legislative inaction. Univ. of Alaska v. Tumeo , 933 P.2d 1147, 1156
(Alaska 1997) ("Silence can be evidence of intent; however, it is difficult to decipher
what is meant when nothing has been said.").
28 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019).
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----------------------- Page 14-----------------------
we conclude in the discussion that follows - the statute cannot be saved by a strained
reading.
[W]e may not read into a statute that which is not there, even
in the interest of avoiding a finding of unconstitutionality,
because "the extent to which the express language of the
provision can be altered and departed from and the extent to
which the infirmities can be rectified by the use of implied
terms is limited by the constitutionally decreed separation of
powerswhich prohibits this courtfromenacting legislationor
redrafting defective statutes." [29]
We conclude that the canon of constitutional avoidance is inapplicable and that we
therefore must consider the statute's constitutionality.30
B. Alaska Statute 15.45.110(c)'s "$1 A Signature" Cap On All Types Of
CompensationIs AnUnconstitutional Restriction On Political Speech.
1. Legal framework
In Meyer v. Grant the United States Supreme Court applied an exacting
scrutiny standard to a Colorado statute that made it a felony to pay people for circulating
initiative petitions.31 The Court held that the statute violated the First and Fourteenth
Amendments, arriving at that conclusion through essentially four steps that are helpful
29 Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 192 (Alaska
2007) (quoting State v. Campbell , 536 P.2d 105, 111 (Alaska 1975), overruled on other
grounds by Kimoktoak v. State , 584 P.2d 25, 31 (Alaska 1978)).
30 See Doe v. Dep't of Pub. Safety, 444 P.3d 116, 139 n.16 (Alaska 2019)
(Bolger, C.J., dissenting) ("If a statute is susceptible of no reasonable construction
avoiding constitutional problems, this court is under a duty to nullify the statute or, if
possible, theparticular provisionfound offensivetotheconstitution."(quoting Kritz,170
P.3d at 196 n.54)).
31 486 U.S. 414, 415-16, 420 (1988).
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----------------------- Page 15-----------------------
in our analysis of the issues on this appeal. 32
First, the Court found that the act of circulating a petition is an exercise of
33 Circulating a petition
core political speech and falls within that fundamental right.
necessarily involves "both the expression of adesirefor political change and a discussion
of the merits of the proposed change."34 A petition circulator "will at least have to
persuade [potential signers] that the matter is one deserving of the public scrutiny and
debate that would attend its consideration by the whole electorate. This will in almost
every case involve an explanation of the nature of the proposal and why its advocates
support it."35 This type of "interactive communication concerning political change . . .
is appropriately described as 'core political speech.' "36
Second, the Court identified two ways the Colorado statute burdened this
core political speech: (1) by limiting "the number of voices who will convey [initiative
proponents'] message and the hours they can speak and, therefore, limit[ing] the size of
the audience they can reach," and (2) by making it "less likely that [initiative proponents]
will garner the number of signatures necessary to place the matter on the ballot, thus
32 Id. at 416. The test articulated in Meyer is no less protective of free speech
rights in this context than we would find to be the case under the Alaska Constitution.
We therefore do not analyze the issues separately under state and federal law. Cf. In re
Tiffany O., 467 P.3d 1076, 1081 n.16 (Alaska 2020) (explaining that analysis of faith-
based objections to medical treatment would be analyzed under Alaska Constitution's
free exercise clause because we have interpreted it to require more protective standard
than federal law interpreting First Amendment).
33 Meyer, 486 U.S. at 421-22.
34 Id. at 421.
35 Id.
36 Id. at 421-22.
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----------------------- Page 16-----------------------
37
limiting their ability to make the matter the focus of statewide discussion." The Court
held that because the payment ban "trenches upon an area in which the importance of
First Amendment protections is at its zenith[,] . . . the burden that Colorado must
overcome to justify this criminal law is well-nigh insurmountable." 38
Third, the Court noted Colorado's justifications for the payment ban: its
interests in ensuring grassroots support for state-wide initiatives and protecting the
integrity of elections.39
Fourth, the Court held that the State failed to demonstrate that its concerns
justified the law's burden on political expression.40 The Court observed that the state
interest in ensuring grassroots support wasalready metby the requirement that initiatives
have the support of a certain number of signers.41 And the Court held that the state
interest in protecting the integrity of the election process did not make it "necessary to
burden appellees' ability to communicate their message."42 The Court saw no evidence
supporting the proposition that a professional circulator would be more likely than a
volunteer to accept false signatures; it noted that other provisions of the statute provided
criminal sanctions that already "deal expressly with the potential danger that circulators
37 Id. at 422-23. The Court took "judicial notice of the fact that it is often
more difficult to get people to work without compensation than it is to get them to work
for pay." Id. at 423 (quoting Urevich v. Woodard, 667 P.2d 760, 763 (Colo. 1983)).
