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 Also, for the record, their website is terribly awkward, not to mention, outdated.]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
Look for this decision to be appealed to the Supreme Court of the United States.
reports the Kansas City Star in a story by Barb Shelly, “Defenders of high payday loan rates resort to intimidation.”
According to the story, “Someone broke into a car in Springfield last week and stole 5,500 signatures that volunteers had gathered for initiative petitions to cap payday loan rates and raise Missouri’s minimum wage.”
There have also been numerous allegations that opponents of the two ballot measures have been harassing signature gatherers. According to Shelly’s story, “Opposition blockers down there have been screaming in the faces of our canvassers and voters to intimidate people from signing,” said Molly Fleming-Pierre, an organizer with Communities Creating Opportunities in Kansas City.
As has been reported on earlier, volunteers, including clergy members and other religious groups, have been busy collecting signatures in an effort to qualify the measures.
It’s unclear who is behind the blocking efforts in Missouri. The Star reports that, “A shadowy though well-funded group called Missourians for Equal Credit Opportunity is opposing the payday loan initiative, but there is no way to show at this point if that group paid someone to coordinate the strong-arm tactics used in Springfield.”Fortunately, there are statutes on the books in Missouri that law enforcement can use to crack down on this criminal behavior.
The deadline for depositing signed petitions to the Missouri Secretary of State is this Monday.
Proponents of the two Missouri initiatives are optimistic that they will qualify for the ballot.
If they do qualify for the November election, it bodes well for Democratic candidates on the ballot, as my research on the 2006 minimum wage initiatives documents.
Unfortunately, I do not have time right now to chime in on the very important ballot measure committee contribution disclosure lawsuit, ProtectMarriage.com, which is before the U.S. Court of Appeals for the Ninth Circuit. I’ve served as an expert in several campaign finance lawsuits across the country, including the case California Pro-Life Council v. Getman (9th Cir. 2005), when my research was used to bolster the constitutionality of California’s ballot measure disclosure requirements. I must say that it’s gratifying to see that my 2005 Election Law Journal article with Elizabeth Garrett that details the deceptive practices of “Veiled Political Actors” is once again being used to support the case for the public disclosure of the activities of ballot issue committee, as required under California’s Political Reform Act.
If you’re interested in the topic, I’d urge you to read the Campaign Legal Center’s amicus brief filed in ProtectMarriage.com v. Bowen.
As the Legal Center points out in its press release, “In the last decade alone the Supreme Court has upheld disclosure laws by votes of 8-1 three times, most recently in Doe v. Reed. In his concurrence in the case, Justice Scalia made very clear the importance of transparency to the health of our democracy:
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 (McIntyre) 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.”
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.
Petition Signing Draws Infrequent Voters to Polls
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.
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|
|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.
Crack reporter, Nicholas Confessore, in his story, “Anti-Gay Marriage Group Recommends Creating Tension Between Gays and Blacks,” recounts a classic tale of an interest group trying to use a ballot initiative to drive a wedge into a party’s base.
More than a decade ago, I wrote about the GOP using this tactic in California and Colorado. No time to summarize it here, but here’s a link to my 2001 article, Initiative to Party, with Caroline Tolbert on the topic, and it’s also retold in my book, Educated by Initiative.
In the 2008 general election, Florida voters cast some 35,635 provisional ballots on Election Day. That’s but a fraction of the more than 8.3 million ballots cast in the election, but in close elections, local, state House and Senate, or even presidential, they could determine the outcome an election.
But unlike regular ballots cast by voters, provisional ballots–despite what we’re told–often don’t count. In fact, in the 2008 general election, less than half of all provisional ballots cast were actually deemed to be valid. Days after the polls closed on Tuesday, November 4, 2008, and long after the unofficial results were posted by the Secretary of State and broadcast by the media, local three-member canvassing boards in the state’s 67 counties opened thousands of envelopes containing provisional ballots and began to tabulate them.
Whether they count, is another question altogether. Of the 35,635 provisional ballots cast in the 2008 general election, local canvassing boards validated only 17,312, or less than 50%.
