Article by Ross Levin*

3 Fordham L. Voting Rts. & Democracy F. 260

When election procedure is challenged, courts must balance First Amendment rights against states’ prerogative to regulate elections. Residency requirements are an election procedure that require petition circulators be a resident of the jurisdiction. Residency restrictions on petition circulators—who collect signatures to achieve ballot access—weigh too heavily against First Amendment rights. In jurisdictions where residency requirements remain in place for initiative ballot access, voters are unconstitutionally shut out of the political process.

In this Article, I examine two cases in which the Supreme Court extended its First Amendment ballot access jurisprudence to ballot initiatives, Meyer v. Grant and Buckley v. American Constitutional Law Foundation, Inc. I describe the two-step test established by these cases as the “Meyer-Buckley” standard. In the first step a court asks whether core political speech is restricted by the procedure, and if so, the court applies strict scrutiny to ask whether 1) a compelling state interest is served by the election procedure and 2) whether it is the most narrowly tailored way of serving that state interest. Since Meyer and Buckley, several circuit courts have applied this two-step analysis to ballot initiative residency requirements, and the majority position for over twenty years has been that residency requirements are unconstitutional violations of the First and Fourteenth Amendments.

Next, I examine the pending Eleventh Circuit residency requirement case stemming from opposition to the “Cop City” police training center in Atlanta, Georgia. In this context, I propose that residency requirements are unnecessary and unconstitutional restrictions on the democratic process. I further propose legislative repeal of existing residency requirements, strategically challenging them in litigation, and defending against newly proposed residency requirements. Additionally, I propose that litigators and courts embrace a holistic view of free speech, borne from a too often-ignored prong of the Supreme Court’s ruling in Meyer. The political speech inherent to petition is not only the petitioning act itself but also campaign activity and civic engagement among voters and communities that ensues after an issue has made it to the ballot.

Introduction

In 2024, Kamala Harris lost Georgia by 115,100 votes.¹ At the same time, in an ironic coincidence, approximately 116,000 voter signatures sat uncounted in Atlanta City Hall.² Those signatures had been collected by activists and organizers opposed to “Cop City,” a proposed police and firefighter training center.³ They collected the signatures to support a ballot proposal that would repeal Atlanta’s funding for Cop City.⁴ The signatures were collected in 2023, but Democrats in Atlanta used the procedural issue of petition circulator residency requirements to prevent the referendum from ever going before voters.⁵ Donald Trump’s margin of victory almost exactly matched the number of voter signatures that local Democrats had refused, for over a year, to count.

The close match between Harris’s losing margin and the uncounted signatures holds a lesson that denying voters a voice in elections has harmful ripple effects, including pushing civically active voters out of the process altogether.⁶ Atlanta Democrats’ use of residency requirements to prevent a referendum is indicative of how restrictions on the initiative process, including residency requirements for petition circulators, are used to limit voters’ political participation. Nationally, in recent years, the Republican Party has been accurately characterized as using anti-democratic tactics to win elections and policy fights.⁷ But these tactics are not unique to the Republican Party. Indeed, Democrats’ opposition to the Cop City referendum reveals their willingness to similarly restrict voter participation via election procedure.

The procedural issue that allowed Atlanta to sit on those signatures is the local residency requirement for petition circulators.⁸ Atlanta requires circulators to be residents, but the campaign opposing Cop City has sued to overturn that rule as a violation of the First and Fourteenth Amendments.⁹ The majority rule among circuit courts that have ruled on the issue is that residency requirements are an unconstitutional infringement of free speech.¹⁰ Only one circuit court has held that residency requirements are constitutional, and that holding is more than twenty years old.¹¹ In the intervening years, no other circuit court has held that residency requirements are constitutional. Differences in constitutional interpretation on residency requirements have major implications for whether initiatives can reach the ballot.¹² In Atlanta, the residency requirement issue has impacted hundreds of millions of dollars in city funds, hundreds of acres of parkland, and whether voters have a say in the future of their city.

Election procedure for ballot initiatives has increasingly become the terrain on which fierce policy battles are fought, on issues from abortion rights to marijuana legalization.¹³ The restrictiveness of ballot access regulations also impacts the degree to which the electorate participates.¹⁴ Ballot access procedures raise larger questions of rights and democracy: is a residency requirement a violation of the First and Fourteenth Amendments? What are the constitutional and political implications of election procedures that shut voters out of the political process? What do courts see as core political speech, and what have courts overlooked?

In this Article, I will examine requirements that circulators of initiative ballot access petitions be residents of the jurisdiction where they are circulating petitions and how federal courts have analyzed these requirements under the First and Fourteenth Amendments. Part I covers a basic explanation of the ballot initiative process and an overview of the cases in which the Supreme Court extended its ballot access jurisprudence to ballot initiatives. In Part II, I provide an overview of how circuit courts have applied the standard established by the Supreme Court to residency requirements and apply this law to the facts of a case study, the above-described Cop City referendum. In Part III, I propose specific reforms to repeal residency requirements via legislation and litigation, and an expanded definition of free speech that courts should use when considering initiative ballot access cases. The Article briefly concludes by describing how, to answer the questions raised by residency requirements and the Cop City issue, we must answer who is allowed to participate in democracy.

I. Background on Ballot Initiatives, Ballot Access, and the Courts

The initiative process first emerged from the efforts of the populist and progressive movements of the late nineteenth and early twentieth centuries.¹⁵ Initiatives, referendums, and recalls are ways for voters to directly place proposals on the ballot.¹⁶ Generally, voters must submit a proposal to state or local election administrators, and then collect signatures—the number needed varies by jurisdiction, but can run into the hundreds of thousands—to earn a place on the ballot.¹⁷ About half of the states, and the District of Columbia, have an initiative process, each with their own procedure.¹⁸ The initiative process was created as a way to directly and democratically bypass unresponsive legislatures.¹⁹ At the same time that reforms such as women’s suffrage and direct election of senators took hold, the initiative process spread as an outlet for direct voter participation in policymaking.²⁰

Since their creation, these processes have been the center of intense battles over both policy and who can participate (and to what extent) in democracy.²¹ In the early 20th century, Oregon was one of the first states to adopt the initiative process, and voters passed policies via initiative including direct election of senators, women’s suffrage, and a ban on poll taxes, while also considering (but voting down) a steep inheritance tax and jobs guarantee.²² Contemporary opponents to increased democratic participation fought against the ballot initiative process. In the 1920s in Mississippi, for example, the State Supreme Court rescinded the state’s entire initiative process because it “upsets our carefully worked out scheme for white control of the Legislature and state officers.”²³

A century later, initiatives continue to play a central role in the most important questions of policy and democracy. In 2023, for example, Ohio voters defeated a ballot proposal that would have made it more difficult to amend the state constitution via initiative because voters understood the measure to be a proxy for limiting abortion rights.²⁴ Later that year, Ohio voters passed a constitutional initiative to protect reproductive rights, becoming one of a number of states to vote on reproductive rights in recent years.²⁵ This is just one example of many areas in which ballot initiatives, and the procedures governing them, remain a hotly contested site of political struggle.²⁶ Outside of Ohio, initiatives have played a major role in debates in many states on gay marriage, abortion, minimum wage, taxation, marijuana legalization, and other issues.²⁷

But initiatives, like any procedure, are not ideological. In the early 21st century, for instance, liberals often favored limiting direct democracy due to increased special interest campaign funding and conservatives’ success in using initiatives to oppose gay marriage.²⁸ In the past decade, the ideological script has flipped. Now, policies such as legalized marijuana, expanded abortion rights, Medicaid expansion, and raising the minimum wage have seen more success at the ballot box than in state legislatures.²⁹ Liberals have rediscovered the original intent of the initiative process—that is, bypassing unresponsive legislatures—and conservatives are now more commonly the advocates for restricting the process.³⁰

A. Initiative Ballot Access Procedures and the First Amendment

Regardless of how the ideological pendulum is swinging, state legislatures set the laws that govern election procedure.³¹ To appear on a ballot, an initiative’s supporters must collect a certain number of signatures that are then submitted, verified, and counted.³² In addition to the collection of signatures, there are many other requirements for ballot access, which vary by state and locality.³³ Examples include limits on paid petitioners, time limits on gathering signatures, and limits on which policy subjects can be addressed via initiative, in addition to residency requirements.³⁴

The Supreme Court has long sought to strike a balance between constitutionally guaranteed rights of freedom of speech and association, on the one hand, and legitimate regulations of elections, on the other hand.³⁵ The Court sees a legitimate state interest in avoiding fraud and chaotic elections, as well as ensuring that the ballot is restricted to candidates and initiatives with some measurable support.³⁶ This balance of rights and regulations applies regardless of whether it is a candidate or an initiative campaign seeking to qualify for the ballot.³⁷ Although there is no constitutional right mandating that an initiative process exist, once a state or municipality has adopted the process, then voters have the same constitutional rights with respect to initiatives as they do in other elections.³⁸

When considering challenges to ballot access regulations, courts analyze them under the First and Fourteenth Amendments. Although election law is state law, the First Amendment rights of free speech and free association are incorporated against the states by the Fourteenth Amendment.³⁹ Ballot access regulations risk infringing free association by overly restricting the formation of political parties.⁴⁰ Additionally, the process of petitioning is a key means of communicating with voters for political parties and initiative campaigns alike.⁴¹ Voters’ and campaigns’ free speech rights are further implicated when a successful petition secures a place on the ballot, because ballot access allows for campaigns and communities to debate an issue before voting on it.⁴² Courts will strike down election laws that either 1) do not further a compelling state interest or 2) do further a compelling state interest, but are too severe a burden on core political speech.⁴³ If a more “narrowly tailored” alternative exists to accomplish the same compelling interest, then the existing election law is too severe a burden on free speech.⁴⁴

B. Meyer and Buckley: The Supreme Court Standard for Initiative Ballot Access

In two cases in the 1980s and 1990s, Meyer v. Grant and Buckley v. American Constitutional Law Foundation, Inc., the Supreme Court extended its First and Fourteenth Amendment ballot access jurisprudence—which had previously been limited to parties and candidates—to include ballot initiatives.⁴⁵

Together, the cases set a standard of strict scrutiny for challenges to ballot access regulations for voter-initiated referenda. If the court holds that an election regulation severely restricts or burdens free speech, then strict scrutiny is triggered because a fundamental right (“core political speech”) has been infringed.⁴⁶ The burden is then on the state to prove that the infringement is both justified by a compelling state interest and the most narrowly tailored means to achieve that state interest.⁴⁷ Meyer and Buckley established that circulating petitions and campaigning for ballot initiatives is as much core political speech as campaigning for candidates, and initiative-related speech should receive the same constitutional protections.⁴⁸

In Meyer, the Supreme Court struck down a Colorado ban on paid initiative petition circulators.⁴⁹ The Court reasoned that the ban was a severe burden on core political speech and thus subject to “exacting scrutiny.”⁵⁰ The Court identified two ways that the ban on paid petitioners severely restricted free speech:

First, it limits the number of voices who will convey appellees’ message and the hours they can speak and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion.⁵¹

Having triggered strict scrutiny, the Court shifted the burden to Colorado, requiring the state to prove that it had a compelling interest in banning paid petitioners and that the restriction on speech was the most narrowly tailored option to achieve that interest.⁵² The Court agreed that the state’s goals in placing the ban—ensuring grassroots support for ballot-qualifying initiatives and preventing fraud—were compelling.⁵³ But the ban on paid petition circulators did not survive strict scrutiny because it was not the most narrowly tailored option for achieving these goals.⁵⁴

In Buckley, the Court extended this analysis to overturn Colorado initiative regulations requiring that 1) initiative ballot access petition circulators be registered Colorado voters, 2) circulators wear an identifying badge with their name, and 3) campaigns report all paid circulators and how much they were paid to the Secretary of State.⁵⁵ The reasoning was like Meyer—the regulations were not narrowly tailored because the state could accomplish the same goals in ways that were less restrictive of core political speech.⁵⁶ The Court noted that “as in Meyer, the restrictions in question significantly inhibit communication with voters about proposed political change, and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions.”⁵⁷

Together, Meyer and Buckley form a standard against which lower courts can analyze restrictions on access to the initiative process.⁵⁸ Residency requirements are a significant and contentious area analyzed under the Meyer-Buckley standard.⁵⁹ Courts have applied and extended the Meyer-Buckley standard to the question of whether requirements that petition circulators to be residents of the jurisdiction where they are circulating petitions are constitutional or overly restrictive of free speech.⁶⁰ Must someone gathering signatures for an initiative in Maine be a Maine resident, or a circulator in Atlanta be an Atlanta resident? The answer to these questions has a major impact on free speech and on initiative campaigns. It will either expand or limit the pool of potential circulators by a significant degree, often meaning life or death for entire initiative campaigns.

