AZ Petition Partners v. Thompson (Amicus)

In 2017, the Arizona legislature enacted a statute restricting payment for ballot initiative petition gatherers. Arizona filed various charges against the organization Petition Partners alleging that their pay model based in part on the number of signatures collected and the incentive programs they operated violated Arizona statue § 19-118.01. After making its way through the superior court, the court of appeals held that the statute bans more than per-signature payments and therefore violates the First Amendment. Arizona petitioned the Arizona Supreme Court for review of the statute to determining whether it is facially unconstitutional under the First Amendment.

In December of 2022, in a case challenging an Arizona state law that banned payments on the basis of the “number of signatures collected on a statewide initiative or referendum petition,” the ACLU, ACLU of Arizona, and Keker, Van Nest & Peters filed an amicus brief arguing that this law imposed a severe burden on the core political speech embodied in Arizona’s ballot initiative process (and the corresponding use of petition circulators) and would not withstand strict scrutiny.

Our brief presented three core arguments. First, the circulation of ballot initiatives is a vital form of political speech and is entitled to expansive First Amendment Protections. The ballot initiative process is a form of citizen participation in lawmaking which is a practice deeply rooted in our history. And the ballot initiative process fosters democratic values by underscoring that all power flows from the people and by ushering in the institutional diversity envisioned by our federalist system. The ballot initiative process embodies “core political speech” and is entitled to maximal protection under state and federal law.

Second, restrictions on how petition circulators are paid are a “direct restraint” on freedom of expression. The First Amendment protects both the right to advocate a cause and to select the method for doing so. The restrictions are a severe burden on the initiative process and the legislature fails to offer serious evidence of fraud arising from the use of per-signature payment. Further, this rule is not the least restrictive means the state can use to prevent fraud in the election process.

Finally, criminalizing core political speech undermines the democratic system by seizing power from voters, inviting partisan manipulation into the administration of elections, sowing distrust in elections, and by constricting electoral officials’ ability to do their jobs.

In June 2023, the Arizona Supreme Court ruled that the challenged statute does not facially violate the First Amendment because only per-signature compensation to petition circulators is prohibited.