Legislature goes after Initiative Process (Again)

A few weeks ago, I posted an article “Wanted, Dead or Alive, Signature Gatherers" warning readers that some form of the two bills aimed to restrict citizen signature gathering were likely to be reintroduced in the 2008 legislative session. Both bills have been reintroduced in the House.

HB 2601 requires licensing of businesses engaged in the pursuit of signatures on behalf of initiatives and referendum. The bill requires all paid signature gatherers to register with the Public Disclosure Commission.

Opponents raised a number of constitutional concerns at the January 18, public hearing. For example, under New Section 2, the bill reads, "When gathering signatures, a person registered under this section must display evidence of registration including the registrant's photograph and registration number." Opponents testified, "Requiring that signature gatherers wear identification is impermissible insofar as such a requirement would require signature gatherers to display their names. Such a requirement discourages participation in the political process by forcing name identification at the time they are delivering their political message and when reaction may be the most intense, emotional and unreasoned.” Bill proponents want each signature gatherer to have an ID card with their picture and name.

The measure does not provide signature gatherers a means to check ID or verify identity of signers, but it does include a clause that eliminates a signature gatherer from ever circulating a petition again if a fraudulent signature is found on one of the petitions they have circulated. How can someone be prosecuted for a crime when they are not provided the means to verify signatures or voter identification?

I have included additional comments in the detailed information taken from Bill and House Reports at the end of the post. A copy of the bill can be located at: http://apps.leg.wa.gov/billinfo/summary.aspx?bill=2601&year=2008

HB 2019 requires all signature gatherers to sign an oath. The declaration states: “I, __ Swear or affirm under penalty of law that I circulated this sheet of the foregoing petition, and that, to the best of my knowledge, every person who signed this sheet of the foregoing petition knowingly and without compensation or promise of compensation willingly signed his or her true name and that the information provided therewith is true and correct. I further acknowledge that under chapter 29A84.RCW, forgery of signatures on this petition constitutes a Class C felony, and that offering any considerations of gratuity to any person to induce them to sign a petition is a gross misdemeanor, such violations being punishable by fine or imprisonment or both.” It also requires signature gathers to identify themselves and where they live when collecting signatures.

Those opposed to the measure testified, "The initiative process is fundamentally important to the state and created as part of the State Constitution. To interfere with the Constitution, there must be a good reason. The reason cited is fraud, but the Secretary of State's office has found no instances of fraud. The other issue is requiring signature-gatherers to provide their addresses. Signature-gatherers are often subjected to harassment and vandalism. If they are required to provide their addresses, they will be subjected to this harassment and vandalism at their homes."

The proposed legislation does not provide a means for signature gatherers to check voter ID to verify a signer's identity, but it does create a (Class C Felony) under which signature gatherers can be prosecuted if someone signs a false name on the petition. A copy of this bill can be located at: http://apps.leg.wa.gov/billinfo/summary.aspx?bill=2019&year=2007.

I'm beginning to feel a "chill" coming on...

Please see Parkenfarker's blog for a guest editorial by Tim Eyman and other bill opponents regarding signature gatherer intimidation and the fight to prevent the legislature from forcing signature gatherers to wear identification. http://parkenfarkergroup.blogspot.com/

Detailed information is listed below:
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Legislative Background Information on HB 2601 and SHB 2019: This information is taken directly from House Bill Reports, Bill Analysis and Fiscal Notes.

On January 18, 2008, a hearing was held in the House State Government and Tribal Affairs Committee on HB 2601 and SHB 2019.

HB 2601: Bill Title: An act relating to signature gatherers; amending RCW 29A.72.170, 29A.72.110, 29A.72.120, 29A.72.130, and 29A.72.170 and amending RCW 42.17.020.

Brief Description: A measure regarding signature gatherers for petitions. If passed, would require businesses engaged in the collection of signatures for state or local initiative, referendum or recall petitions – and using paid signature gatherers to register with the Public Disclosure Commission. (PDC). The measure also requires the employees of businesses engaged in the collection of signatures for state and local initiatives, referendum or recall petitions using paid signature gatherers to register with the PDC and requires all signature gatherers to sign initiative and referendum petitions.

