CRS Report for Congress
State Regulation of the Initiative Process:
Background and Analysis of Issues in
Buckley v. American Constitutional Law
Foundation, Inc., et al.
February 16, 1999
T.J. Halstead
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

This report discusses Buckley v. American Constitutional Law Foundation, Inc., et al.,
where the Supreme Court considered the constitutionality of various restrictions imposed
by Colorado on the petition process for ballot initiatives. The Court struck down regulations
requiring that circulators be registered voters and that all circulators wear identification
badges, as well as provisions requiring the disclosure of paid circulators and amounts
disbursed to each. In reaching this decision, the Court noted that other permissible
regulations served Colorado’s interest in protecting the integrity of the initiative process. As
such, the Court determined that the aforementioned provisions could not be justified in light
of their violation of the right to anonymous political expression and subsequent chilling
effect on free speech.

State Regulation of the Initiative Process: Background and
Analysis of Issues in Buckley v. American Constitutional
Law Foundation, Inc., et al.
From its inception, the United States has fostered and encouraged unfettered
discussion and debate regarding political issues facing the nation. Indeed, the First
Amendment affords the greatest protection to political expression, to assure the free
interchange of ideas. Coupled with this respect for free speech and political
expression, though, is the sometimes contrary notion that states possess authority to
regulate the electoral process in order to avoid campaign related disorder.
Due to the increased popularity of the use of ballot initiatives and referendums
as a tool for political change, and resulting state efforts to regulate these activities,
these two lines of legal thought have been the source of significant conflict. While
the Supreme Court has always served as a stalwart protector of First Amendment
rights relating to political expression, its prior decisions dealing with the topic related
mainly to areas of pure speech, leaving significant questions regarding how these
rights would be interpreted in light of a state’s interest in preserving the integrity of
its electoral processes.
The Supreme Court addressed this conflict in Buckley v. American
Constitutional Law Foundation, Inc., et al., a case arising from the Court of Appeals
for the Tenth Circuit. Specifically, the Court analyzed the constitutionality of
provisions enacted by the State of Colorado requiring that petition circulators be
registered voters, to wear identification badges, and mandating the disclosure of
amounts disbursed to paid circulators. While the Court had handed down previous
rulings pertaining to state regulation of the electoral process and associated First
Amendment free speech considerations, it had not spoken directly on the applicability
of such rulings to the initiative process. Justice Ginsburg delivered the opinion of the
Court that such provisions constituted an unconstitutional restriction on First
Amendment freedoms regarding political expression, and was joined by Justices
Stevens, Scalia, Kennedy, and Souter, with a concurring opinion by Justice Thomas.
Justice O'Connor dissented from the Court's holding regarding the registration and
disclosure requirements, and was joined by Justice Souter. Chief Justice Rehnquist
also submitted a dissenting opinion in opposition to the Court's disposition of the
disclosure and registration issues. The Court’s decision extends First Amendment
rights acknowledged in prior cases, and elaborates upon permissible state regulation
in the initiative and referendum process, while leaving several questions regarding
the scope of such state control unanswered.

Case History...............................................1
Voter Registration Regulations.................................3
Financial Disclosure Provisions.................................7
Identification Badge Requirement..............................12
Conclusion ................................................ 18

State Regulation of the Initiative Process:
Background and Analysis of Issues in
Buckley v. American Constitutional Law
Foundation, Inc., et al.
Case History
Respondents, collectively referred to as ACLF in the Court’s opinion, originally
brought suit against the Secretary of State of Colorado in 1993 in the United States
District Court for the District of Colorado pursuant to 42 U.S.C. §1983, challenging
portions of the state’s statutory scheme regulating the initiative-petition process. In1
alleging that various initiative regulations violated the right to freedom of speech
under the First Amendment, ACLF contested specifically: (1) Colo. Rev. Stat. §1-40-
112(1) (1998), requiring that all petition circulators be registered voters and at least
18 years of age; (2) §1-40-108, limiting circulation of a particular petition to six
months; (3) §1-40-112(2), requiring that petition circulators wear identification
badges giving their names and disclosing their status as a paid or volunteer circulator;
(4) §1-40-111(2), requiring that circulators attach to each petition an affidavit
containing the circulator’s name and address and a statement averring familiarity
with state laws regarding petitioning; (5) §1-40-121, requiring that initiative
proponents disclose (a) at the time of filing the petition, the name, address, and
county of voter registration of all paid circulators, the amount of money paid per
signature, and the total amount paid to each circulator, and (b) to disclose the names
of the proponents, names and addresses of paid circulators, the name of the proposed
ballot measure, and the amount of money paid to each circulator on a monthly basis.2
As noted by the Supreme Court, the district court struck down the badge
requirement and portions of the disclosure regulations, and upheld the age and
affidavit requirements, as well as the six-month limit on petition circulation.3
However, the district court, upon determining that the registration provision posed
significant constitutional problems, nonetheless held that the law could not be
invalidated, as it had been adopted by the voters of Colorado as a constitutional
amendment. According to the district court, this fact immunized the registration

See Buckley v. American Constitutional Law Foundation, Inc., et al., N0. 97-930, 1999 WL1
7723, at *1-*2 (S.Ct. Jan. 12, 1999). Plaintiffs at the district court level consisted of
American Constitutional Law Foundation, Inc., which operates as a nonprofit public interest
group that advocates direct democracy, and several private citizens participating in
Colorado’s petition process. Id.
Id. at *1. 2
Id. at *4.3

