## Facts

- Colorado enacted H.B. 09-1326, revising initiative and referendum petition rules, including a restriction on petition circulator compensation.
- Colo. Rev. Stat. § 1-40-112(4) made it unlawful to pay a circulator more than 20% of total compensation on a per-signature or per-petition-section basis, allowing only limited per-signature pay within a “hybrid” pay structure.
- Plaintiffs (initiative participants and organizations) brought a 42 U.S.C. § 1983 action against the Colorado Secretary of State challenging multiple provisions; a bench trial addressed the remaining claim targeting the hybrid compensation restriction.
- Evidence described three main groups of circulators: low-volume/high-validity professionals, medium-volume professionals, and high-volume itinerant professionals who travel between states and often depend on petitioning as primary income.
- The record indicated professional, itinerant circulators were important for large statewide drives and would be deterred from working in Colorado due to better earnings under per-signature regimes elsewhere.
- The court credited evidence that the hybrid scheme would force campaigns to hire more and less-experienced workers, reduce efficiency, and increase total campaign costs by at least 18%.
- Evidence showed little to no difference in signature validity between hourly-paid and per-signature circulators; invalidity was often associated with inexperience rather than compensation method.
- The State justified the restriction as an anti-fraud measure, asserting per-signature pay creates incentives to falsify signatures or evade legal requirements.

## Issues

1. What level of First Amendment scrutiny applies to Colorado’s restriction on how petition circulators may be compensated?
2. Whether the hybrid compensation restriction violates the First Amendment by significantly burdening initiative petition circulation relative to the State’s interest in preventing fraud.

## Decision

- The court entered judgment for plaintiffs on the challenged claim and held Colo. Rev. Stat. § 1-40-112(4) unconstitutional under the First Amendment.
- The court found the hybrid compensation restriction imposed a significant burden on core political speech by reducing access to effective professional circulators and increasing the cost and difficulty of qualifying measures for the ballot.
- The court held the State did not show the restriction materially and directly reduced fraud or was necessary given other existing anti-fraud tools.
- The court permanently enjoined enforcement of § 1-40-112(4) and related provisions used to enforce it, including related language in § 1-40-112(1).

## Legal Principles

- Initiative petition circulation is core political speech protected by the First Amendment because it involves advocating political change and discussing a measure’s merits.
- Under the Anderson–Burdick framework, courts weigh the character and magnitude of burdens on First Amendment rights against the State’s asserted interests and the extent the regulation makes those interests necessary to achieve.
- Regulations that significantly burden core political speech must be closely fitted to the asserted governmental interest; even when anti-fraud interests are important, the State must show the restriction directly and materially alleviates the identified harm.
- A compensation restriction that predictably reduces the pool of effective circulators and increases campaign costs can burden political speech by limiting the number and effectiveness of speakers in the petitioning process.
- The availability of less speech-restrictive anti-fraud measures (e.g., criminal penalties, verification procedures, and conduct regulations) weighs against upholding a broad compensation restriction lacking strong evidentiary support.

## Conclusion

The court invalidated Colorado’s 20% cap on per-signature compensation for petition circulators because it substantially burdened core political speech and was not adequately justified or narrowly fitted to the State’s anti-fraud interest, warranting a permanent injunction against enforcement.


Independence Inst. v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013)