Constitutional Considerations: Initiative and referendum are protected free speech under the First Amendment. Meyer v. Grant 486 U.S. 414 (1988), the United States Supreme Court held that petition circulation is core political speech. Because political circulation involves interactive communication regarding political change, the Court opined that First Amendment protection is “at its zenith”. Nonetheless, it is established law that elections, including initiative and referendum processes, can be substantially regulated in order to maintain that they are “fair and honest”. Storer v. Brown 415 U.S. 724 (1974).

In Buckley v American Constitutional Law Foundation, 525 U.S. 182 (1999), the Court further defined the parameters of First Amendment protection for petition circulation and signature gathering. The Buckley Court held that states have considerable discretion to protect the integrity of the initiative and referendum process and while there is no “litmus-paper test” for alleged violations of the First Amendment, there are some bright line rules for the signature gathering process:

States may not require that signature gatherers be registered voters. Such a regulation would eliminate non-registered voters from participating in the political process, and there are less burdensome methods of meeting the states interests in administrative efficiency, fraud detection, and providing voters with information in the process.

Requiring that signature gatherers wear identification is impermissible insofar as such a requirement would require signature gatherers to display their names. Such a requirement discourages participation in the political process by forcing name identification at the time they are delivering their political message and when reaction may be the most intense, emotional and unreasoned.” In contrast, affidavits are not instantly accessible and are not prohibited under the First Amendment.

SHB 2019: Bill Title: An act relating to the accountability of signature gatherers for ballot measure petitions.

Brief Description: Requiring signature gatherers of ballot measure petitions to sign petition declarations under oath.

Background: In 2005, the Legislature passed a law requiring a declaration be printed on the back of initiative and referendum petitions. The declaration states: “I, …. Swear or affirm under penalty of law that I circulated this sheet of the foregoing petition, and that, to the best of my knowledge, every person who signed this sheet of the foregoing petition knowingly and without compensation or promise of compensation willingly signed his or her true name and that the information provided therewith is true and correct. I further acknowledge that under chapter 29A84.RCW, forgery of signatures on this petition constitutes a Class C felony, and that offering any considerations of gratuity to any person to induce them to sign a petition is a gross misdemeanor, such violations being punishable by fine or imprisonment or both.”

In 2006, the Attorney General’s office published an opinion stating that the law as passed does not require a signature gatherer to actually sign the petition.

Summary of public testimony in support follows: The Legislature already passed laws requiring that the declaration be printed on the back of petitions. This was necessary because there have been incidents of fraud and abuse of the initiative process. The declaration provides a degree of accountability and helps to improve the process. Indeed, this was the intent of the bill in 2005; this bill is only a clarification…

Summary of public testimony against: The initiative process is fundamentally important to the state and created as part of the State Constitution. To interfere with the Constitution, there must be good reason. The reason cited is fraud. But the Secretary of State’s office has no found instances of fraud. The other issue is requiring signature gatherers to provide their addresses. Signature gatherers are often subjected to harassment and vandalism. If they are required to provide their addresses, they will be subjected to this harassment and vandalism of their homes. There is no need for an emergency clause on this bill as there is no emergency other than preventing a referendum by the people. The Washington State Constitution requires that law governing the initiative and referendum process must further the process rather than frustrate it. Prior to the use of paid signature gatherers in the 1990’s, it was incredibly difficult to get initiatives on the ballot. This measure will make it more difficult again. If there is an actual problem with the validity of signatures, then the remedy is for the Secretary of State to conduct actual verifications.

There is a multiple agency fiscal note attached to this bill.

Estimated expenditures to PDC and Secretary of State - $145,054.00
Estimated expenditures for staff: - $130,474.00
Annual salaries: $42,720.00 dollars
Employee benefits: $12,682.00
Estimated expenditures from General Fund: $14,580.00

Those testifying for: Rep. McDermott, Pat Thompson, WA Council of County and State Employees; Clifford Traisman, Washington Conservation Voters/WA Environmental Council; Al Ralston, Washington Business Roundtable; Diane McDaniel, Washington State Labor Council; Katie Blinn, office of the Secretary of State; and Maudie Jordan, Citizen Solutions.

Opposed: Mike Dunmire and Tim Eyman, Tax Protection Initiative; Ed Agazar, Garry Jacobson, and Roy Ruffino, Citizen Solutions; Doug White and Jayne Anderson.