On March 5, 2008, the United States Court of Appeals for the Sixth Circuit issued its opinion in Citizens for Tax Reform v. Deters, Case No. 07-3031, which affirmed the holding of the United States District Court for the Southern District of Ohio that Ohio Rev. Code 3599.111 created an unconstitutional abridgement of free speech. That Ohio statute prohibited compensation to a petition or referendum signature-gatherer on a per-signature basis, or any basis other than for "time worked." The Sixth Circuit held that while the statute has "the sensible purpose of reducing fraudulent signatures," the law nonetheless was contrary to the First Amendment to the United States Constitution and thus invalid, as "creat[ing] a significant burden on a core political speech right that is not narrowly tailored."
The Court began its analysis by noting that "the Supreme Court has held that the First Amendment places a high value on the right to engage freely 'in discussions concerning the need for [political] change,' including change accomplished through petitions and elections." (Quoting Meyer v. Grant, 486 U.S. 414, 421 (1988)). The Court also pointed out that United States Supreme Court cases make clear "that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder,” and that "[a]s 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 process."
Based upon the evidence presented in the trial court, the Sixth Circuit concluded that "[t]here is little dispute that operating under a per-time-only system will increase the costs of both proposing an initiative and qualifying it for the ballot." The Court then distinguished decisions of three other courts which found the prohibitions passed in other states against per-signature payments to be constitutional. Unlike Ohio, those other states still permitted payment under many other methods, such as paying an hourly wage, establishing minimum signature requirements, terminating circulators who do not perform as expected, adjusting circulator salaries, or paying bonuses. The Court held that the Ohio's prohibition on all methods of payment except time worked was too restrictive. The Court also distinguished the other three cases by noting that violations of those laws were misdemeanors, whereas a violation of Ohio's § 3599.111 is a felony.
The Court noted that while Ohio's reason for the law -- the elimination of election fraud -- "is certainly a compelling state interest," § 3599.111 was not narrowly drafted to accomplish this purpose. While the state presented evidence that there was fraud in Ohio preceding the 2004 presidential election by some circulators retained on a per-signature pay basis, the Court found no proof the pay basis was the cause of the fraud. Further, Ohio already criminalizes election fraud through Rev. Code § 3599.28, which makes false signatures on an election-related documents a fifth-degree felony. The Court found this type of law adequate to deter improper conduct in the gathering of signatures. The Court concluded its opinion by holding that "[b]y making speech more costly, the State is virtually guaranteeing that there will be less of it. Because its ban on all forms of payment to circulators except based on the amount of time worked would create a significant burden on [plaintiff's] and other petitioners’ core political speech rights, the State must justify it with a compelling interest and narrowly tailored means."