January 26, 2007
On the legislative coup against the right of initiative

At this hour, the House State Government and Tribal Affairs Committee is holding a hearing on HB 1087, the bill which would outlaw per-signature compensation on initiative petitions. The broadcast is live on TVW. I wasn't able to appear in person, but sent this statement:

Mr. Chairman and Members of the Committee -

The sponsors of HB 1087 claim that it is necessary to prohibit per-signature compensation for initiative petitions because such compensation "increases the possibility of fraud". But this seems disingenuous. I contacted several of the sponsors and none of them could produce any evidence of this claim. Neither could the office of our Secretary of State.

As it turns out, many of the bill's sponsors have also sponsored other bills this session that are designed to limit, co-opt or otherwise weaken the citizen's constitutional right of initiative.

I infer that the sponsors simply don't like the right of initiative very much and want to prevent it from being used very often. In fact, that's basically what the sponsors told me in their e-mails. I can understand why some legislators might not like initiatives. Initiatives can second-guess the legislature's decisions and serve as a check on its power. And that's exactly how initiatives were intended to be used, and why the initiative is enshrined in the Constitution as a fundamental right. And that is why the Constitution characterizes that right, more than once, as "reserved by the people", as opposed to "delegated by the people to be regulated by the legislature at the legislature's discretion and for the legislature's convenience". To this non-lawyer, HB 1087 appears to be a flagrantly unconstitutional attempt to limit that cherished right.

But the sponsors of this bill do raise some legitimate concerns in the bill language and in their e-mails about the bill.

The concern about the possibility of fraudulent signatures is legitimate. But we cannot prevent fraud by imposing this fanciful measure that would only obstruct legitimate signature gathering. The legislature should instead strengthen enforcement and penalties aimed at those who actually submit fraudulent signatures, regardless of how the signatures are collected. And while at it, this committee should also consider bills that strengthen penalties for signature fraud in other parts of the elections process, such as in voter registration and in the casting of mail and provisional ballots.

The other legitimate concern is the flow of big money into initiative campaigns. Ideally, it should be easier for citizens to get initiatives on the ballot without requiring enormous sums of money. But prohibiting per-signature compensation would only achieve the opposite. Campaigns pay gatherers by the signature because it is the most efficient way to collect signatures. If signature gathering is made less efficient, then it becomes more expensive. Initiative campaigns would require more money than they do today. The system would become even more biased in favor of the wealthy than it is at present.

I have two suggestions that would lower the cost of initiative campaigns and bring the citizen's initiative back closer to its populist roots. First, this committee is already considering a bill to permit a citizen with a state driver's license to register to vote online. That same technology could be adopted to allow a registered voter with a state driver's license to sign an initiative petition online. That would both reduce the reliance on paid signature gatherers and also allow citizens to learn more about an initiative online before deciding whether to sign the petition.

Second, I would encourage the legislature to permit initiative petitions to be printed on 8 ½" x 11" sheets of paper, so they can be printed on ordinary retail computer printers. This would enable more citizens to print their own petitions and circulate them among their families, friends and neighbors, again lowering the cost of signature campaigns and reducing the reliance on paid gatherers.

The Senate is contemplating a companion bill. Senate Republican staff attorneys wrote this memo arguing that these bills are unconstitutional.

Posted by Stefan Sharkansky at January 26, 2007 08:44 AM | Email This
Comments
1. Not only the audio is live: I'm watching it right now on TVW. :-]

Our WA Farm Bureau guy Dan Wood just finished testifying; doing his usual excellent job of laying out the issues with HB 1087. Tim Eyman and the Fagans just started. This one is worth listening to.

Posted by: Methow Ken on January 26, 2007 08:43 AM
2. As expected, the House State Gov and Tribal Affairs committee just reported out HB 1087 with a ''do pass''.

Posted by: Methow Ken on January 26, 2007 09:02 AM
3. If you haven't learned it yet, the Olympians are long on emotion and short on facts and especially short on "proof." Even esteemed Senate Judiciary chair Adam Kline challenged a lobbyist last year with "I've heard the testimony, I've heard the anecdotes, I haven't seen the proof."

