FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA PRETE; EUGENE PRETE, 

Plaintiffs-Appellants,

and

JASON DONNELL WILLIAMS,

Plaintiff, No. 04-35285

v. D.C. No.  BILL BRADBURY, Secretary of State CV-03-06357-ALA

of Oregon, OPINION

Defendant-Appellee,

OREGON AFL-CIO; TIMOTHY J.

NESBITT, Esq.,

Defendant-IntervenorsAppellees. 

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted

September 12, 2005—Portland, Oregon

Filed February 22, 2006

Before: Raymond C. Fisher, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

1859
COUNSEL

Ross A. Day, Tigard, Oregon, for the appellant.

David E. Leith, Office of the Oregon Attorney General,

Salem, Oregon, for the appellees.

Margaret S. Olney, Portland, Oregon, for the intervenorappellees.

OPINION

BEA, Circuit Judge: 

We are called upon to decide whether Oregon Ballot Measure 26’s prohibition of payment to electoral petition signature gatherers on a piece-work or per signature basis

unconstitutionally burdens core political speech. Because the

district court did not clearly err in determining that the plaintiffs failed to establish that the challenged measure significantly burdens speech, we cannot hold the Measure imposes

a severe burden under the First Amendment. Therefore,

because the defendant has established an important regulatory

interest in support of the Measure, the plaintiffs have failed to

prove that the prohibition violates the First Amendment.

I.

In November 2002, Oregon voters approved Ballot Measure 26 (“Measure 26”), a voter initiative, by a margin of 75

percent to 25 percent. Measure 26 reads: 

PRETE v. BRADBURY 1863
To protect the integrity of initiative and referendum

petitions, the People of Oregon add the following

provisions to the Constitution of the State of Oregon:

It shall be unlawful to pay or receive money or other

thing of value based on the number of signatures

obtained on an initiative or referendum petition.

Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly,

on the number of signatures obtained. 

Or. Const., art. IV, § 1b.1

Barbara and Eugene Prete and Jason Williams (collectively

“plaintiffs”), as chief petitioners,2 later coordinated signature

gathering to place various initiative measures on the February

and November 2004 general election ballots. Oregon’s Elections Division office sent inquiry letters to plaintiffs in

November 2003, advising plaintiffs that the Elections Division had received complaints alleging plaintiffs had paid sig1Oregon’s Secretary of State issued an administrative rule interpreting

Measure 26. The rule states in part Measure 26: 

bans the practice of paying circulators or others involved in an

initiative or referendum effort if the basis for payment is the

number of signatures obtained. This means that payment cannot

be made on a per signature basis. Employment relationships that

do not base payment on the number of signatures collected are

allowed. Allowable practices include: paying an hourly wage or

salary, establishing either express or implied minimum signature

requirements for circulators, terminating circulators who do not

meet the productivity requirements, adjusting salaries prospectively relative to a circulator’s productivity, and paying discretionary bonuses based on reliability, longevity and productivity,

provided no payments are made on a per signature basis. 

Or. Admin. R. 165-014-0260. A violation of Measure 26 will result in

civil penalties of a minimum of $100 for each individual signature sheet

containing signatures collected in violation of Measure 26. Id.

2Under Oregon law, a petition for a ballot measure must designate one

to three “chief petitioners,” who are the main sponsors of the measure. See

Or. Rev. St. § 250.045(3). 

1864 PRETE v. BRADBURY
nature gatherers on the basis of the number of signatures

collected, in violation of Measure 26. The inquiry letters

requested additional information from plaintiffs.3

Plaintiffs responded by bringing an action in federal district

court against defendant, alleging Measure 26 violated the

First Amendment. Plaintiffs sought declaratory and injunctive

relief. Six days later, Tim Nesbitt and the Oregon AFL-CIO

(collectively “intervenor-defendants”) brought a motion to

intervene as of right under Fed. R. Civ. P. 24(a)(2), and alternatively, for permissive intervention under Fed. R. Civ. P.

24(b). Nesbitt, president of the Oregon AFL-CIO, was chief

petitioner for Measure 26, and the Oregon AFL-CIO was a

major supporter of Measure 26. Plaintiffs opposed the motion;

Bill Bradbury, in his official capacity as the Secretary of State

of Oregon (hereinafter “defendant”), did not. The district

court granted the motion to intervene as of right. 

Plaintiffs then brought a motion for a preliminary injunction to enjoin defendant from enforcing Measure 26. After

oral argument on the motion, the parties stipulated no further

discovery was needed and the court could issue a final ruling

on the merits pursuant to Fed. R. Civ. P. 65(a)(2).4

3As the district court noted, the inquiry letters did not threaten prosecution, but “simply notif[ied] plaintiffs that complaints were filed and

request[ed] additional information. Nonetheless, the inquiry letters sent to

plaintiffs are sufficient to establish standing. For First Amendment purposes, a plaintiff demonstrates an “injury-in-fact” where “the plaintiff

intends to engage in a course of conduct arguably affected with a constitutional interest and that there is a credible threat that the challenged provision will be invoked against the plaintiff.” Arizona Right to Life PAC v.

Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (internal quotation marks

omitted). Here, plaintiffs intended to engage in signature gathering where

payment is made per signature, and receipt of the inquiry letters is sufficient to establish a “credible threat” that Measure 26 will be invoked

against plaintiffs. 

4The district court initially issued an opinion and order construing the

parties’ submissions as motions for summary judgment and granting sumPRETE v. BRADBURY 1865
In its amended opinion and order, the district court found

Measure 26 was targeted at electoral processes rather than at

the communicative aspect of petition circulation. The court

reasoned Measure 26 prohibited only one method of payment

for petition circulators, “a matter entirely between the circulator, his or her employer, and the chief petitioner.” Next, the

court found Measure 26 imposed no severe or substantial burdens on the circulation of initiative or referendum petitions,

and defendant’s interest in protecting the integrity of the initiative process justified the lesser burdens imposed by the

measure. The court, therefore, denied plaintiffs’ motion for a

preliminary injunction and entered judgment in favor of

defendant and intervenor-defendants. Plaintiffs timely

appealed. 

On appeal, plaintiffs assert (1) the district court erred in

granting intervenor-defendants’ motion to intervene as of

right, and (2) Measure 26 violates the First Amendment of the

United States Constitution. We have jurisdiction under 28

U.S.C. § 1291 and we hold: (1) the district court erred in

granting intervenor-defendants’ motion to intervene but that

error was harmless; and (2) the district court did not err in

determining plaintiffs failed to establish Measure 26 violates

the First Amendment.5 Accordingly, we AFFIRM the judgment of the district court. 

mary judgment for defendant and intervenor-defendants. The court later

vacated that opinion and order because the parties intended the court to

consolidate trial on the merits with plaintiffs’ motion for a preliminary

injunction, pursuant to Fed. R. Civ. P. 65(a)(2). The court then issued an

amended order and opinion, granting final judgment on the merits for

defendant and intervenor-defendants. Plaintiffs do not contest the steps

taken by the court to convert cross-motions for summary judgment to a

trial on the merits, and thus we consider the amended order and opinion

the final judgment of the trial court in this matter. 

5To be clear, we do not hold that Measure 26 is facially constitutional.

Rather, as discussed infra, we hold that because the district court did not

clearly err in determining plaintiffs failed to establish that Measure 26 sig1866 PRETE v. BRADBURY
II.

This court reviews de novo a district court’s ruling on a

motion to intervene as of right pursuant to Fed. R. Civ. P.