provision from any level of scrutiny. The Court of Appeals for the Tenth Circuit
affirmed the determinations of the district court, except for its decision on the
registration requirement. Specifically, the Court of Appeals held that the regulation
was not exempt from review merely because it was based upon a constitutional
provision enacted by petition, explaining that the voters of a state may not violate the
strictures of the United States Constitution by petition any more than a governing
body may via legislation.4
In order to appreciate fully the Supreme Court's review of the reasoning of the
lower courts, one must gain an understanding of the two divergent lines of
jurisprudence at play in its analysis. Specifically, it is well established that “the First
Amendment affords the broadest protection to political expression, in order ‘to assure
[the] unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.’” Indeed, the Court has always vehemently protected5
this view of the First Amendment, stating that First Amendment protection is "at its
zenith" in regard to communication pertaining to political change. At the same time,6
however, the Court has been quick to recognize that a "state has a strong, often
compelling, interest in preserving the integrity of its electoral system." Accordingly,7
the Court has "recognized...that '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 to8
accompany the democratic processes.'" As noted above, these two lines of legal
thought have largely existed independent of one another, rarely coming into direct
conflict. In the present case, though, the Supreme Court was forced to determine the
scope of these two doctrines as they relate to the petition-initiative process.
At the outset of its analysis, the Supreme Court explained its summary
affirmance of the Tenth Circuit’s determination that the age restriction, six-month
circulation limit, and affidavit requirement were valid, noting that "states allowing
ballot initiatives have considerable leeway to protect the integrity and reliability of
the initiative process, as they have with respect to election processes generally." The9
Court pointed to these rulings as an acknowledgment of the strong regulatory
interests a state possesses in preserving the integrity of its electoral system. This10
proposition was discussed at length by the appellate court which noted that, in light
of the need for active governmental structuring of the electoral process, the

American Constitutional Law Foundation, Inc., et al., v. Meyer, 120 F.3d 1092, 1100 (10th4
Cir. 1997). The Supreme Court affirmed this determination by the Tenth Circuit as part of
its review of the issue. 1999 WL 7723 at *6.
Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476, 4845

1999 WL 7723 at *4.6

120 F.3d at 1099 (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)).7

1999 WL 7723 at *4 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).8

1999 WL 7723 at *5.9

1999 WL 7723 at *5. 10

aforementioned regulations did not significantly burden political expression. The11
Court cautioned, however, that such decisions are not made lightly as the First
Amendment requires a court "to be vigilant in making those judgments, to guard
against undue hindrances to political conversations and the exchange of ideas."12
Having explained this caveat, the Court went on to analyze in depth the provisions
at issue.
Voter Registration Regulations
The first major issue addressed by the court centered on the constitutionality of
Col. Rev. Stat. §1-40-112(1), which required that all petition circulators be registered
voters. The Tenth Circuit ruled that this requirement was unconstitutional in that it
prohibited unregistered voters from circulating petitions, excluding them from
participating in an activity constituting core political speech. The main basis for13
this analysis rested on the Supreme Court’s earlier decision in Meyer v. Grant.14
In Meyer, the Court addressed a Colorado law which prohibited the payment of
any consideration for the circulation of referendum or initiative petitions.
Specifically, the Court established that “circulation of a petition involves the type of
interactive communication concerning political speech that is appropriately described
as ‘core political speech.’” Accordingly, the Court applied exacting scrutiny in its15
review and held that the law constituted an impermissible restriction of political
expression. As the Court explained, by reducing the number of individuals
advocating a particular message, the law impaired the ability of advocates to obtain
the number of signatures needed to place an issue on the election ballot.16
In its analysis of the registration issue, the Supreme Court noted that it was
clearly evident that the registration requirement severely reduced the number of
individuals, both volunteer and paid, available to circulate petitions. Accordingly,17
the Court turned its attention to whether the asserted state interests justified the
reduction. Upon determining from statistical and testimonial evidence establishing
such a reduction, the Court confirmed the Tenth Circuit’s holding that §1-40-112(1)
restricted core political speech. Specifically, the Court noted that the regulation at
issue proscribed speech in the same fashion as the ban on paid circulators invalidated
in Meyer. Quoting Meyer, the Court stated that the reduction in speech was
irrefutable, and the “provisions ‘limi[t] the number of voices who will convey [the
initiative proponents’] message’ and, consequently, cut down ‘the size of the

120 F.3d at 1099-1100 (1997) (discussing Burdick v. Takushi, 504 U.S. 428, 433 (1992)).11

1999 WL 7723 at *5 (citing Meyer v. Grant, 486 U.S. 414, 421 (1988)).12

120 F.3d at 1100.13

Meyer v. Grant, 486 U.S. 414 (1988).14
Id. at 421-422.15
Id. at 422-42316
Buckley v. American Constitutional Law Foundation, Inc., et al., No. 97-930, 1999 WL17

7723, at *6 (S.Ct. Jan. 12, 1999).

audience [proponents] can reach.” In light of these findings, the Court held that the
regulation restricted political expression in a manner which could not be justified.18
In arguing for the validity of the provisions, Colorado maintained that, despite
the speech limitations, the regulation was permissible due to the ease of registering
to vote. The Supreme Court gave this argument little weight, however, explaining19
that the ease of registration does not lessen the burden on speech at the time of
circulation. The Court further noted that the choice not to register itself can be a form
of political expression. In particular, the Court pointed to the statements of one
circulator who maintained that his refusal to register was a form of private and public
protest, as well as evidence establishing that various circulators refuse to register
because they believe that the political process is irresponsive to their needs. Given20
the political views of these individuals, the Court held that the ease of registration
was irrelevant to its consideration of the issue.21
The main interest asserted by Colorado was its need to regulate illegal conduct
by petition circulators. Colorado argued the regulation was necessary to ensure that
all circulators would be subject to the subpoena power of the Secretary of State
which does not extend beyond the State’s borders. However, the Court determined22
that this interest was met by less intrusive means, such as the requirement that all23
circulators submit affidavits disclosing their full addresses. According to the Court
this affidavit requirement would act to serve Colorado’s interests more readily than
the registration requirement, in that it is submitted at the time a petition section is
submitted, whereas a registration record may lack such currency. Furthermore, the
Court emphasized the Tenth Circuit’s determination that the asserted interests could
be “more precisely achieved” by a requirement that all petition circulators be
residents. In response to Colorado’s argument that registration is easier to track than
residency, the Court noted that the submitted affidavits would assuage any such24
In light of the aforementioned factors, the Court concluded that, assuming a
residence requirement would be upheld as a valid regulation of the initiative-
referendum process, the registration provision constituted an impermissible
restriction by reducing the number of circulators eligible to participate in petitioning
activity. Dissenting opinions by Justice O’Connor and Chief Justice Rehnquist25
found great fault with this holding, however. According to their view, the
registration requirement constituted a necessary and valid exercise of state power.