II. Residency Requirements: Applying and Extending the Meyer-Buckley Standard

In Buckley, the Supreme Court avoided the issue of residency requirements, but lower courts have taken up the issue many times since then.⁶¹ There is a split among the circuit courts that have ruled on residency requirements, but only one has held that residency requirements for petition circulators are constitutional.⁶² Unlike other circuits, the outlier did not apply strict scrutiny to the issue.⁶³ It instead accepted the state’s justification for the residency requirement at face value, rather than asking whether the state’s compelling interest justified a severe restriction of a fundamental right.⁶⁴ Every other circuit that has addressed the issue has applied strict scrutiny and struck down non-resident circulator bans because they were not narrowly tailored to address compelling state interests.⁶⁵ Multiple circuits have cited a narrower proposed alternative approach of requiring that nonresident circulators submit to the jurisdiction’s subpoena power by, for example, signing a document before they could start petitioning.⁶⁶ This would address the compelling interest of the state in having a mechanism to prevent and investigate petition fraud without needlessly restricting the free speech rights of campaigns, petition circulators, or voters.⁶⁷

In addition to initiative ballot access, the Meyer-Buckley standard has been applied to questions of nonresident circulators in candidate ballot access.⁶⁸ As the case law has developed, initiative ballot access case law has influenced candidate and party ballot access case law, and vice versa.⁶⁹ Given that candidates and initiatives both require petitioning for ballot access, the cross-pollination of candidate and initiative case law is logical. Initiatives often face higher hurdles, such as higher signature thresholds, but the basic process is the same in most U.S. jurisdictions.⁷⁰

Within a few years of Buckley, a circuit split had emerged, with the Eighth Circuit upholding a residency requirement and the Tenth Circuit striking one down.⁷¹ However, over twenty years later, the Eighth Circuit remains the only federal appellate court to uphold a residency requirement, as described in the next Section. The clear majority position, twenty-five years since Buckley, is that bans on non-resident petition circulators are an unconstitutional burden on free speech.

A. The Majority Position is that Residency Requirements Violate the First Amendment

1. Circuits That Have Struck Down Residency Requirements

The Tenth, Ninth, and Sixth Circuits have found residency requirements unconstitutional.⁷² The first circuit court to do so, the Tenth Circuit, held in Chandler v. City of Arvada, Colorado that a municipal ban on non-resident initiative petition circulators was not narrowly tailored to prevent petition fraud and thus a violation of the First and Fourteenth Amendments.⁷³ Preventing and investigating fraud in the petition process was a compelling state interest, but the court identified specific alternative, narrower means of doing so.⁷⁴ The court suggested, for example, that any “prospective circulator agree to submit to the jurisdiction of the Arvada Municipal Court for the purpose of subpoena enforcement.”⁷⁵

Plaintiffs in Chandler were three Arvada residents and one resident of a neighboring, unincorporated town.⁷⁶ They wanted to circulate petitions for an initiative that would limit construction of a new development in Arvada.⁷⁷ It was an issue that affected residents of Arvada and neighboring towns alike, but the ban on nonresident circulators “decrease[d] the pool of potential circulators.”⁷⁸

The district court held that the ban was a severe restriction on free speech and subject to strict scrutiny.⁷⁹ The ban did not meet this burden because the court found that more narrowly tailored options were available to accomplish the same goals of preventing fraud and ensuring a process to challenge invalid signatures.⁸⁰ The court identified the city’s subpoena power as the narrower alternative.⁸¹ Specifically, the Arvada municipal code allowed voters to challenge the “sufficiency” of an initiative petition, at which point a “protest hearing” would be held.⁸² The presiding officer of a protest hearing had subpoena power over both resident and nonresident circulators.⁸³ The district court held this subpoena power sufficient to meet the state’s compelling interest of regulating the petition process, and therefore enjoined the ban.⁸⁴

The Tenth Circuit upheld the district court’s injunction and struck the ban down as an unconstitutional violation of the First and Fourteenth Amendments.⁸⁵ The circuit court applied the two-step Meyer-Buckley analysis: first, the ban was a severe burden on free speech because it shrank the “pool of eligible petition circulators and limit[ed] political conversation and association,” practically restricting free speech in a manner “similar in effect” to the petition regulation in Buckley.⁸⁶

Second, because the residency requirement was a severe restriction on the core political speech of petition circulation, strict scrutiny was triggered.⁸⁷ The circuit court agreed with the defendants and district court that “Arvada has a compelling interest in policing the integrity of its petition process,”⁸⁸ but did not find the ban to be narrowly tailored to that interest.⁸⁹

The City could achieve its interest without wholly banning nonresidents from circulating petitions in Arvada. As suggested at oral argument, Arvada could require, for example, as a prerequisite to circulating an initiative, referendum, or recall petition in the City, the prospective circulator agree to submit to the jurisdiction of the Arvada Municipal Court for the purpose of subpoena enforcement.⁹⁰

The court also addressed Arvada’s argument that nonresidents could contribute to the campaign by other means, outside of circulating petitions.⁹¹ They could, for example, contribute money to the campaign, advocate for the initiative, or even train petition circulators who were residents of Arvada.⁹² The court rejected this argument for two reasons, both taken from Meyer. First, the act of circulating a petition is “the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication.”⁹³ Other alternatives were insufficient. Second, the First Amendment does not proscribe a particular means of expression but instead protects the right “not only to advocate their cause but also to select what they believe to be the most effective means for so doing.”⁹⁴ Thus, the court recognized the petitioners’ right not only to contribute to political discourse, but to choose the means of doing so.

Six years later, the Tenth Circuit again struck down a residency requirement because its proposed alternative from Chandler would have been a narrower means of policing petition fraud.⁹⁵ The court held that a nonresident circulator ban was not the most narrowly tailored option: “Oklahoma could require” nonresident petition circulators to “provide their . . . contact information [to the state] and agree to return” if, during the process of verifying that the petitions have sufficient and valid signatures, someone challenges or objects to the signatures that they collected.⁹⁶ The court also rejected the argument “that non-resident circulators as a class engage in fraudulent activity to a greater degree than resident circulators,” subtly questioning whether prevention of petition fraud by out-of-state circulators specifically is a compelling state interest.⁹⁷

Outside of the Tenth Circuit, in Pierce v. Jacobsen, the Ninth Circuit was presented in 2022 with evidence of fraud by out-of-state circulators, but held that the evidence of fraud was insufficient to demonstrate that the most narrowly tailored option to prevent such fraud is a residency requirement.⁹⁸ In the Sixth Circuit, an Ohio ban on nonresident circulators for candidate ballot access was struck down under the Meyer-Buckley standard, but the circuit court has not yet applied the standard to initiative circulators.⁹⁹

2. Circuits That Have Remanded to District Courts That Struck Down Residency Requirements

The First and Third Circuits have remanded cases to district courts who then overturned state residency requirements.¹⁰⁰ These courts held that plaintiffs’ challenges to residency requirements were strong enough to continue at the district court level, rather than being dismissed or lifting injunctions placed by the district court. On remand, in both circuits, the cases concluded with orders against residency requirements.¹⁰¹

In 2018, the Third Circuit reversed the District of New Jersey’s dismissal of plaintiffs’ challenge to a residency requirement for presidential candidate petition circulators. Two nonresident petition circulators challenged New Jersey’s law requiring that they be registered voters in New Jersey.¹⁰² Both plaintiffs were registered voters, but not in New Jersey, so the court recognized the residency requirement as the issue in the case, stating that “it is the fact that they reside out of state that prevents them from circulating petitions.”¹⁰³ New Jersey defended the regulation as necessary to protect the “integrity” of its “election process.”¹⁰⁴

The circuit court held that in the district court proceedings, plaintiffs had sufficiently shown the ban to be a severe restriction on their free speech rights.¹⁰⁵ Thus, under the first step of Meyer-Buckley, strict scrutiny was triggered, and the case was remanded for the district court to determine whether the residency requirement narrowly achieved a compelling state interest.¹⁰⁶ New Jersey had the burden of proof on this question.¹⁰⁷ The circuit court held that the district court’s dismissal of the case had ended the proceedings before New Jersey had the opportunity to argue or produce evidence regarding these two points.¹⁰⁸ That is, on remand the state of New Jersey had to provide evidence of specific, real-world examples of the conduct or outcomes the ban intended to prevent and prove that it was narrowly tailored.¹⁰⁹

On remand, the district court invalidated the statute.¹¹⁰ New Jersey was unable to provide evidence of “fraud related to the circulation of nominating petitions,” which was the conduct the ban was meant to prevent.¹¹¹ Nor did the state prove that a residency requirement was the least restrictive means to prevent petition fraud.¹¹²

In 2022, the First Circuit held that a residency requirement for initiative petition circulators was likely not narrowly tailored and remanded the case, which eventually ended with Maine agreeing not to enforce the nonresident circulator ban.¹¹³ Plaintiffs initially brought the case following an attempt by Maine’s Secretary of State to invalidate signatures gathered by out-of-state circulators for an initiative.¹¹⁴ The district court imposed an injunction forcing Maine to place the initiative on the ballot, and the circuit court upheld the injunction and remanded the case back to the district court.¹¹⁵ The circuit court held that “the plaintiffs [were] likely to succeed in demonstrating that the defendants cannot show that the residency requirement is narrowly tailored to” the compelling interest of “protecting the integrity of its elections.”¹¹⁶ On remand, the State of Maine and plaintiffs agreed to permanently suspend enforcement of any residency or Maine voter registration requirement for initiatives or “people’s veto” measures, on the condition that petition circulators must agree to submit to Maine’s jurisdiction, be responsive to attempts to contact them, and maintain updated contact information with the state government.¹¹⁷ The residency requirement for initiative ballot access in Maine was eliminated by the holdings from the district court, First Circuit, and subsequent court-enforced agreement between the parties.