38 Id. at 425 (quoting Grant v. Meyer, 828 F.2d 1446, 1447 (10th Cir. 1987)).
39 Id.
40 Id.
41 Id. at 425-26.
42 Id. at 426.
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43
might be tempted to pad their petitions with false signatures." Further, according to the
Court, "the risk of fraud or corruption, or the appearance thereof, is more remote at the
44 The Court concluded that
petition stage of an initiative than at the time of balloting."
the complete prohibition on payment thus failed to withstand exacting scrutiny and was
unconstitutional.45
Several appeals courts later considered less restrictive laws under a less
demanding standard. In 2006 the Ninth Circuit Court of Appeals reviewed an Oregon
initiativeamending thestateconstitutiontoprohibitper-signaturepayment for circulators
while explicitly allowing other forms of compensation.46 Because the law was not as
restrictive as the one at issue in Meyer, the court analyzed the initiative using a
framework the Eighth Circuit Court of Appeals had adopted in Initiative & Referendum
Institute v. Jaeger, involving North Dakota's similar prohibition of only per-signature
payment.47 The Jaeger court noted that while "[s]evere burdens on speech trigger an
exacting standard in which regulations must be narrowly tailored to serve a compelling
43 Id. at 426-27 (noting that it was "a crime to forge a signature on a petition,"
"to make false or misleading statements relating to a petition," "or to pay someone to
sign a petition," and that each page of the petition must warn voters not to sign the
petition unless they understood the initiative and that forging a signature would be a
felony).
44 Id. at 427.
45 Id. at 420, 428.
46 Prete v. Bradbury, 438 F.3d 949, 952 (9th Cir. 2006). The initiative read:
"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." Or. Const. art. IV, § 1b.
47 Prete, 438 F.3d at 963 (citing Initiative &Referendum Inst. v. Jaeger, 241
F.3d 614 (8th Cir. 2001)).
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----------------------- Page 18-----------------------
48
state interest, . . . lesser burdens receive a lower level of review."
The Eighth Circuit in Jaeger determined that the prohibition of only per-
signature compensation imposed just such a "lesser burden" because it merely regulated
49 The court
one payment method without banning payment entirely as in Meyer .
concluded that the state "ha[d] produced sufficient evidence that the regulation [was]
necessary to insure the integrity of the initiative process."50 And the Ninth Circuit
followed suit in Prete, deciding that the similar Oregon initiative also imposed a "lesser
burden" and therefore should be given a " 'less exacting review' under which an
'important regulatory interest[]' will support a finding that the measure is a 'reasonable,
nondiscriminatory restriction[].' "51 The court upheld the initiative under this "less
exacting review," concluding that the state had met its burden of proving that the law
was reasonably related to an "important regulatory interest in preventing fraud and
forgery in the initiative process" while the plaintiffs were unable to prove that the law
significantly burdened their ability to collect signatures.52
The Sixth Circuit Court of Appeals applied the same framework to reach
53
a different conclusion in Citizens for Tax Reform v. Deters. Backers of a proposed
constitutional amendment challenged an Ohio statute that prohibited the receipt of
48 Jaeger, 241 F.3d at 616 (first citing Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358-59 (1997); then citing Buckley v. Am. Constitutional Law
Found., Inc., 525 U.S. 182, 208 (1999) (Thomas, J., concurring)).
49 Id. at 617.
50 Id. at 618.
51 Prete, 438 F.3d at 968 (alterations in original) (quoting Ariz. Right to Life
Political Action Comm. v. Bayless, 320 F.3d 1002, 1008 (9th Cir. 2003)).
52 Id. at 970-71.
53 518 F.3d 375 (6th Cir. 2008).
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compensation for circulating initiatives "on a fee per signature or fee per volume basis"
54
and also prohibited the payment of compensation "except on the basis of time worked."
