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 Also, for the record, their website is terribly awkward, not to mention, outdated.]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

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.