How do representatives of a contemporary American state government rationalize a sweeping assault on petition rights guaranteed in that state’s own constitution?
The FreePaulJacob.com site has posted several recent court filings in the appeal by Yes on Term Limits of Oklahoma’s unconstitutional ban on “out-of-state” petition circulators. Paul Jacob, Susan Johnson, and Rick Carpenter (the “Oklahoma Three”) are being prosecuted by Oklahoma Attorney General Drew Edmondson for allegedly willfully violating this ban, which they deny (see Paul Jacob’s “Full Statement” at FreePaulJacob.com). The three are facing the possibility of ten years in prison for the allegedly criminal good-faith assistance they provided to Oklahoma citizens in a 2005 petition drive to post a Taxpayer Bill of Rights ballot measure.
The January and February filings include:
The final appeal brief by Yes on Term Limits, filed January 7, 2008. “Oklahoma’s blanket ban on nonresident petition circulators offends the First Amendment and the structure of the federal union. It is directed at a phantom interstate menace: the presumed endemic dishonesty of nonresidents who wish to travel to Oklahoma to associate with and speak for local citizens whose own voices for political change are otherwise too faint or dispersed. These are the citizens for whom many states, in a wave of populism, preserved the right to initiative, referendum, and recall. They have no eloquent champions in the press, powerful sponsors among local political elites, or brigades of party or union supporters. They cannot grasp traditional republican levers which have been co-opted by the powers that be; their reform would be stifled without a direct appeal to thinking voters.”
The amicus brief by the Institute for Justice, filed January 14, 2008. “This case brings both [economic rights and political rights] to the fore. Oklahoma’s prohibition on signature gathering by out-of-state residents restricts both the ability of Americans to move between the states to engage in political activity and the ability of professional signature gatherers who do not reside in Oklahoma to travel to that state and practice their trade. In other words, the prohibition (i) closes a market for professional services to Americans other than Oklahomans simply because they reside in other states, and (ii) closes Oklahoma to the free exchange of ideas that is part of an out-of-stater’s efforts to convince an Oklahoma voter to sign a petition. As such, the law is of serious concern to the Institute, which works to vindicate the right of all Americans to earn a living and to communicate regarding political issues, regardless of who they are or where they live.”
The amicus brief by the American Civil Rights Coalition, filed January 14, 2008. “Limiting circulators to Oklahoma residents simply limits the number of people who can commit fraud, it does not prevent it in any serious way. To the extent that the state wishes to prevent people from lying about their residency (in forms submitted to the state), the rule not only fails to deter people from doing so, it provides them an incentive to do so. (The laws providing for punishment for committing fraud provide the deterrence.) Thus, the in-state circulator requirement is no more related to preventing fraud than a rule requiring circulators to be over the age of 40 would be. While people under 40 might indeed lie about their age in order to be circulators, the hypothetical age rule would not be preventing that kind of fraud at all. To the contrary, it would be providing an opportunity (or, at least, an incentive) for fraud that would not otherwise exist….
“Violating an arbitrary registration rule should not be condoned, of course, but it does not render signatures fraudulent, and is thus unrelated to maintaining the integrity of the initiative and referenda process itself. Moreover, if an out-of-state circulator violates some rule by failing to register with the state or failing to sign an affidavit…the narrowly tailored remedy is to not count the affected signatures, not preclude all out-of-state circulators.”
The response brief by the State of Oklahoma, filed February 11, 2008. “Oklahoma has a compelling interest in maintaining the integrity, reliability and efficiency of its system of direct democracy and the protest procedures designed to police the system. Oklahoma also has the power to limit self-governance to members of its own political community. The residency requirement is narrowly tailored to these interests. It ensures integrity and reliability of the process by reminding circulators that they will have to answer for their actions if challenged by an Oklahoma voter. It ensures reliability and efficiency of the protest mechanism because resident circulators can be easily located and compelled to testify; whereas nonresident circulators will most likely never be located and cannot be compelled to testify….
“This basis for [the U.S. Supreme Court's] concluding that circulation in Colorado was core political speech does not apply here because Oklahoma law does not prohibit nonresidents from coming to Oklahoma and expressing a desire for political change or discussing the merits of the proposed change. It only prohibits nonresidents from monitoring compliance with the safeguards designed to protect Oklahoma’s system of direct democracy—a system which is, perhaps, more vulnerable to abuse because it does not benefit from the deliberation that accompanies the normal legislative process.”
The reply brief by Yes on Term Limits, filed February 28, 2008. “…Defendants claim without proof that there is something peculiarly poisonous about nonresidents. Defendants also claim that Oklahoma has absolute dominion over petition circulation because each Oklahoma petition circulator has somehow been commandeered as an agent of the state, holding official appointments for which Defendants now have a new name: ‘verifiers.’ But by fabricating an unwieldy process to challenge signatures, Oklahoma cannot dislodge petition circulation from the zenith of First Amendment protection, a status this mode of expression enjoys under Meyer, Buckley, and their progeny. Whether nonresidents who wish to gather signatures in Oklahoma and spread their political message are making a living or are volunteers, a blanket ban on circulation is not the narrow tailoring required by the First Amendment. Short of a ban, Oklahoma has a range of less restrictive options for addressing any specific problem it can prove has infected its petitioning process. Wholesale abrogation of nonresident circulation does not comport with the First Amendment.”