3. Circuits That Have Struck Down Modified Residency Requirements

The Second, Fourth, and Seventh Circuits have applied the Meyer-Buckley standard to strike down modified residency requirements. By “modified residency requirement,” I am referring to variations on residency requirements, such as requirements that a resident of the jurisdiction witnessed the petitions or that circulators be registered voters in the jurisdiction. These circuits did not directly address the question of statewide residency requirements for petition circulators, but still used the Meyer-Buckley standard.

In Lerman v. Board of Elections in City of New York, the Second Circuit heard a challenge to New York’s in-district “witness” requirement for candidate ballot access petitions.¹¹⁸ Each sheet of the petition was required to include not only voter signatures, but also the information of the circulator and the name and signature of a “witness,” a registered voter in the district where the candidate was running (or, alternatively, a notary public or commissioner of deeds).¹¹⁹ The court held that an in-district residency requirement for witnesses to candidate ballot access petitions failed strict scrutiny under Meyer-Buckley for two reasons.¹²⁰ First, other existing regulations more narrowly served the same purpose (including an in-state, as opposed to in-district, residency requirement).¹²¹ Second, the state “failed to suggest any meaningful relationship between the . . . witness residence requirement and their interest in protecting the integrity of the signature collection process.”¹²²

In Krislov v. Rednour, the Seventh Circuit struck down a statute requiring petition circulators for the Democratic primary to be registered to vote in the jurisdiction where they were circulating petitions.¹²³ As in Buckley, the registration requirement’s impact on the overall “ability to disseminate their message” was a key reason why the regulation was held to be a severe burden on free speech.¹²⁴ In 2013, the Fourth Circuit applied the Meyer-Buckley standard to a case involving candidate ballot access, invalidating a restriction that required a Virginia resident to witness the signatures collected.¹²⁵ Once again, the regulation failed strict scrutiny review because the court was not convinced that it was narrowly tailored.¹²⁶

B. The Minority Position that Residency Requirements Are Not a Severe Restriction on First Amendment Rights

The Eighth Circuit is the only circuit court that has upheld a challenged residency requirement for initiative petition circulators. The 2001 ruling was the first circuit court ruling on residency requirements following Buckley.¹²⁷ The ruling, which upheld a North Dakota statute, stands in contrast to other circuit courts’ reasoning on the issue in three ways: first, strict scrutiny was not applied to the ban on nonresident circulators; second, the evidence of past fraud by out-of-state circulators was unusually strong; and third, the trend since then clearly goes in the opposite direction.¹²⁸

In contrast to Chandler and other circuit court decisions on the issue since 2001, the Eighth Circuit did not hold that a residency requirement is a severe burden on free speech.¹²⁹ The court’s First Amendment analysis in the case is sparse because they avoided the deep engagement with the free speech question that would have been triggered by a strict scrutiny analysis.¹³⁰ That being said, the court acknowledged the standard set in Meyer that any regulation that “limited the number of people who could convey a political message and made it less likely that a measure would garner the necessary signatures to be placed on the ballot” should trigger strict scrutiny.¹³¹ However, the court did not hold the residency requirement to be a severe restriction on core political speech.¹³² Rather, the court stated that the record contains no evidence showing that the residency requirement would make it “more costly and time consuming to collect signatures.”¹³³ Further, residents were still free to circulate petitions, and even non-residents could still use “many alternative means” to participate in the process, including training circulators and accompanying them.¹³⁴ To the court, the lack of a record on how free speech might be limited and alternative means of expression—regardless of the actual impact on initiative campaigns—was sufficient to show that free speech was not severely restricted.¹³⁵

However, the court held that preventing petition fraud is a compelling state interest.¹³⁶ The court cited to “a 1994 incident in which over 17,000 signatures” collected by two out-of-state circulators “had to be invalidated” to show that the state had a compelling purpose in preventing fraud.¹³⁷ Since strict scrutiny had not been triggered, the state only needed to show that it had a compelling interest for the ban to survive.

When the case was decided in 2001, the question of whether Buckley should be extended to residency requirements had barely been broached in federal courts.¹³⁸ Since then, other circuits have placed greater weight on the severity of the free speech restriction created by residency requirements, as well as the burden of the state to prove that their regulations are sufficiently narrowly tailored. It is an open question whether the Eighth Circuit’s holding in Jaeger was, in part, because no other courts had yet decided the issue.¹³⁹ Regardless, in more than 20 years since Jaeger was decided, not a single circuit court—even those presented with evidence of fraud—has held a residency requirement to be sufficiently narrowly tailored to pass strict scrutiny on the issue of free speech.¹⁴⁰

C. Case Study: Atlanta Cop City Referendum

The residency requirement issue is currently pending in the Eleventh Circuit, in a case brought by petition circulators for a proposed municipal referendum in Atlanta on the issue of “Cop City.”¹⁴¹ Cop City is the colloquial name for an enormous police training facility being built in Atlanta.¹⁴² Initially approved by the Atlanta City Council in 2021,¹⁴³ it has seen years of opposition from residents of Atlanta and nearby counties concerned about its impact on the city and the region.¹⁴⁴

Cop City was first proposed by Atlanta Mayor Keisha Lance Bottoms in 2017.¹⁴⁵ The mayor proposed turning a large piece of metro Atlanta’s largest green space into a police and firefighter training facility.¹⁴⁶ The Cop City location sits on the 300-acre former site of the “Prison Farm,” near the border of Atlanta and Dekalb counties.¹⁴⁷ The Prison Farm site had been slated to serve as an anchor location for a 1,200-acre “massive urban park.”¹⁴⁸ Instead, Cop City would cordon the Prison Farm site off from the public and fill it with a “mock city . . . complete with a convenience store, two-story house, apartment and commercial-style building” that will allow police to enact “high-speed pursuits” and other training exercises.¹⁴⁹

In the years since then, a persistent movement to oppose Cop City has taken hold. At the same time, local politicians, business elites, and the police force have also persisted in their support for Cop City.¹⁵⁰ The opposition movement is diverse, with some organizations and members using tactics such as community organizing, others embracing the sabotage of construction equipment, and still others preferring formal complaints and running candidates for office.¹⁵¹ In 2021, a group of protesters initiated a long-term occupation of the Prison Farm site.¹⁵² On January 18, 2023, following multiple police confrontations, Georgia State Troopers shot and killed one of the encampment members, Manuel Esteban Paez Terán, also known as Tortuguita.¹⁵³ Despite the violence and the continued construction of Cop City, the opposition movement continues to this day.¹⁵⁴ The cost of building the facility has grown to over $100 million, while over 170 people have been arrested protesting it over the past several years.¹⁵⁵ The Cop City model has now spread outside of Atlanta, as well.¹⁵⁶ Proposals for Cop City-like training facilities are being debated (and protested) in numerous other cities, including New York City, Richmond, California and Baltimore, Maryland.¹⁵⁷

In Atlanta, residency requirements became a major legal stumbling block for the Cop City opposition when they pursued a municipal ballot initiative. The Atlanta City Council passed a lease-back agreement for the land and the first major piece of funding for Cop City in June 2023, and the opposition immediately began working to place a repeal on the ballot. Following a sixteen-hour public meeting, the Atlanta City Council passed a measure on June 6, 2023, allocating over thirty million dollars in funding (about one-third of the estimated total) and a lease-back agreement for the Prison Farm site.¹⁵⁸ The next day, the opposition announced a campaign to put a repeal of the June 2023 City Council measure on the ballot.¹⁵⁹

The Atlanta City Charter and the Georgia Constitution allow voters to place a repeal or amendment of municipal “ordinances, resolutions, or regulations” on the ballot.¹⁶⁰ The Georgia Supreme Court recently affirmed the constitutionality of this process in the 2022 case Camden County v. Sweatt.¹⁶¹ In order to place the repeal of a municipal ordinance on the ballot, voters must collect signatures equivalent to fifteen percent of registered voters in the jurisdiction.¹⁶² These signatures must be collected within a sixty-day window.¹⁶³ The referendum campaign estimated that this would require at least 75,000 signatures.¹⁶⁴ On June 21, the City Clerk approved petition forms that included a space to confirm each circulator’s Atlanta residency and began the sixty-day clock.¹⁶⁵

On July 6, 2023, non-residents of Atlanta who intended to circulate petitions filed a lawsuit seeking an injunction suspending the residency requirement.¹⁶⁶ Non-Atlanta-residents of Dekalb County, which includes part of the City of Atlanta, sought to circulate petitions to place the repeal on the ballot.¹⁶⁷ Speaking to the burden created by the residency requirement, the complaint stated, “the most important aspect of that campaign is having enough people to circulate petitions and gather signatures.”¹⁶⁸ The plaintiffs used the Meyer-Buckley framework to argue that the court should invalidate Atlanta’s residency requirement because it is: 1) a restriction of core political speech rights of non-resident circulator plaintiffs and 2) not narrowly tailored to serve any compelling governmental interest.¹⁶⁹ Plaintiffs asked for an injunction suspending enforcement of the residency requirement and restarting the time period for signature collection.¹⁷⁰ The City of Atlanta defended the residency requirement by arguing that the free speech burden was not severe enough to trigger strict scrutiny.¹⁷¹ The City further argued that its legitimate interests in self-governance and election integrity should outweigh the non-resident circulators’ free speech interests.¹⁷²

The district court rejected the City of Atlanta’s arguments.¹⁷³ On July 27, 2023, the district court temporarily granted plaintiffs’ requested relief.¹⁷⁴ The court granted a preliminary injunction prohibiting the City of Atlanta from enforcing the residency requirement and requiring the City to restart the sixty-day petitioning period with new petition sheets that did not require confirmation of Atlanta residency.¹⁷⁵ Applying the Meyer-Buckley standard, the court held that the ban should be subject to strict scrutiny.¹⁷⁶ The ban on nonresident circulators is a “significant burden on political expression” because it restricts both individual circulators and the campaign’s ability to reach members of the voting public.¹⁷⁷ The court rejected the City’s argument on self-governance, holding that a residency requirement is not “narrowly tailored to serve the City’s interest in self-government.”¹⁷⁸

The City of Atlanta appealed the injunction to the Eleventh Circuit Court of Appeals, where the case is currently pending.¹⁷⁹ On September 1, 2023, the circuit court stayed the district court injunction and ordered expedited briefing.¹⁸⁰ In the meantime, during the sixty-day window that had been restarted by the injunction, activists in Atlanta gathered approximately 116,000 signatures—far above the fifteen percent requirement to gain ballot access.¹⁸¹ Despite the massive showing of grassroots support for the referendum, the City of Atlanta refused to accept, verify, and count the signatures.¹⁸² The city justified its refusal with reference to the Eleventh Circuit’s order lifting the injunction.¹⁸³ Now, well over a year later, the city has still yet to count the submitted signatures, and the Atlanta City Council has passed a new and more stringent requirement for counting initiative signatures.¹⁸⁴ The opponents of Cop City, on the other hand, have protested the city government’s appeal at city council meetings and with direct action at the construction site.¹⁸⁵ The Eleventh Circuit has still not ruled in the case.

