from the District Court of Stutsman County, Southeast
Judicial District, the Honorable Thomas E. Merrick, Judge.
Katherine M. Naumann (argued), Assistant State's
Attorney, plaintiff and appellee.
Ariston E. Johnson (argued), for defendant and appellant.
Lori S. Mickelson, Office of the Attorney General, for amicus
curiae North Dakota Attorney General.
1] Curtis Francis appeals from a criminal judgment after
conditionally pleading guilty to gathering signatures within
100 feet of a polling place. We conclude the electioneering
law he was charged under does not violate the First Amendment
to the United States Constitution, and it is a reasonable
restriction on the North Dakota Constitution's initiated
ballot measure provision. We also conclude Francis has failed
to show he was selectively prosecuted. We affirm the
2] Francis and another man, Michael Dax, were collecting
signatures near the Jamestown Civic Center, a designated
polling place, on voting day. They were doing so in an effort
to get an initiated measure regarding environmental concerns
placed on the next ballot. While they were collecting
signatures, it began to rain. They moved under a canopy
covering an entrance to the polling place. They continued
collecting signatures as individuals walked past them to
3] One voter told an election clerk about Francis and
Dax's activities. The clerk informed the county auditor.
The auditor, along with a plain-clothed security officer,
went to speak with Francis and Dax. They informed the two it
was illegal to collect signatures within 100 feet of a
polling place. Dax began arguing with the auditor; Francis
continued collecting signatures. A police officer was
dispatched. The officer confiscated the signatures, but did
not arrest Francis or Dax. After the incident, the officer
forwarded a report to the county prosecutor.
4] The prosecutor filed charges against Francis for
collecting signatures within 100 feet of an open polling
place in violation of N.D.C.C. § 16.1-10-06.2. Francis
filed a motion to dismiss the charges. He argued the law
infringes upon his right to free speech and violates the
North Dakota Constitution's ballot initiative provision.
He also argued he was selectively prosecuted because of his
support for the environmental initiative in a county where
the measure was unpopular. He asserted others, both
supporting and opposing the same initiated measure, broke the
same election law but were not prosecuted in other counties
based on the popularity of the initiated measure in that
county. The district court denied Francis's motion.
Francis conditionally pled guilty and appealed.
5] On appeal, Francis argues N.D.C.C. § 16.1-10-06.2 is
an unconstitutional violation of the First Amendment both on
its face and as applied to him.
6] We review constitutional challenges to a statute de novo.
Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d
505. "All regularly enacted statutes carry a strong
presumption of constitutionality.... The presumption of
constitutionality is so strong that a statute will not be
declared unconstitutional unless its invalidity is, in the
court's judgment, beyond a reasonable doubt."
State v. Baxter, 2015 ND 107, ¶ 5, 863 N.W.2d
208 (quoting Beylund v. Levi, 2015 ND 18, ¶ 17,
859 N.W.2d 403).
7] Section 16.1-10-06.2, N.D.C.C., provides:
A person may not approach a person attempting to enter a
polling place, or who is in a polling place, for the purpose
of selling, soliciting for sale, advertising for sale, or
distributing any merchandise, product, literature, or
service. A person may not approach a person attempting to
enter a polling place, who is in a polling place, or who is
leaving a polling place for the purpose of gathering
signatures for any reason. These prohibitions apply in any
polling place or within one hundred feet [30.48 meters] from
any entrance leading into a polling place while it is open
8] Francis argues N.D.C.C. § 16.1-10-06.2 is
unconstitutional because it violates his right to free speech
under the First Amendment to the United States Constitution.
The State asserts it is a constitutional time, place, and
manner restriction on speech.
[E]ven in a public forum the government may impose reasonable
restrictions on the time, place, or manner of protected
speech, provided the restrictions are justified without
reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental
interest, and that ...