On February 9, the Ninth Circuit heard arguments in Pierce v Jacobsen, 21-35173. This is the case over Montana’s ban on out-of-state circulators for initiatives, and on the state’s ban on paying circulators per signature. The three judges are Richard Paez (a Clinton appointee), Jacqueline Nguyen (an Obama appointee), and John R. Tunheim (a Clinton appointee, a District Court Judge visiting from Minnesota).

The argument went well on the out-of-state issue. As to the ban on paying circulators per signature, that is difficult to predict. The attorney for the state said the law would permit initiative sponsors to pay a bonus to a circulator who collected some particular number of signatures. That concession weakens the harm done by the law. The specific example that the judges asked about was, “Could the initiative sponsor promise to pay a $10,000 bonus to a circulator who collects at least 10,000 signatures?”. The attorney for the state said that is permitted.