The Eleventh Circuit’s unexplained delay in deciding the case has resulted in Atlanta region voters’ First Amendment rights being triply denied. First, the ban on nonresident circulators denied non-residents of Atlanta a voice in the political process on an issue that directly affects them. Like the Tenth Circuit’s residency requirement ruling in Chandler, the issue here is a municipal residency requirement on opposition to development that will directly impact residents and nonresidents alike.¹⁸⁶ Cop City is situated within a regional park system and, as a region, Atlanta has complicated and overlapping borders.¹⁸⁷ The Cop City site nearly touches Dekalb County and sits within a network of public parks meant to be accessible to the entire region.¹⁸⁸

Second, voters have been denied a say in the matter by the Eleventh Circuit’s slow pace in issuing an opinion. Oral argument was held on December 14, 2023, and by the court’s own admission, construction has proceeded nearly to completion since then.¹⁸⁹ Two general elections and one primary election have passed since the appeal was filed, and the issue could have appeared on any of those ballots.¹⁹⁰ In that time, the court did not ask for further briefing to help decide the issue. In fact, their only request for briefing came recently, in February 2025, asking the parties to clarify whether the issue is moot given that Cop City construction is now largely complete.¹⁹¹ The court was aware of the effect of its delay, but delayed anyway. Now, the City of Atlanta insists that the issue is moot, but plaintiffs argue that the larger residency requirement issue remains alive, and that Atlanta voters should still have a say in how the Cop City site is used.¹⁹²

Finally, the third denial of Atlanta voters’ First Amendment rights is that the City of Atlanta proceeded with construction without needing to consider voters at all. The City took advantage of the lifted injunction and the Eleventh Circuit’s slow pace to proceed with construction while they fought against counting the signatures. The issue has effectively been decided for Atlanta voters, despite about 116,000 of them signing a document stating that they would prefer a say in the matter. Their political voice—their free speech right to participate in the political process—has been denied. In this instance, justice delayed is democracy denied.

The Eleventh Circuit should issue a long-awaited ruling to allow the question to go to Atlanta voters as soon as possible. The district court’s injunction was consistent with First and Fourteenth Amendment case law across all circuit courts that have ruled on the issue, spare one.¹⁹³ The residency requirement is a restriction on core free speech rights of Atlanta voters and Dekalb County residents affected by Cop City, and this is an opportunity for the Eleventh Circuit to rule on the broader issue of residency requirements. The Eleventh Circuit’s stay on the injunction that allowed non-residents to circulate petitions has significantly impeded the free speech rights of individual voters, individual petition circulators, and the referendum campaign as a whole.

The unconstitutionality of residency requirements for petition circulators has, over the past twenty years, become the majority position among federal courts.¹⁹⁴ In this case, petition circulators seeking an injunction are residents of the state and are directly affected by the policy they seek to change. The Georgia Supreme Court’s recent reaffirmation of voters’ power to amend and repeal municipal measures is relevant, too.¹⁹⁵ It provides an additional reason for the Eleventh Circuit to give weight to the considerable effort of the referendum organizers and the strong signal of discontent with current city policy sent by the approximately 116,000 signatures.¹⁹⁶ Any reasonable threshold has been met to demonstrate grassroots support for a referendum and a desire among the people of the Atlanta metro region to have a First Amendment-protected say in the matter. Given the significant delay, the Eleventh Circuit should not only strike down Atlanta’s residency requirement—it should also order an injunction against the continued construction of Cop City while the referendum is pending. Finally, the court should order that the City of Atlanta expedite signature review to ensure that—should the measure have enough signatures, based on those collected in 2023—the referendum can take place at the soonest possible date.

III. Reforms to Residency Requirements

Residency requirements should be repealed, whether via legislation or litigation, because they are overly restrictive of free speech in elections and unfairly limit who can participate in our democracy. There are three avenues by which residency requirements can be reformed: statutory repeals, litigation, and defending against the imposition of new residency requirements. Additionally, litigators should argue for, and courts should recognize, an expanded definition of “core political speech” that puts greater emphasis on the extent to which election regulations limit civic participation and public policy debate.

A. Reform via Legislation

The legislative and judicial landscape is favorable for the continued rollback of residency requirements. Only seven states still have residency requirements.¹⁹⁷ Rather than face litigation they would likely lose, states with residency requirements should follow the lead of California, which repealed its ban on nonresident circulators while litigation on the matter was pending.¹⁹⁸

Additionally, some states, including Arizona and Virginia, have embraced versions of the Tenth Circuit’s proposed solution in Chandler, requiring petition circulators to submit to their state subpoena power instead of a residency requirement.¹⁹⁹ This is a reasonable solution that strikes the right balance between free speech and election integrity. Petition circulators can attest that they will submit to the subpoena power of the state should any issues arise with the signatures they collected. Collecting signatures, usually tens or hundreds of thousands to get on the ballot, is enough to demonstrate a level of support that justifies a place on the ballot, and existing processes for verifying signatures once they are submitted are sufficient for weeding out and preventing fraud.

B. Reform via Litigation

In the courts, as detailed in the Section above, the clear trend and majority opinion is that residency requirements violate the First and Fourteenth Amendments. Out of the seven states with residency requirements for initiative petition circulators, several—including Ohio, Utah, Idaho, Montana, and Alaska—are in federal circuits that have previously overturned residency requirements.²⁰⁰ Successful litigation can force state legislatures to act. In 2024, South Dakota repealed its residency requirement because it was ruled unconstitutional in 2023.²⁰¹

The only caveat is that the politics of initiatives have changed significantly since the early 2000s, and more conservative-leaning circuit courts might be less amenable to residency requirement challenges than they would have been ten or twenty years ago.²⁰² Even so, the lopsided circuit split is promising for a litigation-based approach to repealing residency requirements. Knowledgeable litigators could work with campaigns that want to use out-of-state circulators to strategically bring lawsuits in the states still holding on to residency requirements.

C. Defending Against New Residency Restrictions

Some states are considering new residency requirements for petition circulators. These proposals have gained momentum in states where voters have repeatedly used the initiative process to bypass the legislature on major political issues. Voters, activists, and politicians should oppose these proposals.

In Florida, after several years of attacks on the initiative process, Republicans are currently advancing a residency requirement in the state legislature.²⁰³ Republicans have tried several approaches to restrict the initiative process after recent initiatives—some successful and others not—have proposed expanding felon voting rights, marijuana legalization, and abortion rights, among other issues.²⁰⁴ Nonresident petition circulators have been one target of efforts to restrict Florida’s initiative process. The state’s Office of Election Crimes & Security (“OECS”) has proposed implementing residency requirements and targeted individual non-resident circulators. Created by Republican Governor Ron DeSantis in 2022, OECS conducts preliminary criminal investigations on election matters, refers those investigations to law enforcement for arrest and prosecution, and issues reports and press releases highlighting arrests and proposals for election reform.²⁰⁵ OECS’s 2024 report devoted hundreds of pages to detailing arrests and charges for petition fraud allegations, many of them related to the state’s 2024 initiative that would have strengthened abortion rights.²⁰⁶ The report highlighted nonresident petition circulators as one of several problematic areas in need of stricter regulations.²⁰⁷ Following the arrest of a Georgia resident for alleged petition violations, the office featured the circulator’s out-of-state residence prominently in the headline of a press release.²⁰⁸

Following the 2024 report, Governor DeSantis kicked off his 2025 legislative agenda with an initiative reform proposal so restrictive that it would essentially eliminate all petition circulation in public places, from residents and nonresidents alike.²⁰⁹ Petitions could either be signed at a government office or a Florida resident could bring a petition to their Florida resident family members to sign.²¹⁰

The Republican legislature quickly rejected this clearly unconstitutional proposal, but is now advancing a counterproposal that limits petition circulators to Florida residents.²¹¹ The proposal would not only impose a residency requirement, it would also require that petition circulators undergo a background check and that petition sponsors place a one million dollar bond.²¹² The proposal faces significant opposition, including overwhelming testimony against it at committee hearings, but nonetheless continues to advance with Republican support.²¹³

Both DeSantis’s proposal and the legislature’s counterproposal would clearly violate the First and Fourteenth Amendments under the Meyer-Buckley standard. As the legislature’s proposal advances, Florida voters should be aware that politicians in the state, including the governor and legislative leaders, would like to severely restrict their right to participate in the initiative process.

In Missouri, Republican legislators have introduced several bills that would create a slew of restrictions on the initiative process, including a new residency requirement.²¹⁴ In recent years, Missouri voters have approved marijuana legalization, paid sick leave, Medicaid expansion, and increasing the minimum wage via initiative, and the residency requirement is one of many proposals pending in the state legislature to make qualifying an initiative for the ballot more difficult.²¹⁵

In North Dakota, a 2024 ballot measure referred to voters by the legislature would have added a new requirement that petition circulators be registered to vote in North Dakota.²¹⁶ This clearly would have violated the precedent set in Buckley, but voters defeated the proposal.²¹⁷

In Oklahoma, the majority-Republican State Senate recently passed a bill that included new residency and voter registration requirements for initiative petition circulators.²¹⁸ The bill would also “require that no more than 10% of signatures on an initiative petition could come from a county where 400,000 or more people reside.”²¹⁹ These restrictions come after successful initiatives legalized marijuana in the state and expanded Medicaid, while an initiative scheduled for 2026 would raise the statewide minimum wage to fifteen dollars an hour if passed.²²⁰ The bill’s author, State Senator David Bullard, was explicit about the political motivations for restricting the initiative process, when he asked on the Oklahoma Senate floor, “[w]hy would we sit back and watch these leftist organizations march into our state, change our laws and fight for the status quo so they can continue to do more of that?”²²¹ Bullard’s solution is to make the democratic process less accessible to everyone, including Oklahoma residents.

D. Expanding “Core Political Speech” Under Meyer-Buckley

Turning back to the legal standard used by courts to assess residency requirements, the definition of core political speech should be understood and applied expansively to protect voters’ First Amendment rights. Specifically, courts should understand regulations that severely restrict civic participation in initiative campaigns to also necessarily severely restrict free speech. This would further bolster the already strong case law supporting the unconstitutionality of residency requirements, and it would recenter the importance of community and civic participation in other free speech cases.

Most circuit courts that have struck down residency requirements have focused on how the regulation restricts the petitioning process, but limitations to broader public discourse are just as significant. In a challenge to a residency requirement, a court first asks whether the regulation is a “severe restriction on core political speech.”²²² In Buckley, and in the subsequent case law from circuit courts, there has been a strong focus on the act of petitioning as core political speech.²²³ In Meyer, however, the Court also recognized the “statewide discussion” after ballot access was achieved, and a full campaign ensued, as core political speech.²²⁴ The regulation at issue in Meyer (itself not a residency requirement) was held to limit free speech because it made qualifying for the ballot substantially more difficult, thus limiting public discourse on issues important to the public.²²⁵ The Court recognized that “securing of sufficient signatures to place an initiative measure on the ballot is no small undertaking,” and that further restrictions on qualifying initiatives for the ballot “reduce[e] the total quantum of speech on a public issue.”²²⁶ Election-related speech that happens after ballot access is achieved, whether from an official campaign or discussion among neighbors or otherwise, is core political speech and should be incorporated into courts’ understanding of the Meyer-Buckley standard. The Court in Buckley and the circuit courts have been correct to recognize circulating petitions as core political speech, but there has not been enough focus by litigators and courts on Meyer’s broader definition of core political speech. If ballot access is unnecessarily impeded, then the free speech that would have occurred after a successful petition—both sides of a campaign making their pitch to voters, neighbors discussing the issue, and communities organizing around them—has been stopped before it could even begin.

