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Sunday, September 9, 2007

Commentary on an indirect ballot access case

Entry for September 09, 2007

The case discussed here was decided in Federal Court in Oklahoma City. You can read the entire opinion by Judge Tim Leonard see here.

Excepts appear in quotes. This case, while it addresses an initiative to place term limits om state offices, bears directly on the effort to circulate an initiative to open access to the ballot for new political parties in Oklahoma. The Judge's ruling bars non-resident circulators for this organization and apparently also the ballot access initiative petition. It is not known whether this decision will be appealed to the 10th Circuit by the plaintiffs.

Plaintiffs, )
v. ) No. CIV-07-680-L
M. SUSAN SAVAGE, individually and )
in her official capacity as Oklahoma )
Secretary of State, et al., )

"Prior to 1969, Oklahoma imposed no qualifications on petition circulators. Oklahomans for Modern Alcoholic Beverage Controls, Inc. v. Shelton, 501 P.2d 1089, 1092 (Okla. 1972). Beginning that year, Oklahoma law prescribed that petition circulators be qualified electors of the State of Oklahoma and imposed criminal liability on persons other than qualified electors who circulated petitions." (pg 3)

What was the rationale (motivation) of the Legislature for imposting the ban? Not discussed in the opinion of the court and apparently not raised by the plantiff's attorneys.

"It shall be unlawful for any person other than a qualified elector of the State of Oklahoma to circulate any initiative or referendum petition to amend, add to, delete, strike or otherwise change in any way the Constitution or laws of the State of Oklahoma, or of any subdivision of the State of Oklahoma . . . . Every person convicted of a violation of this section shall be punished by a fine of not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for not to exceed one (1) year, or by both said fine and imprisonment. 34 O.S. § 3.1." (pg 3 footnote)

The Secretary of State is charged with responsibility to enforce this requirement the petition was circulated by lawful resident circulators. The SoS does not verify the validity of the voter's signatures, the (Oklahoma) Supreme Court is charged with administering the validity and sufficiency of the signatures.

Also, any citizen of the state can protest a petition or to object to the Secretary's signature count by filing a written notice with the Oklahoma Supreme Court. Interesting.

"Moreover, the court finds Rittberg's and Ferrell's alleged fear of prosecution under § 3.1 is not credible given Rittberg's prior campaign in Oklahoma and Ferrell's lack of knowledge of any criminal penalties. Tr. at 107. In short, plaintiffs have not sustained their burden of demonstrating they have standing to contest the constitutionality of the criminal penalties associated with Oklahoma's residency requirement for petition circulators." (pg 9)

The plantiff's ignorance or avoidance of potential criminal prosecution serves as
an excuse to the court to ignore addressing the constitutionality of the criminal jeopardy in this case. Curious. One must actually violate the law and be prosecuted to gain standing to contest the law.

However, to contest the validity of a petition one need only be a resident of the state to have legal standing and presumably bring a criminal complaint against non-resident circulators.

However, the court was willing to grant the defendants limited standing on the civil issues.

'The First Amendment to the United States Constitution, which was made applicable to the states pursuant to the Fourteenth Amendment, prohibits the State of Oklahoma from abridging the freedom of speech. See U.S. Const. amend. I, amend. XIV. Circulation of initiative petitions "is `core political speech,' because it involves `interactive communication concerning political change.'" Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 186 (1999)." (pg 11)

Now we come to the core of the case: Is the State of Oklahoma in compliance with the U.S. Constitution under Amendments I and XIV? In such First Amendment cases the courts discriminate on whether the case passes the "strict scrutiny" test.

"[s]trict scrutiny demands state regulations "impos[ing]`severe burdens' on speech . . . be narrowly tailored to serve a compelling state interest." Strict scrutiny is applicable "where the government restricts the overall quantum of speech available to the election or voting process. . . . [It] is employed where the quantum of speech is limited due to restrictions on . . . the available pool of circulators or other supporters of a candidate or initiative, as in ACLF and Meyer."" (pg 11)

The intricacies of "strict scrutiny" and "compelling state interest" cannot be addressed here. Suffice it to say that they amount to an allegedly higher standard than "necessary and proper".

