MEYER v. GRANT

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ORAL ARGUMENT BY MAURICE G. KNAIZER, ESQ. ON BEHALF OF APPELLANTS

Chief Justice William H. Rehnquist: We'll hear argument first this morning in No. 87-920, Natalie Meyer v. Paul K. Grant.

Mr. Knaizer, you may proceed whenever you are ready.

Mr. Knaizer: Mr. Chief Justice, and may it please the Court:

The issue before the Court today is whether the State of Colorado may prohibit payment to persons who are circulating petitions to get an initiative measure on the ballot so long as it does not otherwise prohibit payment or otherwise limit the amount of money which proponents may spend.

The purpose of the initiative in Colorado is to provide an alternative means through which the popular will may be expressed.

It is an addition to the already existing right to petition the government.

It is not a limit on the right, but in fact extensive inherently.

It provides a means by which the public may pass, actually pass legislation when the legislature, because of the influence of special interests, has ignored the public will.

The initiative provisions provided for in the State Constitution and by Colorado statute are designed to ensure that the initiative remains a true alternative through which the collective will may be expressed, and to ensure that the integrity of the process remains in tact.

In order to secure the purposes, the people of the State of Colorado, through both its constitute and its statutes, have set forth procedures which must be followed before a petition can get access to the ballot.

The petition circulator in this process plays an absolutely crucial role which is in part set forth by the constitution.

He is not only the person who circulates the petition, but by constitutional provision he is also the one who transforms the petition into prima facie evidence that the signatures on the petition are in fact true and correct, and that the signatories are also registered electors of the State of Colorado.

Unidentified Justice: What qualifications does he have to have under state law?

Mr. Knaizer: To be a petition circulator?

Unidentified Justice: Right, for that august function?

Mr. Knaizer: Well, the only qualification that he needs is to be a registered elector which in Colorado means that he must be a resident of the State of Colorado, and actually registered to vote.

Unidentified Justice: Can he be a convicted felon?

Mr. Knaizer: If he is a registered elector, then even if he is a convicted felon, yes, he can be permitted to conduct the petition circulation.

Unidentified Justice: I suppose he could also be at it if he had been convicted of election fraud, too.

Mr. Knaizer: If he is allowed to vote.

I believe under Colorado law that if you are convicted, you may not be allowed to vote, but, frankly, I am not sure of that.

But if he is allowed to vote and if he is registered, yes, indeed, he can do that.

Unidentified Justice: Mr. Knaizer, there is, I take it, a state law in Colorado prohibiting and making a criminal offense the use of forged signatures on these initiative measures?

Mr. Knaizer: That is correct.

There is a forgery provision in the state statutes.

Unidentified Justice: And there is a requirement that every person signing the initiative measure must be a qualified voter?

Mr. Knaizer: Every person signing the initiative must be a registered voter; that is correct.

I think there is one important point here.

The issue involved in this case is not necessarily just one of prohibiting forgery.

One of the reasons for the genesis of this particular statute wasn't the fact that it was forgery.

It was the fact that it was difficult to determine whether or not the people who were signing the petitions were in fact qualified people.

What had happened historically was that, at least between 1910 and 1941, was that Colorado had no prohibition on petition circulators, that is, paying them.

In the late '30s, though, it became apparent that there were some abuses which occurred.

And basically what happened was that petition circulators, in order to enhance the income that they were to obtain from the circulation process, started to allow the petitions to circulate without actually observing the signatures being made.

In fact, those facts were outlined in the case of Brownlow v. Wunsch which we had cited in our brief.

So the legislature felt that the process was itself being undermined by the fact that nobody really knew who was signing.

It wasn't necessarily just a question of forgery.

Unidentified Justice: Does the form of the initiative circulation require the circulator to verify under oath that everyone signed in his presence?

Mr. Knaizer: Yes, the voters who are signing the petition don't have to sign an affidavit.

Unidentified Justice: No, but the petition circulator has to.

Mr. Knaizer: The petition circulator must--

Unidentified Justice: And it would be a criminal offense to falsely swear that people had signed in the circulator's presence if that were not the case.

Mr. Knaizer: --It would be a criminal offense to falsely swear, that is true.

I would like to add, though, that the criminal offense may not be enough in this case to satisfy the particular problem.

As this Court noted in Buckley v. Valeo when it was discussing the question of whether or not criminal sanctions were sufficient with regard to contributions, the Court noted that only in blatant sorts of cases would the criminal offenses be sufficient.

There was some concern expressed by the Court in Buckley about a prophylactic sort of measure in certain instances to avoid corruption or the appearance of corruption, and we believe that's what has occurred in this particular case.

Unidentified Justice: Are there any other states that have this particular provision prohibiting the use of paid circulators?

Mr. Knaizer: There were, but the courts have fairly frequently repealed, or not repealed, but declared the statutes to be unconstitutional.