Additionally, placing an initiative on the ballot has an “agenda-setting” power locally and in national policy debates.²²⁷ Having an issue on the ballot, even if it loses, can push the issue forward in public consciousness or make it a higher priority for legislators.²²⁸ Examples in recent history include initiatives against nuclear power and the Vietnam War in the 1970s, as well as initiatives relating to gay marriage and increasing the minimum wage in the past two decades.²²⁹ Even when these initiatives did not pass, they played an important role in First Amendment-protected public discourse among voters and in the media.²³⁰ Residency requirements limit these debates by unnecessarily restricting initiative ballot access.

Another reason to broaden the “core political speech” definition is that an emphasis on whole campaigns and overall civic participation would better reflect the realities of modern campaigning.²³¹ Petitioners collecting signatures are often more focused on reaching a numeric goal than having policy debates, but their petitioning enables a broader debate to occur once an issue is on the ballot.²³² Even though petitioning remains a fundamental right, most First Amendment-protected speech around an issue that has been placed on the ballot comes after the petitioning process.

In other contexts, the Supreme Court has been willing to recognize a very broad definition of free speech in political campaigns. For instance, beginning with Buckley v. Valeo, which laid the historical foundation for the Meyer-Buckley standard, the Court’s rulings developed over several decades to eventually recognize money as speech in political campaigns.²³³ Critics of our current campaign finance regime might respond negatively to a proposal that would make the definition of free speech in campaigns even broader than it already is. Those critics are right to be alarmed by the billions of dollars currently flooding elections. But it is not necessary to embrace the Supreme Court’s campaign finance jurisprudence in order to agree that “statewide discussion,” as an important aspect of political speech, should be protected from restrictive ballot access regulations. Legislators who implemented residency requirements as a preventative measure against out-of-state special interests undermining the initiative process had the right diagnosis, but residency requirements are the wrong treatment.²³⁴

It is possible to limit the money spent in elections while also allowing nonresidents to circulate petitions.²³⁵ Although it is beyond the scope of this Article to address specific proposed campaign finance reforms, under the Meyer-Buckley standard courts have discretion to recognize limiting campaign spending and contributions as a compelling state interest that overcomes strict scrutiny. This is even possible while holding that residency requirements should not survive strict scrutiny. When millionaires, billionaires, and corporations can sink tens of millions into an initiative, are their speech rights valued over those of people with nothing to spend? When some voters have millions of dollars to contribute and others have nothing, unlimited election spending is free speech in the same way that it is illegal for both “rich and poor alike to sleep under the bridges.”²³⁶ But the millionaire and the poor voter alike can circulate petitions and advocate for or against an initiative. Limiting access to the ballot, and who can circulate petitions, cuts off an important means of democratic participation. Just as significantly, it cuts off a way for communities to debate important issues that affect them.

Expanding the definition of “core political speech” within the Meyer-Buckley standard would not eliminate all hurdles to ballot access, nor should it. It would refocus the analysis of election regulations toward the effects on whole campaigns, communities impacted by ballot proposals, and broader political discourse. At the same time, it would not eliminate reasonable election regulations, because the Meyer-Buckley test is already designed to incorporate compelling state interests in regulating elections. Legislators and courts still must balance necessary regulations versus protected rights, but courts should emphasize a holistic view of initiative campaigns, in addition to the weight already placed on preserving the right to petition.

The Cop City case study offers the perfect example of the anti-democratic impact when a court does not fully consider how a residency requirement impacts the right of a whole community to participate in the political process. The residency requirement and the Eleventh Circuit’s delays are denying every individual in Atlanta’s, and even in neighboring Dekalb County’s, voice in the political process. Atlanta’s supposed interest in self-governance has ironically denied Atlanta voters the ability to directly voice their support or opposition for the City’s Cop City plans. Despite the collection of about 116,000 signatures—representing over twenty percent of Atlanta’s total population, and more people than voted in its last mayoral election, far above the required fifteen percent of registered voters—local politicians and federal courts have denied voters and local communities the right to debate the issue and to campaign for one side or the other.²³⁷ In every jurisdiction where a residency requirement still stands—and in other jurisdictions with other overly restrictive election regulations—voters have similarly been denied the right to circulate petitions and, in a broader sense, the right to participate in politics and self-governance.

Conclusion

Residency requirements are one of many procedural battlegrounds on which highly contested political fights are taking place. In states deciding issues including abortion, the minimum wage, and marijuana legalization, expanding the pool of petition circulators by eliminating residency requirements could have a big impact on statewide policies and national politics.²³⁸ State governments must regulate elections, but residency requirements go too far in limiting free speech and political participation. A narrowly tailored solution to this tension—that is, requiring circulators to submit to a jurisdiction’s subpoena power—has already been crafted by the Tenth Circuit and implemented in multiple states. Additionally, courts should more fully embrace a view of “core political speech” that protects political participation by ordinary citizens, not just campaign expenditures and big donors. State governments and federal courts are moving in the direction of repealing or invalidating residency requirements. This trend, supported by principles of democracy and civic participation as well as ballot access case law, should continue. Legislatures and courts should eliminate these requirements and make political participation more accessible to voters.

In Atlanta, political and legal institutions have recently traveled in the opposite direction, shutting voters out of political debate and decision-making. In 2020, buoyed by support of activists and organizers in the wake of the largest racial justice protests in U.S. history, Joe Biden narrowly won Georgia.²³⁹ In 2024, having shut many of those same activists and organizers out of the local political process, Democrats lost the state and the election.²⁴⁰ This dramatic change is symbolic of the choice facing courts, political parties, and state officials. If Atlanta Democrats had not opposed the Cop City referendum, the same organizers who had mobilized a small army of petition circulators to collect approximately 116,000 signatures would have been organizing to turn out the vote. By fighting against increased political participation, Atlanta Democrats made their choice. By delaying its decision even while construction continued, the Eleventh Circuit made their choice, too, although there is still time to issue a ruling in line with the strong majority opinion on the issue. Outside of Atlanta, state legislators and litigators also have choices to make about whether to shut people out of the political process or to protect voters’ free speech rights by overturning residency requirements.

Ultimately, the choice is this: who gets to participate in our democracy, and which voices are valued? Will a powerful few take the tools away from voters that allow them to directly debate and vote on policy, or will the initiative process serve its intended purpose, as the vehicle for voters to express their will when legislatures do not act?

References:

