On September 19, seven states filed an amicus curiae brief with the U.S. Supreme Court in Judd v Libertarian Party of Virginia, 13-231. This is the case over Virginia’s ban on out-of-state circulators for candidate petitions. The lower courts in this case had invalidated the residency requirement, and Virginia is hoping the U.S. Supreme Court will hear its appeal. The seven states agree with Virginia.

The amicus was organized by the Oklahoma Attorney General, and co-signed by the Attorneys General of six other states, Hawaii, Idaho, Nebraska, Ohio, South Dakota, and Wyoming. Except for the Hawaii and Wyoming Attorneys General, all are Republicans.

Ironically, Oklahoma and Nebraska already repealed their bans on out-of-state circulators, and Hawaii never had such a ban. The Idaho and Wyoming bans aren’t being enforced because those two states are in circuits that struck down such bans. The Ohio ban is under court attack.

The amicus purports to list all the Appellate decisions on the issue, yet does not even mention the Seventh Circuit, which was the first circuit to strike down circulators bans. The Seventh Circuit decision, Krislov v Rednour, 226 F 3d 851 (2000), said, “To the extent this law is designed to serve a third interest – preventing citizens of other States from having any influence on Illinois elections – we question its legitimacy. Such laws are harmful to the unity of our Nation because they penalize and discriminate against candidates who wish to associate with and utilize the speech of non-residents. Allowing citizens of the other forty-nine States to circulate petitions increases the opportunity for the free flow of political ideas.” Illinois asked the U.S. Supreme Court to reverse this decision, but the U.S. Supreme Court refused to hear the Illinois case.

The amicus equivocates as to the purpose of the ban on out-of-state circulators. The first sentence says the states have an interest in being shielded from “fraudulent behavior”, but page two says “a major fear of citizens in states with ballot initiatives is that out-of-state special interests will come into their state.” Page three says the initiative at times has “been transformed into a big money industry.” Obviously, out-of-state special interests with sufficient money can qualify initiatives regardless of any residency requirement for circulators.

The amicus insults the courts that have struck down residency requirements, saying twice (on pages six and nine) that these courts “blindly” followed each other. The amicus asserts that California and the District of Columbia both have residency requirements, but both places have this year repealed residency requirements.

When Arizona lost a similar case in 2008, it asked the U.S. Supreme Court to overturn the decision, Nader v Brewer. Thirteen states signed an amicus brief on Arizona’s side, but the U.S. Supreme Court still refused to hear the case. The fact that thirteen states signed an amicus in 2008, but only seven states signed this amicus, is encouraging.