Unidentified Justice: Do you know of any other state presently that makes use of the initiative which has such a law?

Mr. Knaizer: I believe Washington may.

Nebraska did until about a month ago, and for the last three or four years those have really been the only states which have had the prohibition.

Unidentified Justice: The election in question here, the initiative measure was for a constitutional amendment having to do with removal of motor carriers from the jurisdiction of the Public Service Commission?

Mr. Knaizer: That's right.

It was deregulating the transportation industry in general.

Unidentified Justice: And the election has long since passed.

Mr. Knaizer: The election has long since passed, that is correct.

Unidentified Justice: Has that provision ever been enacted, the change, the proposed change?

Mr. Knaizer: Oh, the deregulation.

No, it has not.

Unidentified Justice: And is it still an issue?

The case is not moot, in your view?

Mr. Knaizer: Well, no.

In our view, it is not, because in Colorado this question arises every general election.

It arises every two years.

So, for example, in Colorado now there are two or three measures which people are trying to get on the ballot.

And so for us it's an issue that comes up every two years, and we feel it's the sort of issue that is capable of repetition yet evading review.

Unidentified Justice: Mr. Knaizer, was there some basis for the legislature singling out petitions that were circulated by people who were hired to do it as opposed to volunteers?

Were they considered to be a greater cause of this evil of not being sure that you've got registered voters to sign it?

Mr. Knaizer: Yes.

As I understand the legislative history, the legislative... the prohibition was designed specifically to take care of a problem which in fact existed.

As I had mentioned in the case--

Unidentified Justice: Well, you described the problem as being the fact that the circulators did not really pay any attention to who was signing.

Did the legislature focus in some way on the fact that they thought paid circulators were more guilty of this type of activity than unpaid?

Mr. Knaizer: --There was no legislative history that I could find at the time.

The only connection that we could make was between that case of Brownlow v. Wunsch, which outlined the facts, and the fact that in the next legislative session the legislature prohibited paid petition circulators.

In that Brownlow v. Wunsch case, the Supreme Court made specific mention of the potential abuses that could occur because of paid petition circulators.

The Court itself singled it out, and in the next legislative session, and in that time it was held biannually, the Court took care of the problem by singling out paid petition circulators.

Unidentified Justice: Could you spell out those abuses?

Mr. Knaizer: Well, the abuses that were--

Unidentified Justice: You speak generally of abuses.

I would like to know what they were.

Mr. Knaizer: --Okay.

The abuses were essentially... well, let me back up a little bit.

One of the concerns that Colorado has is that there be a significant modicum of support for each measure.

And, of course, that is determined by the number of signatures that you get.

And so if the measure is circulated, you really don't, and the petition circulator is not there to observe, you really don't have an idea if the people are reading the provision, have read the provision, understand it.

There also is the possibility of fraud but, frankly, that wasn't... as far as I could tell in Brownlow v. Wunsch, that was not an issue in that case.

Unidentified Justice: Isn't that true with respect to volunteer solicitors, too?

Mr. Knaizer: There has been no indication at least in Colorado that it was true.

Can it happen?

Yes, it can happen.

To our knowledge, it hasn't occurred, at least in the State of Colorado.

Unidentified Justice: Don't you think it's more likely to happen.

It seems to me the legislature's judgment is absolutely counter-intuitive.

Let's assume I am running a business, petition circulators, and I get paid for circulating petitions and getting signatures.

Don't you think that I would be much more concerned about having my petition thrown off the ballot because of too many signatures that weren't valid than would, you know, innumerable volunteers who just go around and get signatures?

I would think that there is a market incentive for the paid circulator to be sure that he's getting proper signatures.

And what incentive is there for the volunteer?

Mr. Knaizer: Well, I would think that the opposite in fact may be true, because the volunteer, at least conceived under the Colorado law, really has an interest in getting the measure on the ballot, and wants to make sure the measure stays on the ballot.

So he would have more of an interest in making sure that the process is handled correctly so that his measure can ultimately succeed.

Whereas the paid circulator is really just interested in getting the money, and perhaps maybe hopeful that he doesn't get caught by padding the petitions.

Unidentified Justice: You think he doesn't care if it's grown out?

It seems unlike to me.

Mr. Knaizer: I'm sorry, I didn't hear the last part.

Unidentified Justice: It seems unlikely to me that a paid circulator would not care.

Do you know whether these paid... are there any businesses of paid petition circulators, or is it the case that most of the paid circulators are people who in fact favor the measure but they just can't afford to take a day off from their jobs?

So the organization that furthers the measure says, you know, we have some funds and we'll pay you half of what your salary is if you take the day off to circulate on behalf of the cause.

Mr. Knaizer: It's really both.

There is a growing industry where firms are actually paid to circulate petitions.