1
November General Election Official Results, Ga. Sec’y of State (Jan. 7, 2025), https://results.sos.ga.gov/results/public/Georgia/elections/2024NovGen [https://perma.cc/3LEH-2BV6].
2
Piper French, Faced with “Cop City” Referendum Push, Atlanta Changes Up Its Election Rules, Bolts Mag. (Feb. 9, 2024), https://boltsmag.org/cop-city-referendum-signature-matching-atlanta [https://perma.cc/Q9WZ-6CU4].
3
Id.
4
Id.
5
Jonathan Limehouse, Ping Pong Balls Thrown at Atlanta City Council Members in Protest of Mayor, ‘Cop City’, USA Today (Sept. 17, 2024, 5:05 PM), https://www.usatoday.com/story/news/nation/2024/09/17/atlanta-cop-city-protests-ping-pong/75264210007 [https://perma.cc/GPC9-86WH].
6
Jessica Washington, Atlanta Democrats Blocked the Cop City Referendum—and Alienated a Voter Turnout Operation, The Intercept (Nov. 4, 2024), https://theintercept.com/2024/11/04/atlanta-cop-city-voter-turnout-democrats [https://perma.cc/3AY2-HHBM] (“There is overlap between the organizers who knocked on doors for the Cop City referendum and those who helped elect Democrats in 2020, in the wake of the racial justice uprising, said Glaze. ‘The reason we won Georgia in 2020 is that post the uprising, it activated a whole bunch of new voters that stayed and voted. . .’ said Glaze. Had the referendum been on the ballot, he argued, ‘we would have had a real success story that we could have called pro-democracy.’”).
7
See, e.g., Jamelle Bouie, When It Comes to Disdain for Democracy, Trump Has Company, N.Y. Times(Nov. 17, 2023), https://www.nytimes.com/2023/11/17/opinion/republicans-abortion-ohio-wisconsin.html [https://perma.cc/C33M-AU3B]; Alex Rogers and Daniella Diaz, Senate Republicans Block Democrats’ Voting and Elections Bill, CNN (Oct. 20, 2021), https://www.cnn.com/2021/10/20/politics/senate-freedom-to-vote-act-republicans/index.html [https://perma.cc/3JXH-C8M6]; Corey Robin, Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution., Politico (Jan. 5, 2022), https://www.politico.com/news/magazine/2022/01/05/democracy-january-6-coup-constitution-526512 [https://perma.cc/6NP5-4TLS]; Grayson Kuehl, The Crisis of Minority Rule in American Democracy, 22 Geo. J. L. & Pub. Pol’y 337 (2024).
8
See, e.g., Doug Richards, City Won’t Count Signatures on Public Safety Training Center Petitions, 11 Alive (Sept. 11, 2023), https://www.11alive.com/article/news/local/stop-cop-city-petition-for-referendum/85-6fdbf2d6-136f-42eb-bd63-2e1c8086eafa [https://perma.cc/X4SN-TJWQ].
9
Complaint, Baker v. Atlanta, 662 F. Supp. 3d 1308 (N.D. Ga.) (2023) (No. 1:23-cv-02999-MHC).
10
See infra Part II.A.
11
Id.
12
Id.
13
See, e.g., Trends Watcher, Ballot Initiative Strategy Ctr., https://ballot.org/trends-watcher [https://perma.cc/C267-LU6P].
14
Meyer v. Grant, 486 U.S. 414, 422–23 (1988).
15
See, e.g., Anna Skiba-Crafts, Conditions on Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, 107 Mich. L. Rev. 1305, 1308–09 (2009).
16
Id.
17
Id.; see also How to Qualify an Initiative, Cal. Sec’y of State (last visited Feb. 5, 2025), https://www.sos.ca.gov/elections/ballot-measures/how-qualify-initiative [https://perma.cc/W79H-ACTK]. California, for example, requires almost 550,000 signatures to place an initiative statute on the ballot and over 875,000 to place an initiative constitutional amendment on the ballot.
18
See, e.g., John Gildersleeve, Editing Direct Democracy: Does Limiting The Subject Matter Of Ballot Initiatives Offend The First Amendment?, 107 Colum. L. Rev. 1437, 1463–68 (2007).
19
See, e.g., John G. Matsusaka, The Eclipse of Legislatures: Direct Democracy in The 21st Century, 124 Pub. Choice 157, 157–77 (2005).
20
See, e.g., Charles Postel, American Populism, 1876–1896, N. Ill. Univ. Digit. Libr., https://digital.lib.niu.edu/illinois/gildedage/populism [https://perma.cc/94X4-GF52].
21
Id.
22
Cody Hoesly, Reforming Direct Democracy: Lessons From Oregon, 93 Calif. L. Rev. 1191, 1193–94 (2005).
23
Bill Minor, Initiative/Referendum Drive Moves Along, Biloxi Sun Herald, Feb. 18, 1990, at 14, https://www.newspapers.com/article/sun-herald/104031240 [https://perma.cc/6PR6-UY7K].
24
Julie Carr Smyth, Ohio Voters Enshrine Abortion Access in Constitution in Latest Statewide Win for Reproductive Rights, Assoc. Press (Nov. 7, 2023, 11:41 PM), https://apnews.com/article/ohio-abortion-amendment-election-2023-fe3e06747b616507d8ca21ea26485270 [https://perma.cc/C44G-427F].
25
Id.
26
Paula M. Lantz, The Role of State Ballot Initiatives in Abortion Policymaking Has Peaked, Milbank Mem’l Fund (Dec. 14, 2024), https://www.milbank.org/quarterly/opinions/the-role-of-state-ballot-initiatives-in-abortion-policymaking-has-peaked [https://perma.cc/Q9M7-J9XU].
27
Id.
28
See, e.g., Hoesly, supra note 22.
29
See, e.g., Glenn Daigon, Can Democrats Ride Ballot Initiatives to Victory?, The Progressive (Aug. 19, 2024), https://progressive.org/magazine/can-democrats-ride-ballot-initiatives-to-victory-daigon-20240819 [https://perma.cc/CX8G-GCPK].
30
Id.
31
See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
32
See, e.g., Jennifer S. Senior, Expanding the Court’s First Amendment Accessibility Framework for Analyzing Ballot Initiative Circulator Regulations, 1 U. Chi. Legal F. 529, 531–32 (2009).
33
Robin E. Perkins, A State Guide to Regulating Ballot Initiatives: Reevaluating Constitutional Analysis Eight Years After Buckley v. American Constitutional Law Foundation, 2007 Mich. St. L. Rev. 723, 728–734 (2007).
34
Id.; see Gildersleeve, supra note 18, at 1445–46 (2007).
35
See, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983).
36
Id. at 788 (“We have recognized that, ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends. Nevertheless, the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.”) (internal citation omitted).
37
Meyer v. Grant, 486 U.S. 414, 420 (1988) (“[T]he Court of Appeals rejected an argument . . . that since Colorado had no obligation to afford its citizens an initiative procedure, it could impose this condition on its use. Having decided to confer the right, the State was obligated to do so in a manner consistent with the Constitution because . . . this case involves ‘core political speech’ . . . we fully agree with the Court of Appeals’ conclusion.”).
38
Id.
39
See, e.g., Williams v. Rhodes, 393 U.S. 23, 30–31 (1968) (“In the present situation the state laws place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.”).
40
Anderson, 460 U.S. at 788.
41
See, e.g., Grant, 486 U.S. at 422–23; Skiba-Crafts, supra note 15.
42
Senior, supra note 32, at 538–40.
43
See, e.g., Jessica A. Levinson, Taking the Initiative: How to Save Direct Democracy, 18 Lewis & Clark L. Rev. 1019, 1028–29, 1049–55 (2014).
44
Id.
45
Meyer v. Grant, 486 U.S. 414, 422–23; see also, Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182 (1999).
46
Meyer, 486 U.S. at 426–428; see also Buckley, 525 U.S. at 195, 199; see also 525 U.S. at 206–08 (Thomas, J., concurring).
47
Id.
48
Meyer, 486 U.S. at 421–22 (“The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. . . . This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as “core political speech.”).
49
Id.
50
Id. at 420. There has been some discussion in courts and journals as to whether “exacting scrutiny” in Meyer and “strict scrutiny” have distinct meanings. There is no general agreement on this. In this Article, I will use them interchangeably, as the Supreme Court did in Buckley v. Am. Const. L. Found., Inc. Whether they are slightly different or synonymous does not change the two-step approach of first analyzing the degree of severity of the free speech restriction and then asking whether the government provided a sufficient justification for that restriction. See, e.g., Ryan A. Partelow, Decoding the “Sphinx-Like Silence”: State Residency, Petition Circulation, and the First Amendment, 86 Fordham L. Rev. 2553 (2018) (arguing that exacting scrutiny is a lower level of scrutiny than strict scrutiny, and that exacting scrutiny is the proper level of scrutiny for residency requirements in initiative ballot access).
51
Meyer, 486 U.S. at 422–23.
52
Id. at 426–27.
53
This includes regulations not at issue in either case, as discussed in detail in the next Section. Id. at 428.
54
Id. at 425.
55
Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 186 (1999).
56
Id.
57
Id.
58
See, e.g., Jessica A. Levinson, Taking the Initiative: How to Save Direct Democracy, 18 Lewis & Clark L. Rev. 1019, 1049–55 (2014).
59
See, e.g., Partelow, supra note 50.
60
See infra Section II.
61
525 U.S. at 197 (Buckley “did not challenge Colorado’s right to require that all circulators be residents . . . assuming that a residence requirement would be upheld as a needful integrity-policing measure—a question that this Court, like the Tenth Circuit, has no occasion to decide because the parties have not placed the matter of residence at issue—the added registration requirement is not warranted.”).
62
See Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001).
63
Id.
64
Id.
65
See infra Part II.A.
66
See, e.g., Chandler v. City of Arvada, Colorado, 292 F.3d 1236, 1244 (10th Cir. 2002); see also Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008); Pierce v. Jacobsen, 44 F.4th 853, 863 (9th Cir. 2022).
67
Id.
68
See, e.g., 545 F.3d at 475 (“There appears to be little reason to limit Buckley’s holding to initiative-petition circulators. As the Supreme Court noted: ‘Initiative-petition circulators also resemble candidate-petition signature gatherers . . . for both seek ballot access.”).
69
See, e.g., Krislov v. Rednour, 226 F.3d 851, 855 (7th Cir. 2000).
70
Initiative and Referendum Processes, Nat’l Conf. of State Legislatures (Sept. 23, 2024), https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-processes; Richard Winger, 2024 Presidential Petitioning, Ballot Access News (Feb. 2024), https://ballot-access.org/2024/02/28/february-2024-ballot-access-news-print-edition [https://perma.cc/48EA-5MGE].
71
See generally Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001); Chandler, 292 F.3d 1236 (10th Cir. 2002).
72
Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008); Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008).
73
Chandler, 292 F.3d at 1233–34.
74
Id. at 1244.
75
Id.
76
Id. at 1238–39.
77
Id.
78
Id. at 1243 (quoting Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 194 (1999)) (quotations omitted).
79
Id. at 1240.
80
Id.
81
Chandler v. City of Arvada, Colo., 233 F. Supp. 2d 1304, 1312–13 (D. Colo. 2001) (“Chandler I”), aff’d in part, rev’d in part, 292 F.3d 1236 (10th Cir. 2002) (“Chandler II”)
82
Chandler II, 292 F.3d at 1243.
83
Chandler I, 233 F. Supp. 2d at 1307–08.
84
Id. at 1314.
85
Chandler II, 292 F.3d at 1245.
86
Id. at 1243.
87
Id. at 1242.
88
Id. at 1241.
89
Id. at 1243–44.
90
Id. at 1244.
91
Id.
92
Id.
93
Id. (quoting Meyer v. Grant, 486 U.S. 414, 424 (1988)) (quotations omitted).
94
Id.
95
Yes On Term Limits, Inc. v. Savage, 550 F.3d 1023, 1029–1030 (10th Cir. 2008).
96
Id.
97
Id.
98
Pierce, 44 F.4th at 863.
99