The challengers asserted that its political consulting firm was only willing to work on a
fix-fee contract based on a per signature or per volume basis; the statute "increased the
cost of qualifying [the challengers'] proposed amendment, made it more difficult to raise
money necessary to fund the initiative effort, and [caused them to refrain] from
attempting to qualify the proposed amendment for the ballot so long as the Statute was
in force."55
The Sixth Circuit Court of Appeals reviewed Jaeger, Prete, and a Second
Circuit case - Person v. New York State Board of Elections56 - that had followed
Jaeger and Prete to uphold a similar ban on per-signature compensation.57 From these
cases the court concluded, first, that the question of "the character and magnitude of the
burden created by" the challenged law was "fact-intensive," as restrictions on circulator
payment could "impact political expression in at least three related but distinct ways":
(1) reducing "the number and hours of voices which will convey the message"; (2)
limiting the size of the petition's audience; and (3) lowering "the likelihood that a
measure will qualify for the state wide ballot."58 The court observed that "[a] circulator
plays a crucial role in the petition process because the circulator both has to express the
petitioner's desire for political change and has to discuss the merits of the proposed
54 Id. at 377-78; Ohio Rev. Code Ann. § 3599.111(B), (D) (West 2021).
55 Deters, 518 F.3d at 378.
56 467 F.3d 141 (2d Cir. 2006).
57 Deters, 518 F.3d . at 381-83.
58 Id. at 383.
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59
change." And finally, the court recognized that "the availability of other payment
methods might reduce the burden, [but] the extent to which the more effective means are
foreclosed is an important consideration." 60
The Sixth Circuit next reviewed the record and concluded that there was
"no genuine issue of material fact (1) that Ohio's per-time-only requirement would make
proposing and qualifying initiatives more expensive" by, among other things, barring
fixed-price contracts, making it difficult to predict a campaign's cost, and decreasing
circulator incentive; "and (2) that professional coordinators and circulators would likely
61 Weighing the significance of this burden, the
not work under a per-time-only system."
court determined that "the broader ban on the types of payment and harsher criminal
sanctions for violations" meant that the Ohio statute "lies closer to the complete ban in
62 The burden on the exercise
Meyer than the partial bans in the other circuit court cases."
of core political speech was therefore "significant."63 Subjecting the statute to "exacting
scrutiny" review, the court was unconvinced by the state's argument that the statute was
narrowly tailored to advance a compelling interest in eliminating election fraud, and it
affirmed the lower court's judgment that the statute was unconstitutional.64
We have not addressed the specific issue of circulator payment before, but
we have announced principles that parallel federal law and guide our analysis here.
59 Id.
60 Id.
61 Id. at 383-85.
62 Id. at 386.
63
Id. at 386-87.
64
Id. at 387-88.
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65
"Speech relating to ballot initiatives . . . is entirely protected." We apply exacting
66
scrutiny to core political expression.
Under even exacting scrutiny, " 'a significant
interference with protected rights . . .' may be sustained if the State demonstrates a
sufficiently important interest and employs means closely drawn to avoid unnecessary
67 "[A] provision burdening the exercise of political
abridgement of . . . freedoms."
speech must be 'narrowly tailored to serve a compelling state interest.' "68
2. Analysis
Having determined that AS 15.45.110(c) imposed a flat $1 a signature cap
regardless of payment method, the superior court went on to decide that this flat cap
amounted to an unconstitutional restriction on political speech. We agree.
The legal question presented falls squarely within the Supreme Court's
69 First, "[p]etition circulation . . . is
exacting scrutiny framework in Meyer v. Grant .
'core political speech,' because it involves 'interactive communication concerning
political change.' "70 "First Amendment protection for such interaction . . . is 'at its
65 State v. Alaska Civil Liberties Union , 978 P.2d 597, 606-07 (Alaska 1999).
66 Id. at 603 (stating that "limitations on core First Amendment rights of
political expression" must satisfy exacting scrutiny (quoting Buckley v. Valeo, 424 U.S.
1, 44-45 (1976), superceded by statute on other grounds as recognized in McConnel v.
FEC, 540 U.S. 93 (2003))).
67 Id. (first alteration in original) (quoting Buckley, 424 U.S. at 25).
68 Id. (quoting Austin v. Mich. Chamber of Commerce , 494 U.S. 652, 657
(1990), rev'd on other grounds by Citizens United v. FEC, 558 U.S. 310 (2010)).
69 486 U.S. 414, 421-28 (1988).