Id. at *6-*7.18
Id. at *7. 19
Id. at *7.20
Id. at *7.21
Id. at *7.22
Id. at *7.23
Id. at *7.24
Id. at *8.25

Specifically, Justice O’Connor analogized the registration requirement to earlier
Supreme Court decisions validating such qualifications placed on individuals wishing
to vote in primary elections and candidates for public office. According to Justice
O’Connor, the registration requirement was akin to these cases, and served merely26
as “a neutral qualification for participating in the petitioning process.” As a neutral
requirement, Justice O’Connor maintained that the registration provision was an
incidental and indirect burden on the communicative aspects of petition circulation
which did not prohibit “otherwise qualified initiative petition circulators from
circulating petitions.” Furthermore, the dissent argued that the registration provision
was readily distinguishable from Meyer, in that the requirement did not effect a ban
on an identifiable body of circulators or stifle the political activity of individuals
capable of circulating petitions. 27
In Justice O’Connor’s view, the indirect burdens of the registration provisions
required Colorado to show only that the regulation advanced a legitimate state
interest. In support of the proposition that the registration requirement was28
necessary to advance the state interest in controlling fraudulent petitioning activity,
Justice O’Connor pointed to evidence that Colorado had experienced difficulty in the
past controlling such behavior due to the fact that the offending circulators often fled
the state. Given the utility of the registration requirement in aiding the asserted state
interests and the ease of registering, she maintained that the provision was a
reasonable regulation of the initiative process.29
Chief Justice Rehnquist raised many of the same points in his dissent, focusing30
heavily on the comparative ease of voter registration. He also dismissed the
associated First Amendment concerns addressed by the majority, declaring that only
a very few individuals employ non-registration as a tool to convey political thought
and expression. Apart from these statements, Chief Justice Rehnquist argued that31
enforcement methods short of a registration requirement would be ineffective and
unduly burdensome on the state. In the Chief Justice's view, state ballot initiatives
exist as a matter of state concern and, as such, states should be permitted to limit the
ability to circulate to those individuals who will ultimately vote on the initiatives.32
He went on to declare that “[i]f eligible voters make the conscious decision not to
register to vote on the grounds that they reject the democratic process, they should
have no right to complain that they cannot circulate initiative petitions to people who
are registered voters.”33

Id. at *19.26
Id. at *20.27
Id. at *20.28
Id. at *21.29
Id. at *26.30
Id. at *26.31
Id. at *27.32
Id. at *27.33

While the dissenting opinions point to factors which support the right of a state
to regulate its initiative process via a registration requirement, neither Justice
O’Connor or Chief Justice Rehnquist effectively address the majority’s determination
that the registration requirement effects an unconstitutional restriction of political
expression. Whereas the majority points to testimony indicating that certain
individuals choose non-registration as a form of political protest, the dissenting
opinions argue that this is characteristic of a small minority of circulators and is an
insufficient basis for a finding of invalidity. Justice O’Connor, for instance,
maintained that the registration provision was an indirect, and therefore permissible,
restriction. In support of this proposition, she stated that, unlike paid circulators, non-
registered voters were not vital to the success of a petition drive. The Chief Justice34
echoed this unfavorable view of unregistered voters, referring to them as “political35
Neither of these viewpoints, however, provides a complete refutation of the
majority’s determination. As the Court held, the registration requirement does stifle36
the political activity of a class of persons, akin to the prohibition at issue in Meyer.
While the dissent does make a valid point regarding the indirect nature of the
registration requirement as opposed to the outright ban in Meyer, it was evident to
the Court that the effect of both laws was to restrict political expression. While the
dissenting opinions essentially declare that unregistered voters do not constitute a
class deserving protection, they offer no substantive reasons why this chosen form
of expression is invalid in the First Amendment context. For instance, Chief Justice
Rehnquist maintains that there is no utility in this form of expression, but provides37
no constitutional analysis as to why this is so. Testimony adduced at the district
court level established that certain individuals clearly view non-registration as an
avenue by which they may make a political statement. While Chief Justice38
Rehnquist and Justice O’Connor obviously disagree with the validity of such
expression, the majority recognized this form of expression as constitutionally valid
and deserving of protection.
From the majority’s determination, it is evident that the Court is concerned with
reaching an adequate balance between state regulatory interests and the protection of
political expression. For instance, the Court, without explicitly ruling on the issue,
discussed the scope of appropriate regulation. The Court noted that either a provision
requiring that circulators be residents or eligible to register would be a more narrowly39
tailored regulation of the initiative process. While the dissenters assert that the
invalidation of the registration provision would result in the inability of states to
constitutionally require that circulators be residents or eligible voters, the Court

Id. at *20.34
Id. at *27.35
Id. at *6.36
Id. at *26.37
Id. at *7. For instance, Respondent Bill Orr argued before the district court that non-38
registration was a “form of...private and public protest.” Id.
Id. at *7.39