See Nader v. Blackwell, 545 F.3d 459, 475 (6th Cir. 2008); see also Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443–45 (6th Cir. 2016) (In a case that hinged on, but did not directly address, the initiative circulator residency requirement issue, the Sixth Circuit held that the Ohio Secretary of State could reasonably understand Ohio’s post-Blackwell residency requirement to be constitutional under the Meyer-Buckley standard. After Blackwell, the legislature kept the residency requirement but eliminated the registration requirement, and the court pointed to the circuit split between the Tenth and Eighth Circuits to show, without actually ruling on the issue, that it cannot be assumed they would rule one way or the other. However, the Sixth Circuit’s only direct ruling on a residency requirement remains Blackwell, in which the requirement was held to violate the First Amendment under the Meyer-Buckley standard.).
100
We the People PAC v. Bellows, 40 F.4th 1 (1st Cir. 2022); Wilmoth v. Sec’y of New Jersey, 731 F. App’x 97 (3d Cir. 2018).
101
Arsenault v. Way, 539 F. Supp. 3d 335, 348 (D.N.J. 2021); Consent Order and Judgment, We the People PAC v. Bellows, No. 1:20-cv-00489-JAW, at *88 (D. Me. Feb. 9, 2023).
102
Wilmoth, 731 F. App’x at 99.
103
Id. at 103–04.
104
Id.
105
Id.
106
Id. The Court did not use the phrase “Meyer-Buckley,” but instructed the District Court to apply the same strict scrutiny analysis as described.
107
Id. at 103–04.
108
Wilmoth v. Sec’y of New Jersey, 731 F. App’x 97, 99 (3d Cir. 2018).
109
Id. at 103 (“Having determined that strict scrutiny applies, the burden now shifts to New Jersey to prove (1) that its stated interests in upholding the constitutionality of N.J. Stat. Ann. § 19:23-11 are compelling and (2) that the statute is narrowly tailored to advance those interests.”).
110
Arsenault v. Way, 539 F. Supp. 3d 335, 348 (D.N.J. 2021).
111
Id. at 347.
112
Id. at 348.
113
We the People PAC, 40 F.4th at 19–21; Consent Order and Judgment, We the People PAC v. Bellows, No. 1:20-cv-00489-JAW, at *88 (D. Me. Feb. 9, 2023).
114
We the People PAC, 40 F.4th at 4.
115
Id.
116
Id. at 19–21.
117
Consent Order and Judgment, We the People PAC v. Bellows, No. 1:20-cv-00489-JAW, at *88 (D. Me. Feb. 9, 2023).
118
Lerman v. Bd. of Elections in New York, 232 F.3d 135 (2d Cir. 2000).
119
N.Y. Elec. Law § 6-132 (McKinney 1998), invalidated by Lerman v. Bd. of Elections in City of New York, 232 F.3d 135 (2d Cir. 2000).
120
Lerman, 232 F.3d 135 at 150.
121
Id.
122
Id.
123
226 F.3d at 860.
124
Id.
125
Libertarian Party of Virginia v. Judd, 718 F.3d 308, 318–19 (4th Cir. 2013).
126
Id.
127
Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 617 (8th Cir. 2001); Michael O’Rear, Do You Have A Moment to Discuss My Residency?: State Residency Requirements and Ballot Integrity Considerations in Petition Circulation, 109 Iowa L. Rev. 885, 898–99 (2024).
128
Jaeger, 241 F.3d at 617 (“[T]he regulation does not unduly restrict speech.”).
129
Ryan A. Partelow, Decoding the “Sphinx-Like Silence”: State Residency, Petition Circulation, and the First Amendment, 86 Fordham L. Rev. 2553, 2575–76 (2018).
130
Jaeger, 241 F.3d at 617.
131
Id.
132
Id.
133
Id.
134
Id.
135
Id.
136
Id. at 616.
137
Id.
138
Supra note 127 and accompanying text.
139
The Eighth Circuit has returned to the issue once, in 2011, but dismissed the case for lack of standing rather than rule on the merits of plaintiffs’ constitutional claim against residency requirements. See Constitution Party of South Dakota v. Nelson, 639 F.3d 417 (8th Cir. 2011).
140
See, e.g., We the People PAC v. Bellows, 519 F. Supp. 3d 13, 46 (D. Me. 2021), aff’d, 40 F.4th 1 (1st Cir. 2022) (“The record shows that instances of fraud do occur, and limiting petition circulators to Maine residents makes it easier to monitor and prosecute petition fraud. The problem is the restriction is not narrowly tailored to the interest.”).
141
See Baker v. City of Atlanta, 1:23-cv-02999 (N.D. Ga, July 6, 2023), appeal docketed, No. 23-12469 (11th Cir., July 31, 2023).
142
French, supra note 2.
143
Atlanta City Council Approves Ground Lease Agreement for Public Safety Training Center, City of Atlanta (Sept. 9, 2021), https://www.atlantaga.gov/Home/Components/News/News/13827 [https://perma.cc/UHU2-RRQD].
144
Akira Rose, 5 Things You Need to Know About Cop City, Am. Friends Service Comm. (Jan. 15, 2024), https://afsc.org/news/5-things-you-need-know-about-cop-city [https://perma.cc/52FC-8WWD].
145
Charles Bethea, The New Fight Over an Old Forest in Atlanta, The New Yorker (Aug. 3, 2022), https://www.newyorker.com/news/letter-from-the-south/the-new-fight-over-an-old-forest-in-atlanta [https://perma.cc/E97C-STKG].
146
Id.
147
Id.
148
SRWA Files Complaint on Atlanta’s Comprehensive Development Plan, South River Watershed All. (June 10, 2024), https://www.southriverga.org/blog/srwa-and-others-file-complaint-on-atlantas-comprehensive-development-plan [https://perma.cc/U8QW-GPWQ]; Community Stakeholder Complaint (June 3, 2024), https://drive.google.com/file/d/19ka9987U4aMN5paNNrBEsBCapcEGD5xZ/view [https://perma.cc/DGH4-UQSE].
149
Chamian Cruz, Atlanta’s Massive Public Safety Training Facility at Center of ‘Cop City’ Protests Prepares to Open, WABE (Dec. 18, 2024), https://www.wabe.org/atlantas-massive-public-safety-training-facility-at-center-of-cop-city-protests-prepares-to-open [https://perma.cc/9EZC-RMP5].
150
See Colin Kelley, Mayor Dickens has ‘Newsflash’ for Cop City Protesters: ‘Training Center is Well on its Way’, GPB (Apr. 17, 2024, 4:08 PM), https://www.gpb.org/news/2024/04/17/mayor-dickens-has-newsflash-for-cop-city-protesters-training-center-well-on-its-way [https://perma.cc/PK76-KSEQ]; see also Eva Dickerson, How the Black Misleadership Class Provides Cover to Cop City, Hammer & Hope (2023), https://hammerandhope.org/article/andre-dickens-cop-city-black-politicians [https://perma.cc/Z26Y-KH4N].
151
Micah Herskind, A Constellation of Tactics, Inquest (Aug. 15, 2023), https://inquest.org/a-constellation-of-tactics [https://perma.cc/YR2E-2H4N]; see also Washington, supra note 6.
152
Bethea, supra note 145.
153
Autopsy Suggests “Cop City” Protester Sitting Cross-Legged, Hands Up, When Shot 14 Times by Police, Democracy Now! (March 14, 2023), https://www.democracynow.org/2023/3/14/cop_city_wrongful_death [https://perma.cc/749S-YMD4].
154
See, e.g., Family of Slain Cop City Protester Tortuguita Sues Three Police Officers, Democracy Now! (Dec. 24, 2024), https://www.democracynow.org/2024/12/24/headlines/family_of_slain_cop_city_protester_tortuguita_sues_three_police_officers [https://perma.cc/JEW5-EQGG]; see also Zak Kerr, While Dickens Launched His Reelection Campaign, Organizers Envisioned a Better Future for Atlanta, Atlanta Cmty. Press Collective (March 13, 2025), https://atlpresscollective.com/2025/03/13/while-dickens-launched-his-reelection-campaign-organizers-envisioned-a-better-future-for-atlanta [https://perma.cc/ZE8Z-NZX9].
155
Limehouse, supra note 5.
156
See, e.g., Stuart Schrader, Cop Cities Mock Cities, L.A. Rev. of Books (Oct. 12, 2024), https://lareviewofbooks.org/article/cop-cities-mock-cities [https://perma.cc/JVS6-7ML4].
157
See, e.g., Victoria Valenzuela, The Quiet Rollout of Cop Cities Across the US Meets a Growing Resistance, Waging Nonviolence (Sept. 9, 2024), https://wagingnonviolence.org/2024/09/the-quiet-rollout-of-cop-cities-across-the-us-meets-a-growing-resistance [https://perma.cc/8PDW-3PFV].
158
Pamela Kirkland, Atlanta City Council Approves Millions in Public Support for Controversial ‘Cop City’ Training Facility, CNN (June 6, 2023), https://www.cnn.com/2023/06/06/us/atlanta-cop-city-council-approves-public-funding/index.html [https://perma.cc/KPF3-5E5N]; see also City of Atlanta Statement on the Atlanta Public Safety Training Center Budget, City of Atlanta (June 2, 2023), https://www.atlantaga.gov/Home/Components/News/News/14700/672?backlist=%2fhome [https://perma.cc/DR6S-ZFWU].
159
“Vote to Stop Cop City” Coalition Launches Referendum Campaign to Put Cop City on the Ballot in Atlanta, Stop Cop City (June 7, 2023), https://web.archive.org/web/20230709160047/https://static1.squarespace.com/static/647cc0aa7f116632e76115bf/t/6480989681648104d9edd35b/1686149270370/Wednesday+6_7+Launch+Presser+Press+Packet.pdf [https://perma.cc/9VPR-XCGK].
160
See J. Bailey Hotard, Commissioners Shoot for the Moon, Citizens Land Among the Stars: The Supreme Court of Georgia Affirms Citizen Referendum Power in Camden County v. Sweatt, 75 Mercer L. Rev. 413 (2023); see also, French, supra note 2; Complaint, Baker v. City of Atlanta, No. 1:23-cv-02999-MHC (N.D.G.A. July 6, 2023).
161
Hotard, supra note 160.
162
Ga. Code Ann. § 36-35-3(2)(A) (2024).
163
Complaint, Baker v. City of Atlanta, No. 1:23-cv-02999-MHC (N.D.G.A. July 6, 2023).
164
Bethea, supra note 145.
165
Id.
166
Id.
167
Researching Urban Atlanta, Emory Librs., https://guides.libraries.emory.edu/main/sociology_atlanta [https://perma.cc/88KD-7XD6]; Complaint, Baker v. City of Atlanta, No. 1:23-cv-02999-MHC (N.D.G.A. July 6, 2023).
168
Complaint, Baker v. City of Atlanta, No. 1:23-cv-02999-MHC (N.D.G.A. July 6, 2023).
169
Baker, No. 1:23-cv-02999-MHC (N.D. Ga. July 27, 2023) (order granting preliminary injunction).
170
Id. at 5.
171
Id. at 7.
172
Id. at 9–17.
173
Id.
174
Id.
175
Id. at 30–32.
176
Id. at 9–12.
177
Id. at 9–10.
178
Id. at 15–16 (“[R]equiring signature gatherers to be residents of the City imposes a severe burden on core political speech and does little to protect the City’s interest in self-governance.”).
179
Baker v. City of Atlanta, No. 23-12469, at *1 (11th Cir. July 31, 2023).
180
Order, Baker v. City of Atlanta, No. 23-12469, at *36 (11th Cir. Sept. 1, 2023); Order, Baker v. City of Atlanta, No. 23-12469, at *37 (11th Cir. Sept. 1, 2023).
181
French, supra note 2.
182
Richards, supra note 8.
183
Id.
184
French, supra note 2.
185
Id.
186
Chandler v. City of Arvada, Colo., 292 F.3d 1236, 1238–43 (10th Cir. 2002).
187
See, e.g., John Charles Bradbury, Does Hosting a Professional Sports Team Benefit the Local Community? Evidence from Property Assessments, 191 Econ. of Governance 219, 227 fig.1 (2022).
188
History of the Atlanta Prison Farm Site, Atlanta Hist. Ctr. (May 30, 2023), https://www.atlantahistorycenter.com/app/uploads/2023/09/WEB_ATLPrisonFarm_Report_09222023.pdf [https://perma.cc/6GJE-KJPU]; Our Future City: The Atlanta City Design, Atlanta City Studio (2017), https://www.atlantaga.gov/home/showdocument?id=30594 [https://perma.cc/7WYU-9V2Z]; Bethea, supra note 145.
189
Transcript of Oral Argument, Baker v. City of Atlanta, No. 22-12469 (11th Cir. Dec. 14, 2023), https://www.ca11.uscourts.gov/oral-argument-recordings?title=&field_oar_case_name_value=Lisa+Baker&field_oral_argument_date_value%5Bmin%5D=&field_oral_argument_date_value%5Bmax%5D= [https://perma.cc/C375-QBAD].
190
2023 Scheduled Elections, Office of the Sec’y of State Elections Div. (Feb. 3, 2023), https://sos.ga.gov/sites/default/files/2023-02/2023%20Abbreviated%20Calendar_Final_Approved_V02.01.23_0.pdf [https://perma.cc/WAQ3-JZAU]; 2024 Scheduled Elections, Office of the Sec’y of State Elections Div. (Jan. 2, 2024), https://sos.ga.gov/sites/default/files/2024-01/2024%20Comp-Cal_State.01.02.24.Rev_._0.pdf [https://perma.cc/DK4C-W58J].
191
Order, Baker v. City of Atlanta, No. 23-12469, at *72 (11th Cir. Feb. 10, 2025).
192
See generally Appellant City of Atlanta’s Supplemental Brief, Baker v. Atlanta, No. 23-12469 (11th Cir. Feb. 24, 2025), ECF No. 73; see generally Appellee’s Supplemental Brief, No. 23-12469 (11th Cir. Feb. 24, 2025), ECF No. 74; see also Chart Riggall, Atlanta Says ‘Cop City’ Completion Moots Public Vote, Law360 (Feb. 25, 2025), https://www.law360.com/amp/articles/2302512 [https://perma.cc/27FV-GG6J].