In fact, in California, it's my understanding that it's a multi-million dollar industry.

However, there are circumstances such as existed in this case where basically it is people who want to take a day off, or want to pay somebody to substitute for them.

So you really do get a combination of both.

There is no question about that.

Unidentified Justice: May I ask if it's a violation of the statute for a person to say ask his son or daughter to go around the neighborhood getting signatures of the people that the family knows, and then the person who makes the affidavit says, to the best of his or her knowledge, these signatures are registered voters and so forth.

That wouldn't violate the statute, would it?

Mr. Knaizer: No, if the daughter was a registered elector--

Unidentified Justice: No, the daughter is not.

My assumption is that the parent is a registered elector, and the parent will sign the statement and the affidavit that will ask the kids in the family to take them to people that the parent reasonably believes to be electors.

Would that violate the statute?

Mr. Knaizer: --That would violate the statute.

Unidentified Justice: Because it just says... as you read and describe in your brief, you say they sign an affidavit saying that each signature is a signature, to the best of their know, is the person whose name it purports to be, and that to the best of their knowledge and belief each person is--

Mr. Knaizer: Well, really what that is geared to is the--

Unidentified Justice: --But I do not think the statute requires that you witness the signatures, does it?

Mr. Knaizer: --Well, there was... I believe in that same Brownlow v. Wunsch case, there was an... well, that was before--

Unidentified Justice: Well, that was before that was enacted.

Mr. Knaizer: --But there hasn't been any case that interpreted that particular statute.

But the whole purpose is to make sure that the person who is signing his name is the one who he purports to--

Unidentified Justice: No, in the circular it says, to the best of my knowledge and belief, he is registered.

Mr. Knaizer: --Right.

Unidentified Justice: So I assume normally what happens is you meet somebody on the street and you say, are you a registered voter.

He says, yes, and you can sign him up.

Mr. Knaizer: No, our belief is that sending your daughter out would violate the statute.

You are really supposed to witness the signature.

The earlier cases of Brownlow v. Wunsch did say that if you actually recognize the signature, you could... that would be satisfactory.

But I think the passage of this statute takes care of that.

And as far as I know, the practice has been to require the petition circulator to actually observe the signing of the petition.

Unidentified Justice: Of course, that is the safest, but I am not sure the language of the statute commands that.

Mr. Knaizer: Well, that is the way the Secretary has interpreted it over the years.

Unidentified Justice: Now, how has it been interpreted?

Has this been a lot of litigation interpreting this statute?

Mr. Knaizer: No, in fact--

Unidentified Justice: Have there been many cases interpreting the statute?

Mr. Knaizer: --One, but not interpreting this particular provision.

There was a case of Urevich v. Woodard which addressed the question of the word "inducement" in that statute.

And in that particular case, the Colorado Supreme Court said that the term "inducement" was overbroad and therefore declared that portion of the statute unconstitutional.

The rest of it remained.

And to my knowledge, that is the only reported case involving the statute, either criminal, or declaratory, or otherwise.

Let me just address briefly the issue of why a registered elector is necessary.

The registered elector, as I said, is both the person who is a citizen of the State of Colorado and registered to vote.

That provision was put in there by the people of the State of Colorado in 1980.

It used to be that there was... that the only person who could circulate the petition was a qualified elector.

A qualified elector was just basically a resident of the state who in fact may or may not want to vote, and may or may not have been registered.

The people of the State of Colorado, in the constitution in 1980, determined that they wanted to basically upgrade the position of the petition circulator by making him a registered elector.

And our belief is that they did that because they really wanted to establish not only ties to the community, but also ties to the election process.

They really believed that it was important that the registered elector be a person who was a believer and actually tied into--

Unidentified Justice: But a paid elector has to meet... a paid circulator has to meet that requirement, too, doesn't it?

Mr. Knaizer: --A paid circulator has to meet that requirement.

But the problem with the paid circulator is that there is an inducement... there is basically another God, if you will, another boss.

He is a representative, that is, the petition circulator is a representative of the people, but he is also, in essence, an employee of the person who is paying him.

And we believe that under those circumstances you end up with a situation where the person... when you end up creating an appearance of corruption, or at least an appearance of undue influence.

The purpose of the petition-circulator is to verify signatures.

That's set out in the constitution itself.

By paying him at that point, you perhaps give people the impression that he may not be concentrating on his job of verifying signatures, but may in fact be adding signatures in order to increase the income he could have from the circulation of the petition.

Unidentified Justice: What would happen if you gave him lunch money?

Mr. Knaizer: In Colorado, you can't do that.

You cannot be paid period.

Unidentified Justice: Can't give them anything.

Mr. Knaizer: No, he is not... in Nebraska, for instance,--

Unidentified Justice: He couldn't get bus fare either?

