Federal Judge in Oregon Says Petition Signers Have No Right to Have Their Signatures Counted

On February 1, U.S. District Court Judge Michael W. Mosman ruled that an Oregon referendum petition should be rejected, even though the group that circulated that petition had evidence that many so-called invalid signatures should have been counted. Lemons v Bradbury, cv-07-1782-MO. Judge Mosman is a Bush Jr. appointee. Here is the opinion, which the judge rendered from the bench (it is actually a transcript).

The decision came to the opposite conclusion of the Rhode Island Supreme Court in a 2004 lawsuit called Edwards v Rhode Island Board of Elections. In the 2004 Rhode Island case, the State Supreme Court ruled that validly registered voters whose signatures were rejected, but who really had signed the petition, had a right to submit affidavits affirming that their signature really was their signature. In that case, the decision resulted in putting John Edwards on the Democratic presidential primary ballot. In the Oregon case, the result is that a referendum to stop a state law on civil unions will not go ahead.

Judge Mosman said that since the state uses random sampling on initiative and referendum petitions anyway, not every signature really “counts”, because most signatures are omitted from the random sample. Furthermore, he said a valid signature might not be counted because the circulator afterwards may fail to file that sheet. The judge was also influenced by the state’s argument that it has so many signatures to check (in the period when there are lots of initiatives being submitted) that it simply doesn’t have the capacity to notify signers when their signature has been rejected, and give that signer a chance to contest the finding.

This case shows the inherent problems with using petitions to determine if a candidate or an issue should be on a ballot. Great Britain and Canada don’t face this problem for candidates, since they depend on filing fees, rather than petitions, for candidate ballot access (although both nations require petitions, the requirement is only 10 signatures in Britain, and 100 in Canada).


Comments

Federal Judge in Oregon Says Petition Signers Have No Right to Have Their Signatures Counted — No Comments

  1. The Supremes have repeatedly noted that some evidence of *preliminary* support can be required for ballot access — i.e. nominating / issue petitions.

    High fees = loved by the rich to keep poorer candidates / issues off the ballots ??? Duh.

  2. As a response to Demo Rep regarding the filing fees issue. In UK Parliamentary elections the sum is £500 (approx $1000) which is refunded if the candidate polls 5% or over of the vote (hence it is called a ‘deposit’ rather than a ‘fee’. It does not seem in practice to act as a great deterrant to serious candidates – and we seldom see a contest with less than 4 candidates (usually there are rather more). Our elections tend to be every 4 or 5 years so local small parties make fund-raising for the deposit part of their regular activities.

    It might also interest American readers that though we require very few signatures in support of a candidate this has not stopped some parties (notably far-right ones) collecting theirs via rather ‘shady’ methods.

    Probably the best example was in a 1979 by-election when a group of pranksters persuaded a bloke in a pub to sign on as a candidate for the far-right racist National Front. He duly signed the papers but without reading them and discovered himself on 70,000 ballots as the candidate of the Gay Liberation Front!

  3. The “Here is the opinion” link doesn’t seem to be working.

    No matter. The above write-up about the decision is adequate to enable our understanding, and is sufficient for purposes of response. The outcome is yet another outrageous abridgement of the Constitution, as in so many other similar case conclusions.

    I’d be very surprised to find anything in the Judge’s stated ruling which would change my mind on that.

    Establishing a momentary convenience for a bunch of bureaucrats through the use of the “sampling method” of petition verification is actually, of itself, a barely defensible barrier to the kind of redress that petitions are meant to provide. As such, the State(s) who use this counting method are undeserving of any further leniencies concerning its application.

    My own opinion is this: Subjecting any signators to a random injury through absence of acknowledgement is no less malicious than an overt disregard of those whose petition signatures are valid – something itself excused by this court, but certainly not excusable. The Judge in this case is looking through the wrong end of the telescope.

    Further, the speculation he offers about misplaced petition pages – a matter not before the court by virtue of its own insurmountable immateriality – elevates the already prejudiced and hostile guesswork of bureaucrats, under color of law, to an effective status of edict. His argument also thus offers up in stark relief a disregard for the very Constitutional Rights of those whose petition efforts he is sworn to protect. This bozo needs to be removed from the bench, and his decision should be fought until reversed.

    Sampling itself should be eliminated. I know… I know…; you’ll all now tell me that sampling has been unsuccessfully challenged in court before. It shouldn’t indicate that it can’t be abolished. What I’d suggest to the folks in Oregon is that they work on another front: While fighting the unjust ruling, get a new petiton campaign together, using the signature base harmed in this case as a start-up group, to impose a prohibition on the state of Oregon of the sampling method for verifying petitions there.

