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

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.