Don’t Try Petitioning Signatures on US Postal Grounds

Well, I had completely forgotten about this case.

The Initiative & Referendum Institute filed an initial lawsuit back in 2000, bringing a facial challenge to a 1998 ban by the US Postal Service on “soliciting signatures on petitions” on “all real property under the charge and control of the Postal Service.” 39 C.F.R. § 232.1(a), (h)(1) Violators were subject to both a criminal fine and imprisonment. Id. § 232.1(p)(2).

[For the record, I sit on the "Board of Scholars" of the I&R Institute, although I have not received any communication for years from the Institute, now housed at the University of Southern California. Also, for the record, their website is terribly awkward, not to mention, outdated.]

Seemed at the time, a tad harsh. Not to mention, unconstitutional.

But lo and behold! After several iterations by the US Postal Service modifying its rule — and subsequent litigation — the U.S. Court of Appeals, D.C. Circuit, upheld the most recent (2010) Postal Service regulation that allows petition gatherers to solicit signatures while standing on interior postal sidewalks, but the physical act of signing a petition is not permitted on the interior sidewalk. Rather, those wishing to sign the petition must head to a designated “Grace” area to fill in the information on the petition.

But, as Judge Janice Rogers Brown, who signed the majority opinion but wrote separately in a Concurring Opinion, stated:

“…this half-a-loaf solution seems more persnickety than practical. The harms about which the Postal Service is concerned—the impeding of traffic and the appearance of
Postal Service endorsement, Majority Op. at 11–12—and, indeed, all of the harms I can imagine, accrue in the initial, permitted phase of a signature-gathering encounter: the
solicitation.”

Look for this decision to be appealed to the Supreme Court of the United States.

Petition Signing Draws Infrequent Voters to Polls

So says a University of Arkansas press release touting my recently published article in Political Behavior, “The Impact of Petition Signing on Voter Impact,” that I coauthored with Arkansas political science professor, Janine Parry, and her former undergraduate honors student, Shayne Henry.

The University of Arkansas press release is below, and here’s a link to the article.

Research suggests Wisconsin governor faces tough recall election

Thursday, March 15, 2012

Janine Parry, professor, political science, University of Arkansas.

FAYETTEVILLE, Ark. – Given the 1 million signatures on a petition to recall Wisconsin Gov. Scott Walker, research on the voting behavior of petition signers suggests that Walker faces a tough time in the June special election. A study published in the March 2012 issue of Political Behavior finds that people who sign petitions are more likely to show up to vote.

“Not only does recall history generally suggest that the governor’s odds of surviving a special election are low, but our study demonstrates that the people who signed the petitions and who become uncharacteristically motivated may well drive his ouster,” said political scientist Janine Parry of the University of Arkansas.

Parry teamed up with Daniel Smith of the University of Florida and Shayne Henry, then an Honors College undergraduate at the University of Arkansas, to analyze data from 1,000 registered Arkansas voters, 1,100 registered Florida voters, and all 71,119 registered voters in Gainesville, Fla., to measure the relationship between petition signing and voting. The researchers matched individual petition-signers with their election behavior and found that voters who signed petitions were more likely to go to the polls.

While the data showed the probability of voter turnout was higher for voters of all voting histories who signed a petition — from functionally inactive voters to super voters — petition signing had the greatest effect on irregular voters and on voters in off-cycle elections, such as the recall election in Wisconsin. The researchers found that infrequent voters who signed a petition were sometimes as much as 20 percentage points more likely to turn up at the polls compared to those who did not sign a petition.

“The magnitude of the effects was most surprising and unexpected for voters with the spottiest records,” Parry said. “Having a 20 point increase in anything in social science is pretty amazing.”

Few studies have focused on the significance of petition signing as motivation for individual voters to go to the polls. This study is the first to couple actual ballot petitions with official voter records, because the data were available through the Know Thy Neighbor online database, a publicly available database of those who had signed a statewide constitutional initiative against gay marriage and adoptions.

“The data have never been available for scholarly purposes because no one has the time to type in 100,000 names and then cross check it with registered voters,” Parry said. “Most people don’t have the time or staffing to digitize that kind of information.”

