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 Also, for the record, their website is terribly awkward, not to mention, outdated.]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.