The dirty little secret in the Sunshine State is that provisional ballots often don’t count. Or at least they don’t count as frequently in some counties as in others. There are innumerable reasons for the disparity, but the disparity exists. For whatever reason, provisional ballots cast by registered voters don’t have an equal shot of being accepted by local canvassing boards. The assault on voting rights by the Florida legislature in 2011, with the passage of HB1355, will likely increase the proportion of provisional ballots cast in the 2012 general election, and could very well lead to an even lower likelihood that provisional ballots will be validated.
In the 2008 general election there was a tremendous amount of variation across the state’s 67 counties regarding the number of provisional ballots cast and the percentage that were actually added to the final tabulation. In six counties, all of them largely rural, all of the provisional ballots cast (a total of 54) were deemed to be valid by the county canvasing boards (Baker (0/0); Dixie (11/11); Hamilton (12/12); Holmes (13/13); Lafayette (3/3); and Suwannee (15/15)).
Other counties, as this Provisional Ballots Chart reveals, also had high percentages of validated provisional ballots. For example, over 82 percent of the 731 provisional ballots cast in St. Johns County, 72 percent of the 411 provisional ballots cast in Pasco County, and nearly 60 percent of the 4,659 provisional ballots cast in Hillsborough (a Section 5 Voting Right Act county) were added to the total vote.
This 2008 Provisional Ballot Plot, crafted by my collaborator, Dartmouth University Professor Michael Herron, helps the visualization of where provisional ballots were cast in Florida in the 2008 general election. The proportion of the total votes cast in each county that were provisional ballot runs along the horizontal axis, and the percentage of provisional ballots cast in each county that were validated by the 67 county canvassing boards runs up the vertical axis. The size of the dot is proportional to the total number of provisional ballots cast, as distributed across the 67 counties.
There are several outliers, but two are pretty dramatic: Broward County, with its paltry acceptance rate of cast provisional ballots, and Osceola County, with its exceptionally high proportion of provisional ballots cast.
As I’ve written elsewhere with Dr. Herron, the rate of provisional ballots, the acceptance rate of provisional ballots, and the variation across counties should all be of grave concern as we head into the 2012 general election.
In the coming months, we’ll be investigating why there might be so much variation in the casting and counting of provisional ballots in Florida. I suspect it’s quite likely that these clear disparities across Florida’s 67 counties are not out of the ordinary when it comes to voting provisional ballots in other states.
Florida State Senator Paula Dockery, a Republican from Lakeland, and Representative Richard Steinberg, a Democrat from Miami Beach, have filed companion bills that would permit citizens to “veto” certain bills if signed into law by the governor. Budgetary and emergency legislation would be exempt from citizen vetoes under Dockery’s Senate Joint Resolution 1490 and Steinberg’s House Joint Resolution 1231. If passed by the state legislature, the legislation would be put forth to the voters in 2012 in the form of a constitutional amendment, which would need 60% + 1 approval for passage.
The popular referendum–which dates to the early 1900s in several states–allows a person or group to file a petition to have a public vote on a bill that the legislature has already approved. Every one of the two dozen states that permit the initiative process also allows citizens to propose popular referendums, except for Florida, Illinois, and Mississippi. The popular referendum, which has been used with more frequency in the past decade, is effectively a public veto of a law. Proponents may qualify popular referendums for the ballot by collecting a certain percentage of signatures in a set amount of time following the passage of the legislation in question. It’s the quintessential “gun behind the door” that allows citizens to keep their elected officials in check.
Despite the popular support for direct democracy in Florida, the political environment at this moment is not very conducive for the state legislature to devolve power to citizens.
I have a 2008 article, “Delegating Direct Democracy: Interparty Legislative Competition and the Adoption of the Initiative in the American States,” that was published in the American Political Science Review with my graduate student, Dustin Fridkin, that investigates the widespread adoption of direct democracy–specifically the citizen initiative–during the early 20th century. It is available here for download.
