On February 25, the North Dakota Senate passed SB 2183 by a vote of 31-16. This is the bill that says no one may circulate an initiative petition, or a recall petition, unless the individual has lived in the state for at least two years.

Republican Senators supported the bill by a margin of 29-4, but Democratic Senators opposed it by a margin of 2-12.

The bill, if signed into law, will probably be held unconstitutional. North Dakota is the only state that has ever won a court ruling upholding a ban on out-of-state circulators. That decision was Initiative & Referendum Institute v Jaeger, 241 F 3d 614 (2001, 8th circuit). But that decision says the ban is constitutional because without it, the state would have a difficult time prosecuting fraud because out-of-state circulators (so the court said) would be out of reach of subpoena in case there is an investigation into fraud. But obviously that rationale has no relevance to a North Dakota resident who happens not to have lived in North Dakota for at least two years. North Dakota is one of the fastest-growing states in the nation, and a significant share of North Dakota’s adult population moved into the state in the last few years because jobs have been plentiful in that state.

The Secretary of State, Al Jaeger, does not support this bill and points out that it is not even necessarily easy to know precisely when various individuals moved into North Dakota. Residency is a very imprecise term.

George McDonald is running for Mayor of New York city in the September 2013 Republican primary. In January he filed a lawsuit, McDonald v City Campaign Finance Board, 100038-2013, in State Supreme Court in Manhattan, alleging that the city’s limit on individual contributions ($4,950 for Mayoral candidates) is unconstitutionally low. On February 25, the Court permitted him to continue raising contributions in excess of the legal limit for the time being, but he cannot spend that money while the case is pending. He has already received ten contributions in excess of the legal limit.

His lawsuit alleges that the contribution limit is so low, the result is that only wealthy individuals have a chance of being competitive, since they can spend as much of their own money as they wish on their own campaign. He also argues that because New York state has much higher contribution limits for state office ($41,100 for Governor), that shows the city doesn’t need a low limit. Originally the city’s relatively low limits were only imposed against candidates who accept public funding, but in 2004 they were extended to candidates who don’t take public funding.

The city defends its law by saying he is free to qualify for public funding, but McDonald argues that it is too difficult for a candidate who enters the race without a big base of support already to qualify for public funding. New York city public funding requirements are quite difficult, relative to public funding programs in places such as Maine and Arizona. This case is many similarities to lawsuits against restrictive ballot access requirements, and lawsuits against severe barriers to debates. States and debate sponsors defend severe requirements by saying that elections are only intended for candidates who enjoy substantial support. But opponents point out that a candidate may very well gain substantial support in the campaign itself, but ballot access barriers and debate barriers block the process of obtaining support.