Archives for the month of: October, 2011

Big news on ballot initiative disclosure today from the United States District Court in Tacoma, WA. The federal judge granted summary judgment in the Doe v. Reed remand, dismissing the remaining as-applied challenge to the application of Washington’s Public Records Act disclosure requirement for signature pages of Referendum 71, an effort to repeal the legislature’s bill granting same-sex civil union protections.

The opinion, following Justice Scalia’s wisdom that public disclosure is necessary and belittles the weak factual record produced by the plaintiffs, noted that “if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception instead of the rule.”

Ruling here and some excerpts, (via Rick Hasen):

More from the opinion:

Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as “serious and widespread.”

……

Considering the foregoing, Doe’s action based on Count II falls far short of those  an as-applied challenge has been successfully lodged to prevent disclosure of information otherwise obtainable under the PRA. Thus, the State’s undoubtedly important interest in disclosure prevails under exacting scrutiny.

While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society. The facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.

According to a recent Field Poll, which comes on the heels of similar findings in a  PPIC poll, Californians still like the institution of direct democracy, although support has tapered off quite a bit over the years.

Over half those polled this fall think that statewide ballot propositions are a “good thing,” with only 13% viewing the process in a negative light.  Back in 1978, on the heels of Proposition 13, 83% of those surveyed in a Field Poll said it was a “good thing.”

What do Californians like? By a margin of 56% to 32%, those polled support having propositions on general election ballots, which will be the case following the June 2012 primary election, as Governor Brown just last week signed Senate Bill 202.

The poll also reveals that a majority of Californians trust fellow citizens via the ballot propositions more than the state legislature to “do what is right on important government issues.”  As I wrote back in September:

Reforming the initiative process in California is an easy task compared to the one really plaguing California. The real issue facing the state is whether the state legislature will reform itself so that Californians will regain confidence in the legislative process. This will take considerable effort, but until it is achieved, Californians will continue to invest their trust in the initiative process, as flawed as it may be.  And if the legislature doesn’t clean up its own house soon, the citizens of California may take to the initiative to do it themselves.

If the California legislature continues to fail to govern responsibly, citizens (and corporate interests) will respond by turning to the initiative and popular referendum, as the mechanisms provide immediate response, if not ideal representation, of the interests of those living in the state.

In its amended complaint to receive declaratory judgment from a federal court that all sections of HB 1355 are entitled to preclearance under Section 5 of the 1965 Voting Rights Act, the Florida Secretary of State plays fast and loose with the facts.

With respect to the shrinking of the days permissible to vote early in Florida, the complaint states (on page 19) that:

The changes to the early voting statute contained in Section 39 were adopted to expand access to early voting and provide each supervisor of elections additional flexibility regarding the scheduling of early voting. The changes to the early voting statute contained in Section 39 were not adopted with the purpose of denying or abridging the right to vote on account of race, color, or membership in a language minority.

Both the motive behind the statute, HB 1355, as well as the empirical evidence regarding race and early voting in Florida, are quite clear, and do not jibe with the claims made in the Secretary of State’s complaint.

First, as I’ve noted previously, it’s well known that African Americans are more likely to vote early in Florida than whites. In the 2008 general election, 2.1 million Floridians voted early.  African Americans cast 22 percent of the early votes, even though they only comprised 13 percent of the total electorate.

The Republican-led Florida legislature was well aware of these statistics.  The early turnout of African Americans in 2008 undoubtedly inspired the effort by Republican lawmakers to compress early voting, in anticipation of the 2012 general election. Indeed, the Republican effort to suppress blacks from voting early was on full display during the floor debate on House Bill 1355 (known formally as the Committee Substitute for Committee Substitute for House Bill 1355 (CS/CS/HB 1355)).

Defending the bill, Republican Senator Mike Bennett stated on the floor of the Florida Senate (as reported by PolitiFact):

Do you read the stories about the people in Africa? The people in the desert, who literally walk two and three hundred miles so they can have the opportunity to do what we do, and we want to make it more convenient? How much more convenient do you want to make it? Do we want to go to their house? Take the polling booth with us? This is a hard-fought privilege. This is something people die for. You want to make it convenient? The guy who died to give you that right, it was not convenient. Why would we make it any easier? I want ‘em to fight for it. I want ‘em to know what it’s like. I want them to go down there, and have to walk across town to go over and vote.

Although the total number of early voting hours remains fixed at 96 hours, they’re not the same hours. Previously, voters had two weeks to cast an early vote, from a Monday to the Sunday before Election Day.  Under HB 1355, the period is eight days long, running from Saturday through Saturday, but eliminating the final Sunday before election day.

