Constitutional Law

Federal judge tosses Kan. ban on nonresident petition circulators

By By The Associated Press

WICHITA, Kan. ? A federal judge struck down as unconstitutional late last week a part of a Kansas law that prohibits nonresidents from circulating petitions within the state.

U.S. District Judge Sam Crow ruled Aug. 13 that the law violates the First Amendment and issued a permanent injunction prohibiting Secretary of State Chris Biggs from enforcing it.

The order comes after a lawsuit filed in April by the Constitution Party of Kansas. Also named as plaintiffs are Curt Engelbrecht, a Wichita member, and Mark Pickens, an Arizona man who works as a paid political petition circulator.

The Kansas attorney general?s office had joined with the plaintiffs in asking that the statute be ruled unconstitutional ? something Daniel Treuden, a Milwaukee attorney who represents the Constitution Party, called ?the responsible thing to do.?

The group has challenged similar statutes elsewhere, he said, but there are still many states with laws banning nonresidents from circulating election-related petitions.

?I am not sure every legislator who passed this law was thinking badly or had any bad intent when they passed it,? Treuden said. ?It is just that they violated the Constitution when they did it ? whether that be innocently or not.?

The Constitution Party is not a recognized political party in Kansas but is considered by the state to be a political action committee. The only four recognized party affiliations in Kansas are Democratic, Republican, Libertarian and Reform.

Among the issues raised in the lawsuit was the state requirement baring nonresidents from circulating ballot recognition petitions within the state. Pickens argued that the statute violated not only the First and 14th Amendment guarantees of free speech and association but also the federal commerce clause in limiting interstate commerce by banning out-of-state residents from working as paid petition circulators in Kansas.

The Kansas attorney general?s office referred any comment to the secretary of state?s office. Abbie Hodgson, a spokeswoman for the secretary of state?s office, said her office would not enforce the statute and planned to approach the Legislature next session about amending it to remove the in-state residency requirement.

?We looked at their lawsuit and looked at case law and we agreed with them that that statute was unconstitutional,? Hodgson said.

Engelbrecht did not respond to messages seeking comment in time for this story.

The order entered Aug. 13 addresses only the part of the lawsuit dealing with the residency requirement for circulating petitions in Kansas.

In the lawsuit, the Constitution Party of Kansas also contends that since it is not recognized by the state, its supporters and members cannot proclaim their affiliation with it when registering to vote and the group is not provided voter-registration information given to other political parties. The lawsuit claims that violates their rights to association and equal protection.

The group has won similar legal challenges to residency requirements for petition circulators in Idaho and South Dakota.

Other states with residency requirements for petition circulators include Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma and Wyoming.

On its website, the group says it was founded in 1992 when a coalition united to form the U.S. Taxpayer?s Party. Its name was changed in 1999. In 2008, the Constitution Party was on the ballot in 37 states. It says it is working to have ballot access in all 50 states by 2012.

In Kansas, the group says it needs to collect about 22,000 signatures to win official party recognition in the state.

Its platform on its website says the party opposes abortion and illegal immigration and open borders. It supports states? rights, the Second Amendment and limited government.

Full post as published by First Amendment Center on August 15, 2010 (boomark / email).