I suspect I'll be feeding that back to Kline when he goes on his annual quest for the Holy Grail of Liberalism, more (and more) gun control legislation.

The person with the most emotional (and preferably most tearful) testimony wins, no matter how irrelevant the testimony is to the bill under consideration.

Posted by: Joe Waldron on January 26, 2007 09:12 AM
4. If anything is fraudulant, the reasoning and statements made by the sponsors of this bill are the only ones.

Posted by: DopioLover on January 26, 2007 09:20 AM
5. The depressing thing is: Any constitutional challenge has to go through the circus of the WA courts, then its gets to go to... the 9th Circus.

Posted by: Al on January 26, 2007 09:24 AM
6.
I haven't seen a WORD on this from the GOP in any venue. (Newspaper, radio, tv.)

This is one where the GOP could show leadership, but again these guys are going to sit on their thumbs and let the dems steal another right of the people away.

How completely pathetic. I'm totally ashamed of the party right now.

Posted by: johnny on January 26, 2007 09:40 AM
7.
I haven't seen a WORD on this from the GOP in any venue. (Newspaper, radio, tv.)

This is one where the GOP could show leadership, but again these guys are going to sit on their thumbs and let the dems steal another right of the people away.

How completely pathetic. I'm totally ashamed of the party right now.

Posted by: johnny on January 26, 2007 09:40 AM
8. Most of the proposals in your letter make sense to me. However, I am uncomfortable with letting people sign petitions online. If someone creates a fraudulent voter registration online, there is no harm unless/until someone actually casts a ballot under that registration, which is unlikely since the voter must show ID and/or produce a signature matching the driver's license. On the other hand, if someone signs a petition fraudulently online, more harm is done (admittedly less harm than if they'd voted fraudulently, but more than if they'd just registered fraudulently). Perhaps the state could fight this by spot-checking a random sample of online petition signatures by sending letters to their registered addresses.

Posted by: Bruce on January 26, 2007 09:50 AM
9. Copy of the letter I sent:

HB 1087 starts off by saying that the legislature finds that paying workers based on the number of signatures obtained on an initiative or referendum petition increases the possibility of fraud in the signature gathering process. Let me address a few points here:

1. Steve Excell of the Washington State Secretary of State office has not found that to be true. As reported to Soundpolitics.com, Mr. Excell is quoted:

"Historically, there was no real way to tell which petitions were circulated by volunteers and which were circulated by paid signature gatherers.

So we do not have any historical statistical data that proves that point.

Excell e-mailed again after checking further with his staff, and reported that some felt there was "anecdotal" evidence that paid signatures had a higher rejection rate than signatures collected by volunteers, but acknowledged that this wasn't based on particularly reliable information."

So the legislature is finding something that even the Secretary of State has no evidence of.

2. The United States Supreme Court has ruled in Meyer v Grant that "the circulation of an initiative petition...necessarily constitutes "core political speech," for which First Amendment protection is at its zenith. The statute burdens such speech in two ways: First, it limits the number of voices that will convey appellees' message..and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of necessary signatures, thus limiting their ability to make the matter the focus of statewide discussion."

HB 1087 goes on to cite Prete v Bradbury as justification to over ride Meyer. However, in Prete, the Ninth circuit cited evidence that the "state asserted an important interest in preventing signature fraud, supported that interest with evidence that signature fraud was actually a problem in North Dakota..."

That standard does not apply here since the state has already shown that they can provide no such evidence.

HB1087 further goes on to say "This practice may encourage the signature gatherer to misrepresent a ballot measure, to apply undue pressure on a person to sign a petition that the person is not qualified to sign..."

However, again going back the Meyer decision, the US Supreme Court found:

"Nor does the State's claimed interest in protecting the integrity of the initiative process justify the prohibition, because the State has failed to demonstrate the necessity of burdening appellees' ability to communicate in order to meet its concerns. It cannot be assumed that a professional circulator - whose qualifications for similar future assignments may well depend on a reputation for competence and integrity - is any more likely to accept false signatures than a volunteer motivated entirely by an interest in having the proposition placed on the ballot. Moreover, other statutory provisions dealing expressly with the potential danger of false signatures are adequate to minimize the risk of improper circulation conduct."