70 Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186 (1999)
(quoting Meyer, 486 U.S. at 422).
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zenith.' " 71
As the superior court concluded, a hard cap on circulator compensation
burdens this core political speech by "significantly inhibit[ing] communication about
proposed political change." In reaching this conclusion the court acknowledged some
of the unique geographic challenges that initiative sponsors face in Alaska, especially
given the statutory requirement that they obtain signatures from a certain percentage of
72 - meaning that "[i]t is not enough
voters in three-fourths of the state's house districts
for a circulator to stand on the sidewalk in front of a shopping mall in Anchorage and
gather signatures." The court gave a pointed example of these challenges by contrasting
House Districts 20 and 32:
District 20 covers Downtown Anchorage while District 32
covers Kodiak, Cordova and Seldovia. The required number
of signatures for an initiative (7%) is roughly the same [in
these two districts] (413 vs 439), but the effort necessary to
assure the minimum number of signatures from each district
is far different.
A circulator could perhaps obtain scores of signatures in an hour by standing on the right
street corner at the right time in downtown Anchorage. But to get the same number in
a geographically vast house district with isolated and relatively small population centers,
like District 32, would require significantly more time, travel, and effort, and payment
of $1 a signature would unlikely be sufficient to attract anyone other than the most
devoted volunteer. These challenges would likely reduce the number of people initiative
sponsors could reach and make it less likely that the sponsors would be able to secure
enough signatures within the required time to place the initiative on the ballot. The
71 Id. at 187 (quoting Meyer, 486 U.S. at 425).
72 See AS 15.45.140.
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superior court correctly recognized that the $1 a signature cap, by thus burdening core
political speech, was subject to exacting scrutiny.
Resource Development Council argues that the record is devoid of any
evidence of a particular burden on Alaskans' free speech rights, and the State agrees.
They point out that in Meyer the factual record had been developed at trial, while in
Prete both sides presented affidavits in a preliminary injunction proceeding. Here, in
contrast, the superior court made its decision at an early stage of the litigation based on
the allegations in the pleadings and on exhibits consisting only of legislative history
materials. But we are not persuaded that factual development through discovery was
necessary. The facts underlying the superior court's finding of a burden on core political
speech - consisting primarily of observations about state geography - are clearly
73 and not seriously disputed.
subject to judicial notice
Resource Development Council also challenges the court's finding of a
significant burden on free speech by arguing that there are more efficient ways of
gathering signatures than flying around the state at great expense; circulators could be
posted at hub airports, Costco stores, regional hospitals, and other sites where residents
of "far-flung house districts" may typically be found passing through or temporarily
73 See,e.g. , Edgmon v. State, Officeof Lieutenant Governor, Div. ofElections ,
152 P.3d 1154, 1158 (Alaska 2007) (in recount appeal, taking "judicial notice that unlike
some communities in the state, Anchorage is a community with home [mail] delivery for
a significant portion of its residents"); Varilek v. City of Houston , 104 P.3d 849, 852
(Alaska 2004) (noting that "Alaska's geographic and political boundaries" are subject
to judicial notice); Kenai Peninsula Borough v. State, 743 P.2d 1352, 1370 n.34 (Alaska
1987) (taking judicial notice of Anchorage population in context of legislative
reapportionment challenge); Fischer v. Stout, 741 P.2d 217, 221 n.7 (Alaska 1987) (in
recount appeal, taking "judicial notice that human beings are of insufficiently diminutive
stature to dwell comfortably" in post office boxes); cf. Meyer, 486 U.S. at 423 ("We can
take judicial notice of the fact that it is often more difficult to get people to work without
compensation than it is to get them to work for pay." (quoting Urevich v. Woodard, 667
P.2d 760, 763 (Colo. 1983))).
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residing. Resource Development Council also suggests that initiative sponsors could
mail petition booklets to rural Alaska and have the signed booklets mailed back, pointing
to ongoing and signature-gathering efforts in a statewide recall campaign using unpaid
volunteer circulators.
But we must give exacting scrutiny to any law that reduces the size of the
audience initiative sponsors can reach with their message. In Meyer, when the U.S.
Supreme Court analyzed Colorado's full ban on circulator compensation, it concluded
that the law burdened free speech by making it less likely that the sponsors would
"garner the number of signatures necessary to place the matter on the ballot, thus limiting
74 Those same
their ability to make the matter the focus of statewide discussion."