The new restriction on early voting–specifically, cutting the early voting period from 14 to 8 days and eliminating voting on the Sunday prior to the general election–unquestionably targets African Americans. Not only were African Americans more likely to cast an early ballot than whites in 2008, they were also more likely to do it on the Sunday prior to election day.

Targeting African Americans was the intent of Republican lawmakers all along, and HB 1355 clearly violates the Section 5 of the Voting Rights Act, and the same racially motivated efforts by lawmakers to suppress the vote by minorities that it intended to correct nearly half a century ago.

As I’ve said publicly time and again, I’m unequivocally ambivalent about direct democracy. I’ve written a book critical of the populist rhetoric (faux populism) of ballot measures, and another praising the “educative effects” of direct democracy. My dozens of articles on direct democracy are empirically driven, as I’ve tried to keep a normative-neutral stance in my academic writings. Direct democracy is by no means a perfect system, but neither is representative democracy.

As with every other state, the record of direct democracy in California is certainly mixed.  Direct democracy just happens to be more prevalent in California than most other states. It trails only Oregon in the number of initiatives that have been qualified for the ballot since the state adopted the process in 1911.

Over the next century, hundreds of initiatives will again surely become qualified for the ballot.  Just this last week, Governor Jerry Brown took a courageous step to improve the process by signing Senate Bill 202, which now limits California ballot initiatives to November elections.  Besides the expected charges that the bill will help Democrats by having initiatives on the ballots in higher turnout elections, critics of SB 202 claim that citizens may be overwhelmed by the number of propositions that are expected to appear on general election ballots. Yet since 1912, California has averaged only 6.3 initiatives every two-year election cycle. Certainly, potential voters can handle this level of initiatives. Indeed, the state managed to survive the 1914 ballot, which had more than 40 statewide measures (initiatives, popular referendums, and legislative referendums)!  (Citizens wound up rejecting 11 of the 17 initiatives.)

Despite its flaws,there’s much to admire about the initiative process in California. The state has one of the best disclosure laws on the campaign financing of ballot measures, and as I’ve written elsewhere, it has solid laws regulating the circulation of petitions.

To be sure, reforms could be made to the state’s s initiative process. First, California does not make signatures submitted on initiative and popular referendum petitions, which could reduce fraud in the signature gathering process, as the Supreme Court of the United States recognized in its 2010 decision, Doe v. Reed. Second, is the only state that permits the process where the legislature may neither amend nor repeal an initiative statute. Both of these areas should be addressed by the state legislature in the coming years.

The process ofdirect democracy, as practiced in California over the past century, certainly has exhibited considerable vulnerabilities. There’s room for improving the system.  But over the years, it also has served as a “gun behind the door,” as Woodrow Wilson–a critic of direct democracy–reluctantly referred to the initiative process. It has kept the state legislature in check, given citizens a voice, and helped to engage the electorate and affect candidate campaigns. No political system is perfect, including California’s hybrid democracy, but it has lasted a century and it will no doubt continue to endure for years to come.

In Minnesota and California, campaigns opposing gay marriage and the teaching of gay history, respectively, are refusing to play by the rules. Stories here, here, and here.

Derrick Bell, the first African American dean of a non-historically black school of law, and long-time professor at Harvard and NYU law schools, passed away yesterday at age 80.

In addition to pioneering “critical race theory,” Bell penned a seminal essay in 1978, on the dangers of direct democracy towards minorities.  Bell, in his Washington Law Review article, “The Referendum: Democracy’s Barrier to Racial Equality,” argued that ballot measures could perpetuate racial discrimination, increasingly so as racial barriers are simultaneously being lowered in representative democracy.  As such, the courts, Bell contended, should use heightened scrutiny assessing whether the civil rights of minorities are diminished via plebiscite.  Concerned with the populist tropes of some ballot measures, Bell warned, “Although the racial motivation is hidden, its effects are not; and the damage to minorities and to the integrity of a representative government can be as severe as that of the overtly racist laws existing in the country before 1954.”

For more empirical research on direct democracy and minority rights, see my review essay with Caroline Tolbert, as well as this article by Don Haider-Markel and his coauthors.

As reported in the Seattle Times, a federal judge in Tacoma, Washington, is expected to rule in the next two weeks on whether the 137,500 names collected on Referendum 71 petitions should be made public.  The 2009 signature gathering campaign by Protect Marriage was an effort to use a popular referendum to overturn the state legislature’s domestic-partnership law.