193
See supra Part II.
194
Id.
195
Hotard, supra note 160.
196
Id.
197
See Residency Requirements for Ballot Initiative Signature Gatherers, Ballotpedia, https://ballotpedia.org/Residency_requirements_for_ballot_initiative_signature_gatherers [https://perma.cc/YA3L-7T7J] (last visited Mar. 30, 2025).
198
Id.
199
Michael O’Rear, Do You Have A Moment to Discuss My Residency?: State Residency Requirements and Ballot Integrity Considerations in Petition Circulation, 109 Iowa L. Rev. 885, 904 n.164 (2024).
200
Residency Requirements for Ballot Initiative Signature Gatherers, supra note 192.
201
South Dakota Federal Court Strikes Down Residency Requirement for Ballot Initiatives, League of Women Voters (Jan. 27, 2023), https://www.lwv.org/newsroom/press-releases/south-dakota-federal-court-strikes-down-residency-requirement-ballot [https://perma.cc/UW3K-4SFS]; S.B. 182, 99th Leg., Reg. Sess. (S.D. 2024).
202
Hoesly, supra note 22; Daigon, supra note 29.
203
Mitch Perry, Proposal to Make Vast Changes to Ballot Petition Process Draws Huge Opposition—But Still Advances, Fla. Phoenix (Mar. 6, 2025), https://floridaphoenix.com/2025/03/06/proposal-to-make-vast-changes-to-ballot-petition-process-draws-huge-opposition-but-still-advances [https://perma.cc/M984-RYF6].
204
A Quick Guide To Florida’s 2024 Constitutional Amendments, The James Madison Inst. (last visited Mar 30, 2025), https://jamesmadison.org/wp-content/uploads/2024_Amendment_Sheet-8.5×14-v02-web.pdf [https://perma.cc/HJ9N-R9ZU].
205
Florida Office of Election Crimes and Sec., https://dos.fl.gov/electionsecurity [https://perma.cc/89L7-99VD] (last visited Mar. 30, 2025).
206
See generally Annual Report to Legislature, Fla. Office of Election Crimes and Sec. (Jan. 15, 2025) (discussing initiative petition fraud related to the abortion initiative (23-07)); Florida Amendment 4, Right to Abortion Initiative (2024), Ballotpedia, https://ballotpedia.org/Florida_Amendment_4,_Right_to_Abortion_Initiative_(2024) [https://perma.cc/E5HN-D5QG] (last visited Mar. 30, 2025).
207
Annual Report to Legislature, supra note 206, at 5 (“Florida has no state residency requirement for paid petition circulators. Consequently, many . . . paid circulators have few if any ties to Florida and list addresses in other, sometimes faraway, states. Some appear to be transient, going from state to state to do similar work. In fact, two paid circulators arrested for petition fraud in furtherance of Initiative Petition 23-07 also face charges for petition fraud in Kansas after leaving Florida. The out-of-state residency of key suspects and witnesses has made for significant investigative challenges.”) (internal citations omitted); Romy Ellenbogen, Florida Eyes Further Cracking Down on Ballot Initiative Process, Tampa Bay Times (Oct. 17, 2024), https://www.tampabay.com/news/florida-politics/elections/2024/10/17/florida-ballot-initiative-amendment-4-abortion-desantis [https://perma.cc/W3L6-C67U].
208
FDLE Announces Arrest of Georgia Man for Petition Fraud, Florida Dep’t of L. Enf’t (Sept. 12, 2024), https://www.fdle.state.fl.us/News/2024/September/FDLE-announces-arrest-of-Georgia-man-for-petition [https://perma.cc/NGU6-2JEK].
209
Romy Ellenbogen, DeSantis’ Proposals for Florida’s Ballot Initiative Process Could Effectively End It, Tampa Bay Times (Jan. 21, 2025), https://www.tampabay.com/news/florida-politics/2025/01/21/desantis-florida-petition-amendment-ballot-initiative-change-signature [https://perma.cc/FL32-JSJY]; Aaron Parseghian, DeSantis Calls for Overhaul of Florida’s Ballot Initiative Process, WTSP (Jan. 23, 2025), https://www.wtsp.com/article/news/politics/governor-desantis-overhaul-ballot-initiative-process/67-37988064-c77e-420d-8cf9-c20ffd5cee25 [https://perma.cc/K9K8-QPVH].
210
An Act Relating to Ballot Initiatives, S.P.B. 7016, 1st Special Sess. (Fla. 2025), https://www.flgov.com/eog/sites/default/files/pdf/Ballot%20Initiatives%20Draft%20Bill.pdf [https://perma.cc/U8QH-89WK].
211
John Kennedy, GOP-led Legislature Refuses DeSantis Bid to Hinder Citizen-Led Ballot measures, Tallahassee Democrat (Jan. 27, 2025), https://www.tallahassee.com/story/news/local/state/2025/01/27/desantis-bid-to-overhaul-ballot-initiatives-snubbed-by-gop-legislative-leaders/77972509007 [https://perma.cc/4WEG-JTAR].
212
Forrest Saunders, Florida Lawmakers Push for Stricter Petition Rules in Wake of Fraud Allegations, WFTS Tampa Bay (Mar. 6, 2025), https://www.abcactionnews.com/news/state/florida-lawmakers-push-for-stricter-petition-rules-in-wake-of-fraud-allegations [https://perma.cc/DLD5-HPGX].
213
Initiative Petitions Proposing an Amendment to the State Constitution, S.B. 7016, 2025 Sess. (Fla. 2025) (last visited Mar. 30, 2025), https://www.flsenate.gov/Session/Bill/2025/7016/?Tab=BillHistory [https://perma.cc/4ANP-EKCK]; see also The Center Square, Florida Lawmakers Aim to Rein in Ballot Initiative Process, The Capitolist (Mar. 11, 2025), https://thecapitolist.com/37004-2 [https://perma.cc/JAJ7-DY8U].
214
H.B. 575, 103rd Gen. Assemb., 1st Reg. Sess. (Mo. 2025); see also Changes in 2025 to Laws Governing Ballot Measures, Ballotpedia (last visited Feb. 12, 2025), https://ballotpedia.org/Changes_in_2025_to_laws_governing_ballot_measures#Legislation_proposed_in_2025 [https://perma.cc/KL96-M2UC] (Proposed restrictions include geographic distribution requirements for signature collection, new identification requirements for circulators, and criminalizing petition fraud as a misdemeanor with a potential $10,000 fine, among others.).
215
Scott Hudson, Missouri GOP Renew Push to Make it Harder for Voters to Amend the State Constitution, News From The States (Mar. 4, 2025), https://www.newsfromthestates.com/article/missouri-gop-renew-push-make-it-harder-voters-amend-state-constitution [https://perma.cc/23PE-T838] (discussing recent ballot initiatives in Missouri and the proposal to increase signature distribution requirements for ballot access for voter-initiated constitutional amendments).
216
Measure 2: Ballot Measure Reform, N.D. Monitor (last visited Mar. 30, 2025), https://northdakotamonitor.com/ballot-measures/measure-2 [https://perma.cc/C9PK-TWTK].
217
Official 2024 Election Results, NDVoices (last updated Mar. 30, 2025), https://results.sos.nd.gov/resultsSW.aspx?text=BQ&type=SW&map=CTY [https://perma.cc/6PDD-A9QJ].
218
S.B. 1027, 60th Leg., 1st Reg. Sess. (Okla. 2025), https://www.oklegislature.gov/BillInfo.aspx?Bill=SB1027&Session=2500 [https://perma.cc/PT24-5GGF]; see also Senate Floor Version Committee Substitute for Senate Bill No. 1027, S.B. 1027, 60th Leg., 1st Sess. (Okla. 2025), https://www.oklegislature.gov/cf_pdf/2025-26%20FLR/SFLR/SB1027%20SFLR.PDF [https://perma.cc/XC52-6M8E].
219
Nuria Martinez-Keel, Oklahoma Senate Passes Restrictions on Initiative Petition Process, Okla. Voice (Mar. 18, 2025), https://oklahomavoice.com/briefs/oklahoma-senate-passes-restrictions-on-initiative-petition-process [https://perma.cc/7E39-GNVM].
220
Id.
221
Id.
222
Meyer v. Grant, 486 U.S. 414, 422 (1988).
223
See, e.g., Chandler v. City of Arvada, Colo., 292 F.3d 1236, 1244 (10th Cir. 2002) (noting petitioning is “the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication”).
224
Gildersleeve, supra note 18.
225
Id. at 1463–68 (2007); see also Wirzburger v. Galvin, 412 F.3d 271, 276 (1st Cir. 2005) (“We do not find that there is any serious debate as to this point. A state initiative process provides a uniquely provocative and effective method of spurring public debate on an issue of importance to the proponents of the proposed initiative. The Supreme Court has made clear that the process involved in proposing legislation by means of initiative involves core political speech.”) (citing Meyer, 486 U.S. at 422).
226
Meyer, 486 U.S. at 423.
227
Gildersleeve, supra note 18, at 1463–68 (2007).
228
Id.
229
Id.
230
Id.
231
Richard J. Ellis, Signature Gathering In The Initiative Process: How Democratic Is It?, 64 Mont. L. Rev. 35, 74–75 (2003) (“The Court’s naivete about the initiative process was evident, too, in its idealized discussion of petition circulation.”).
232
Id. Buckley v. Valeo should not be confused with the similarly named Buckley v. American Constitutional Law Foundation, the latter being the Buckley of the Meyer-Buckley standard.
233
See, e.g., Deborah Hellman, Money Talks But It Isn’t Speech, 95 Minn. L. Rev. 953 (2011).
234
See, e.g., Ryan K. Manger, Buckley v. American Constitutional Law Foundation: Can the State Preserve Direct Democracy for the Citizen, or Will it be Consumed by the Special Interest Group?, 19 St. Louis U. Pub. L. Rev. 177 (2000).
235
For one proposed solution that attempts to square this circle, see Michael O’Rear, Do You Have A Moment to Discuss My Residency?: State Residency Requirements and Ballot Integrity Considerations in Petition Circulation, 109 Iowa L. Rev. 885, 898–99 (2024).
236
Anatole France, The Red Lily 95 (5th ed. 1916) (“At this task they must labour in the face of the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.”).
237
Quick Facts Atlanta City, Georgia, Census.gov (July 1, 2024), https://www.census.gov/quickfacts/fact/table/atlantacitygeorgia/PST045222 [https://perma.cc/RXY6-BQXY]; “Vote to Stop Cop City” Coalition Launches Referendum Campaign to Put Cop City on the Ballot in Atlanta (June 7, 2023); Washington, supra note 6.
238
See, e.g., Lauren Gilger, GOP Resolution Would Make Tips Exception to $18 Arizona Minimum Wage Initiative, KJZZ 91.5 (Mar. 26, 2024), https://kjzz.org/content/1875258/gop-resolution-would-make-tips-exception-18-arizona-minimum-wage-initiative [https://perma.cc/7E3K-PWZU]; see also Jack Healy, Kellen Browning & Michael Wines, With Abortion and the Border, Arizona Becomes a 2024 Political Hothouse, N.Y. Times (Apr. 29, 2024), https://www.nytimes.com/2024/04/29/us/arizona-abortion-border-2024-election.html [https://perma.cc/F7S7-NVKS].
239
Washington, supra note 6.
240
November General Election Official Results, supra note 1; French, supra note 2; Washington, supra note 6.

Uncategorized

Residency Requirements in Initiative Ballot Access: The Limits of First Amendment Rights and the Fight Against Atlanta’s ‘Cop City’

Introduction

I. Background on Ballot Initiatives, Ballot Access, and the Courts

A. Initiative Ballot Access Procedures and the First Amendment

B. Meyer and Buckley: The Supreme Court Standard for Initiative Ballot Access

II. Residency Requirements: Applying and Extending the Meyer-Buckley Standard

A. The Majority Position is that Residency Requirements Violate the First Amendment

1. Circuits That Have Struck Down Residency Requirements

2. Circuits That Have Remanded to District Courts That Struck Down Residency Requirements

3. Circuits That Have Struck Down Modified Residency Requirements

B. The Minority Position that Residency Requirements Are Not a Severe Restriction on First Amendment Rights

C. Case Study: Atlanta Cop City Referendum

III. Reforms to Residency Requirements

A. Reform via Legislation

B. Reform via Litigation

C. Defending Against New Residency Restrictions

D. Expanding “Core Political Speech” Under Meyer-Buckley

Conclusion

References:

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