    Argument is this: That legally required signatures of a certain number are binding on petitioners should necessarily obligate any governmental entity receiving signatures to verify them all — directly. From the petitioners’ point-of-view, the denial of verifying recognition of any one petition signator compromises the rights of them all – First & Fourteenth; a double whammy on applied Constitutional protections.

    Perhaps it could force the issue enough to persuade Oregon’s government to rethink its commitment to sampling. Put another way, tell ’em to put-up or shut up.

  4. “not every signature really “counts”, because most signatures are omitted from the random sample”

    Holy moly. So, it is not even a matter of how many people actually support an issue, it is strictly a roll of the die at the heart of it. In this case I think we should leave ballot access to the expert on odds: bookies in Las Vegas. “Oh dear, the candidate rolled an nine and crapped out!”

    The British or Candian method of fees would be too transparent and easy for the US! We look more to the Vatican for arcane and oblique electoral methods.

  5. The UK as a monarchy does not provide for an initiative process at all.

    In Canada, the only province that has an initiative process is British Columbia. It requires signatures by 10% of the __registered voters__ in __each__ (of 79) electoral districts.

    There have been 6 applications since 1992. 2 were not returned, 1 was withdrawn. One had 4K of the 205K needed signatures; one had 88K of 222K signatures; and the least unsuccessful had 98K of 212K signatures. Because it was so facily insufficient, there was no effort to verify signatures or check the distribution requirements.

    If the petition had succeeded, the referendum would require a majority of __registered voters__ supporting it AND a majority of __registered voters__ in 2/3 of the electoral districts of the province to pass.

    If a referendum passes, the Government is required to **introduce** the initiated legislation.

  6. California probably has a reasonable system to this
    question. A candidate is given the choice to either
    pay a filing fee equal to 1% of the salary of the
    office being sought with a few dozen signatures or get
    up to 5,000 signatures in lieu of the filing fee. For
    the 4 smaller parties the signature requirement is
    either 10% of the registration of the district or 150
    signatures whichever is smaller.

  7. Pretty incredible decision. Oregon required a petition for a referendum blocking a law passed by the legislature to have 55,179 valid signatures. It was determined that the petition had 55,083 valid signatures. The determination was made based on a sample of 3033 signatures, which found 91.00% of the signatures valid. Had 5 more signatures in the sample been found valid (91.16%) the petition would have succeeded.

    The Oregon Constitution does not provide for sampling, but gives authority to the legislature to provide for the manner of determining qualification. Oregon statutes provide for sampling using two methods of statistical sample. While it authorizes the SOS to get professional advice on this matter, it apparently does not require that the statistical sampling method provide any level of certainty (even it could be assumed that those making the measurement were doing so in a consistent manner).

    Oregon conducts all of its elections by mail, which requires election officials to verify that the signatures on all ballots (or their containing envelope) matches the voter registration.

    In cases where it can not be determined or there is an error, the voter is contacted. In the case of a signature on a petition, even if the voter contacts the election officials, it doesn’t matter.

  8. Deemer,

    Does California have a way where someone proposing an initiative can simply pay a fee, rather than circulating petitions?

  9. Reference above to the UK ‘as a monarchy’ not having an initiative process. My post above concerned ballot access for candidates in elections (in case anyone was confused).

    As regards referendums/initiatives we don’t really have them as we have a parliamentary constitution. They only occur in matters of constitutional significance. Hence, the only ones have been on European Union membership (in the 1970s) and regarding devolution for Scotland and Wales (in the 1970s and then again in the 1990s). Northern Ireland held a referendum on the peace accords (but that was of course a special circumstance).

    Who decides whether to have a referendum in the UK? The Government! Well I never claimed we were perfect and this is certainly an instance where the US is well ahead of us…

  10. In a republic the people are sovereign. In recognition of that fact, in Oregon and several other States, the people have the authority to legislate via the initiative and the referendum. In an initiative process, the voters may initiate a change in law by first petitioning for an election on the statute, and then passing the legislation in an election. In a referendum, the voters may by petition, challenge a law that the legislature has enacted. If they have enough signatures, the law does not come into effect, and the voters then vote on it, effectively giving them veto power.

    The case in Oregon was a petition to hold a referendum on a law passed by the legislature. If such a power existed in the UK you probably wouldn’t want 15 signatures to be able to block a law and force an election. 4% of the voters probably is not an unreasonable standard, say 1.5 to 2.0 million signatures in the UK.

    It simply isn’t reasonable to compare the signature standards on candidate petitions in the UK or Canada, with those for legislative petitions in the United States.

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