24(a)(2). United States v. Alisal Water Corp., 370 F.3d 915,

918 (9th Cir. 2004).6

[1] Under Fed. R. Civ. P. 24(a)(2),7 an applicant for intervention as of right must demonstrate that: (1) the intervention

application is timely; (2) the applicant has a “significant protectable interest relating to the property or transaction that is

the subject of the action”; (3) “the disposition of the action

nificantly diminishes the pool of potential petition circulators, increases

the cost of signature gathering, or increases the invalidity rate of signatures gathered, we cannot conclude that Measure 26 imposes a “severe

burden” under the First Amendment. Because plaintiffs have established

only a “lesser burden,” and defendant has offered “an important regulatory

interest” in preventing fraud, we conclude the district court did not err in

upholding the constitutionality of Measure 26 as applied. We express no

opinion, however, regarding whether Measure 26 could withstand strict

scrutiny had plaintiffs proven the measure imposed a “severe burden”

under the First Amendment. See Buckley v. Am. Constitutional Law

Found., 525 U.S. 182, 192 (1999) (requiring plaintiffs to establish the

challenged restrictions resulted in a significant decrease in the available

pool of petition circulators to support a finding of a “severe burden”). 

6This court reviews for abuse of discretion a district court’s ruling on

a motion for permissive intervention pursuant to Fed. R. Civ. P. 24(b)(2).

Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110 (9th Cir. 2002).

Although intervenor-defendants brought a motion in the alternative for

permissive intervention, the district court did not rule on that motion

because it granted the motion to intervene as of right. 

7Fed. R. Civ. P. 24(a)(2) provides in part: 

Upon timely application anyone shall be permitted to intervene

in an action . . . when the applicant claims an interest relating to

the property or transaction which is the subject of the action and

the applicant is so situated that the disposition of the action may

as a practical matter impair or impede the applicant’s ability to

protect that interest, unless the applicant’s interest is adequately

represented by existing parties. 

PRETE v. BRADBURY 1867
may, as a practical matter, impair or impede the applicant’s

ability to protect its interest”; and (4) “the existing parties

may not adequately represent the applicant’s interest.” Alisal

Water Corp., 370 F.3d at 919 (internal quotation marks and

citations omitted). Although the party seeking to intervene

bears the burden of showing those four elements are met, “the

requirements for intervention are broadly interpreted in favor

of intervention.” Id.

A. Timeliness, “Significant Protectable Interest,”

and Impairment

[2] Here, plaintiffs wisely concede the intervenordefendants’ application was timely and the intervenordefendants have a “significant protectable interest” relating to

the subject of this action. First, intervenor-defendants brought

the motion to intervene only six days after plaintiffs brought

the action. Second, for purposes of intervention as of right, a

public interest group that has supported a measure (such as an

initiative) has a “significant protectable interest” in defending

the legality of the measure. Sagebrush Rebellion, Inc. v. Watt,

713 F.2d 525, 528 (9th Cir. 1983). Third, an adverse court

decision on such a measure may, as a practical matter, impair

the interest held by the public interest group. Id. 

[3] In Sagebrush Rebellion, this court held that a public

interest group may have a protectable interest in defending the

legality of a measure it had supported. Id. at 527. There, a

public interest group which had supported the creation of a

conservation area in Idaho sought to intervene on behalf of

the government in an action challenging the federal statute

that created that conservation area. Id. at 526. The district

court denied the motion to intervene. This court reversed,

holding the group had a protectable interest in defending the

creation of the conservation area. We stated in broad language

that “a public interest group [is] entitled as a matter of right

to intervene in an action challenging the legality of a measure

which it had supported.” Id. at 527. Further, an adverse deci1868 PRETE v. BRADBURY
sion against the conservation area “would impair the society’s

interest in the preservation of birds and their habitats,” an

interest the conservation area was designed to protect. Id. at

528. This court also held the government’s representation of

the group’s interest “may be inadequate” (for reasons discussed infra); thus, this court reversed and remanded to the

district court for it to grant the motion to intervene. Id. at 529.

[4] Here, Nesbitt was chief petitioner for the measure, and

the Oregon AFL-CIO was a main supporter of the measure.

Under the rule from Sagebrush Rebellion, intervenordefendants thus have a “significant protectable interest”

related to this action, and an adverse judgment might impede

or impair that interest. 

Plaintiffs contend, however, that Arizonans for Official

English v. Arizona, 520 U.S. 43 (1997) (hereinafter “AOE”),

controls here and bars initiative sponsors from intervening in

judicial challenges to the initiative. Plaintiffs misread AOE.

There, the plaintiff (Yniguez), a state employee, brought an

action against the State of Arizona alleging the adoption of an

initiative which declared English “the official language of

[Arizona]” violated the First Amendment. Id. at 49. Yniguez

complained she often spoke Spanish with Spanish-speaking

persons as part of her state job, and the initiative’s mandate

for state employees to “act in English” could expose her to

sanctions. Id. at 50. After a bench trial, the district ruled the

initiative was unconstitutional as overbroad. Id. at 54. The

Arizonans for Official English Committee (“AOE”)—which

was the principal sponsor of the initiative—then brought a

motion to intervene, seeking to defend the constitutionality of

the initiative on appeal. Id. at 56. The district court denied the

motion. Yniguez then resigned from her employment with the

state. AOE appealed nonetheless, and this court determined

AOE had Article III standing to pursue the appeal in defense

of the initiative, and the action was not moot because of

Yniguez’s resignation. Id. at 58-60. The U.S. Supreme Court

reversed. The Court observed that AOE was not an elected

PRETE v. BRADBURY 1869
representative, nor did any Arizona state law appoint initiative

sponsors as agents “to defend, in lieu of public officials, the

constitutionality of initiatives made law of the State.” Id. at

65. On that basis, the Court stated: “We thus have grave

doubts whether AOE . . . ha[s] standing under Article III to

pursue appellate review. Nevertheless, we need not definitively resolve the issue. Rather, we will follow a path we have

taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue.” Id. at 66.

The Court concluded Yniguez’s resignation after the district

court’s judgment but before appeal mooted the case, and the

Court then vacated the decision of the district court and the

court of appeals. Id. at 72, 75. 

[5] AOE did not hold that initiative sponsors do not have

an interest in defending the initiative sufficient to support

intervention. The main issue presented in AOE was whether

the intervenor-applicant there had Article III standing to pursue an appeal when a step taken by the original plaintiff (resignation of her job) rendered the entire case or controversy

moot. Such a scenario is not at issue here.8 Therefore, we hold

8There is some question, however, whether an intervenor-applicant must

independently establish Article III standing to intervene as of right. For

example, in the case at hand, Article III standing is satisfied between

plaintiffs and defendant. But a circuit split exists whether an intervenorapplicant must also independently satisfy Article III standing to intervene

as of right. Compare Planned Parenthood of Mid-Missouri & Eastern

Kansas, Inc. v. Ehlmann, 137 F.3d 573, 576-77 (8th Cir. 1998) (requiring

independent intervenor standing) and Building & Const. Trades Dep’t v.

Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (same), with Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994) (no independent intervenor standing required), and U.S. Postal Serv. v. Brennan, 579

F.2d 188, 190 (2d Cir. 1978) (same). The U.S. Supreme Court has not yet

settled the issue. See 7C Charles Alan Wright et al., Federal Practice and

Procedure § 1908 (2d ed. 2005). This court also has not definitively ruled

on the issue. Although some sources (such as Federal Practice and Procedure) cite Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991), for the proposition that this court does not require independent Article III standing for

intervenors, id. at 731, that opinion was vacated by the U.S. Supreme

1870 PRETE v. BRADBURY
that under Sagebrush Rebellion, intervenor-defendants have a

“significant protectable interest” related to this action and an

adverse judgment may impair or impede that interest. 

B. Adequacy of Representation

A closer issue is presented whether intervenor-defendants

established that “the existing parties may not adequately represent the applicant’s interest.” See Alisal Water Corp., 370

F.3d at 919. Plaintiffs contend that because defendant is

defending the constitutionality of Measure 26, intervenordefendants’ interest in defending the constitutionality of Measure 26 is adequately represented. The district court disagreed,

concluding defendant might not adequately represent

intervenor-defendants’ interests because intervenordefendants “claim an interest in preventing the gathering and

eventual counting of invalid signatures for initiatives opposing union interests,” and thus defendant possibly could make

different arguments than intervenor-defendants. 

