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.

 

Voter Suppression, in Massachusetts? More here

According to a story in the Boston Globe, Olivier Kozlowski, a local elected official from Mansfield, MA, has filed an initiative that would require citizens to show a government-issued photo ID card in order to cast a ballot in person.  His ballot initiative campaign will need to collect nearly 69,000 valid signatures by mid-November in order qualify the initiative for the 2012 November ballot.  Because of Massachusetts’ indirect initiative process, the state legislature will first get a crack at the measure. More on that process, here (chapter 5):

Although substantively different from Florida’s voter suppression effort, HB1355, this is yet another attempt to depress turnout leading up to the 2012 election.  Most of these efforts have language strikingly similar to that being pushed by the American Legislative Exchange Council. Of course, there is scant evidence of voter fraud at the polling station in Massachusetts. If successful, the initiative will likely disenfranchise many low-income, minority, elderly, and student voters who lack state-issued photo IDs.

CA Signature Gatherers Fight Back

Petition gatherers are fighting back in California, picketing Safeway‘s corporate headquarters in Pleasanton, CA. They’re claiming that the grocery chain is disrupting their free-speech rights. According to a San Jose Mercury News story, a press release handed out by a dozen or so petition circulators claimed that “Safeway’s unconstitutional policies specifically target the rights of citizens to lawfully collect signatures to qualify ballot measures,” and that recently, “Safeway managers have been harassing, photographing and threatening signature gatherers with restraining orders, denying their right to participate in California’s direct democracy.”

The California petition gatherers are on pretty solid legal ground.  Why? California’s state’s constitution, which has strong freedom-of-speech protections that generally exceed those of the federal constitution’s 1st and 14th Amendments.  A 1946 U.S. Supreme Court decision, Marsh v. State of Alabama, which found that pamphleteers could not be ejected or arrested when petitioning on private property that is essentially a “company town,” as well as the U.S. Supreme Court’s 1980 decision dealing directly with petition gathering in California, Pruneyard Shopping Center v. Robins, clearly extends petition rights to smaller private venues, such as shopping centers, at least in California. As the majority in Pruneyard noted, California’s constitution protects “speech and petitioning, reasonably exercised, in shopping centers even when the shopping centers are privately owned.”

Welcome, in contrast, to petition gathering in Florida. In the Sunshine State, the barriers against signature gathering are considerably steeper.  In 2007, the grocery giant Publix helped to push a bill through the Republican-controlled Florida state legislature that gave corporate entities the right to remove unauthorized petition gatherers from their private property.  Previously, in a 2005 decision, Publix Super Markets, Inc. v. Tallahasseans for Practical Law Enforcement, et al., the Florida 2nd District Court of Appeals ruled that signature gatherers in Florida “are not entitled to the First Amendment or the Florida Constitution to solicit signatures…on Publix’s privately owned property without Publix’s permission,” and as such, do not have a “constitutional right to solicit at such properties over Publix’s objection.” Interestingly, the 2007 Florida law (Section 106.371(8), Florida Statutes) banning ballot initiative petition gathering on private property does not apply to petitions being solicited for candidates.  “This issue,” as the Florida Secretary of State’s Candidate Petition Handbook states, “has been addressed by the Florida courts and turns on whether the private property is a quasi-public or public forum (such as a mall) rather simply a private business.”

The attack on citizens initiative rights in Florida has gained considerable steam over the past decade, as Republican lawmakers–and former Governor Jeb Bush–saw ballot initiatives as a direct threat to their control over public policy in the state.  But more on that sordid story another time….