On March 5, the 6th circuit reaffirmed the U.S. District Court decision in Citizens for Tax Reform v Deters, 07-3031. The issue was Ohio’s law that banned any method of paying initiative circulators, except an hourly wage. The vote was 3-0. The decision was written by Judge David McKeague, a Bush Jr, appointee. It was co-signed by Judges Eugene Siler (a Bush Sr. appointee) and Julia Gibbons (a Bush Jr. appointee). Thanks to Rick Hasen for this news.

Refreshingly, this decision actually quotes the First Amendment. It begins by saying “The First Amendment is a jealous mistress. It enables the people to exchange ideas (popular and unpopular alike), to assemble with the hope of changing minds, and to alter or preserve how we govern ourselves. But in return, it demands that sometimes seemingly reasonable measures enacted by our government give way.”

The decision distinguishes the Ohio law from somewhat similar laws that have been upheld in Oregon, North Dakota, and New York. In those three decisions, the plaintiffs presented very little evidence of harm done by the restriction. This case was different. It had been filed by a committee to qualify an Ohio initiative, and the evidence was solid that the Ohio law added $300,000 to the cost. Another convincing demonstration of harm was that, under the Ohio law, the petitioning firm is unable to tell its client how much the petitioning procedure will cost.

Finally, the court said that Ohio had presented little evidence that the restriction really is needed. The decision ends by saying, “Ohio argues that CTR’s evidence of increased costs establishes not a free-speech problem, but a business problem. Yet, the State largely misses the point that free speech can be costly. By 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 CTR’s and other petitioners’ core political speech rights, the State must justify it with a compelling interest and narrowly tailored means. It fails to raise a genuine issue of material fact that sec. 3599.111 is narrowly tailored. Therefore, we affirm summary judgment in favor of CTR.”