[6] In assessing whether a present party will adequately

represent an intervenor-applicant’s interests, we “consider

several factors, including whether [a present party] will

undoubtedly make all of the intervenor’s arguments, whether

[a present party] is capable of and willing to make such arguments, and whether the intervenor offers a necessary element

to the proceedings that would be neglected.” Sagebrush

Rebellion, 713 F.2d at 528. The burden of showing inadequacy of representation is minimal and “is satisfied if the

Court. See AOE, 520 U.S. at 80; League of United Latin Am. Citizens v.

Wilson, 131 F.3d 1297, 1305 n.5 (9th Cir. 1997) (noting Yniguez was

vacated by the U.S. Supreme Court and “is thus wholly without precedential authority”). Regardless, we need not reach this issue because, as discussed infra, the district court erred in granting intervenor-defendants’

motion to intervene on grounds other than whether intervenor-defendants

had independent standing. 

PRETE v. BRADBURY 1871
applicant shows that representation of its interests ‘may be’

inadequate . . . .” Id. (internal citations omitted). 

[7] Although the burden of establishing inadequacy of representation may be minimal, the requirement is not without

teeth: 

The most important factor in determining the adequacy of representation is how the interest compares

with the interests of existing parties. When an applicant for intervention and an existing party have the

same ultimate objective, a presumption of adequacy

of representation arises. If the applicant’s interest is

identical to that of one of the present parties, a compelling showing should be required to demonstrate

inadequate representation. 

Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)

(internal citations omitted). Additionally, “[t]here is also an

assumption of adequacy when the government is acting on

behalf of a constituency that it represents. In the absence of

a very compelling showing to the contrary, it will be presumed that a state adequately represents its citizens when the

applicant shares the same interest.” Id. (internal citations and

quotation marks omitted). 

In Sagebrush Rebellion, discussed supra, we held the public interest group seeking to intervene as of right established

that the defendant (the Secretary of the Interior) might not

adequately represent the group’s interest. 713 F.2d at 528. We

reasoned that the Secretary of the Interior, James Watt, had

previously been head of the foundation which was representing the plaintiff in the present action. Thus, the public interest

group—intervening on the defendant’s side—might bring a

perspective materially different from that of the present parties and was entitled to intervene. Id.

1872 PRETE v. BRADBURY
In League of United Latin Am. Citizens v. Wilson, however,

this court recognized that when an intended intervenor and a

party in the action seek the same ultimate objective, a presumption arises that the intervenor’s interests are adequately

presented. 131 F.3d 1297. In League of United Latin Am. Citizens, the plaintiff brought a lawsuit challenging California’s

Proposition 187, which had been enacted into law. Id. at 1300.

A public interest group brought a motion to intervene as of

right, claiming it participated in the drafting and sponsorship

of the proposition and desired to intervene in support of its

defense. Id. at 1301. The district court denied the motion, and

we affirmed. This court recognized the defendant (the State of

California) and the public interest group sought the same ultimate objective—i.e., to defend the constitutionality of Proposition 187—and thus a presumption of adequacy of

representation arose. Id. at 1305. Hence, we held the

intervenor-applicant’s interests were adequately represented

by the state defendant and affirmed the denial of the motion

to intervene.9

[8] Here, the ultimate objective for both defendant and

intervenor-defendants is upholding the validity of Measure

26. Thus, a presumption arises that defendant is adequately

representing intervenor-defendants’ interests. See id. at 1305.

Second, defendant is the Oregon government, and intervenordefendants (the Oregon AFL-CIO and its president) share the

same interest with defendant, i.e., defending Measure 26.

Therefore, it is assumed that defendant is adequately representing intervenor-defendants’ interests. Arakaki, 324 F.3d at

1086. While it is unclear whether this “assumption” rises to

the level of a second presumption, or rather is a circumstance

9Further, the court distinguished Sagebrush Rebellion, noting that in

that case the defendant, Secretary of the Interior Watt, had previously

served as the head of the foundation representing the plaintiff. Id. at 1305.

In League of United Latin Am. Citizens, however, this court noted that the

defendant had vigorously defended Proposition 187, and there was no evidence the defendant would cease to do so in the future. Id.

PRETE v. BRADBURY 1873
that strengthens the first presumption, it is clear that “[i]n the

absence of a ‘very compelling showing to the contrary,’ it will

be presumed that” the Oregon government adequately represents the interests of the intervenor-defendants. See id.

Intervenor-defendants fail to present that compelling showing of inadequate representation. In their motion to intervene,

intervenor-defendants stated first that defendant may not be

able to provide a complete defense of Measure 26 due to

“budget constraints.” Virtually all governments face budget

constraints generally, and if such a basis were sufficient to

establish inadequate representation, it would eliminate the

presumption of adequate representation when the government

and the intervenor-applicant share the same interest. Most

importantly, there is no evidence in the record that defendant

is unable to mount an effective defense of Measure 26 due to

alleged “budget constraints.” See League of United Latin Am.

Citizens, 131 F.3d at 1307 (citing Moosehead San Dist. v.

S.G. Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979) (holding

“a petitioner must produce something more than speculation

to the purported inadequacy in order to justify intervention as

of right”)).10

Second, intervenor-defendants assert defendant “may be

inclined [to] give an unnecessarily narrow construction of

Measure 26 in the face of legal attacks on the measure.” Yet

neither plaintiffs nor defendant have argued for a narrowing

construction of Measure 26, and Measure 26 does not seem

susceptible to any narrowing construction.11 Thus, intervenor10We do not hold that budgetary constraints that impact the ability of the

government to adequately litigate its position can never support a motion

to intervene as of right by a citizen of that government. Rather, we hold

only that absent any evidence of Oregon’s alleged budgetary constraints

and the impact of said constraints on this litigation, intervenor-defendants

failed to meet their burden to present a compelling showing of inadequate

representation. 

11Intervenor-defendants also argue that Measure 26 protects their interest in “preventing fraudulent signatures from being gathered for initiatives

1874 PRETE v. BRADBURY
defendants have failed to present evidence sufficient to meet

their burden of a “compelling showing” on this score as well.

Third, intervenor-defendants contend defendant “does not

have the breadth of knowledge regarding the signature gathering process to fully develop the record and respond to plaintiff’s factual allegations.” Intervenor-defendants assert they

have “particular expertise in the subject of the dispute.” For

example, they “have direct knowledge and experience in how

well a signature gathering campaign staffed by hourly circulators can run.” 

Yet defendant, as Oregon’s Secretary of State, is undoubtedly familiar with the initiative process and the requisite

signature-gathering; indeed, defendant is the government

party responsible for counting the signatures.12 Defendant also

administers Oregon’s election processes and promulgates regulations to give effect to the state’s election statutes. See Or.

Admin. R. 165-014-0260 (interpreting Measure 26). Although

intervenor-defendants may have some specialized knowledge

into the signature gathering process, they provided no evidence to support their speculation that the Secretary of State

lacks comparable expertise. To the contrary, defendant presumably is sufficiently acquainted with the signature gathering process and could also acquire additional specialized

that are contrary to their union interests,” and defendant may not defend

that interest. We will read this claim as evincing an interest in preventing

fraudulent signatures on all petitions, not just those petitions which are

“contrary to their union interests.” We are left ignorant of what constitutes

intervenors’ union interests, if any, apart from preventing fraudulent signatures on petitions. Absent any basis for determining there are “union

interests” separate and distinct from the prevention of fraudulent signatures, we see no basis for intervention on this score. 

12To be precise, the Oregon Secretary of State does not count every signature on the petitions. Instead, it employs a statistical sampling technique

to determine whether the petitions contain the requisite number of signatures to support certification of the initiative for the ballot. Or. Rev. Stat.

§ 250.105(4). 

PRETE v. BRADBURY 1875
knowledge through discovery (e.g., by calling upon

intervenor-defendants to supply evidence) or through the use

of experts.13 Thus, such a reason is insufficient to provide the

“compelling showing” necessary to overcome the presumption of adequate representation discussed supra. 

[9] Accordingly, while we emphasize that the burden of

showing inadequacy of representation is generally minimal,

here intervenor-defendants failed to present evidence sufficient to support a finding that their interests are not adequately represented by the defendant in this action. We hold,

therefore, that the district court erred in granting the motion

to intervene as of right. 