In recent election cycles, having controversial social issues on the ballot has driven voter turnout.

“If you can get a hot-button social issue out there, people are more likely to respond and show up to the polls,” said Parry. “Parties and candidates were banking on this process, hoping to drive turnout, like in 2004 with George W. Bush and gay marriage, or in 2006 when the Democrats tried with somewhat less success with minimum-wage ballot measures.”

In contrast, Parry said, “Our findings add more authority to the claim that campaign contact matters and that it matters a lot for certain people.”

Parry is a professor of political science in the J. William Fulbright College of Arts and Sciences at the University of Arkansas and director of the Arkansas Poll. Smith is a professor of political science at the University of Florida. Henry was an Honors College student at the University of Arkansas and now studies law at the University of California, Berkeley.

The study, “The Impact of Petition Signing on Voter Impact,” appears in the March 2012 issue of Political Behavior.

It must be the Cheese: 96.8% Valid Signature Rate for WI Recall Petitions

The staff of the Wisconsin Government Accountability Board earlier this week recommended to the Board that there were a sufficient number of valid signatures on the recall petitions submitted for Governor Walker and Lt. Governor Kleefisch to order a recall election.

Were there ever!

The staff’s reports are available on the Board’s website.

Here’s a helpful summary of the staff’s findings.

Officeholder	Signatures Submitted	Signatures Struck by Staff	Duplicates Struck	Valid Signatures
Gov. Walker	931,053	26,114	4,001	900,938
Lt. Gov. Kleefisch	842,854	29,601	4,263	808,990

I’ve been studying ballot initiatives for some time now (nearly 20 years), and I have to admit, I am stunned by the high validity rate for the recall elections. I’ve been involved as an expert in lawsuits, hired to defend and challenge the legitimacy of signatures gathered for initiative and popular referendum petitions which have a far lower rate. For example, in the state of Washington, as I document with Todd Donovan in our 2008 book chapter on the incidence of signature gathering fraud in ballot measure campaigns, an average of nearly 19% of signatures submitted on initiative and popular referendum petitions between 1990 and 2006 were ruled to be invalid, mostly due to names on petitions not being found in the voter file. And compared with other states, Washington has a fairly high validity rate for signatures submitted on petitions.

Perhaps we should expect the validity rates for signatures collected in recall elections should be higher than those collected in initiative and popular referendum campaigns, but I’m at a loss to explain why. The same tactics used by recall petitioners are used by those collecting the signatures in I&R campaigns. Some gatherers are volunteers, others are paid, sometimes incentives or bounties for valid signatures are offered the proponents. So why the outstanding validity rate?

Whatever the reason, we should expect that many of the 900,000 plus Cheeseheads who signed a petition and who are registered to vote (which is not a requirement to sign a valid recall petition in Wisconsin) will be likely to turn out to vote in the upcoming recall elections, even if many of them are not regular voters.

My just-published article with Janine Parry and Shane Henry, “The Impact of Petition Signing on Voter Turnout,” reveals that those who sign ballot initiative petitions, controlling for a host of other factors, are more likely to turn out to vote, especially in low-turnout but high salience elections, like the June 5 recall elections are likely to be.

My scholarly hat is off to the recall petitioners for their truly impressive feat, and I look forward to delving into the petition data in the coming months.

Disclosure of Popular Referendum Ballot Signatures Affirmed by Federal District Court

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.

Happy Birthday, California! A Century of Direct Democracy

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.

RIP Derrick Bell, Critic of Direct Democracy

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.

It’s Time to Disclose Washington’s Referendum 71 Petition Signatures

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.

Yes, there are Regulations on Signature Gathering in California

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.

 

Does Pinellas County Regret its 1912 Decision to Secede from Hillsborough?

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.

Don’t Overlook Off-Year Bellwether Ballot Measures

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:

•  Ohio SB 5 Collective Bargaining Law Follows Efforts In Wisconsin and New Jersey
• As Mississippi Debates Extreme ‘Personhood’ Amendment, Advocates Ask Where Are The Dems?

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.