75
concerns exist here, as the superior court explained, quoting Meyer :
The same fundamental policies that caused the Supreme
Court to take pause similarly apply when a circulator can be
paid pocket change as opposed to no pay whatsoever: the
size of the audience proponents can reach is limited; it is less
likely that proponents will garner the number of signatures
necessary to place the matter on the ballot; and [this] limits
their ability to "make the matter the focus of statewide
discussion."
The superior court rightly recognized that the State has a compelling interest in "ensuring
76 But as the Court held in
the integrity of the election process and preventing fraud."
Meyer, the means chosen to achieve the State's interests must be narrowly tailored.
Alaska Statute 15.45.110(c) is not narrowly tailored because, unlike the statutes that
74 Meyer, 486 U.S. at 423.
75 Id. at 422.
76 See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) ("A State indisputably has
a compelling interest in preserving the integrity of its election process." (quoting Eu v.
S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989))).
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77
survived less exacting scrutiny in Prete v. Bradbury and Initiative & Referendum
78
Institute v. Jaeger ,
it "does not leave alternative methods for payment available" to
initiative sponsors. And the State has other, less burdensome ways of countering fraud:
79 that "deal
the State may impose criminal sanctions, as evidenced by the existing statute,
expressly with the potential danger that circulators might be tempted to pad their
petitions with false signatures."80
In sum, AS 15.45.110(c) significantly burdens core political speech and is
not narrowly tailored to achieve the State's interests. Because it fails to meet Meyer 's
exacting scrutiny standard, it is unconstitutional.
C. The Petition Was "Properly Certified" Under AS 15.45.130.
Alaska Statute 15.45.130 requires the lieutenant governor to review an
initiativepetition todeterminewhether it"was properlyor improperly filed"forpurposes
of the next step - placing it on the ballot. Among the statutory requirements for a
properly filed petition is a certification by affidavit signed by "the person who personally
circulated the petition."81
"In determining the sufficiency of the petition, the lieutenant
governor may not count subscriptions on petitions not properly certified at the time of
77 438 F.3d 949 (9th Cir. 2006).
78 241 F.3d 614 (8th Cir. 2001).
79 AS 15.45.110(e) ("A person or organization that violates (c) or (d) of this
section is guilty of a class B misdemeanor.").
80 Meyer, 486 U.S. at 426-27; see also Citizens for Tax Reform v. Deters, 518
F.3d 375, 386 (6th Cir. 2008) (citing "harsher criminal sanctions for violations" as one
reason Ohio statute "lies closer to the complete ban in Meyer than the partial bans
[upheld] in the other circuit court cases").
81 AS 15.45.130.
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82
filing or corrected before the subscriptions are counted." A circulator's affidavit "must
state in substance" a number of things, including "that the circulator has not entered into
an agreement with a person or organization in violation of AS 15.45.110(c)," the "$1 a
signature" payment cap. 83
Resource Development Council argues that because the circulators were
paid in violation of AS 15.45.110(c), their petition booklets were not "properly certified"
and, under AS 15.45.130, the lieutenant governor was not allowed to count those
booklets' signatures. However, it was not improper for the lieutenant governor to certify
petitions that did not comply with an unconstitutional requirement. The petitions were
"properly certified" for purposes of AS 15.45.130.
V. CONCLUSION
We AFFIRM the judgment of the superior court.
82 Id.
83 AS 15.45.130(6).
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MATTHEWS, Senior Justice, concurring in part.
I agree with the result of today's opinion and with most of its reasoning.
In particular, I agree that AS 15.45.110(c) was intended to apply a cap of $1 per
signature to all types ofcompensation, that it unconstitutionally restricts political speech,
and that a construction of the statute that narrows it so that it applies only to
compensation measured on a signature basis should not be employed. But I do not agree
that the language of the statute is "plain" in the sense that it could only apply to all forms
of compensation. Instead I think that the statute is textually ambiguous, but that its
legislative history makes its intended meaning clear and thus precludes a narrowing
construction.
Alaska Statute 15.45.110(c) provides: "A circulator may not receive
payment or agree to receive payment that is greater than $1 a signature, and a person or
an organization may not pay or agree to pay an amount that is greater than $1 a signature,
for the collection of signatures on a petition." In my view, the phrases "payment . . .
greater than $1 a signature" and "an amount . . . greater than $1 a signature" (emphasis
added) plausibly could refer only to payment arrangements on an "a signature" basis and
not to arrangements that are hourly or salary based. There is a literal match between the
statutory ban on paying or agreeing to pay more than $1 a signature and contracts calling
for payment on an "a signature" basis. But it takes an additional mental step to apply the
ban to hourly or salaried contracts. While the broader application is permitted by normal
linguistic usage, it is not, in my opinion, required.