C. Remedy

The remedy for an improper grant of intervention has not

been clearly established. It is more common for appellate

courts to consider the denial of a motion to intervene,14 and

13While we recognize intervenor-defendants may have greater first-hand

knowledge than the Secretary of State regarding the impact of Measure 26

on petition circulation, it will often be the case that a private party has

greater first hand knowledge of the impact of legislation on private individuals than the government. Such knowledge may support a trial judge’s

discretionary grant of permissive intervention, but it is not sufficient by

itself to support intervention as of right in this case. See Garza v. County

of Los Angeles, 918 F.2d 763, 777 (9th Cir. 1990) (Unlike intervention as

of right, “[t]he decision to grant or deny [permissive] intervention is discretionary, subject to considerations of equity and judicial economy.”

Therefore, while an interest may not be “sufficiently weighty to warrant

intervention as of right, the court may nevertheless consider eligibility for

permissive intervention under Fed.R.Civ.Pro. 24(b)(2).”). In this case

intervenor-defendants failed to present any evidence that the Oregon government could not have obtained any knowledge it lacked through the use

of discovery and expert testimony. Absent such evidence, intervenordefendants failed to make a compelling showing of inadequate representation sufficient to support intervention as of right. 

14The reason for this disparity is straightforward: the denial of a motion

to intervene is a final order and is thus immediately appealable. See

Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375-76

(1987). Yet the grant of a motion to intervene is not a final order and is

not appealable until after final judgment. Id. at 379-80. 

1876 PRETE v. BRADBURY
the few cases reversing the grant of a motion to intervene are

distinguishable because here the district court did not enter

separate judgments for the defendant and the intervenordefendants as in the cited cases, but entered a single judgment

in favor of both defendant and intervenor-defendants: that

Measure 26 does not violate the First Amendment.15

Here, the district court erred in granting intervention as of

right and thereby allowing intervenor-defendants to present

evidence and argument. Under 28 U.S.C. § 211116 and Federal

Rule of Civil Procedure 61,17 however, we may not reverse

15See Mothersill D.I.S.C. Corp. v. Petroleos Mexicanos, S.A., 831 F.2d

59, 60-63 (5th Cir. 1987) (the plaintiff brought a contracts action against

the defendant, and the parties agreed to settle; a corporate employee

moved to intervene as of right, claiming he was due payment for services

rendered under the contracts; the district court granted the motion to intervene and later entered judgment for the intervenor, awarding him payment

for past services under the contracts; the Fifth Circuit reversed, holding

intervention was improper and vacating the judgment in favor of the intervenor.); Stockton v. United States, 493 F.2d 1021, 1022-24 (9th Cir. 1974)

(the plaintiff sought a tax refund from the defendant, and the district court

entered judgment for the plaintiff; the plaintiff’s attorney then moved to

intervene as of right, claiming an interest in his attorneys fees (to be paid

from the refund recovery); the district court granted the motion to intervene and granted judgment for the plaintiff’s attorney; this court reversed,

holding intervention was improper and vacating judgment for the intervenor). 

16“On the hearing of any appeal or writ of certiorari in any case, the

court shall give judgment after an examination of the record without

regard to errors or defects which do not affect the substantial rights of the

parties.” 28 U.S.C. § 2111. 

17No error in either the admission or exclusion of evidence and no

error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a

new trial or for setting aside a verdict or for vacating, modifying,

or otherwise disturbing a judgment or order, unless refusal to take

such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard

any error or defect in the proceeding which does not affect the

substantial rights of the parties. 

Fed. R. Civ. P. 61. 

PRETE v. BRADBURY 1877
the district court’s judgment unless this error affected the

“substantial rights of the parties.” Cf. Texas Co. v. Hogarth

Shipping Corp., 256 U.S. 619, 629 (1921) (applying harmless

error review to the erroneous grant of intervention as amicus

curiae); Alaska v. Suburban Propane Gas Corp., 123 F.3d

1317, 1321-22 (9th Cir. 1997) (applying harmless error

review under Rule 61 to the erroneous denial of a motion to

intervene); California ex rel. State Lands Com’n v. United

States, 805 F.2d 857, 866 n.6 (9th Cir. 1986) (declining to

“consider whether or under what circumstances an erroneous

grant of intervention could constitute reversible error under

Fed. R. Civ. P. 61”); Hackin v. Lockwood, 361 F.2d 499 (9th

Cir. 1966) (the improper joinder of a civil defendant does not

prevent this court from addressing the merits of the action as

to the proper parties). 

[10] Here, the district court’s error in granting the motion

to intervene did not affect the substantial rights of the parties.

In its amended opinion and order, the district court discussed

only one piece of evidence submitted by intervenordefendant: an affidavit submitted by Ted Blaszak of Democracy Resources of Oregon, Inc., a signature-gathering firm.

Blaszak averred that the requirement to pay petition circulators by the hour rather than by the signature did not significantly increase his costs or decrease productivity. Although

helpful to defendant’s case, the evidence was not crucial. As

noted infra in footnote 21, consideration of that affidavit does

not make it more probable than not that the district court’s

error tainted the judgment.18

18In addition, had the district court denied Nesbit and the Oregon AFLCIO’s motion to intervene, defendant could have offered the same evidence in cooperation with Nesbitt and the Oregon AFL-CIO. Moreover,

Nesbitt and the Oregon AFL-CIO could have presented argument as

amicus rather than as a full-fledged party. There is nothing in the record

to suggest that the status of Nesbitt and the Oregon AFL-CIO as intervenors, rather than as amici, materially affected plaintiffs’ pre-trial preparation, discovery, trial tactics (such as its motion for summary judgment) or

the case as a whole. For instance, nothing indicates that intervenordefendants paid defendant’s litigation expenses conditioned on intervenors

procuring intervenor status. 

1878 PRETE v. BRADBURY
[11] Accordingly, the district court erred in granting

intervenor-defendants’ motion to intervene as of right, but the

error was harmless and, therefore, does not require vacating

the judgment of the district court. 

III.

In reviewing a district court’s final judgment after consolidation of its preliminary injunction ruling with its decision on

the merits pursuant to Fed. R. Civ. P. 65(a)(2),19 we review

the district court’s factual findings for clear error and its conclusions of law de novo. Associated Builders & Contractors

of S. California v. Nunn, 356 F.3d 979, 984 (9th Cir. 2004).

When the issue presented involves the First Amendment,

however, the standard of review is modified slightly. Historical questions of fact (such as credibility determinations or

ordinary weighing of conflicting evidence) are reviewed for

clear error, while constitutional questions of fact (such as

whether certain restrictions create a “severe burden” on an

individual’s First Amendment rights) are reviewed de novo.

Planned Parenthood of the Columbia/Willamette, Inc. v. Am.

Coalition of Life Activists, 290 F.3d 1058, 1070 (9th Cir.

2002). 

[12] The First Amendment, incorporated and made applicable to the states by the Fourteenth Amendment, prohibits state

governments from enacting a “law . . . abridging the freedom

of speech.” McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 336 & n.1 (1995). As discussed infra, the circulation of

initiative and referendum petitions involves “core political

speech,” and is, therefore, protected by the First Amendment.

See Meyer v. Grant, 486 U.S. 414, 421-22 (1988). 

19Fed. R. Civ. P. 65(a)(2) provides in part: “Before or after the commencement of the hearing of an application for a preliminary injunction,

the court may order the trial of the action on the merits to be advanced and

consolidated with the hearing of the application.” 

PRETE v. BRADBURY 1879
[13] The First Amendment does not, however, prohibit all

restrictions upon election processes: “States may, and inevitably must, enact reasonable regulations of parties, elections,

and ballots to reduce election- and campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351,

358 (1997). Indeed, the U.S. Supreme Court has recognized

“States allowing ballot initiatives have considerable leeway to

protect the integrity and reliability of the initiative process, as

they have with respect to election processes generally.” Buckley, 525 U.S. at 191 (1999). 