Please note that the US Supreme Court has specifically ruled that the state's claimed interest in protecting the integrity of the initiative process does not justify the prohibition. I find it particularly on point when they say that "It cannot be assumed that a professional circulator - whose qualifications for similar future assignments may well depend on a reputation for competence and integrity - is any more likely to accept false signature than a volunteer."

If however, the state was truly interested in preventing fraud, then why not include voter drive signature gatherers? After all, wouldn't they be just as likely to "apply undue pressure on a person to sign up to vote that the person is not qualified to sign or to invite forgery? If not, please explain to the citizens what the difference would be.


Lastly, Article 2, section 1 of the Washington State Constitution reads:
"The first power reserved by the people is the initiative. "

Article 1, section 34 of the Washington State Constitution reads:
"The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay: Provided, That the authority hereby conferred upon the legislature shall not be construed to grant to the legislature any exclusive power of lawmaking nor in any way limit the initiative and referendum powers reserved by the people.

One cannot honestly say that this bill would not limit the initiative and referendum powers reserved by the people. Federal appeals aside, this bill is clearly a violation of the Washington State Constitution.

In closing, please note that the state has no evidence to back up the claim in the bill that petition signature gatherers paid by the signature increase the possibility of fraud that was proven in Prete v Bradbury, therefore, citing that case is a moot point. However, in Meyer v Grant, the US Supreme Court has ruled on every point brought up in the bill and they concluded that this bill would be contrary to the First and Fourteenth Amendments to the US Constitution.

A plain reading of the Washington State Constitution yields yet another breech of the citizens' rights.

I don't feel that the state should be passing legislation that restricts the rights of citizens who are doing nothing more than exercising their US and Washington State Constitutional rights. Our legislators are elected to do the people's work. This bill does nothing but work against the people and against their rights.

Please take note and vote against this bill. Please respect the citizens' rights.

Posted by: drw on January 26, 2007 11:31 AM
10. Does this prohibit PER SIGNATURE pay or ALL paid gathering?

Posted by: Jack Burton on January 26, 2007 01:03 PM
11. Jack,

The House bill prohibits per signature pay on the basis that it would encourage fraudulent signatures. Funny how per signature voter registration doesn't encourage fraud or how the Washington State Constitution expressly forbids the legislature from limiting the initiative and referendum powers that are expressly reserved to the people.

Posted by: drw on January 26, 2007 02:08 PM
12. From: Tim Eyman

There's some really good facts in my testimony also. Please forgive the length but it's good stuff on the reasons why this bill is bad:

Mr. Chairman and committee members, my name is Tim Eyman, I live in Mukilteo, and I appreciate this opportunity to testify against House Bill 1087 which would put citizens in jail for 90 days and find them guilty of a misdemeanor crime for compensating another person on a per-signature basis.

This is like making driving a crime because some people drive drunk. People shouldn't be thrown in jail for driving and neither should they be thrown in jail for being compensated for exercising their First Amendment rights.

No candidate in 2006 ran on eliminating the initiative process. The people were never told it would be a top legislative priority to add substantial burdens to the initiative process.

HERE'S MY TOP 7 REASONS WHY THIS BILL IS BAD

Number 7 - In 1993, the Legislature passed an anti-initiative law just like 1087 and the court found it "violated citizens' fundamental freedom of political speech protected by the First Amendment." Why should the 2007 Legislature pass a law the court has already rejected?

Number 6 - In 2004, we hired hourly workers to supplement our pay-per-signature folks. These hourly workers were dramatically more expensive, less productive, and had much higher invalid rates. 1087 will radically increase the costs of qualifying initiatives for the ballot, adding a substantial burden to campaigns, especially small grassroots efforts.