intimated that such regulations would survive scrutiny. Furthermore, the arguments40
of the dissenting opinions regarding the inadequacy of a residency requirement were
mitigated, in the Court's view, by the affidavit requirements, which should enable an
effective method by which to enforce any such regulation. Given these factors, it is
clear that the Court's decision places a somewhat higher burden on a state wishing
to exercise regulatory control over the initiative process. However, there are other
avenues which may be employed to accomplish such a goal, thereby preserving the
balance between regulation of the process and the right to political expression.
Financial Disclosure Provisions
Another key issue before the Supreme Court in Buckley v. American
Constitutional Law Foundation, Inc., et al., pertained to whether a state could
compel disclosure of the names and addresses of individuals paid to circulate
petitions, and the amounts disbursed. Specifically, Col. Rev. Stat. §1-40-121
required the filing of monthly and final reports including the names of paid
circulators, their business and residential addresses, and the amount of money
disbursed to these individuals monthly and in total. In its determination of the issue,
the Tenth Circuit invalidated the regulation to the extent it required the disclosure of
information regarding paid circulators. In its subsequent analysis, the Supreme41
Court affirmed the reasoning of the Tenth Circuit, deciding the issue based upon its
prior holding in Buckley v. Valeo. 42
In Buckley v. Valeo, the Supreme Court analyzed the constitutionality of various
provisions of the Federal Election Campaign Act of 1971 (the Act), which limited
individual contributions to political campaigns and required that contributions above
a threshold amount be reported and publicly disclosed. Specifically, the Act43
prohibited individuals from making annual contributions in excess $1,000 to a
particular candidate, and imposed an overall annual contribution limit of $25,000.44
Furthermore, the reporting and disclosure provisions required that records of
contributions be made public. Opponents of the Act argued that these limitations
violated First Amendment rights regarding speech and political expression.
In reviewing the act, the Supreme Court acknowledged that such compelled
disclosure intruded upon First Amendment freedoms, and “significant encroachments
on First Amendment rights...cannot be justified by a mere showing of some
legitimate governmental interest.” Accordingly, the Court applied exacting scrutiny45
in its review. In conducting its analysis, however, the Court “identified three
interests ‘sufficiently important to outweigh’ the infringement on the ‘privacy and

Id. at *7-*8.40
American Constitutional Law Foundation, Inc., et al., v. Meyer, 120 F.3d at 1105.41
Buckley, 1999 WL 7723 at *12.42
Buckley v. Valeo, 424 U.S. 1 (1976).43
Id. at 7.44
Id. at 64.45

association and belief guaranteed by the First Amendment.’” First, the Court46
emphasized that campaign finance disclosure informs the electorate of the
candidate’s political associations, illuminating the interests to which the candidate
is most likely to address. Furthermore, the Court determined that the disclosure
requirements served to deter corruption and to dispel the appearance of corruption
stemming from financial contributions. Finally, the Court explained that the
disclosures were necessary for the collection of data needed to detect violations of
contribution limitations. In light of these factors, the Court held that the47
governmental interest in public disclosure outweighed the potential harm to First
Amendment Freedoms.
In comparing the disclosure requirements enacted by Colorado with those
upheld in Buckley, the Supreme Court agreed with the Tenth Circuit’s determination
that certain provisions of §1-40-121 were unconstitutional. The Supreme Court
invalidated the requirement that the names and addresses of, as well as the amounts
disbursed to, each paid circulator be disclosed. A key factor in this decision was the48
Court’s determination that the factors warranting mandated disclosure in Buckley
were not present in the petitioning environment. Specifically, the Court adopted the
Tenth Circuit’s reasoning that unlike the situation in Buckley, §1-40-121 imposed no
monetary threshold, requiring the identification of paid circulators irrespective of the49
amount of money they received for their efforts. Also, Buckley targeted candidate
elections whereas §1-40-121 was geared only toward the regulation of the initiative
process. Due to this fundamental difference, concerns which the Court found50
dispositive in Buckley, such as the need to alert the public to a candidate’s financial
ties and to provide a mechanism for the detection of contribution violations were
deemed inapplicable. 51
Furthermore, the Court determined that the deterrence of actual or apparent
corruption was not a justifiable governmental interest, given the nature of the
initiative process. Specifically, the Court explained that “ballot initiatives do not
involve the risk of ‘quid pro quo’ corruption present when money is paid to, or for,
candidates.” In explaining this point the Supreme Court referred to its prior5253
decisions in McIntyre v. Ohio Elections Comm’n and Meyer v. Grant. In McIntyre,
the Court struck down Ohio’s ban on anonymous leafleting due in large part to its
determination that the risk of corruption which is so prevalent in candidate elections

120 F.3d at 1104 (quoting Buckley v. Valeo, 424 U.S. at 64).46

Buckley v. Valeo, 424 U.S. at 68.47

1999 WL 7723 at *11-*12.48

Id. at *11; 120 F.3d at 1104.49

120 F.3d at 1104.50

1999 WL 7723 at *11.51

Id. at *11 (quoting Meyer v. Grant, 486 U.S. at 427-428).52

1999 WL 7723 at *11.53

is not present in a public vote on an issue. The Court also touched upon this issue54
in Meyer, noting that “the risk of fraud or corruption, or the appearance thereof, is
more remote at the petition stage of an initiative than at the time of balloting.” Due55
the tangential relation of the Buckley decision and the lower likelihood of improper
influence in the petition process, the Supreme Court agreed with the Tenth Circuit’s
reasoning that the disclosure provisions were invalid. 56
In light of these factors, the Court determined that the asserted governmental
interests were insufficient to justify such broad disclosure requirements. Specifically,
Colorado argued that the disclosure provisions were necessary to inform the
electorate as to whether a particular measure possessed grass roots support and to
discourage fraud. The Tenth Circuit addressed these arguments specifically, finding57
them to be of little merit. Regarding the grass roots argument, the circuit court
explained that this interest was protected by the requirement that each initiative or
referendum contain signatures signed by registered electors in an amount equal to at
least five percent of the votes cast for the office of secretary of state at the previous
election. The Tenth Circuit also found that a body of more narrowly tailored
regulations met the state’s interest in preventing fraud. In particular, other provisions
of the regulatory scheme allowed for the prosecution of certain misconduct during
circulation, the invalidation of tainted petitions, and written protest. The Supreme58
Court agreed with the Tenth Circuit’s determination that there was no evidence that
these measures were inadequate in protecting the state’s regulatory interests.59
In making these determinations, the Court explained that compelled disclosure
under §1-20-141 would chill the constitutionally protected activity of paid
circulators. Furthermore, the Court found it significant that listing paid circulators
and their resulting income would deprive them of the anonymity afforded to
volunteer circulators. Based upon the aforementioned analysis, the Supreme Court60
ultimately concluded that the disclosure requirements were only tangentially related
to Colorado’s asserted interests, and held that the regulations could not survive the
exacting scrutiny test.61
While the Court’s determination of this issue clarifies the scope of permissible
regulation in the financial disclosure context, significant questions remain regarding
the scope of permissible state regulation. The Supreme Court’s acknowledgment of
fraud in petition circulation, coupled with the longstanding proposition that states
possess significant authority to protect the integrity of the electoral process raise