As the lead author of  an amicus brief on behalf of the state of Washington and its defense of the state’s Public Records Act in the 2010 case, Doe v. Reed, in which the US Supreme Court upheld the state’s interest in disclosure, there is no question that the names on the petitions should be made public.  As I wrote in my amicus brief, there’s little credible evidence that signers of Referendum 71 petitions in Washington were subject to threats or harassment.  As our amicus brief states:

Nor does disclosure create any risk of intimidation or harassment of signers. Of the approximately 600,000 voters who signed referendum petitions in Washington in the last decade, Petitioners have failed to identify a single individual who claims to have been harassed or intimidated as a result of mere disclosure of her signature. More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the internet. Yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.

Furthermore, as we note in our brief:

Disclosure does not “infringe ‘privacy of identity, association and belief,’ as Petitioners suggest, because there is no reasonable expectation or assumption of privacy or secrecy: any voter who signs a petition knows that her signature, name and address, and the fact that she is signing, are being put on paper in the hands of a stranger, in a public place, in front of others, and then submitted to a government agency. Further, public disclosure of petitions is widespread and routine in states that allow ballot initiatives and referenda.

Public disclosure of signatures on ballot measures is also necessary to ensure fraud is not being committed during signature gathering phase and the state of Washington has a compelling interest in making signatures part of the public record.

U.S. District Judge Benjamin Settle should heed the words of Justice Antonin Scalia, who wrote pointedly in his concurring opinion in Doe v. Reed, why disclosure is necessary, and can embolden citizens.

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance…Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Signed,

Not Anonymous.

This news story, by @gustafsoncraig, in the San Diego Union-Tribune, about a petition gathering effort in San Diego, gets it wrong when it comes to regulations on signature gathering in California. Almost anything does not go in California when it comes to signature gathering efforts.

A simple visit to the CA Secretary of State reveals the regulations on signature gathering.

In addition to having to disclose if he or she is being paid or a volunteer, when asked, a petition gatherer must disclose on the petition his or her name and place of residence, as well as attest that he or she is qualified to be a registered voter in California. The gatherer must also attest that he or she witnessed the appended signatures on the petition and that each signature is the genuine signature of the person whose name it purports to be.

Equally important are the regulations placed on the person in charge of the petition gathering effort, as well as all paid signature gatherers.  Prior to circulating an initiative petition for signatures, these individuals must “execute and submit to the proponent(s) a signed statement,” that reads (Elections Code § 9609)):

I,__________, acknowledge that it is a misdemeanor under state
law (Section 18650 of the Elections Code) to knowingly or willfully
allow the signatures on an initiative petition to be used for any
purpose other than qualification of the proposed measure for the
ballot. I certify that I will not knowingly or willfully allow the
signatures for this initiative to be used for any purpose other than
qualification of the measure for the ballot.

Furthermore, there are numerous criminal penalties for signature gatherers who misrepresent the content of the petition they are circulating, including misrepresenting the purpose or contents of the measure to potential signers. Straight from the Secretary of State’s handy handbook:

The Elections Code imposes certain criminal penalties for abuses related to the circulation of initiative petitions. It prohibits circulators from misrepresenting the purpose or contents of the petition to potential petition signers, intentionally making a false statement in response to a voter’s inquiry as to whether the circulator is a paid signature gatherer or a volunteer (Elections Code § 18600), and from refusing to allow prospective signers to read the initiative measure or petition or Attorney General’s summary. (Elections Code §§ 18601, 18602.) No person may offer or give payment or anything of value to another in exchange for signing an initiative petition. (Elections Code § 18603.) The code also makes circulators, signers, and others criminally liable for signing or soliciting to sign false, forged, fictitious, or ineligible signatures and names. (Elections Code §§ 18610-18614.) The law provides criminal penalties for persons, including public officials, who make false affidavits (for example, the circulator’s declaration is an affidavit), returns, or certifications concerning any initiative measure. (Elections Code §§ 18660, 18661.)

Circulating petitions within 100 feet of a polling place or an elections official’s office on election day is prohibited. (Elections Code § 18370(a).) The law prohibits any person from soliciting or obtaining money or anything of value to aid in unlawfully stopping circulation or the filing of an initiative measure. (Elections Code §§ 18620-18622.) It also prohibits any person from stealing petitions and from threatening petition circulators or circulators’ relatives with the intent to dissuade them from circulating the petition (Elections Code §§ 18630, 18631). Any person who is paid by the proponent(s) to obtain signatures on any initiative petition is subject to severe penalties for failing to surrender the petition to the proponent(s) for filing. (Elections Code § 18640.)