Number 5 - Oregon has a law like 1087 and since it was enacted in 2002, invalid rates for signatures have gotten WORSE, not better. In fact, because of this law, Oregon's invalid rates are now nearly DOUBLE what they are in Washington. Why would we want to copy Oregon's law that has resulted in MORE invalid signatures? Oregon's HB 1087 has radically increased the costs and reduced by two-thirds the number of initiatives qualifying for the ballot - 18 initiatives qualified for Oregon's 2000 ballot, prior to Oregon's 1087 being imposed, and only 6 qualified in 2004. More invalid signatures, higher costs, a substantial burden put on citizens, and less initiatives for voters to vote on. Again, why copy such an abysmal failure?

Number 4 - The people who pay per signature check signatures each week from each person and they don't pay for bad ones. People who gather signatures know they won't be compensated for bad signatures. This screening process is very effective and it's why signature validity rates for people who are compensated are much, much higher than those from volunteers.

Number 3 - The most common complaint we get from supporters each year is "I wanted to sign your petition but I never saw it." 1087 will only make that problem worse. It will result in less people carrying petitions that voters want to sign. Because of the added burden, many people who gather signatures do not work in states that have laws like 1087. HB 1087 will result in less people carrying petitions that voters want to sign, limiting voters' opportunity to support liberal, conservative, and non-partisan issues.

Number 2 - The Secretary of State thoroughly checks signatures on petitions. Since 1999, there's been over 8 million signatures submitted and the Secretary of State makes sure only valid signatures count and only initiatives with enough valid signatures qualify. It's clear the Secretary of State DID NOT request HB 1087 because there is no problem.

And the Number 1 reason why 1087 is bad - Washington's aggressive laws against forgery and fraud are working. Last week, we put in a public records request with the Secretary of State's office and they responded that they "have no records of any instances of verified forgeries or fraud in the signature gathering process for statewide measures in those years (1999 through 2006)." 8 million signatures - zero verified forgeries or fraud. There is no problem that 1087 solves, it would only add a substantial burden onto initiative campaigns and greatly reduce opportunities for voters to sign petitions they support.

The Constitution guarantees the right to initiative and only laws that facilitate the process are permitted. HB 1087 doesn't facilitate - it inhibits the process. Olympia shouldn't make it a top legislative priority to take away citizens' First Amendment rights. Olympia shouldn't criminalize free speech. Olympia should respect the Constitution and leave the citizens' initiative process alone.

I'm happy to answer any questions you have.

Before I go, I have documentation on the various initiative campaigns from 1999 through 2006 with data supplied by the Secretary of State's office showing zero instances of verified forgeries or fraud in the signature gathering process.

And despite the short notice of this hearing, we have a big stack of letters (31 total) from voters throughout the state who all strongly oppose 1087 but were unable to attend this hearing. They all asked that their reasons for opposing 1087 be made part of the public record. And if possible, I'd like to read their names and what city they're from now. Mr. Chairman, would that be OK?

Posted by: Tim Eyman, co-sponsor Taxpayer Protection Initiative on January 26, 2007 03:20 PM
13. There are many examples of petition gatherers being paid by the signature and then using tactics to get signatures. For instance, some university students have reported signing petitions that were ostensibly for legalization of marijuana but the signatures were used for other issues.

Granted that these cases are out of state but without laws to stop the practice in Washington the same will eventually happen here.

Posted by: John on January 26, 2007 03:24 PM
14. Point of information: I understand the Secretary of State testified in favor of HB 1087 today. I did not hear his testimony.

Posted by: stu on January 26, 2007 05:33 PM
15. John, The fact of the matter is that there is NO evidence as such. There may be anectodal evidence, but that is not very persuasive nor reliable. Also remember that the signature signer has a responsibility to know what they're signing. Mr. Eyman makes a good point in that invalid signatures are not paid for and therefore, the per signature method actually increases valid signatures and DISCOURAGES fraud.

Lastly, this law is blatently unconstitutional on a multitude of fronts. It's clearly against the Washington State Constitution as well as contrary to the US Constitution as decided in Meyer.

Posted by: drw on January 29, 2007 12:04 PM
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