The California Secretary of State’s web page now has a footnote in its list of instructions for candidates, concerning petitions in lieu of filing fee. The web page’s instructions to candidates continues to say “Each circulator of an in-lieu-filing-fee petition shall be a registered voter of the district in which the candidate is running. The circulator shall serve within the county in which he or she resides. Election Code section 8106(b)(4).”

But, there is now a footnote #3, which says, “The U.S. Supreme Court has struck down statutes that require petition circulators to be registered voters. Other federal courts have struck down statutes that require petition circulators to reside within the state or locality affected by a petition, especially where requiring circulators to submit to jurisdiction by agreement would achieve the same end and would be more narrowly tailored to further the state’s interest in preventing fraud. The Secretary of State is constitutionally constrained from declaring a state statute invalid, and Elections Code section 8106, subdivision (b), subsection (4) has not been declared unconstitutional by any state or federal court in California. However, given the similarities between this statute and the provisions struck down in the foregoing cases, the Secretary of State does not recommend or support the enforcement of this statute against any petition circulator, especially where the petition circulator agrees to submit to local jurisdiction.”

Last year, a professional petitioner who lives in Wisconsin sued nineteen California counties, arguing that he should be permitted to circulate petitions in California. That case is Raymond v various county election officials, eastern district, 2:12cv-2215. The counties asked the court to bring the Secretary of State and the Attorney General into the case. Attorneys for the counties, many of which are small population counties, wanted the Attorney General and the Secretary of State to defend the constitutionality of the residency requirement, instead of having to do that themselves.

However, on May 3, U.S. District Court Judge Garland Burrell denied the request of the counties. He noted that a parallel case called Libertarian Party of Los Angeles County v Bowen is pending in U.S. District Court in Los Angeles, and said the Secretary of State and the Attorney General are handling that case. Judge Burrell also postponed the next hearing in his case from June 3 to June 17.

The two cases do not involve precisely the same issues. The Los Angeles Libertarian Party case only challenges California laws that require circulators to live in the district in which they are petitioning. But the Raymond case challenges the California law that bars out-of-state circulators. The California legislature could moot both lawsuits if it would just repeal the residency requirements for circulators. One bill to do that, SB 213, has already passed the Senate Elections Committee and will be heard in the Senate Appropriations Committee on May 23.