Michael McConnell (federal appeals judge)

Yes on Term Limits v. Savage (2008)

See also: United States Court of Appeals for the 10th Circuit (Yes on Term Limits v. Savage, No. 07-6233)

McConnell served on the three judge panel in the Case of Yes on Term Limits v. Savage, which ruled in favor of Yes on Term Limits, Inc., reversing the decision of federal judge Tim Leonard in the United States District Court for the Western District of Oklahoma based in Oklahoma City who concluded that Oklahoma's residency law on initiative petitoners was constitutional in September of 2007 when the case was brought in Federal District court.^[3]

In the ruling that McConnell co-wrote along with the Presiding Appeals Judge for the case Michael R. Murphy (Tenth Circuit) and Senior Appeals Judge Monroe McKay, the ruling stated that:

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we (the 10th Circuit Court of Appeals) hold Oklahoma’s ban on nonresident circulators does not survive strict scrutiny analysis because it is not sufficiently tailored to further Oklahoma’s compelling interest.

The plaintiffs in the case Sherri Ferrell and Eric Rittberg were professional petition circulators that were professional petition circulators and the law impacted YOTL's effectiveness in imposing term limits because Ferrell nor Rittberg is a resident of Oklahoma which is considered to be a criminal violation of the law. In the ruling issued by the Tenth Circuit Court of Appeals, YOTL and Murphy wished to hire professional circulators, including Ferrell and Rittberg to aid in the signature gathering process. Ferrell and Rittberg claim they would work for YOTL if not for the ban on non-resident circulators.^[3]

Yes on Term Limits insisted on hiring the out-of state circulators because of a lack of professional circulators that are based in the State of Oklahoma.

The ruling stated also: In addition, YOTL contends that hiring professional, non-resident circulators is significantly more cost-efficient and effective than hiring and training resident circulators. This is so, they argue, because professional circulators do not have to go through the training process. In addition, they claim professional circulators have greater productivity due to prior experience with the difficulties of signature gathering and strong incentives to collect valid signatures in order to remain marketable in their field.^[3]

On the how the Oklahoma law on petition circulators from out of state violates the First Amendment the ruling states directly:

Because Oklahoma’s ban on non-resident petition circulators restricts First Amendment activity, this court must first ascertain the appropriate standard of scrutiny to apply. See Chandler, 292 F.3d at 1241. In Chandler v. City of Arvada, this court considered the validity under the First Amendment of a city ordinance banning non-residents of Arvada, Colorado, from circulating petitionswithin the city. Id. at 1241-44. We stated that “petition circulation is core political speech, because it involves interactive communication concerning political change,” and consequently, First Amendment protection for this activity is “at its zenith.” Id. at 1241 (quotations and alteration omitted). Therefore, strict scrutiny applies “where the government restricts the overall quantum of speech available to the election or voting process [such as] where thequantum of speech is limited due to restrictions on the available pool of circulators or other supporters of a candidate or initiative.” Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir. 2000).^[3]

Like the plaintiffs in Chandler, Plaintiffs here seek to participate in petition circulation, which involves core political speech. Id. at 1241; see also Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186 (1999). Also as in Chandler, the state government here is limiting the quantum of this speech through its residency requirements for petition circulators. Chandler, 292 F.3d at 1241-42. Thus, we agree with the district court that under our precedent, strict scrutiny is the correct legal standard under which to analyze Oklahoma’s ban on out of state petition circulators.

The district court did not address the other compelling interest proposed by Oklahoma, i.e., “restricting the process of self-government to members of its own political community.” Oklahoma correctly contends the Supreme Court has recognized a state’s interest in restricting the right to vote or hold office to residents. Supreme Court of N.H. v. Piper, 470 U.S. 274, 282 n.13 (1985) (“A State may restrict to its residents, for example, both the right to vote, and theright to hold state elective office.” (citation omitted)). Oklahoma, however, provides no case law supporting the proposition that states may restrict nonresidentspeech, such as petition circulation, simply because the speech may indirectly affect the political process through the solicitation of resident participation. Supreme Court precedent seems to indicate there is no compelling interest in restricting such speech. See Meyer v. Grant, 486 U.S. 414, 424-28 (1988) (holding Colorado’s ban on paid petition circulators unconstitutional and stating that while Colorado could wholly ban initiatives, it could not ban the speech of a class of circulators). To accept the wholesale restriction of the petition process to residents of Oklahoma as a compelling state interest would have far-reaching consequences. For example, the prohibition of non-residents from driving voters to the polls would seemingly be a logical extension. This court is unwilling to approve as a compelling state interest the restriction of core First Amendment rights in this manner. Under the circumstances of this case, we reject Oklahoma’s broad purpose of “restricting the process of self-government to members of its own community” as a compelling interest in the context of interdicting non-resident circulators.^[3]

On how the Oklahoma law violates the Fourteenth Amendment the ruling states:

Even if Oklahoma adequately established its contentions that the ability to question non-resident circulators during the protest periods is necessary to prevent fraud and that non-resident circulators are more difficult to locate and question if it failed to prove the ban is narrowly tailored. Oklahoma could require that in order to circulate petitions, non-residents enter into agreements with the state, rather than the initiative proponent, wherein the circulators provide their relevant contact information and agree to return in the event of a protest. See Chandler, 292 F.3d at 1242-44. In addition, Oklahoma could provide criminal penalties for circulators who fail to return when a protest occurs. Oklahoma contends such agreements would be more difficult and costly to enforce than a resident subpoena. Even if true, Oklahoma has not proved that, as a class, non-resident petition circulators who sign such agreements are less likely to submit to questioning than residents. Therefore, requiring non-residents to sign agreements providing their contact information and swearing to return in the event of a protest is a more narrowly tailored option that Oklahoma has failed to prove would be ineffective. Ashcroft v. ACLU, 542 U.S. 656, 665 (2004) (“[T]he burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute.”); see also Krislov v. Rednour, 226 F.3d 851, 866 n.7 (7th Cir. 2000) (holding a residency requirement for circulators unconstitutional under the First Amendment and suggesting a state may legitimately ensure the integrity of the process through a requirement that nonresidents agree to submit to the state’s jurisdiction).^[3]

Also the Tenth Circuit Court of Appeals harshly criticized the Oklahoma law on petition circulators stating:

Oklahoma has failed to prove the ban on non-resident circulators is narrowly tailored to protect the integrity of the initiative process. The evidence presented by Oklahoma and relied upon by the district court consisted of the allegedly fraudulent or uncooperative practices of a handful of non-resident circulators. From this limited evidence, the district court made unwarranted conclusions about non-resident circulators as a class. Because the record contains insufficient evidence to conclude that non-residents, as a class, threaten the integrity or reliability of the initiative process, Oklahoma has failed to prove that banning all non resident circulators is a narrowly tailored means of meeting its compelling interest. Oklahoma has also failed to prove the ineffectiveness of plausible alternatives to the blanket ban on non-residents. Oklahoma’s ban on non-resident circulators therefore violates the First and Fourteenth Amendments of the United States Constitution.^[3]