"By limiting petition circulators to residents only, Oklahoma has restricted the available pool of circulators, particularly professional circulators. The court thus finds the residency requirement is subject to strict scrutiny." (pg 11)

Footnote 11 to pg 11: "Indeed, the United States Supreme Court has recognized "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730 (1974)."

What is unquestionable in courts is that "some sort of order" is indispensable for fair and honest democratic processes. That is the fundamental issue: What kinds of 'order' are sufficient to produce fair and honest elections as opposed to the kinds of order that simply entrench power and stifle democratic processes?

This more fundamental was not raised.

"Defendants" (the State) "contend that "Oklahoma has a compelling interest in [1] preventing fraud and policing and maintaining the integrity of its initiative and referendum" and "[2] restricting the process of self-government to members of its own political community." Defendants' Supplemental Trial Brief at 3, 5 (Doc. No. 41)." (pg 12)

Contention [2] is is rich in its implications. But the court opinion avoids it. Perhaps because it would raise 'novel' arguments and difficult legal analysis.

"The court finds that Oklahoma has a compelling interest in protecting and policing both the integrity and the reliability of its initiative process. See Buckley, 525 U.S. at 191 ("States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally."); Chandler, 292 F.3d at 1241. The integrity of the petition circulators themselves is critical to that process." (pg 12)

The court finds contention [1] is a sufficient basis for its decision and does not address contention [2] at all. The remainder of the opinion is a discussion of the merits of Oklahoma's version of order to police the circulation of initiative petitions as meeting the test of strict scrutiny and compelling state interest under current constitutional legal doctrine.

The plaintiffs lose.

Returning to contention [2]"restricting the process of self-government to members of its own political community."

In a federal system doctrine there are two partially overlapping political communities (state and national). The configuration of that overlap has been the most contentious issue in American political history.

Most elections in the United States fall in that area of overlap. That is, when Oklahoma citizens exercise their rights as members of the Oklahoma political community they are also exercising their rights as members of the national political community. Most of our elections are simultaneously dual state and national elections.

To the extent that the same processes of procedure and administration are applied to both elections, the supremacy of the U.S. Constitution must apply and that means citizens who are exercising political rights OTHER THAN VOTING OR SEEKING ELECTION TO OFFICE in a State must be treated equally as U.S. citizens (I and XIV Amendments). This reasoning appears to be novel.

On this reasoning I contend that the judge got it wrong, at least because the proper issues were not raised. Why not? The legal profession is inherently constrained to acceptable doctrines. These constraints make litigation which challenges acceptable doctrine extremely risky and provocative. Few capable attorneys have the guts for it and the economic incentives.

This reality makes direct political action even more critical. Even direct political action that challenges the judiciary itself. Why target the State Supreme Court Justices who are open to public accountability at the polls (in Oklahoma)? To encourage their colleagues to rethink their habits of thought. It's to make them "feel the heat to see the light."

Furthermore, on the level of practical politics it is far more difficult and obviously self-serving if courts avoid applying very strict scrutiny to restrictions on campaigns directly aimed at unseating them.

Federal judges are unreachable except indirectly though election to national office of members of Congress, Senate and the Presidency. Restrictions on attempts at political reform to open up access to these national as well as state offices necessarily implicates who shall serve on the Federal bench. Hence, State election administration and processes coordinate control of both states and the national government.

Suppression of initiatives which bear on elections in those states which have that constitutional process directly affect elections to national offices in those states.

The decision of the Federal Court in this case directly impaired an effort to enact term limits for Oklahoma state offices only. However, the application of the Judges reasoning does not differentiate between a strictly state application for that "political community" and its application to the "political community" of Oklahomans in the capacity as citizens of the United States. The court did not address this aspect of the case even though the defendants opened the door in their brief.

We infer Judge Leonard wanted to decide the case by the most narrow and conventional doctrine possible. Lawyers who must face such judges are half gagged when they try to argue their cases.

In conclusion, the initiative for more open ballot access should be exempted from this case precedent by applying strict scrutiny and voiding its application to their petition and allowing non-resident petition circulators as legitimate for any citizen of the United States.

Of course, if these issues were raised in a similar case before Judge Leonard he might agree. Just because the door (contention [2]) was open to him and he didn't explicitly slam it shut leaves the Judge or another Judge a way out of a conundrum.

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