Hat-tip to Ballotpedia.org for raising my awareness of what may be an emerging trend: Federal courts are being asked to invalidate laws passed by states that contain residency requirements for petition circulators.
In Ohio, voters, by way of petition and a subsequent vote, can enact and repeal laws through an initiative and referendum process spelled out by our state constitution, codified by state statute, and further clarified in the state administrative code, with any gray areas that can’t be decided by bipartisan county boards of election referred to Ohio’s Secretary of State. Legal challenges within this scope ought to be handled by Ohio’s judicial branch.
At the level of the Federal government, there is no such petition process. Any voter petitions presented to those who represent us in Washington DC are merely symbolic. No petition has the power to compel the U.S. Congress or the U.S. President to act. Petitions are clearly creations of the various states. As one might expect, laws regarding petitions are not uniform throughout the nation, as each state sets forth its own laws governing petitions.
How is it that Federal courts are being asked to decide cases involving petition laws when there’s no such thing as a Federal petition? Clearly, if the 10th Amendment to the Constitution means anything at all, then it’s a slam-dunk that state judiciaries, not the Federal judiciary, have jurisdiction over legal challenges to the laws that govern the petition process.
I found a Ballotpedia entry from Michigan and another Ballotpedia entry from Nebraska that made me scratch my head.
The Detroit Free Press reports that a Federal judge–got that? Federal judge?–ruled that residency requirements for recall petitions (a Michigan state legislator, specifically, House Speaker Andy Dillon, was the target of the recall effort) were an unconstitutional restriction upon the freedom of speech. Never mind that the judge, himself, trampled the 10th Amendment. What did the statute say? It said that for a recall of the state legislator, the petitions had to be circulated by those who resided within the state legislator’s district. Who gets to vote for the state legislator in the first place? Those who reside in the state legislator’s district. Should I file suit because my freedom of speech is restricted because I don’t get to vote on that state legislator race because I’m not a resident of that Michigan legislative district? To do so would be nonsense.
Yet, the Free Press article reports:
Judge Robert Holmes Bell found that requiring a petition circulator in a recall campaign to live in the district of the targeted officeholder violated the First Amendment because it substantially limited the pool of people who might participate.
I’m sure thousands of people reside in said district. If not enough petition circulators can be rounded up from amongst that group, then perhaps there isn’t sufficient outcry for a recall. One only needs to look at the chain of events to see this point borne out: The motive behind the recall effort to oust Speaker Dillon was an anti-tax sentiment. I certainly sympathize with anti-tax sentiments. I have anti-tax sentiments, myself. However, in 2008, a number of circulators for the anti-tax group’s recall petitions were circulated by those who were outsiders, not residing within Dillon’s district. Understandably, the first response from elections officials were to invalidate the petitions circulated by the non-residents, in compliance with Michigan law. Judge Bell, however, in a preliminary ruling, overrode the Michigan law, directed that the signatures from the invalidated petitions be counted anyway, so that the recall would appear on the ballot. It did appear on the ballot. Did the anti-tax group win their recall vote? Nope. Speaker Dillon easily prevailed. There was no groundswell against Speaker Dillon after all. Shouldn’t that have been all too predictable, considering an astro-turf effort was required to circulate the recall petitions in the first place?
But, if Michigan’s petition requirements really do squelch the voice of the people (which, apparently, they don’t), the matter should be challenged in Michigan’s courts, if the Michigan legislature and/or Michigan elections officials aren’t acting in the public’s interests.
Potentially, Judge Bell’s ruling, if it stands, could mean that out-of-state residents could invade Michigan to conduct whatever astro-turf petition drive strikes their fancy, burdening elections officials with paperwork that has little to do with the agendas of Michigan’s own registered voters. And if out-of-staters are the ones circulating petitions, then Michigan wouldn’t even be in a position to determine whether the petition circulators are even citizens of the United States. Foreign governments, multi-national corporations, and/or international NGO’s might conspire to conduct astro-turf campaigns on Michigan soil. Whatever happened to self-determination?
The Omaha World Herald brings us the report of a suit filed in a U.S. District Court that challenges Nebraska’s petition laws. In the case known as Citizens in Charge vs. Gale (John Gale is Nebraska Secretary of State), there are four legal provisions being challenged. As in the Michigan case, the plaintiffs appear to be right-of-center on key platform planks. Two of the legal provisions being challenged, I believe, are worthy of debate (but not in U.S. District Court, mind you, in a Nebraska state courtroom), as one provision stipulates that an independent candidate for statewide office must collect more valid signatures than partisan candidates are required to gather.
Another allegedly onerous provision is that an independent candidate’s petitions must include at least 50 valid signatures from at least 31 different counties. That’s a lot of territory to cover, especially from the perspective of an Ohioan, since Ohio is a more compact state than Nebraska. Such a stipulation would favor candidates from eastern Nebraska, where counties are smaller in size, than candidates from central or western Nebraska, where you have to put lots and lots of miles on your vehicle to string together 31 counties.
But the third provision being challenged in Federal court is the residency requirement for petition circulators. To run for statewide office in Nebraska, your petitions need to be circulated by those who are eligible to vote in Nebraska. Just like the Michigan case, I don’t see what’s wrong with that. It’s a safeguard that prevents a guy like Iranian President Ahmadinejad from clandestinely putting a Quisling on the Nebraska ballot.
The fourth provision being challenged in Federal Court is particularly telling. Nebraska law says the petition itself must disclose whether the circulator is a paid for his/her petition-circulating services or whether he/she is strictly a volunteer. Why is it so telling? Referring back to a sentence from the Detroit Free Press article about the case in Michigan:
Petition signature collecting has been a growth industry in the last decade, with professional collectors traveling from state to state to work for whoever would pay them.
I’m not exactly enamored with these enterprises who collect signatures for money. Remember the dead people in Erie County, Ohio, who signed the casino petitions? Paid circulators collected those signatures, and they were a nightmare for local officials to deal with when a majority of the signatures gathered were invalid.
In the Nebraska case, Citizens in Charge is an organization that would mobilize paid out-of-staters to invade Nebraska to circulate petitions. It doesn’t matter to me that they are more conservative on issues than ACORN, and it doesn’t matter to me that they are a non-profit (like ACORN) rather than a for-profit (like the firm that circulated the casino petitions in Erie County), it reeks of astro-turf to have out-of-staters shape your state’s election ballot.
I see no harm in Nebraska’s requirement that circulators must be identified as either paid or volunteer, even though Ohio has no such statute. But the challenge of that provision reveals what’s really at work in undermining these residency requirements, and by extension, eroding the 10th Amendment.
Frankly, I’ve had my fill of ACORN electioneering, but if these “conservative” plaintiffs prevail in these cases being heard in Federal courtrooms (where they don’t even belong), then we’ve got a lot more of ACORN headed our way.