Moreover, the broader application can be applied only awkwardly to the
prospective aspects of the statute. Subsection .110(c) forbids agreements to pay or
receive more than $1 a signature. But no one entering into a contract to gather signatures
on a salaried or hourly basis can know in advance whether the agreement will be legal
or illegal. Legality will depend on an unknown and prospectively unknowable factor -
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whether the number of signatures ultimately obtained will exceed or fall short of the pay
1
in dollars ultimately earned under the contract.
This awkwardness suggests that
subsection .110(c) was meant to apply only to per-signature compensation.
Additionally, while prohibitions on per-signature pay for signature
gathering have been justified on the ground that this form of compensation creates an
2
incentive for overbearing or fraudulent conduct on the part of the signature gatherers,
applying a $1 per-signature cap to hourly and salaried contracts cannot be justified on
these grounds. Incentives encouraging undesirable conduct are created when caps are
imposed on hourly or salaried circulators. Circulators may be moved to engage in
overreaching or fraud upon realizing that their wages will be docked unless they pick up
the pace of signature gathering. This too suggests that the cap was meant to apply only
to per-signature contracts.
Notwithstanding these considerations, the legislative history of subsection
.110(c) is persuasive, and makes it clear, in my opinion, that the $1 a signature limit was
intended to apply to all forms of compensation. If the legislature had intended the
subsection to apply only to pay on an "a signature" basis, surely the clarifying last
sentence of the subsection as originally introduced would have been preserved.3
1 Implicit in the superior court's statement that "if a circulator received
payment that ended up being greater than $1 per signature, no matter how it was
received, it seems the statute would prohibit it" is a recognition that the legality of hourly
or salaried pay for circulators cannot be determined in advance.
2 Hearing on S.B. 313 Before the House Fin. Comm., 20th Leg., 2d Sess., at
33:20-34:26 (May 8, 1998) (statement of Rep. John Davies); Opinion at 12; see Prete
v. Bradbury, 438 F.3d 949, 969 (9th Cir. 2006) (summarizing state's evidence related to
fraud if circulators are paid per signature); Initiative & Referendum Inst. v. Jaeger, 241
F.3d 614, 618 (8th Cir. 2001) (same).
3 S.B. 313, § 1(c), 20th Leg., 2d Sess. (Feb. 16, 1998) ("This subsection does
(continued...)
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The fact that the meaning of the statute is not plain on its face, and only
becomes clear when its legislative history is considered, does not mean that the court
must employ the canon of constitutional avoidance when construing the statute, as Fair
Share argues in its cross-appeal. The canon is a rule of interpretation and should not be
4
used to impose a construction that is not plausibly within the intent of the legislature.
Here, as I have indicated, restricting the application of subsection .110(c) to per-
signature contracts would be contrary to the clear intent of the legislature.
The canon of constitutional avoidance is one of several tools available to
courts to avoid the total invalidation of statutes that are only partially either potentially
or actually unconstitutional. It is, as I have noted, a rule of interpretation, and it can be
used only to narrow a statute in a manner that is at least plausibly consistent with the
legislative intent underlying the statute. The other most commonly used tool to avoid
total invalidation of a statute is the doctrine of severability.5
3 (...continued)
not prohibit a sponsor from being paid an amount that is not based on the number of
signatures collected.").
4 DeBartolo v. Florida, 485 U.S. 568, 575, 583-84 (1988) (stating that the
rule of constitutional avoidance applies unless the proposed saving construction "is
plainly contrary to theintent ofCongress" and examining legislative history to determine
congressional intent); cf. Richard H. Fallon, Jr., Facial Challenges, Saving
Constructions, and Statutory Severability, 99 TEX. L. REV. 215, 231 (2020) ("[B]ecause
saving constructions involve statutory interpretation, the acceptability of a proposed
saving construction sometimes depends on contestable issues of interpretive
methodology. These include such matters as the permissibility of reliance on legislative
history . . . ." ).