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 352 (1995).54

1999 WL 7723 at *11 (quoting Meyer v. Grant, 486 U.S. at 427).55

1999 WL 7723 at *12.56

120 F.3d at 1105.57

120 F.3d at 1105.58

1999 WL 7723 at *11.59

Id. at *11-*12.60
Id. at *12.61

concerns regarding the effect of the Court’s holding. This conflict was addressed at
length in Justice O’Connor’s dissent on the issue, where she referred to the majority’s
opinion as “most disturbing.”62
The crux of Justice O’Connor’s dissent centered on the assertion that, contrary
to the determination of the majority, the disclosure provisions at issue did not
impinge upon the direct communicative activities of petition circulators. Rather, she
contended that the disclosure provisions burdened speech in an incidental manner.63
Specifically, the dissent stated that, akin to the mandatory affidavits, the disclosure
reports revealed the names of paid circulators and existed as public record, but were
removed from the moment of speech. Thus, according to Justice O’Connor, the
disclosure requirement should have been upheld so long as it was found to advance64
a legitimate state interest. Accordingly, she argued that Colorado’s interest in
combating fraud and informing the electorate would be sufficient to justify this level
of review. Justice O’Connor explained that in order to combat fraud and inform65
signatories in a timely manner, disclosure must be made contemporaneously with the
circulation of a petition. According to the dissent, the need for deterrence is at its
greatest during this phase of the initiative process, and, as such, the monthly
disclosure reports would be able to “uniquely advance” the asserted state interests.66
Justice O’Connor’s dissent also maintained, contrary to the majority’s determination,
that the required disclosures, while targeted only at paid circulators, were permissible
in that there was evidence pointing to a higher likelihood of fraudulent behavior on
the part of such individuals.67
In closing, Justice O’Connor argued that the legitimate state interests asserted
by Colorado would be advanced by the disclosure provision, and, accordingly should
have been upheld in light of the incidental and indirect burdens of the provisions on
free speech. Furthermore, Justice O’Connor declared that even if exacting scrutiny
were the appropriate standard, the provisions should have been affirmed under the
Buckley standard. 68
Chief Justice Rehnquist also dissented on the disclosure issue, maintaining that
the disclosure requirements were an acceptable outgrowth of the affidavit
requirement which was deemed valid. The Chief Justice explained that, under the69
affidavit requirement, all petition circulators are required to reveal their identities as
well as their address. Chief Justice Rehnquist argued that the disclosure provision

Id. at *21.62
Id. at *22.63
Id. at *22.64
Id. at *22. 65
Id. at *24. Justice O’Connor explained that the affidavits, contrary to the majority’s66
determination, wouldn’t meet this need since they weren't prepared until all petitioning was
Id. at *24.67
Id. at *24.68
Id. at *28.69

only required one further piece of information, namely the amount paid to a particular
circulator. Given that the identity of all circulators, as well the total amount paid will
be disclosed, the Chief Justice argued that the additional disclosure requirement was
insufficient to invalidate the regulations.70
While the dissenting views of Justice O’Connor and Chief Justice Rehnquist
possess a degree of merit in light of a state’s strong interest in preserving the integrity
of the electoral process, their arguments do not address directly the majority’s
concern regarding the chilling effect of the disclosure provisions. Both dissenting
opinions focus on the need for the reporting provisions without acknowledging that
the primacy of the disclosure would strip a circulator of his or her anonymity at the
time of circulation. Furthermore, the type of fraud targeted is unclear from the
dissenting opinions. Both Justice O’Connor and Chief Justice Rehnquist state
generally that disclosure will prevent fraud in that paid circulators are more likely to
commit such behavior. However, the Court disagreed with this notion, stating that
it was unclear how the disclosures would prevent fraud. Specifically, the majority71
explained that the reports containing the names of the paid circulators would be filed
with the Secretary of State and would not be available at the moment of speech.72
Finally, while Justice O’Connor argues that Buckley justifies the disclosure
provisions, her dissent does not refute the majority’s analysis concerning Buckley’s73
non-applicability to payees. Instead, Justice O’Connor focuses on the indirect nature
of the provision as a basis for its constitutionality.74
The opposing viewpoints of the majority and dissent, while illuminating the
extremes of the issue, do not give rise to a clear consensus on the degree of disclosure
which might be permissible short of the conditions deemed invalid in §1-40-121. The
Supreme Court, for instance, affirmed the Tenth Circuit’s acknowledgment that the
burden of the regulation was lessened by the fact that disclosure would be made at
the time of filing. However, in light of the other mechanisms capable of achieving
the asserted state interests, the chilling effect was nonetheless deemed
unconstitutional. This concern regarding any chilling effect on speech, coupled with75
the Court’s refusal to apply Buckley to payees in addition to payors would seem to
suggest that, irrespective of the dissent’s protestations, any disclosure of paid
circulators would be prohibited. While such a stringent ruling has weighty
implications regarding the scope of a state’s power to regulate its electoral processes,
the Court’s ruling gives clear examples of other less intrusive measures which would76

protect regulatory interests.
Id. at 28.70
Id. at *11.71
Id. at *11.72
Id. at *22.73
Id. at *22.74
Id. at *11-*12.75
Id. at *11-*12.76