Mr. Knaizer: --Couldn't get bus fare either, that's correct.

Unidentified Justice: Whereas you do have an impartial adjudicator of the petitions if the person is not being paid, but is a zealous, fiery-eyed proponent of the legislation that is being proposed.

That poses no problem.

Only money can corrupt; not ideology, is that the theory of the legislature?

Mr. Knaizer: I'm not sure it's as black and white as that.

But basically--

Unidentified Justice: Is it even gray?

I mean, why does one think that there is any less incentive on the part of someone who is being paid to get a certain number of valid petitions?

He is certainly not being paid to get invalid petitions.

Why would he have less incentive than the zealous advocate of the measure on the ballot?

Mr. Knaizer: --Well, the experience in Colorado was in fact that paid petition circulators weren't as careful about the collection of signatures.

Unidentified Justice: I thought you said before there was no evidence as to--

Mr. Knaizer: No, there was evidence... there was an evidence of fraud.

There was evidence that in fact the petition circulators had not properly circulated petitions.

Unidentified Justice: --Was there evidence that they were more careless than the fire-eyed zealots were?

Mr. Knaizer: There was evidence that... well, there was no evidence regarding the fiery-eyed zealots.

There was evidence regarding the paid petition circulators.

Unidentified Justice: That they were careless, but then everybody may have been careless as far as the legislature knew.

Mr. Knaizer: Well, as far as the legislature knew everybody wasn't careless.

The paid petition circulators were more so.

Unidentified Justice: Why was not everybody careless?

Why did the legislature know that?

Was there evidence that when the proponent of the measure himself gets the signatures there, they are all okay?

Mr. Knaizer: There wasn't evidence that when the proponent obtained it, they were all okay.

But there was evidence that the process was more abused by the paid petition circulators.

Unidentified Justice: When you say more, there was evidence that it was abused.

What evidence was there that it was more abused?

You can't establish that it was more abused without knowing either that it was not at all abused, or that it was less abused by others.

Was there any such evidence?

I thought you said there wasn't.

Mr. Knaizer: There wasn't any that was in that case.

Unidentified Justice: So the only evidence really was that it was abused.

Mr. Knaizer: That's correct.

Unidentified Justice: And we don't know whether it was any more abused by the paid circulators or not.

Mr. Knaizer: That's correct.

Unidentified Justice: Would you say in this particular case the abused did result from the activities of paid circulators?

Mr. Knaizer: The abuse did result from the activities of paid circulators; that is correct.

Basically it is our position in this case that what is regulated is in fact conduct.

The paid petition circulator is the verifier of the signatures.

That is conduct.

It is not speech.

It is true that petition circulators can advocate.

They are not prohibited from advocating.

The only thing that they cannot do is tie in their advocacy to payment for circulating the petitions themselves.

So we believe that really all there is is conduct in this particular case.

Unidentified Justice: Well, what about the fund raising cases?

How about the charity drives?

Mr. Knaizer: Okay.

In Village of Schaumburg and Munson, for example, the two cases that come to mind, in those cases there were absolute prohibitions.

For example--

Unidentified Justice: Well, I know, but the cases... the cases don't say that because the circulator or the fund raiser not only advocates but takes money, that he isn't protected by the First Amendment.

Mr. Knaizer: --That's correct.

Unidentified Justice: Taking the money is like getting the signature, isn't it?

Conduct.

Mr. Knaizer: If you look at it in that context, that's correct.

But I think what you are really looking at here is... you have to look at it in the election context itself.

This person is performing a function, really a quasi-public function on behalf of the State of Colorado, and the people of the State of Colorado in the sense that he is verifying signatures.

It's really no different in that particular sense from an election judge who signs you in when you in fact go into vote.

So in that sense, it's conduct.

I think what the election judge is doing when he signs you in is conduct, and what is happening with the petition circulator, at least with regard to the verification of the petitions, is also conduct.

Unidentified Justice: Well, but they also have to express the point of view of the people seeking the change particularly to get a signature on an initiative.

Isn't speech required in a very core area of First Amendment protection here?

Mr. Knaizer: Speech--

Unidentified Justice: Political issues, and issues of public concern, and what's at stake here is whether the person putting this measure, proposing to put it on the ballot can expend money to have that message carried to the voters?

Mr. Knaizer: --The people in Colorado can expend money in any fashion to bring that message to the voters.

The amount of money is unlimited, and the types of things that you can spend the money on--

Unidentified Justice: Well, they want to spend it on paying people to offer to voters the petitions.

Mr. Knaizer: --The people who circulate the petitions can't speak, they cannot be paid.

It is true that the people in this case want to pay the petitioners.

However, the people of the State of Colorado, in passing the constitutional amendment regarding initiative, said that the petition circulator has to be the verifier.

It is the general will of the people that the verification process becomes the primary function.