For purposes of determining whether a state election law

violates an individual’s First Amendment rights, we

weigh the character and magnitude of the burden the

State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make

the burden necessary. Regulations imposing severe

burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser

burdens, however, trigger less exacting review, and

a State’s important regulatory interests will usually

be enough to justify reasonable, nondiscriminatory

restrictions. 

Arizona Right to Life Political Action Comm., 320 F.3d at

1007-08 (quoting Timmons, 520 U.S. at 358) (emphases

added and internal quotation marks omitted). The U.S.

Supreme Court has counseled against establishing any brightline rule in this field: “no litmus-paper test will separate valid

ballot-access provisions from invalid interactive speech

restrictions; we have come upon no substitute for the hard

judgments that must be made.” Buckley, 525 U.S. at 192

(internal quotation marks omitted). 

In Meyer v. Grant, the Supreme Court recognized the

expressive nature of petition circulation and held the whole1880 PRETE v. BRADBURY
sale prohibition of paid petition circulators imposed an impermissible burden on free speech under the First Amendment.

486 U.S. 414. In Meyer, the plaintiffs challenged an amendment to the Colorado constitution which made it a felony to

pay money or anything of value to petition circulators who

circulated initiative or referendum petitions. Id. at 415. After

a bench trial, the district court upheld the statute, but the court

of appeals reversed. Id. at 418-420. The U.S. Supreme Court

affirmed, explaining: 

The circulation of an initiative petition of necessity

involves both the expression of a desire for political

change and a discussion of the merits of the proposed change. Although a petition circulator may not

have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them

that the matter is one deserving of the public scrutiny

and debate that would attend its consideration by the

whole electorate. This will in almost every case

involve an explanation of the nature of the proposal

and why its advocates support it. Thus, the circulation of a petition involves the type of interactive

communication concerning political change that is

appropriately described as “core political speech.” 

Id. at 421-22. 

The Court recognized that a wholesale prohibition of paid

petition circulators limited such “core political speech” in two

ways: (1) “it limits the number of voices who will convey

[plaintiffs’] message and the hours they can speak and, therefore, limits the size of the audience they can reach”; and (2)

“it makes it less likely that [plaintiffs] will garner the number

of signatures necessary to place the matter on the ballot, thus

limiting their ability to make the matter the focus of statewide

discussion.” Id. at 423-424. The Court rejected Colorado’s

argument that the prohibition was justified by the state’s interPRETE v. BRADBURY 1881
est in protecting the integrity of the initiative process, reasoning that Colorado presented no evidence that paid petition

circulators are more likely to accept fraudulent signatures

over those of a volunteer, and that other Colorado statutes

prohibited accepting forged or fraudulent signatures. Id. at

426-27. The Court thus concluded the prohibition “imposes a

burden on political expression that the State has failed to justify,” and hence the prohibition violated the First Amendment.

Id. at 428. 

Similarly, in Buckley the Supreme Court struck down a

Colorado statute which required: (1) petition circulators be

registered voters in Colorado; (2) petition circulators wear an

identification badge bearing the circulator’s name; and (3) initiative proponents publicly disclose the names and amounts

paid to all paid circulators. 525 U.S. at 186. First, the Court

observed the registered voter requirement “decreases the pool

of potential circulators as certainly as that pool is decreased

by the prohibition of payment to circulators. Both provisions

limit the number of voices who will convey the initiative proponents’ message and, consequently, cut down the size of the

audience proponents can reach.” Id. at 194-95 (internal quotation marks and alterations omitted). The Court rejected Colorado’s assertion that the registered voter requirement was not

a severe burden because it was not difficult to register to vote;

although failure to register sometimes results from ignorance

or apathy, the decision not to register can also implicate “political thought and expression.” Id. at 195-96. The Court also

struck down the name badge requirement and the disclosure

provisions, explaining that both provisions forced circulators

to surrender the anonymity enjoyed by their volunteer counterparts and had only a tenuous relationship to Colorado’s

interest in ensuring the integrity of the initiative process. Id.

at 198-204. 

Unlike Meyer, Measure 26 does not completely prohibit the

payment of initiative-petition circulators. Instead it prohibits

one method of payment. Plaintiffs claim that Measure 26 in

1882 PRETE v. BRADBURY
practice limits the available pool of people willing to circulate

petitions. To the extent Meyer may be read to indicate that

any resulting decrease in the pool of available circulators is

sufficient to constitute a “severe burden” under the First

Amendment, in Buckley the Court refined its analysis and

made clear that the degree of the decrease resulting from the

measure is properly considered in determining the severity of

the burden. See id. at 192 (analyzing the degree of the effect

of the challenged provisions on the pool of available circulators and explaining: “We therefore detail why we are satisfied

that, as in Meyer, the restrictions in question significantly

inhibit communication with voters about proposed political

change, and are not warranted by the state interests . . .

alleged to justify those restrictions.”) (emphasis added). 

Unlike Buckley, where the pool was limited to state residents registered to vote, here, anyone may serve as a petition

circulator, regardless of residence or registration. Therefore,

we find the Eight Circuit’s analysis of a North Dakota state

law more analogous to Measure 26, and thus more persuasive.

In Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th

Cir. 2001), the Eighth Circuit distinguished North Dakota’s

prohibition on paying initiative-petition circulators “on a basis

related to the number of signatures obtained” (i.e., the same

type of restriction at issue here) from the complete prohibition

on paid petition circulators in Meyer. In Jaeger, the court

noted that the state had an “important interest in preventing

signature fraud” in the initiative process, and that the state had

supported that interest with evidence that paying petition circulators per signature encouraged such fraud. Id. at 618. Further, the plaintiffs had “produced no evidence that payment by

the hour, rather than on commission, would in any way burden their ability to collect signatures. The [plaintiffs] have

only offered bare assertions on this point.” Id. Thus, because

the state asserted an important interest in preventing signature

fraud, supported that interest with evidence that signature

fraud was actually a problem in North Dakota, and the plaintiffs failed to present evidence the restriction would otherwise

PRETE v. BRADBURY 1883
burden their ability to collect signatures, the court upheld the

ban on paying petition circulators on the basis of the number

of signatures collected. Id. For reasons discussed further

below, our case is more properly analyzed under the framework applied in Jaeger than under Meyer or Buckley. 

A. “Severe” or “Lesser” Burden

Plaintiffs contend Measure 26 imposes a severe burden on

the circulation of initiative petitions because the measure

makes paid signature gathering prohibitively expensive, inefficient, and results in a higher rate of invalid signatures. Plaintiffs thus contend that strict scrutiny should apply and

Measure 26 is not narrowly tailored to serve a compelling

governmental interest. The district court rejected this argument, finding plaintiffs did not prove that Measure 26

imposed severe burdens on the circulation of initiative petitions, and any lesser burdens imposed by Measure 26 were

reasonably related to and justified by the state’s interest in

preventing fraud in the initiative process. 

In reaching that conclusion, the district court assessed

plaintiffs’ claims that: (1) Measure 26 eliminates an avenue of

signature-gathering and decreases the available pool of petition circulators; (2) Measure 26 increases the costs of gathering signatures, making it more difficult to circulate petitions

and qualify initiative or referendum measures for the ballot;

and (3) Measure 26 resulted in a significant decrease in the

number of valid signatures collected by signature gatherers.

Because these are claims of historical fact, we review the district court’s findings regarding these claims for clear error.

See Planned Parenthood, 290 F.3d at 1070. Because the district court did not clearly err in rejecting each of these claims,

we affirm the district court’s holding that Measure 26 imposes

only a lesser burden on the circulation of initiative petitions.

1884 PRETE v. BRADBURY
1. The Effect Of Measure 26 On The Pool of

Petition Circulators in Oregon

Plaintiffs presented affidavits from William Arno of Arno

Political Consultants (“APC”), a California petition circulation firm, and Tracy Taylor of Taylor Petition Management,

LLC, a Washington state petition circulation firm (under contract with APC). Arno averred Measure 26 “make[s] it less

likely that companies such as APC will continue to do business in Oregon” and stated he had “personal knowledge that

at least three of [his] chief competitors will not do business

in Oregon” because of Measure 26. Yet Arno later testified

that his “personal knowledge” of those companies came only

from Taylor. 