Identification Badge Requirement
Perhaps the most controversial issue before the Court centered on the
requirement of Col. Rev. Stat. §1-40-112(2) that circulators wear personal
identification badges while engaged in petitioning activities. As written, a violation
of this provision could result in the voiding of signatures collected by a particular
circulator, as well as criminal prosecution of the offender. At the district court it77
was determined that the provision infringed upon the right to anonymous political
speech, and it was struck down in its entirety. The Court of Appeals for the Tenth78
Circuit agreed, stating that the law was not necessary to serve the State’s asserted
interest, thereby precluding its validity under the strict scrutiny standard. The79
Supreme Court, in addressing the issue, largely echoed the sentiments of the lower
courts, focusing on the importance of the right to anonymous political speech. 80
The value of anonymous political speech was recognized by the Supreme Court
in Talley v. California. In Talley, the Supreme Court ruled that a California law81
banning all anonymous leafleting was an unconstitutional restriction of the freedom
of expression. In particular, the Court rejected arguments that the ordinance was82
a permissible restriction in that it served to identify proponents of fraud, false
advertising, and libel. The Court was careful to emphasize, however, that its83
decision was based upon a statute which imposed a total ban on all anonymous
leafleting, and did not extend to anonymous leafleting bans which were sufficiently
tailored to the prevention of fraud, false advertising, or libel.
Upon making this determination, the Court discussed substantive and historical
free speech considerations which influenced its decision. The Court gave
considerable weight to the role of anonymous political speech in achieving positive
political change, discussing its utility in illuminating the deficiencies of oppressive

Col. Rev. Stat. §1-40-132; Col. Rev. Stat. §1-40-130(2).77

120 F.3d at 1101.78

120 F.3d at 1103.79

Both Chief Justice Rehnquist and Justice O'Connor agreed with the majority's80
determination that the identification requirement was unconstitutional. See 1999 WL 7723
at *19, *28.

362 U.S. 60 (1960).81

Talley, 362 U.S. at 64-65. The specific action at issue in Talley centered on the82
petitioner’s distribution of essentially anonymous flyers calling for the boycotting of certain
merchants. Id. at 61. The petitioner was subsequently convicted of violating a city
ordinance prohibiting such anonymous circulation. The appeals court affirmed the
petitioner’s conviction, stating that the ordinance was not violative of the freedom of speech
or press. Id. at 61-62.
Id. at 64. Specifically, the Court noted that the City was unable to demonstrate that the83
ordinance was sufficiently tailored to meet this narrow goal, and that there was no showing
of such a limited purpose in the legislative history of the ordinance. Id.

governments, offering political alternatives, and in calling for constitutional reform.84
In particular, the Court pointed to the need for anonymity in order to avoid
persecution, noting that colonial patriots disseminated anonymous literature to avoid
retaliation by the British, as well as the fact that the Federalist Papers were originally85
published under pseudonyms. Related to the concerns regarding majoritarian
persecution, the Court stated that the right to anonymous speech was crucial due to
the fact that disclosure would likely have a chilling effect by making the members
of such groups susceptible to, and fearful of, retaliation. In considering this effect,86
the Court pointed to its earlier decisions preventing states from compelling
membership lists from groups disseminating constitutionally protected information.87
More specifically, the Supreme Court has also considered the importance of
anonymity in regards to activity directly related to electoral and campaign processes.
In McIntyre v. Ohio Elections Com’n, the Court ruled that a statute prohibiting
anonymous distribution of election related materials was unconstitutional. There,88
the Court was faced with a scenario where the petitioner had been convicted for
distributing anonymous leaflets to those present at a meeting regarding school tax
levies. The Ohio Supreme Court upheld the conviction, determining that the state’s89
asserted interests in providing information to voters and preventing instances of fraud
and libel outweighed the resulting proscriptions on free speech. The Ohio Supreme90
Court distinguished the case before it from Talley, holding that whereas the
ordinance in Talley was a blanket prohibition on any anonymous leafleting, the

Id. at 64-65.84
Id. at 65.85
Id. at 65. 86
Id. at 65. (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); Bates v. City87
of Little Rock, 361 U.S. 516 (1960). In NAACP v. Alabama, the Court ruled that the NAACP
could not be forced to turn over it membership lists, as such compelled disclosure would
violate its members’ right to freedom of association and expose them to “economic reprisal,
loss of employment, threat of physical coercion, and other manifestations of public
hostility.” The Court determined that these potentialities would likely discourage new and
continued membership in the organization, thereby limiting public discourse on important
topics. In reaching this conclusion, the court dismissed Alabama’s argument that the
disclosures were necessary to determine whether the NAACP was violating state law by
conducting business, stating that the access to membership lists would not aid the state’s
enforcement efforts substantially enough to merit such constitutional impingement. NAACP
v. Alabama, 357 U.S. at 462.
Likewise, in Bates v. City of Little Rock, another NAACP case dealing with the
mandatory disclosure of membership rosters, the Court held that a state could only require
lists upon demonstrating a compelling state interest regarding such information as well as
establishing that the information “bears a reasonable relationship to the achievement of the
governmental purpose asserted as its justification.” 361 U.S. at 524-525.
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).88
Id. at 337. 89
See McIntyre v. Ohio Elections Com’n, 618 N.E.2d 152, 156 (Ohio 1993), rev’d, 115 S.Ct.90

1511 (1995).

purpose of the Ohio statute was to identify individuals distributing fraudulent
campaign material.91
The United States Supreme Court rejected the Ohio Court’s narrow
determination of the issue, holding that the Ohio statute, like the ordinance in Talley,
was unconstitutional because its scope was not limited to the prevention of fraud.92
Specifically, the Court noted that the Ohio statute prohibited anonymous leafleting,
even in instances where no fraudulent material was included. The Court, in reaching93
this conclusion, elaborated upon its exposition in Talley concerning the value of
anonymous speech in the First Amendment context. The Court pointed to the long94
tradition of anonymous speech, stressing that the right to remain anonymous was
particularly important in the political context. The Court also determined that the95
presence of anonymous information in “the marketplace of ideas” was more
important than any potential benefits gained from compelled identification. As96
such, the Court concluded that behavior such as the anonymous leafleting at issue
was a fundamental right under the First Amendment, requiring the greatest97
constitutional protection. In light of these constitutional concerns, the Court
concluded that Ohio’s asserted interests in preventing fraud and providing
information to the electorate were insufficient to justify the resulting restrictions on
the freedom of speech.98
In light of the Supreme Court’s rulings in cases such as Talley and Bates, it is
clear that the right to anonymous political expression is well established. However,
it is important to note that the Court has also ruled in favor of disclosure