Unlike in other states–including Washington where Doe v. Reed, the important 2010 US Supreme Court decision, emanated–in California “the petition or list of signatures may be used for no purpose other than the qualification of the initiative measure,” including for mailing lists or fundraising. (Of course, Butcher-Forde, Howard Jarvis‘ fundraising team in the 1970s-1980s, routinely flouted this restriction.)

My friend Thad Kousser at UCSD offers some good insight:

There’s no ‘truth in advertising’ law in politics,” he said. “What we have is a system designed to give microphones to both sides who can call the other out for lying and also a robust political press. … You mislead the public at your own peril because the benefits for lying in a campaign are far outweighed by the costs of really being caught in a lie.”

Kousser added, “That’s certainly true as a candidate because it becomes a character issue if you’re seen as lying about the other candidate. It’s not quite so clear whether this holds true for initiative campaigns.”

But when it comes to signature gathering campaigns in California, there are rules, and petition gatherers, as well as potential signers of petitions, would be wise to be aware of them.

 

Voting Rights in Hillsborough County, as I’ve blogged before, are still covered by Section 5 of the Voting Rights Act.

As such, voters in Hillsborough are granted federal protections that neighboring voters in Pinellas County are not afforded. These distinctions have recently come into question with the Florida legislature’s passage of the Republican-sponsored voter suppression bill, HB 1355, and the US Justice Department’s refusal thus far to “pre-clear” all of the legislation.

Since Pinellas County residents are covered by Section 5 of the Voting Right Act, under HB 1355, they might have a harder time registering to vote, casting an early ballot, and moving within the county prior to election day than a neighbor living in Hillsborough County. For example, if a registered Tampa Republican who moves within Hillsborough County prior to Jan 31 presidential primary may still cast a valid ballot, but a similar St. Pete resident who moves within Pinellas County must file a provisional ballot. As we know, a fraction of all provisional ballots that are cast are actually counted.

Is this fair? Will some Republicans in Florida become disenfranschised or have a more difficult time casting a ballot because of HB 1355? The National Journal has more, here.

Election Day 2011 is fast approaching. Most eyes will be focused on the the regularly-scheduled off-year gubernatorial elections in Kentucky, Louisiana, Mississippi, as well as a special gubernatorial election in West Virginia. There are also legislative races Louisiana, Mississippi, New Jersey, and Virginia. Some pundits suggest that the collective results of these off-year races may serve as a bellwether for the 2012 general election.

Equally, if not more important, though, are the results of the referred and initiated statewide measures on the ballot.

Citizens in nine states–Arkansas, Colorado, Louisiana, Maine, Mississippi, New Jersey, Ohio, Texas and Washington–will have the opportunity to cast ballots in October on 34 ballot measures, including a dozen measures put on the ballot by citizen.

In terms of ballot bellwethers, topping all other campaigns is “Issue 2” on the ballot in Ohio. The popular referendum is an effort by citizens to repeal the anti-worker Senate Bill 5 that was signed into law by Governor Kasich. If Issue 2 goes down, it should be interpreted not only as a blow against conservatives in Ohio, but also Republicans pushing anti-worker policies in others states, including Florida, Indiana, New Jersey, and especially Wisconsin.

Social conservatives and pro-choice advocates will be turning their attention south, as Mississippi voters will confront an extreme anti-choice “personhood” amendment. Voters in Colorado have defeated a similar measure. Suffice to say, Mississippi is not Colorado.

The Huffington Post has good overviews of both of these issues:

A third measure to watch out for is a popular referendum in Maine that will overturn a Republican-sponsored law ending same-day voter registration in the state. Same day voter registration is a good governance issue, not a partisan issue, though Republicans in the state seem to think otherwise.  The Sun Journal has an update on the campaign, here: People’s veto probably a close to a slam-dunk.

Finally, anti-tax crusader Tim Eyman in Washington has an initiative on the ballot that fiscal conservatives around the country will be taking stock. Fearful of all things public-infrastructure, his pet-project would cut tolls used to pay for new bridges and highways in the state.  As it has done in the past, the business community has spoken up, joining Democrats and organized labor to oppose Eyman’s latest slash and burn measure, as the Seattle Post-Intelligencer reports:  The Association of Washington Business has come out against the Tim Eyman-sponsored Initiative 1125.

Rather than only reading the tea leaves from the 2011 candidate races, pundits should also consider the results of these ballot measures.  All four measures, as well as several others, will have implications for candidate races in 2012, from state legislative races to campaigns for Congress and the presidency.  As campaign consultants and pundits are increasingly realizing, ballot measures have a range of “educative effects,” as they can ply candidates with salient issues to support or oppose during their campaigns, mobilize turnout, and even prime candidate support.

For more on the scholarship of the “educative effects” of direct democracy, here’s a primer.

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