Taylor averred that several professional petition circulators

he knew were not interested in working in Oregon on an

hourly wage basis when they could work in other states on a

per-signature basis. Yet he did not identify those circulators,

nor state whether they would work in Oregon absent Measure

26. Indeed, both Arno and Taylor conceded that other factors

might cause petition circulators to leave or not to work in

Oregon. For example, Arno noted that access to private property for petition circulators was particularly strict in Oregon.

Both Arno and Taylor also noted that “harassment” of paid

petition circulators by the Voter Education Project20 discour20The Voter Education Project (“VEP”) bills itself as an “educational

watchdog organization” organized to protect the integrity of the initiative

system. It researches potential fraud and forgery committed by paid signature gatherers. It makes direct contact with voters through its “Think

Before You Ink” program, which informs voters that petition circulators

paid by the signature use devious tactics and commit fraud and forgery

during the collection of signatures. The record also includes a news article

that VEP also engages in harassment of paid petition circulators, “yelling

at them, threatening them, even following them in cars.” The article also

states VEP has links to the AFL-CIO. Other than the news article, plaintiffs presented no evidence that the VEP (or the Oregon AFL-CIO) supported Measure 26 to weaken in some manner the initiative process in

Oregon. 

PRETE v. BRADBURY 1885
aged some companies from working in Oregon. Last, Arno

also suggested that Measure 26 makes it more difficult for

petition circulation companies to operate because those companies have to treat petition circulators as employees rather

than independent contractors. Yet Oregon employment law

requires that petition circulators must be treated as employees

rather than independent contractors; Measure 26 does not

itself mandate such treatment. See Canvasser Services, Inc. v.

Employment Dep’t, 987 P.2d 562, 568 (Or. Ct. App. 1999)

(holding, under Oregon law, petition circulators are employees rather than independent contractors). 

The district court rejected Arno and Taylor’s averments of

circulators leaving or refusing to work in Oregon as “unsupported speculation” because Arno received his information

from Taylor, Taylor only repeated the basic claim that paid

circulators would not work in Oregon because of Measure 26,

and several factors other than Measure 26 could explain the

alleged reluctance of petition circulators to work in Oregon.

The district court’s factual conclusion is supported by the

record and is not clearly erroneous. 

Plaintiffs also presented affidavits from David Rubin of

Universal Petitions, a southern California petition circulating

firm; Lura Lucille Cordes, who employs initiative-petition circulators to gather signatures in California; and Angelo Paparella of Progressive Campaigns, Inc., a national signature

gathering firm. Rubin averred that because—in his opinion—

payment by signature is more efficient than payment by the

hour, and Measure 26 would thus make signature gathering

more difficult in Oregon, he is “sure I would never be asked

to go to Oregon to coordinate a petition drive with Measure

26 restrictions in effect.” Similarly, Cordes stated because of

the burdens imposed by Measure 26, she would “not come to

Oregon to circulate petitions/gather signatures.” Paparella

also stated that because of Measure 26, his company “will not

circulate petitions in Oregon because the cost of hiring and

maintaining a workforce of hourly wage workers is very, very

1886 PRETE v. BRADBURY
high when compared to using petition circulators who are

independent contractors.” Yet none of these affiants stated

they had ever circulated petitions in Oregon or would do so

in the absence of Measure 26. Further, Paparella’s averment

suggests he would not come to Oregon because he would

have to treat petition circulators as employees rather than as

independent contractors, which is the law in Oregon notwithstanding Measure 26. Therefore, the district court’s conclusion that plaintiffs did not prove Measure 26 “caused a

reduction in the number of available circulators or otherwise

limit[ed] the size of plaintiff’s audience” is supported by the

record and is not clearly erroneous. 

2. The Effect Of Measure 26 On The Cost of

Signature Gathering in Oregon

Arno averred that Measure 26 would increase the cost of

signature collection by 35-45 percent. Taylor similarly

averred Measure 26 would increase the cost of gathering signatures in Oregon. Yet both Arno and Taylor based their predictions on the misapprehended fact that Measure 26

converted circulators from independent contractors into

employees, resulting in increased payroll costs. As noted

above, Oregon law recognizes petition circulators as employees, rather than independent contractors, notwithstanding

Measure 26. 

Further, Arno and Taylor had little, if any, experience in

initiative-petition circulation in Oregon before Measure 26

was passed. Arno testified he had worked on one initiative

campaign in Oregon “around 1992,” but that campaign

“ended up folding prior to turning in signatures.” Arno had

not worked on any other initiative campaigns in Oregon. Similarly, Taylor testified that apart from an unrelated petition

(Referendum Petition 401 placed on the November 2004 ballot), he had never worked on any initiative campaigns in Oregon before or after Measure 26 was passed. Thus, as noted by

the district court, neither Arno nor Taylor could “offer a reliPRETE v. BRADBURY 1887
able comparison on the added costs, if any, imposed by Measure 26.” 

Plaintiffs submitted several other affidavits which they contend support their claim that Measure 26 poses a severe burden by increasing costs. Jason Williams (one of the plaintiffs)

averred he did not circulate an initiative petition “due in large

part to the fact that the cost of circulating the petition, using

paid signature gatherers, has increased significantly.” Yet

Williams does not aver that Measure 26 is responsible for any

such price increase. R. Russell Walker, chief petitioner for an

unrelated initiative (initiative petition 59), averred that he did

not circulate that petition “due in large part to the fact that the

cost of circulating the petition, using paid signature gatherers,

has increased significantly.” Similarly, he makes no averment

that Measure 26 is to blame. 

The district court ultimately concluded “Measure 26

imposes no appreciable burden in terms of costs for an initiative or referendum campaign.”

21 Implicit in this finding is the

21In making that finding, the district court also looked to an affidavit by

Ted Blaszak of Democracy Resources of Oregon, Inc., a signature gathering firm. The Blaszak affidavit was submitted by intervenor-defendants.

Blaszak had run the signature gathering campaign for Measure 26, during

which the petition circulators were paid by the hour, not per-signature.

Blaszak averred that he had worked on about ten other initiative campaigns in Oregon, and “the requirement to pay employees by the hour

rather than by the signature has not significantly increased my costs or

decreased productivity.” 

As noted in Section I, although the district court erred in granting

intervenor-defendants’ motion to intervene, that error was harmless. The

Blaszak affidavit supports defendant’s position that Measure 26 does not

increase the costs of initiative petition circulation, yet the district court

largely found that plaintiffs, through their own offer of proof, did not

prove that Measure 26 would impose such a burden. According to its

amended opinion and order, the district court did not rely upon any other

evidence submitted by intervenor-defendants. Thus, the district court’s

consideration of the Blaszak affidavit does not make it more probable than

not that the district court’s error in granting intervention tainted the verdict. Furthermore, there is no evidence that defendant would not have

obtained and submitted the Blaszak affidavit if Nesbitt and the Oregon

AFL-CIO had not intervened. 

1888 PRETE v. BRADBURY
conclusion that Measure 26 does not substantially increase the

cost of initiative-petition circulation. This finding is supported

by the record and is not clearly erroneous. 

3. The Effect of Measure 26 On The Invalidity Rate of

Signatures Gathered for Initiatives in Oregon

Arno averred he “noticed a significant decrease in the number of valid signatures collected by signature gatherers since

Measure 26 became law.” Taylor similarly averred he “discovered a disproportionate number of signatures to be invalid

[in Oregon], as opposed to the validity rates I am encountering in Washington and Ohio [which states do not prohibit

payment by signature].” Yet Taylor does not attribute the

higher invalidity rate to Measure 26 or suggest any reason for

the higher invalidity rate. He stated, however, that signature

gatherers paid by the hour “have more of an incentive to

defraud me [compared to signature gatherers paid per signature] because they know that regardless of whether I think the

signatures are valid, the signature gatherer must still be paid

an hourly wage.” As the district court noted, however, both

Arno and Taylor testified they had limited to no experience in

initiative and referendum processes in Oregon. Thus, their

assertions that paying petition circulators by the hour, instead

of per signature, results in higher signature invalidity rates

carry little weight. 