Id. at 154. 91
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 344 (1995). 92
Id. at 344.93
Id. at 344.94
Id. at 346.95
Id. at 341-342.96
McIntyre 514 U.S. at 347. Specifically, the Court stated that the purpose of this high level97
of protection was to support key First Amendment goals of furthering debate on important
political issues and protecting speech regarding issues and candidates in particular. Id. at


See McIntyre, 514 U.S. at 357. The Court found the furtherance of information argument98
unpersuasive, noting that the identity of a particular author was no different from the
inclusion or exclusion of information which might influence debate; furthermore, the Court
felt that the identity of an author would be of limited informative value to strangers. Id. at
348-349. Turning to the fraud and libel argument, the Court determined that the statute in
question was not the primary or exclusive method by which Ohio prevented the
dissemination of such material. Id. at 349-350. The Court explained that since other
provisions of the Ohio Election Code prohibited the distribution of fraudulent or libelous
material, the identification statute was merely supplementary in nature. Id. As such, the
Court concluded that while the statute might aid in the enforcement of the other election
code regulations and have an over all deterrent effect, it was “an extremely broad
prohibition,” which could not justify such severe restriction on freedom of speech. Id. at


requirements, particularly in the campaign/election context. As noted above, in
Buckley v. Valeo, the Supreme Court analyzed the Federal Election Campaign Act
and determined that, even under strict scrutiny, the governmental interests asserted
in favor of mandatory disclosure outweighed any negative First Amendment99
implications. In reaching this conclusion, the Court found that the disclosure
provisions of the Act provided information to the public regarding campaign money
and its sources, deterred corruption by revealing large contributions and expenditures,
and provided an “essential means of gathering the data necessary to detect violations100
of contribution limitations.” In light of these benefits, the Court held that the
public interest in disclosure outweighed any potential negative effect on First
Amendment rights.101
The Court has also recognized that while a significant First Amendment interest
exists regarding the right to anonymous political speech, a state also possesses a
substantial interest in regulating the election process, particularly in an effort to
combat instances of fraud or libel. As noted above, the Court in McIntyre extended102
the holding in Talley to establish a right to anonymous political speech pertaining to
the election/campaign process. However, the Court also distinguished its ruling103
from Buckley, indicating that in light of the special weight to be afforded state
regulatory interests in the campaign context, “a State’s enforcement interest might104
justify a more limited identification requirement.” Based upon this diverse body
of law, the Supreme Court analyzed the arguments forwarded by Colorado in support
of the badge requirement.
Specifically, Colorado's main argument regarding the badge requirement
centered on the assertion that §1-40-112 furthered compelling state interests in
fostering an informed electorate and aiding in the prevention of fraud and libel.105
Whereas the Court has acknowledged the potential validity of identification
requirements as a tool to combat fraud and libel, it has been unwilling to give any
weight to the informed electorate argument. The Supreme Court dealt with an
identical argument in McIntyre, finding it unpersuasive. Explaining that since the

Buckley v. Valeo, 424 U.S. 1, 66 (1976).99
Id. at 66-68.100
Id. at 71-72. The Court acknowledged concerns that the disclosure requirements would101
impose substantial burdens on individual rights and expose contributors to harassment and
retaliation, but concluded that the likelihood of such harm was minimal and did not
constitute a “serious infringement” on First Amendment rights in light of the benefits of the
Act. Id. at 68-70.
McIntyre, 514 U.S. at 349. Specifically, the Court recognized that while a state’s102
supposed interest in supplying the electorate with information concerning an author’s
identity was unpersuasive, an asserted interest in the prevention of fraud or libel cannot be
so easily dismissed. The Court noted that such concerns carry “special weight during
election campaigns” where false statements could adversely affect the public. Id. at 348-


McIntyre, 514 U.S. at 347.103
McIntyre, 514 U.S. at 352.104

1999 WL 7723 at *8.105

concept of an informed electorate entails only the “provision of additional
information that may either buttress or undermine the argument in a document,” the
identity of a speaker is “no different from other components of the document’s
content that the author is free to include or exclude.” The Court elaborated that106
while the identity of an information source is “helpful in evaluating ideas,” the “best
test of truth is the power of the thought to get itself accepted in the competition of the
market.” Furthermore, the Court affirmed its prior holding that the average citizen107
has the right to read an anonymous message and reach his or her own conclusion108
regarding “what is ‘responsible’, what is valuable, and what is truth.” From these
principles, the Court in McIntyre, concluding that a “simple interest in providing
voters with additional relevant information does not justify a state requirement that
a writer make statements or disclosures she would otherwise omit,” ruled that such109
an informational interest is “plainly insufficient” to survive constitutional scrutiny.
Regarding the second prong of Colorado's argument, while stronger
justifications were asserted for the badge requirement on fraud and libel grounds,
McIntyre and earlier cases again raised significant free speech concerns. At the
appellate level the Tenth Circuit ruled that while the badge requirement might enable
the state to combat fraud and libel more effectively, “the First Amendment does not
permit the state to sacrifice speech for efficiency.” The Tenth Circuit went on to110
explain that, under Meyer, the risk of fraud or corruption is comparatively remote at
the petitioning level, and, as such, a state can only take regulatory action against
circulators through measures which are narrowly tailored. 111
Based upon these precedents, the Supreme Court rejected Colorado’s argument,
deeming the state's asserted interest in providing relevant information to the
electorate insufficient to warrant such a broad First Amendment intrusion. In
discussing the particulars of the badge requirement, the Supreme Court largely
adopted the reasoning of the Tenth Circuit, noting that the circulation of a petition
is analogous to the distribution of a handbill, an action which constitutes protected
anonymous political speech. The Court observed that in both instances an112
individual identifies himself or herself with a specific viewpoint by personally
disseminating it. As such, the Court held that circulators possess the same interest
in anonymity as do handbill distributors. In its brief to the Supreme Court, Colorado
argued that this determination was incorrect, maintaining that petition circulation
differs substantially in character from handbill distribution, thereby precluding the