Now the proponents of a particular election can choose to mesh the two.

But if there is a conflict, then the primary function set out by the statute is in fact the one that has to take precedence.

Unidentified Justice: Counsel, when the petition circulator accosts somebody on the sidewalk and says, are you a registered voter, and the man says, yes, how does he verify that?

Mr. Knaizer: He just takes the word of the registered elector.

Unidentified Justice: Well, what's the difference whether he's paid or not?

Mr. Knaizer: Well, the elector also has certain other functions other than to verify that it's a registered elector.

He has to verify in fact that the person who signs the petition is the one who... is the one who actually signed it; that is, nobody sign for him.

So there are more functions.

Unidentified Justice: Nobody verified that he's a voter.

Mr. Knaizer: Nobody verifies that he's a voter.

Unidentified Justice: The problem of my own experience in that sort of work is not that a lot of people from New York would sign this petition in Colorado, but that a circulator is going to open up the phone book and just write a bunch of names and addresses out of the phone book in kin do phony handwriting that nobody... that no one ever signed.

Now is that part of the evil?

Mr. Knaizer: That's part of the evil.

I can tell you that that was a fact that was found by the courts, but in fact I think that's part of the concern.

That's a more blatant aspect of it, but it definitely is part of the concern.

Unidentified Justice: But there are forgery statutes out there making it what, a felony?

Mr. Knaizer: There are forgery statutes which makes it a classified felony for the... yes, a classified felony, that's correct.

Unidentified Justice: Mr. Knaizer, I am frankly not bowled over by the more significant danger of the paid circulator as opposed to the volunteer circulator, but you made another argument in your brief which was that the initiative after all is a device that was a product of the populist era, and it was directed against monied interest and it's contrary to the whole spirit of the thing to have the monied interests running the initiative.

You have dropped that argument, or do you still think it's a--

Mr. Knaizer: Well, I think it's an underlying argument.

We weren't trying to say that money wasn't a part of the process, or could not be a part of the process.

However, we didn't want money to reach the point where it overwhelmed the entire purpose of the initiative in the first place.

Unidentified Justice: --Don't the monied interests do better in the legislature than they do in the... you know, I mean don't the money interest have full-time lobbyists at the legislature and isn't it better to be able to use a little bit of money to counteract that through an initiative?

Mr. Knaizer: It depends on the issue.

Sometimes in Colorado the experience has been that in fact money interests don't get what they want from the legislature, and attempt to influence the process by flooding the political market.

Unidentified Justice: Where were the monied interests in this case?

Mr. Knaizer: In this case, there weren't monied interests.

Unidentified Justice: There weren't?

Mr. Knaizer: As far as we could tell.

Unidentified Justice: The trucking industry that's regulated in the state was sort of neutral on this?

It didn't care whether entry was open or not.

Mr. Knaizer: I'm just speaking from the record.

Unidentified Justice: Oh, I see.

Mr. Knaizer: And I have to admit from the record that we couldn't tell.

Unidentified Justice: What was the group that was circulating the petition?

It was the Libertarian Party?

Mr. Knaizer: I'm sorry?

Unidentified Justice: Was it Libertarian Party?

Mr. Knaizer: Well, actually it was the corporate side, as I understand it, of the Libertarian Party, something called Coloradans for Free Enterprise.

If you are asking me to speak from the record, there wasn't any indication in the record that there was a lot of money involved, but certainly I think the surmise is correct that the trucking industry, at least in part, would have been happy with the deregulation of the industry.

I'd like to reserve... I'm sorry.

Unidentified Justice: Well, I had raised my eyebrows.

I wasn't necessarily going to ask a question.

Mr. Knaizer: Okay.

Unidentified Justice: Again, my own experience is that a lot of the trucking industry wouldn't have been at all happy with the deregulation.

That some of the people who wanted to get into the industry would, and the people who are already there generally like it regulated.

Mr. Knaizer: What I would like to do is to reserve the remainder of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Knaizer.

We will hear now from you, Mr. Danks.

ORAL ARGUMENT BY WILLIAM C. DANKS, ESQ. ON BEHALF OF APPELLEES

Mr. Danks: Mr. Chief Justice, and may it please the Court:

I appear before you today representing five individuals and a corporation.

My brother from the Colorado Bar, the Assistant Attorney General, appears representing two state elected officials There is a certain irony, however, though in our respective representations.

Mr. Knaizer appears as a paid advocate, whereas I, more by circumstance than by choice, appears as an unpaid advocate.

[Laughter]

I trust that any remarks I make in favor of paid versus unpaid will not be applied to my situation.

In this case, the same five individuals incorporation which have sent me to Court today to argue before the highest Court in our land, and try to convince you of the merit of their cause, also wished to hire advocates to go on the streets of the State of Colorado and to approach registered voters with their petitions, and ask these registered voters if they would sign the petition.

