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Court reverses initiative petition ruling
Category: Civil Rights · State: Oklahoma · Source: Edmond Sun
A federal appeals court Thursday ruled that an Oklahoma law that bars nonresidents from circulating initiative petitions in the state is unconstitutional and reversed a lower court that had upheld the statute.
In a 16-page decision, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver overturned the ruling by Senior U.S. District Judge Tim Leonard in Oklahoma City and sent the case back to him for more hearings.
Leonard had ruled that state officials presented “overwhelming evidence” that questioned the integrity of professional petition circulators and cited evidence of wrongdoing in other states by professional, paid circulators.
But the appellate court said the record did not support the district court’s conclusion that nonresident circulators engage in fraudulent activity more than resident circulators and ruled the state failed to prove that its ban was narrowly tailored to protect the initiative process due to a higher rate of nonresident circulator fraud.
The appellate court said the state’s ban on nonresident circulators, which subjects violators to criminal prosecution, violated the First Amendment’s free speech protections as well as the Fourteenth Amendment.
Charlie Price, spokesman for Attorney General Drew Edmondson’s office, said state attorneys may ask the appellate judges to reconsider or rehear the case, or appeal directly to the U.S. Supreme Court.
The appellate court’s ruling could have an impact on the state’s prosecution of three people indicted on felony charges by the state’s multicounty grand jury for allegedly using out-of-state residents to circulate an initiative petition.
Paul Jacob of Virginia, a national leader of the term limit movement, Susan Johnson of Michigan, head of a signature-gathering company, and Rick Carpenter of Tulsa, director of Oklahomans In Action, are charged with conspiracy to defraud the state by using out-of-state circulators to collect signatures for the so-called taxpayer bill of rights in 2006.
Price said the case is still pending.
Oklahoma’s law, similar to those in other states, was challenged by Yes on Term Limits, which wants to use nonresident, professional petition circulators to put an initiative on the ballot to enact two-term limits on the statewide offices of lieutenant governor, state auditor and inspector, attorney general, treasurer, labor commissioner and schools superintendent.
The group’s attorneys alleged that the law barring nonresidents and other Oklahoma laws that limit the initiative process are among the most restrictive in the nation.
In its ruling, the appellate court said the circulation of initiative petitions is “core political speech” involving interactive communication about political change and deserves the highest level of First Amendment protection.
The appellate judges rejected findings by the lower court that Oklahoma has a “compelling interest in protecting and policing both the integrity and the reliability of its initiative process.”
“Oklahoma has failed to prove that banning all nonresident circulators is a narrowly tailored means of meeting its compelling interest,” the ruling states. “Oklahoma has also failed to prove the ineffectiveness of plausible alternatives to the blanket ban on nonresidents.”
Edmondson Should Free 'The Oklahoma Three'
Category: Blocking · State: Oklahoma · Source: Oklahom Council of Public Affairs
Last month, several organizations sponsored a meeting in Oklahoma City focused on the initiative process in Oklahoma and the nation. Panelists focused on technical issues such as signature-gathering requirements, judicial review of ballot initiatives (pre- and post-election), “time and place” restrictions on the petitions, and other important issues.
But much of the discussion centered on a shocking criminal prosecution that Attorney General Drew Edmondson has aimed at Paul Jacob, formerly of U.S. Term Limits and now head of Citizens in Charge, Rick Carpenter of Oklahomans in Action, and Susan Johnson of National Voter Outreach, an initiative petition gathering firm.
Carpenter ran the 2005 initiative campaign for the Taxpayer Bill of Rights (TABOR). Jacob and Johnson helped. Johnson’s firm used professional petitioners who established state residency in a manner consistent with past initiative drives (including the anti-cockfighting measure a few years ago). Jacob, Johnson, Carpenter, and their allies even consulted with state officials to keep operations within existing guidelines.
But after petitioning was completed, Edmondson’s office asserted it was all a sham and brought criminal prosecutions against the three. When they were arraigned last year, Jacob and his two allies were actually handcuffed. If convicted in a trial that began last month, Jacob could face 10 years in prison and up to a $25,000 fine.
The prosecution and the handcuffing have drawn national condemnation. Additionally, most courts of appeal thus far have found residency requirements legally deficient. Ultimately, that is a matter likely to be resolved by the Supreme Court. Regardless, though, it seems clear that such a matter is more appropriately a civil issue, rather than a criminal one.
Edmondson’s prosecution of these three activists is a stain on Oklahoma’s reputation, and has already had a chilling effect on the vigorous speech the initiative process is supposed to encourage and protect. Edmondson initially defended his prosecutions, but has not had much to say about them lately.
For a prosecutor to admit error in such a matter would not be a sign of weakness, but of strength, maturity, and wisdom. Partisan issues and a likely 2010 gubernatorial campaign aside, Edmondson has redeeming qualities, but this prosecution is not one of them.
In his career, Edmondson has done some controversial things, and has occasionally acted unwisely, including in this matter. I join thousands of other Oklahomans to encourage him to withdraw prosecution of the Oklahoma Three, as they are now known around the nation. Agree with their agenda or not, these are political activists, not criminals.
My direct appeal to Drew is simply this: to restore confidence in the fairness and professionalism of your office, free the Oklahoma Three.
OCPA research fellow Patrick B. McGuigan (M.A., Oklahoma State University) is the author of The Politics of Direct Democracy, described by The Cook Political Report as “both comprehensive and fair.”
Group seeks to block Ohio referendum law
Category: Citizens In Charge · State: Ohio · Source: WKYC
A conservative national group that claims Ohio presents too many roadblocks to those who want to overturn bad laws has filed a challenge to the state's referendum process.
To make its case, Woodbridge, Virginia-based Citizens in Charge says only two referendums qualified for Ohio's ballot in the past 79 years. One is this year's Issue 5, which seeks to overturn a law cracking down on payday lenders.
The suit filed in U.S. District Court in Cincinnati says the attorney general shouldn't have to approve summaries of referendum issues before signature-gathering toward getting issues on the ballot.
The group also argues against provisions that say signatures must come from at least half of Ohio's counties and that paid petition circulators must register with the state before gathering signatures.
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