McIntyre, 514 U.S. at 348.106
McIntyre, 514 U.S. at 349, n.11 (quoting Abrams v. United States, 250 U.S. 616, 630107
(1919) (Holmes, J., dissenting)).
McIntyre, 514 U.S. at 349, n.11 (quoting New York v. Duryea, 76 Misc. 2d 948, 966-967,108

351 N.Y.S.2d 978, 996 (1974)).

McIntyre, 514 U.S. at 348.109

120 F.3d at 1102-1103.110

120 F.3d at 1103.111

120 F.3d at 1103.112

applicability of McIntyre. In support of this contention, Colorado argued generally113
that the “critical role” of circulators in the initiative process mutes their status as
advocates with an interest in anonymity. Furthermore, Colorado maintained that the
badge requirement “discloses nothing more personal than the name” of a circulator
who “acts as a representative for the electors who sign the petition.” As such,
Colorado argued that a signer of a petition should be “informed of the name of the
person who is acting on his or her behalf.”
In making these arguments, Colorado focused on a state’s right to regulate the
electoral process, without acknowledging the First Amendment considerations
involved. The assertion that petition circulation is fundamentally different from the
handbills involved in McIntyre evidences this analytical omission. Relying on its
arguments concerning the importance of circulators and their representative role to
distinguish the activity in McIntyre, Colorado downplayed the confrontational nature
of the activity involved in both scenarios. Indeed, while petition circulation is
obviously more closely tied with the electoral process than handbill distribution, the
activities are identical in the sense that they require a person to identify him or herself
with a particular viewpoint at the moment of speech. The Supreme Court recognized
the right to anonymity in such situations, noting that "the name badge requirement
'forces circulators to reveal their identities at the same time they deliver their political
message.'" Significantly, the Supreme Court went on to declare that the injury to
petition circulators under the Colorado law was even more severe than that at issue
in McIntyre. Specifically, the Court explained that "[p]etition circulation is the less
fleeting encounter, for the circulator must endeavor to persuade electors to sign the114
petition." In light of these factors, the Supreme Court held that as the badge
requirement would compel identification "at the precise moment when the
circulator's interest in anonymity is greatest," the regulation could not "qualify for
inclusion among the 'more limited [election process] identification115
One of the key factors giving rise to the decision regarding the badge
requirement was the Court's determination that other, less intrusive, avenues existed
by which Colorado could achieve its asserted interests of informing the electorate and
combating fraud and libel. Specifically, circulators are already apprised of the
importance of their actions through the affidavit requirement of 1-40-111(2), which
allows for a comparatively simple analysis of records in order to identify an
offending circulator. The strength of the Court's decision regarding the badge
requirement on the aforementioned grounds is buttressed by the fact that both Justice
O'Connor and Chief Justice Rehnquist, who argued in opposition to the Court's ruling
on the disclosure and registration requirements, both agreed readily that the badge
requirement was unconstitutional.

Brief for Petitioner at 38, Buckley v. American Constitutional Law Foundation, et al., Inc.,113

1999 WL 7723 (S.Ct. Jan. 12, 1999) (No. 97-930).

1999 WL 7723 at *9.114

Id. at *9.115

While the Court's disposition of the badge issue arguably was definitive, certain
questions remain as to whether a state may implement restrictions falling in the
middle of the spectrum comprised of the permissible affidavit requirement and the
unconstitutional identification provision. In its decision the Court focused on the
immediate nature of petitioning activity, downplaying the importance of a state's right
to regulate the electoral process. However, as noted above, cases such as Timmons
and Storer established that states possess the power to regulate election activity in
order to assure fairness and reduce confusion and disorder surrounding the116
process. Thus, while any attempt to distinguish petition circulation from the
standard established in Meyer will be unsuccessful to the extent a regulation compels
personal identification, it is apparent that other identification measures might be
upheld, striking a balance between the right to anonymity and the need for efficient117
state regulation of the process.
For instance, it seems clear from the Court's ruling regarding the affidavit
requirement that the main deficiency in the badge provision was the fact that it
compelled the personal identification of a circulator at the time he or she was
engaged in petitioning activity. As such, it would seem that given a state's118
legitimate concerns regarding the delayed effect of the affidavit requirements in
identifying fraud, a more immediate tracking technique could be employed so long
as personal anonymity were not compromised. Thus, it is possible that the Supreme
Court would deem reasonable an intermediate measure, such as assigning an
identification number to each circulator which, upon complaint, could be cross-
referenced with information supplied to the Secretary of State, akin to the affidavit
requirement. Such a compromise seems logical in light of the fact that this cross-
referencing method would be "separated from the moment the circulator speaks," and
would not "expose the circulator to the risk of 'heat of the moment' harassment,"
which were major factors in the Court's acceptance of the affidavit provision. This119
approach would arguably result in more efficient enforcement of the state's fraud and
libel laws, while maintaining the First Amendment right to anonymous political
From the holdings discussed above, it is apparent that the Supreme Court has
placed a great emphasis on the preservation of First Amendment rights regarding
political expression. Indeed, with this decision regarding Colorado's regulation of the
initiative-referendum process, the Court has established a solid preference for free
and unfettered First Amendment activity, clarifying and limiting the steps which may
be taken to proscribe such political expression. This ruling does not, however,
preclude any effective state regulation of the petition process. As noted, it is clear that
the Court has recognized the importance of state regulation of the electoral process,

120 F.3d at 1097.116

McIntyre, 514 U.S. at 348. 117

1999 WL 7723 at *8. 118

Id. at *8.119

and has left open the possibility of less onerous but more extensive identification
provisions than those attempted by Colorado.