They were involved in a basic First Amendment right, the right of free speech, and they were talking about certain fundamental political issues.

They were advocating a deregulation of the motor carrier industry.

And in this case, I submit that my clients were a grass roots campaign.

They were seeking to change the status quo, and it was the status quo that, by and large, was opposed by the trucking industry; not entirely though.

Certain trucking companies, for example, Acme Delivery Service, had service throughout the metropolitan Denver, but wished to have statewide authority.

Certain other trucking industries wanted to be free from price regulation.

These are the types of arguments which petition advocates would go before the voters and say, these are the reasons why we wish you to sign our petition; and they would engage the voter in a dialogue.

And it was often a painful process.

To approach someone cold on the street is not an easy task.

There is testimony in the record that it's a difficult task, but the petitioner circulator who does this for several hours, and is turned away, often without even given the chance to articulate his views, gets discouraged.

The testimony was that money motivates people to work.

And while the volunteer motivated, money can also motivate someone.

And in order for my clients, the five individuals in the corporation to get this issue on the ballot, they had to obtain some 46,000 plus signatures.

Those five individuals couldn't do the job by themselves.

They either had to get someone else to volunteer their time, or they had to get other advocates to go out there.

Now the question has been raised, is there... you know, is there a split between a volunteer versus a paid.

Is it completely one or the other.

I would submit the record is different, that you get a combination of the two in the typical campaign.

What you get are volunteers that are interested in the measure, but who could also be motivated by a certain amount of compensation, and money, at least enough to make it worth their while to go out on the street in this type of a fashion.

Unidentified Justice: Mr. Danks, do you pay them by the signature?

Mr. Danks: Were we going to... I don't know the answer to that question.

We hadn't decided whether we were going to pay them by the signature or flat rate.

The statute, though, would prevent either a flat rate or payment based upon the number of signatures.

And a statute more narrowly drawn to cover that problem might state that payment based upon productivity or the number of signatures would be prohibited, but this statute covers both.

Unidentified Justice: Well, Mr. Danks, do you concede that there is a valid state interest in regulating the conduct of petition circulators?

Mr. Danks: For purposes of preventing fraud?

I think that there are other state statutes.

Unidentified Justice: And the purposes that the state is urging.

Do you concede that that is... those interests are valid state interests?

Mr. Danks: I concede that there is a valid state interest in having petitions that do not contain forged signatures, and I concede that there is a valid state interest in having a modicum of support.

Unidentified Justice: And if there were some regulation to the effect that you couldn't pay them by the number of signatures obtained, would you say that might be valid?

Mr. Danks: It might be valid.

It presents a different or more difficult question.

Certainly attorneys or other advocates are paid based upon productivity, and they are not always paid strictly on an hourly basis, and our system rewards productivity.

Now the concept of paying someone, and therefore they are going to violate the law because they are paid, I don't accept.

And it seems to me that if someone were adequately paid... as a matter of fact, the better paid persons are probably the more competent and more careful in their work.

Unidentified Justice: Could the state require paid petition circulators to be licensed?

Mr. Danks: I believe they could.

They could go through training sessions.

If their concern was really to make sure that the circulators do a good job, they could be more careful in their screening of the types of individuals that are selected for petition circulators.

They could have training programs and more of an educational function.

Unidentified Justice: Well, you may not accept yourself the notion that pay encourages a violation of the law, but let's assume that the legislature thought that it did.

They found that there was this problem.

We don't have to disagree with the legislature to rule for you, do we?

Mr. Danks: Justice White, you wrote on that point, I believe, in Monroe.

And I would consider this a different type of case.

I don't consider this a ballot access case, but rather, I consider this a free speech case.

Unidentified Justice: Well, but even if there is a problem like the legislature identified, that doesn't mean that you lose the case.

That just means the speech interest overrides the interest the legislature identified.

Mr. Danks: I believe I would agree that they have to show there is a compelling state interest, and that they have a heavy burden to meet that this is the most exacting, or the easiest way to meet their problem.

I might also point out that this issue of fraud was not an argument that was raised by the State of Colorado in the trial court.

This issue of fraud specifically was denied as being a purpose by the Attorney General who tried the case, who was a different Attorney General from the one that appears before you today.

But in closing arguments, the Attorney General stated as follows in the transcript that appears at Page 111.

"The Plaintiffs argue that the only arguable state interest at stake in this case is to prevent fraud, and we disagree."

"That is not the state interest that we ask this court to consider."

So before the trial court, their position was that this statute was not designed to prevent fraud.

Unidentified Justice: And your position was that it was designed to prevent fraud.

Mr. Danks: Well, we were struggling to find out what their interest was.

I was struggling.

If you read the closing arguments, the closing arguments are not included in the joint appendix; we have only included the testimony.