From the abstract:
Between 1898 and 1918, voters in 20 American states adopted constitutional amendments granting citizens the power of the initiative. The embrace of direct democracy by voters invites inquiry into why some state legislatures opted to delegate to citizens the power of the initiative, while others did not. Drawing on an original data set, this article uses Event History Analysis hazard models to explain the puzzle of why legislatures might devolve institutional power to citizens. Our longitudinal, macrolevel analysis of socioeconomic and political forces reveals that political considerations—interparty legislative competition, party organizational strength, and third parties—are the most powerful predictors of a legislature’s decision to refer the initiative to the ballot. Although several of our findings comport with the conventional wisdom explaining the adoption of the initiative during the Progressive Era, others are surprising, offering us new theoretical insights into why and when legislative bodies might be willing to divest themselves of their institutional power.
Absent interparty legislative competition in Florida (Republicans are dominant) and the utter lack of third parties in the state, I don’t think the time is ripe for the legislature to place a popular referendum on the ballot. This is unfortunate, as the citizen’s veto–as the popular referendum is often called–has proven to be an effective tool for citizens to use to keep their unrepresentative legislature in check and more responsive to the people.
California Secretary of State Debra Bowen has certified the first initiative to qualify for the November 6, 2012, ballot. If it is approved by voters, the initiative–known by proponents as “Paycheck Protection” and opponents as “Paycheck Deception”–would restrict political fundraising by prohibiting use of payroll-deducted funds for political purposes.
It’s time to set the record straight on the origins of this deceptive ballot measure, which traces its history to anti-tax crusader, and Republican insider, Grover Norquist.
In the late 1990s, Norquist and his DC-based Americans for Tax Reform organization backed several conservative initiatives on statewide ballots, including so-called paycheck “protection” measures. The major source of his funding for his efforts, it was later revealed,was the Republican National Party. In 1993, Norquist had authored a mock policy memo (fictitiously dated “November 9, 1996”) addressed to “Republican Congressional Leaders.” His fictitious memo detailed the GOP’s hard won “success” in the 1996 elections. Noting the electoral power of initiatives, Norquist wrote, “I believe the wave of initiative elections in 1992 and 1994 paved the way for Republican electoral victories this year .” He highlighted how initiatives limiting legislative terms, cutting taxes and government spending, as well as anti-crime, victims rights, and parental rights ballot measures, brought fiscal and “social conservative Republican voters to the polls.”
Republican leaders apparently were convinced by Norquist’s electoral prediction. In October 1996, the Republican National Committee (RNC) quietly contributed $4.6 million in soft money to ATR to promote federal candidates by broadcasting issue ads. While Norquist’s nonprofit did not have to disclose its subsequent expenditures, a congressional investigation (Minority Report) into campaign finance abuses in the 1990s found that ATR acted “as an alter ego of the Republican National Committee [RNC] in promoting the Republican agenda and Republican candidates, while shielding itself and its contributors from the accountability required of campaign organizations.”
Norquist’s ATR subsequently funneled a substantial amount of the RNC money to issue groups in California, Colorado, Oregon, and Nevada that were sponsoring paycheck protection ballot measures.
For example, in 1998, ATR was a major contributor to the sponsors of Oregon’s Measure 26, a paycheck “protection” initiative that qualified for Oregon’s November, 1998 ballot. ATR also helped to finance paycheck “deception” measures in Nevada and Colorado, but they were stymied by the courts in Nevada and stalled by a union-led counterproposition in Colorado.
Earlier in 1998, Norquist’s ATR successfully spearheaded the financing of a California ballot measure designed specifically to weaken organized labor. During the crucial petition gathering phase of the campaign, ATR transferred $441,000 to the Campaign Reform Initiative in California, one of four issue committees advocating Proposition 226, a paycheck “protection” measure. In the end, California voters defeated the measure at the polls, in large part because labor unions spent over $23 million fighting the June 1998 primary initiative.
Rather than paycheck protection, the history of these ballot measures is steeped in deception.
For more background on paycheck “protection”/”deception” ballot measures, see Daniel A. Smith. 2004. “Peeling Away the Populist Rhetoric: Toward a Taxonomy of Anti-Tax Ballot Initiatives,” Public Budgeting and Finance 24 (4): 88-110, and Elizabeth Garrett and Daniel A. Smith. 2005. “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” Election Law Journal 4 (4) 295-328.