State Regulation of the Initiative Process: Buckley v. American Constitutional Law Foundation, Inc., et al. Page: 4 of 6
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requirement discouraged circulators from participating in the initiative process due to fears
of persecution stemming from the advocacy of controversial causes.5
In dealing with this issue, the Supreme Court was faced with a conflict between a
state's regulatory interest in the electoral process on one hand, and the First Amendment
right to anonymous political expression on the other. The Court previously had decided
cases which established a strong right to anonymous political speech, such as Talley v.
California, which dictated that a ban on all anonymous leafleting was violative of the First
Amendment.16 This ruling had been extended to encompass anonymous speech in the
electoral context in McIntyre v. Ohio Elections Comm'n."7 However, the Court had
established a general rule recognizing state power to regulate elections and ballot access,
and noted in McIntyre that a "limited identification requirement" might be permissible in
a given instance.18
At the appellate level, the Tenth Circuit gave great weight to prior cases dealing with
the right to anonymous political speech, ultimately concluding that the badge requirement
was unconstitutional.19 Specifically, the Tenth Circuit found that by requiring circulators
to reveal their identities at the exact moment of speech, the regulation stripped them of
their right to anonymous political expression at a time when reaction to the message is at
its most immediate and unreasoned. Such a severe infringement was deemed untenable,
particularly in light of the affidavit requirement of 1-40-111(2), which the Tenth Circuit
deemed sufficient to serve Colorado's asserted regulatory interests.20
The Supreme Court agreed with this determination, focusing its analysis on the
similarities between the case at hand and McIntyre v. Ohio Elections Comm'n. In
McIntyre, the Court had previously ruled that a prohibition on the distribution of
anonymous campaign literature was violative of the First Amendment.21 In comparing
McIntyre to the present case, the Supreme Court agreed with the Tenth Circuit's
determination that the circulation of a petition was similar to handbill distribution, stressing
that both activities involve direct communication. However, the Supreme Court went even
further, stating that the restraint imposed by the badge requirement was even more severe,
in that petition circulators engage in a more intensive interchange with citizens, thereby
increasing the chances of conflict. This factor led in large part to the Court's conclusion
that the "injury to speech is heightened for the petition circulator because the badge
requirement compels personal name identification at the precise moment when the
circulator's interest in anonymity is greatest."22 As such, the Court ruled that the badge
I1d. at 8.
16Talley, 362 U.S. 60 (1960).
17McIntyre, 514 U.S. 334 (1995).
18See Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997); McIntyre, 514 U.S. at 353.
19American Constitutional Law Foundation, Inc., et al., v. Meyer, 120 F.3d at 1102.
21Mclntyre, 514 U.S. 334 (1995).
21997 WL 7723 at 9.
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State Regulation of the Initiative Process: Buckley v. American Constitutional Law Foundation, Inc., et al., report, January 21, 1999; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc808458/m1/4/: accessed January 20, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.