But in the closing argument there was a dialogue with the trial court as to what is the state interest.

And I was struggling to figure out now what is this.

They keep talking about the integrity of the process; does this mean fraud or what does it means.

And there was a dialogue, and the state Attorney General says quite flatly that they are not trying to state that the statutes are there to prevent fraud.

Unidentified Justice: Mr. Danks, I am a little concerned about your response to Justice O'Connor's last question.

I sort of find it surprising that a man who is here on behalf of a group that wanted to deregulate trucking favors, or says it's perfectly okay to regulate petition circulation.

I mean you understand what will happen if you require petition circulators to be licensed and to undergo training courses as you say, and so forth.

It will be more expensive to hire petition circulators, just as I assume you said to the voters of Colorado, it was more expensive to hire truckers.

Do you think that's perfectly okay to have petitioner circulators licensed the way you have a real estate broker's license, or a barber's license or something like that?

You are sure that is all right as far as you are concerned.

Mr. Danks: I see the point you are raising.

Unidentified Justice: Your group will be spending a lot more money.

Mr. Danks: All right.

I am an advocate, and I am attempting to have this statute declared unconstitutional.

And from my perspective today, I am arguing that there are other ways to get at these problems.

If one of the problems is that the petition circulator is not well trained, then perhaps the state legislature should attack that problem directly.

I don't know, and I haven't given that maybe careful enough study, but it seems to me that there are other methods to attack a problem directly.

In my mind, there is no correlation between being paid versus unpaid and the quality of the petition circulator.

My argument today is that in fact a paid circulator is probably going to be a better circulator than the unpaid circulator.

Unidentified Justice: That's fine.

I just hope you are not inviting an opinion that says it's okay because you could license petition circulators after all.

Mr. Danks: No, sir, I am not.

Unidentified Justice: May I ask you what the state interest the state relied on in the trial court was if it wasn't fraud?

Mr. Danks: They argued two points.

They would talk about the integrity of the process.

And I had difficulty pinning down what integrity means.

In essence, I believe they were arguing that there must be some sort of a grass roots campaign, and that by paying petition circulators you are going to be violating that.

And that is the integrity they were talking about.

The other aspect of their state interest was that they felt there was some sort of correlation between the number of volunteers and the ultimate success on the merits, and this goes to their modicum of support.

Somehow that if you have sufficient fiery-eyed petition circulators to go out and gather these signatures, then probably you are going to have enough votes at the general election to have the thing passed.

Those were the two arguments that were raised at that time.

And regarding the modicum of support, Colorado, of course, has a provision in the constitution that requires 5 percent of the electors who voted in the last Secretary of State's election who must sign this petition.

So we are talking about, in our case, 46,000 plus signatures, and this establishes that modicum of support.

I would submit that there is a state interest in making sure that the ballot is not cluttered with issues that have no chance of passing.

But this interest is protected by having a 5 percent petition signature requirement.

Unidentified Justice: Mr. Danks, is there any reason why you think this same issue is going to arise between you and the state in the future?

Mr. Danks: Well, the issue of deregulation is still a lively topic in Colorado.

The motor carrier industry is gradually being deregulated; household goods one session; another session, the taxicab drivers.

It is a recurring issue.

This petition drive certainly was hurt by our inability to pay petition circulators.

We did not qualify for the ballot.

But there is certainly an interest among my Plaintiffs to pursue this matter, and in fact are pursuing this matter.

Unidentified Justice: You mean by pursuing it, undertake another initiative?

Mr. Danks: Yes, that is within the realm of possibility.

I am not saying that we have one organization that's ready to go tomorrow, but it's certainly one of the methods of approach.

And if we were successful in this, that would certainly be a boost to us.

The trouble with our issue is it's not the kind of issue that raises emotions.

Deregulation of motor carriers, while it's of interest to me and it's certainly bothers certain small businessmen who have gone and applied for authority and have been turned down, while they can get excited about it, the general public does not get excited on this issue.

And to be able to pay petition circulators in our case would certainly help us a great deal.

Unidentified Justice: Mr. Danks, may the state forbid paying people to sign?

Mr. Danks: May the state--

Unidentified Justice: You go around, a person collecting signatures goes around and is in the neighborhood, and acquaints a person with what the issue is, and says, by the way, $5.00 if you sign.

Mr. Danks: --Yes, the state statute... no, you can't pay someone to--

Unidentified Justice: Well, is it legal for the state to forbid that?

Mr. Danks: --Yes, I'm sure that it's also in the constitution, although now that you ask--

Unidentified Justice: Well, I know that it may be, but I just wondered if it would be constitutional to forbid paying a person to sign.

Mr. Danks: --Yes, I think... in other words, would it be constitutional under the First Amendment, not just under our Colorado Constitution?