5 See Fallon, supra note 4, at 220 ("[F]acial challenges have the potential to
operate as 'wrecking ball[s].' In understandable revulsion from invalidating too many
statutes on their faces - even when familiar tests of constitutional validity threaten them
with condemnation - the Court has turned repeatedly to two limiting devices. One is
(continued...)
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Severability applies only when a part of a statute, or an application of it, has
been found unconstitutional. It is not a rule of interpretation since it operates contrary
to the legislative intent that all parts of a statute remain in effect. Rather, it is a rule
6 and from the general severability clause of
derived both from the judicial power
AS 01.10.030.7 Severability, as AS 01.10.030 makes clear, can apply not only to
separate valid from invalid portions of a statute, but to separate valid from invalid
applications of one provision of a statute.8
The test for severability asks two questions: (1) whether the portion or
application of the statute remaining after the "offending portion of the statute" or the
offending application of the statute "is severed" can be given legal effect and (2) whether
5 (...continued)
'narrowing' or 'saving' constructions. The other is statutory 'separability' or
'severability'. . . ." (alteration in original) (citation omitted)).
6 2 N ORMAN J. S INGER & J.D. S HAMBIE SINGER, S TATUTES AND STATUTORY
CONSTRUCTION, § 44:8, at 633 (7th ed. 2009) (stating that power of severability "flows
from powers inherent in the judiciary").
7 Alaska Statute 01.10.030 provides:
Any law heretofore or hereafter enacted by the Alaska
legislature which lacks a severability clause shall be
construed as though it contained the clause in the following
language: "If any provision of this Act, or the application
thereof to any person or circumstance is held invalid, the
remainder of this Act and the application to other persons or
circumstances shall not be affected thereby." [Emphasis
added.]
8 See supra note7 (emphasizing statutory provision for severance of
unenforceable applications of statutes); see also Fallon, supra note 4, at 233 ("The
concept of statutory severability presents many complexities. It can apply to
denominated provisions of a statute, to linguistic subunits within a provision, or to a
single provision's various applications.").
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the legislature would have wanted the portion or application of the statute remaining "to
stand" in the event other provisions or applications of the statute "held bad should fall." 9
Fair Share and the State both argue that the canon of constitutional
avoidance must be applied to restrict the application of subsection .110(c) to per-
signature compensation to save that subsection from total invalidation. But neither
argues that the doctrine of severability should be used to save valid applications of the
statute if the canon does not apply. Because the issue of severability has not been raised
or briefed it is properly considered to be waived in this case.
Applying waiver here is no mere technicality. Despite the fact that the
canon of constitutional avoidance and the doctrine of severability are closely related in
purpose, they require the resolution of distinctly different issues. Both aspects of the test
for severability seemfairly debatable here. Thoughtful briefs and careful research would
be required to decide (1) whether the legislature would have wanted subsection .110(c)
to apply only to per-signature pay in light of the legislative rejection of that position in
favor of a broader application that does not foster the anti-fraud and overreaching
rationale that might justify the more narrow application; and (2) whether the subsection
even as so limited would be constitutional.10
In summary, I disagree with the reasoning of the opinion of the court only
insofar as I think the language of subsection .110(c) is ambiguous rather than plain.
9 Sonneman v. Hickel , 836 P.2d 936, 941 (Alaska 1992).
10
Courts are divided as to whether a state may ban or limit per-signature pay.
Compare Prete v. Bradbury, 438 F.3d 949, 970-71 (9th Cir. 2006) (permitting ban as
applied), and Initiative &Referendum Inst. v. Jaeger, 241 F.3d 614, 618 (8th Cir. 2001)
(permitting ban), with Citizens for Tax Reform v. Deters, 518 F.3d 375, 388 (6th Cir.
2008) (precluding ban on all types of compensation other than "per-time-only"), and
Indep. Inst. v. Gessler, 936 F. Supp. 2d 1256, 1280-81 (D. Colo. 2013) (precluding
limitation on per-signature compensation).
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Nonetheless, because the legislative history of the statute clearly shows the legislature's
intent to apply the statute to all forms of compensation, I agree that the canon of
constitutional avoidance should not be applied. I also believe that the State and Fair
Share could have argued alternatively that the doctrine of severability, rather than the
canon ofconstitutional avoidance, should beused to narrowtheapplication ofsubsection
.110(c) to per-signature agreements, but they did not do so and that issue is therefore
properly considered waived. Other than as noted I join in the opinion of the court in all
respects.
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