Both Williams and Walker also averred Oregon had a

higher signature invalidity rate post-Measure 26. Yet neither

affiant attributed the higher invalidity rate directly to Measure

26. 

In contrast, defendant submitted an affidavit from Richard

J. Ellis, Ph.D., a political science professor at Willamette University in Oregon. Ellis averred that “the available evidence—

though limited—suggests that circulators paid by the hour

also have a higher validity rate than those paid by the signature.” For example, in Oregon’s 2002 election year, Measure

PRETE v. BRADBURY 1889
26 (which used only circulators paid by the hour) had a signature validity rate of 73.43 percent, higher than the ten other

initiative petitions submitted for that election. Ellis also states

the overall signature validity rates have dropped in Oregon

not because of Measure 26, but because a March 2000 directive by the Oregon Elections Division instructed county clerks

(who confirm the validity of signatures on petitions) not to

count initiative signatures by “inactive voters” (i.e., voters

who have registered but have not voted in a certain number

of past elections). 

Further, Referendum Petition 401, which was qualified for

the February 2004 Oregon ballot, after the passage of Measure 26, had a signature validity rate of 84.55 percent. Arno,

Taylor, and Williams were involved in the circulation and

gathering of signatures for Referendum Petition 401. The high

validity rate of the collection of signatures for Referendum

Petition 401, conducted after the adoption of Measure 26,

weighs against plaintiffs’ claim. The record, therefore, supports the district court’s conclusion that Measure 26 results in

higher validity rates for signature collection, rather than lower

validity rates. Therefore, the district court’s finding is not

clearly erroneous. 

In sum, plaintiffs’ presentation of proof falls short here.

The district court did not clearly err in finding that Measure

26 did not decrease the pool of petition circulators in Oregon;

did not increase the costs of signature gathering; and did not

result in a higher invalidity rate of signatures gathered for initiatives. 

We next review the district court’s determination that Measure 26 creates only a “lesser burden” on plaintiffs’ First

Amendment rights. Because this question relates to a constitutional fact (i.e., what constitutes a “severe burden” or a “lesser

burden”), we review the district court’s determination de

novo. See Planned Parenthood, 290 F.3d at 1070. 

1890 PRETE v. BRADBURY
As noted supra, the district court did not clearly err in finding plaintiffs failed to prove Measure 26 resulted in any burden on their First Amendment rights. Unlike Meyer, plaintiffs

did not prove that Measure 26 limited “the number of voices

who will convey [plaintiffs’] message and the hours they can

speak”; that Measure 26 “limits the size of the audience

[plaintiffs’] can reach”; or that Measure 26 makes it “less

likely that [plaintiffs] will garner the number of signatures

necessary to place the matter on the ballot, thus limiting their

ability to make the matter the focus of statewide discussion.”

See Meyer, 486 U.S. at 423-24. Moreover, unlike Buckley,

plaintiffs did not prove that Measure 26 significantly limits

the available pool of people willing to circulate petitions or

constrains petition circulators’ “political thought and expression.” See Buckley, 525 U.S. at 194-96. 

Of course, from an economic perspective, eliminating one

method of payment (but not every method, a la Meyer) for

petition circulators could result in some barriers to entry in the

signature procurement market. For a task like signature gathering, it is possible that paying per signature (i.e., a commission basis) can be more productive of signatures than paying

an hourly wage. Whether Measure 26 creates such barriers to

entry, however, is a question of historical fact reviewed for

clear error.22 Here, the district court did not clearly err in finding plaintiffs failed to prove the existence of such barriers to

entry or that, if present, they diminished petition circulators’

ability to garner the requisite number of signatures to qualify

initiatives for the ballot. Absent proof that such barriers to

entry existed and had the claimed result, we are not left with

a “definite and firm conviction that a mistake has been made”

by the district court. See Sawyer v. Whitley, 505 U.S. 333, 346

n.14 (1992); SEC v. Rubera, 350 F.3d 1048, 1093 (9th Cir.

2003) (citing Easley v. Cromartie, 532 U.S. 234, 242 (2001))

22Whether the proven barriers, if any, constitute a severe or lesser burden is a question of constitutional fact reviewed de novo. See Planned

Parenthood, 290 F.3d at 1070. 

PRETE v. BRADBURY 1891
(“Under the clearly erroneous standard, we defer to the lower

court’s determination unless, based on the entire evidence, we

are possessed of a ‘definite and firm conviction that a mistake

has been committed.’ ”).23

Moreover, even if such barriers to entry did arise, they

would result in only a “lesser burden” under the First Amendment. Measure 26 is quite limited in its proscription, barring

only payment of petition circulators on the basis of the number of signatures gathered. It does not prohibit adjusting salaries or paying bonuses according to validity rates or

productivity, see Or. Admin. R. 165-014-0260, which could

likely counter any barriers to entry. 

In the absence of proof that Measure 26 creates such barriers to entry or otherwise burdens their First Amendment

rights, plaintiffs have established only that Measure 26

imposes “lesser burdens” upon the initiative process. Generally, the finding of a “lesser burden” triggers a “less exacting

review” under which an “important regulatory interest[ ]” will

support a finding that the measure is a “reasonable, nondiscriminatory restriction[ ].”

24 See Bayless, 320 F.3d at 1007.25

23“To be clearly erroneous, a decision must strike us as more than just

maybe or probably wrong; it must . . . strike us as wrong with the force

of a five-week-old, unrefrigerated dead fish.” Hayes v. Woodford, 301

F.3d 1054, 1067 n.8 (9th Cir. 2002) (citing Fisher v. Roe, 236 F.3d 906,

912 (9th Cir. 2001) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec.,

Inc., 866 F.2d 228, 233 (7th Cir. 1988))). 

24“The ‘principal inquiry’ in determining whether a regulation is

content-neutral or content-based ‘is whether the government has adopted

the regulation because of agreement or disagreement with the message it

conveys.’ ” Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir. 1996) (quoting Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994))

(internal alterations omitted). “[L]aws that by their terms distinguish

favored speech from disfavored speech on the basis of the ideas or views

expressed are content-based.” Id. Here, Measure 26 does not regulate what

can be said in an initiative or referendum petition, nor does it adopt or

reject any particular subject that can be raised in a petition. It may be

1892 PRETE v. BRADBURY
B. Oregon’s “Important Regulatory Interest”

Defendant has an important regulatory interest in preventing fraud and its appearances in its electoral processes. See

Bayless, 320 F.3d at 1013; see also Timmons, 520 U.S. at 364

argued that a restriction on the initiative process itself, which is a means

to wrest power from the legislature, is inherently content-based. This argument must fail because in Oregon the initiative power may be used to

amend the constitution to grant additional power to the legislature. See Or.

Const. Art. IV § 1. See also Stranahan v. Fred Meyer Inc., 11 P.3d 228,

242 (Or. 2000) (“In sum, the case law demonstrates that Article IV, section 1, confers an unfettered right to propose laws and constitutional

amendments by initiative petition, and to approve or reject such proposed

laws or amendments through the voting process.”); Bernstein Bros. Inc. v.

Dept. of Revenue, 661 P.2d 537, 539 (Or. 1983) (“The power to invoke

a referendum is a constitutional power reserved by the people. The creation of the referendum power (along with the initiative power) changes

the allocation of legislative power within a state, because after this creation the legislative power is shared between the people and their representatives.”); Zilesch et al. v. Polk County et al., 215 P. 578, 582 (Or.

1923) (“[T]he legislature and the people, through the initiative or referendum, [are] coordinate legislative bodies, and [ ] either [may] independently repeal an act passed by the other . . . .”). 

25Plaintiffs alternatively contend that Measure 26 is subject to strict

scrutiny because it is content-based, in that it applies only to initiative and

referendum petitions, not to recall or candidate sponsorship petitions. See

Bayless, 320 F.3d at 1009 (noting strict scrutiny automatically applies to

content-based restrictions). The district court rejected this argument, noting “the content of an initiative petition itself is not restricted, regulated

or otherwise affected by Measure 26.” We agree with the district court.