Well, certainly it would, because the state can have an interest in guaranteeing, you know, 5 percent of the populace support this.

And if you have forged signatures, obviously you are not going to have your 5 percent.

The state had an interest in preventing... certainly the state can regulate conduct that defeats that 5 percent modicum of support.

Unidentified Justice: Well, what if a circular just goes out and offers $2.00 to everyone who will sign if you are a registered voter and otherwise qualified, can the state prohibit the offering of money for perfectly good signatures?

Mr. Danks: I believe it can, because the goal is to have 5 percent of the people sign, and by signing they are stating that they want this issue on the ballot.

Unidentified Justice: Well, presumably if they sign, they are doing whatever the state says they should do to have the issue on the ballot, but they are also getting two bucks for it.

Mr. Danks: Well, they may be, but then you have a factual issue as to whether they signed it for the $2.00 or in order to get it on to the ballot.

Unidentified Justice: So you say the state could prohibit the payment of money to people as a consideration for their signing.

Mr. Danks: Yes, and then we get into a balancing test I believe as well.

That's a direct method of dealing with a problem.

In other words, a prohibition directly against paying someone to sign the petition, whereas this ia a very indirect method in which we are somehow saying that by paying someone as an advocate they are more likely to go that extra step and then pay the person for actually signing the petition.

It's that second leap that I am arguing is not proper; that the statute can deal with the problem directly.

Unidentified Justice: Mr. Danks, I'm sorry to come back to this, but it's a point that's very important to me.

I am afraid it's really not enough for me that it's within the realm of possibility that one of these Plaintiffs might be involved in another initiative.

Do you think it's probable, likely that any of them would?

Isn't one of the individual Plaintiffs an officer in the Libertarian Party?

Mr. Danks: He was at that time.

Unidentified Justice: At that time.

Mr. Danks: Nancy Bigbee, one of the Plaintiffs, is a transportation lawyer, and that's a very important issue to her.

She represents clients that continually are going before the Public Utilities Commission.

And I can represent to you that Nancy Bigbee would be interested in... as a probability would be interested in going forward with the initiative.

Some of the other... all right, we're talking about Paul Grant.

We're talking about a case that was four years ago, and I'm not trying to say that this case is moot.

But when we were unable to pay petition circulators, this hurt our effort, and it took a lot of momentum out of the movement.

Nancy Bigbee I would say is probably the principal mover behind this issues at today's date, and she wishes to go forward with it.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Danks.

Mr. Knaizer, you have two minutes remaining.

ORAL ARGUMENT BY MAURICE G. KNAIZER, ESQ. ON BEHALF OF APPELLANTS -- REBUTTAL

Mr. Knaizer: I would just like to make a brief comment.

I think when reviewing this case, we would like the Court to understand and to review what the initiative process really is, and the fact that the whole process and the way it was designed by the people of the State of Colorado has to provide for additional public discourse.

And xx people of the State of Colorado, through its legislature, believed that this prohibition is designed to provide exactly that; it's a narrowly drawn prohibition that was designed to attack one problem, the problem that in fact existed in the legislature's eyes, and that is all that is prohibited.

Unidentified Justice: You still say as of now fraud is the purpose.

Mr. Knaizer: Fraud is--

Unidentified Justice: I mean is fraud in or out of the case as of now?

Mr. Knaizer: --I'm sorry, I didn't hear that.

Unidentified Justice: Is fraud in or out?

Mr. Knaizer: Fraud is in as an underlying purpose.

I do agree with Mr. Danks that there was a statement made at the hearing in the district court that fraud was not an issue.

I would also like to point out, though, that in the district court's opinion, Judge Moore's opinion, he indicated a concern for the integrity of the process because of padding of petitions, and there was a statement in the case regarding padding of petitions by the expert for the State of--

Unidentified Justice: Isn't that fraud or not?

Mr. Knaizer: --Not necessarily, and that's the distinction.

Unidentified Justice: That's the whole point.

I thought that in your initial presentation you said fraud wasn't... perhaps wasn't as important as something else, which I take it you think isn't fraud, if you paid the--

Mr. Knaizer: Let me see if I can make the distinction again.

The petitioner circulator may... may I answer the question?

Unidentified Justice: --Yes, you may.

Mr. Knaizer: The petition circulator may be in a position where he decides to pass the petition around.

Unidentified Justice: Yes.

Mr. Knaizer: And he doesn't see who signs it.

Unidentified Justice: But you say that he is supposed to witness the signatures.

Mr. Knaizer: He is supposed to witness--

Unidentified Justice: And if he turns in his certification representing that he did, isn't that fraud?

Mr. Knaizer: --Well, that is fraud, but I was talking about the signature of the electors themselves.

Unidentified Justice: Okay.

Mr. Knaizer: Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Knaizer.

The case is submitted.