“The ‘principal inquiry’ in determining whether a regulation is contentneutral or content-based ‘is whether the government has adopted the regulation because of agreement or disagreement with the message it conveys.’ ” Crawford, 96 F.3d at 384 (quoting Turner Broadcasting Sys., Inc.

v. FCC, 512 U.S. 622, 642 (1994)) (internal alterations omitted). “[L]aws

that by their terms distinguish favored speech from disfavored speech on

the basis of the ideas or views expressed are content-based.” Id. Measure

26 does not regulate what can be said in an initiative or referendum petition, nor does it adopt or reject any particular subject that can be raised

in a petition. Therefore, Measure 26 is not a content-based restriction and

strict scrutiny does not apply. 

PRETE v. BRADBURY 1893
(“States certainly have an interest in protecting the integrity,

fairness, and efficiency of their ballots and election processes

as means for electing public officials.”). Further, the record

supports the conclusion that Measure 26 is aimed at combating actual instances of fraud and forgery committed by petition circulators paid on the basis of the number of signatures

gathered. 

First, the voter pamphlet circulated to the voters in consideration of Measure 26 supports the conclusion that Measure

26 is aimed at combating fraud in the signature gathering process. See Ecumenical Ministries v. Oregon State Lottery

Comm’n, 871 P.2d 106, 111 n.8 (Or. 1994) (“In considering

the history of a constitutional provision adopted through the

initiative process, [Oregon courts] examine[ ], as legislative

facts, other sources of information that were available to the

voters at the time the measure was adopted and that disclose

the public’s understanding of the measure . . . [such as] the

ballot title and arguments for and against the measure

included in the voters’ pamphlet . . . .”). The voter pamphlet

states in support of Measure 26 that “[t]his most recent election cycle saw convictions [of paid petition circulators] on a

variety of forgery, fraud, and identity theft counts, charges

pending against others and allegations of dozens more.” Measure 26 would combat such fraud, the pamphlet states, by

removing the “incentive for fraud out of the system” by mandating hourly pay rather than per signature. 

As evidence of the actual existence of fraud and forgery in

the initiative process, defendant presented an affidavit from

Bill Carroll, a criminal investigator in the Oregon Department

of Justice. He averred that paying petition circulators per signature leads to two types of fraud. First, the signature gatherers often forge signatures, thus receiving payment for a

collected signature even though the signature is invalid. Second, the signature gatherers falsely certify the petition signature sheets,26 either for petitions submitted by themselves or

for other petition circulators. 

26Petition circulators must certify that the signatures on the petitions

were obtained in the presence of the circulator and that upon belief, each

1894 PRETE v. BRADBURY
As attachments to his affidavit, Carroll supplied reports of

interviews of various signature gatherers (paid per signature)

who had forged signatures on their petitions; purchased signature sheets filled with signatures, then submitted them with

their petitions as if they had collected the signatures themselves;27 or participated in “signature parties” in which multiple petition circulators would gather and sign each others’

petitions.28

Defendant also submitted an affidavit by John Lindback,

Director of Oregon Secretary of State’s Elections Division.

He averred “the practice of paying signature gatherers by the

signature is a substantial case of . . . fraud” and forgery in the

initiative process. 

Plaintiffs point to the Arno and Taylor affidavits, however,

which aver that signature gatherers would not engage in fraud

or forgery 

because signature gatherers are “selling” each signature to APC, and APC won’t “buy” a signature APC

deems questionable. In that respect, signature gatherers paid by the signature police themselves because

professional signature gatherers don’t want a reputation that would cause them to not be hired by APC

in the future, or not be hired by other signature gathering companies. 

signature is that of a registered Oregon voter. Or. Rev. St. § 250.045(7).

It is unlawful to make a false certification. Or. Rev. St. § 260.715(1). 

27Or. Rev. St. § 260.558(2) makes it unlawful “to sell, offer to sell, purchase or offer to purchase, for money or other valuable consideration, any

signature sheet of an initiative, referendum or recall petition or any other

portion of the petition used to gather signatures.” 

28Or. Rev. St. § 260.555(3)-(4) makes it unlawful to obtain a signature

on an initiative “knowing that the person signing the petition is not qualified to sign it”; or that the person has already signed the petition once. 

PRETE v. BRADBURY 1895
Although such a general proposition may be sound, it does

not controvert defendant’s evidence discussed above that

some signature gatherers paid per signature have engaged in

fraud and forgery, nor does it diminish defendant’s important

regulatory interest in preventing such fraud.29

29Plaintiffs also rely on four district court cases. Those cases are distinguishable, however, because in each case the state defending the prohibition on per-signature payment for petition circulators failed to present any

evidence that per-signature payments increased fraud. Hence, in those

cases, the states presented no evidence to support their assertions that a

per-signature ban was necessary to promote the state interest in preventing

fraud and forgery in the initiative process. See Idaho Coalition United for

Bears v. Cenarrusa, 234 F. Supp. 2d 1159, 1165-66 (D. Idaho 2001) (the

plaintiffs challenged an Idaho prohibition making it a felony to “offer . . .

or attempt to sell . . . any petition or any part thereof or of any signatures”

for initiative petitions; the district court granted summary judgment for the

plaintiffs; construing the prohibition to prohibit payment of petition circulators per signature, the court found Idaho presented no evidence of fraud

in the signature gathering process and thus struck down the prohibition as

violating the First Amendment); On Our Terms ’97 PAC v. Sec’y of State

of Maine, 101 F. Supp. 2d 19, 25-26 (D. Me. 1999) (the plaintiffs challenged Maine’s prohibition on paying petition circulators per signature;

following a bench trial, the district court ruled for the plaintiffs, finding

the prohibition burdened the signature gathering process but noting that

Maine provided “no evidence whatsoever that fraud is more pervasive

among circulators paid per signature, or even that fraud in general has

been a noteworthy problem in the lengthy history of the Maine initiative

and referendum process.”); Terms Limits Leadership Council, Inc. v.

Clark, 984 F. Supp. 470, 471 (S.D. Miss. 1997) (the plaintiffs challenged

a Mississippi prohibition on paying petition circulators per signature; the

district court granted summary judgment for plaintiffs, finding “plaintiffs

have shown that the[ ] statute[ ] burden[s] their right to political expression, [and] the State has failed to present evidence of fraud or actual threat

to its citizens’ confidence in government on account of the per-signature

payment of petition circulators.”); LIMIT v. Maleng, 874 F. Supp. 1138,

1140-41 (W.D. Wash. 1994) (the plaintiffs challenged Washington’s prohibition on paying petition circulators on a per signature basis; the district

court granted summary judgment for the plaintiffs, finding Washington

presented “no actual proof of fraud stemming specifically from the payment per signature method of collection,” and thus Washington’s unsupported interest in maintaining the integrity of the initiative process did not

outweigh the burdens imposed by the prohibition). Here, we have the affidavits of Carroll and Lindback, infra p. 1894-95. 

1896 PRETE v. BRADBURY
[14] Like Jaeger, defendant asserted an important regulatory interest in preventing fraud and forgery in the initiative

process. Defendant supported that interest with evidence that

signature gatherers paid per signature actually engage in such

fraud and forgery. This court’s duty is not to determine

whether the state’s chosen method for prevention of fraud is

the best imaginable. Once the burden is found to be of the

“lesser” variety, our inquiry is limited to whether the chosen

method is reasonably related to the important regulatory interest. Last, as the district court correctly determined, plaintiffs

did not prove Measure 26 would otherwise burden their ability to collect signatures. See Jaeger, 241 F.3d at 618. 

[15] In sum, because plaintiffs failed to prove the district

court erred in determining that Measure 26 does not severely

burden their First Amendment rights in circulating initiative

petitions, and defendant has established that Measure 26

serves the important regulatory interest in preventing fraud

and forgery in the initiative process, we hold that Measure 26

does not violate the First Amendment, as applied, and

AFFIRM the judgment of the district court. 

AFFIRMED.

PRETE v. BRADBURY 1897