Losing Our Initiative

When ballot petitioning becomes a crime

Brian Doherty | October 5, 2007

(Page 2 of 3)

So the Supreme Court in Oklahoma wrote what I consider a wrongheaded decision declaring there was fraud involved in bringing in out of state circulators [for TABOR], and the attorney general worked through a multi-county grand jury process to bring indictments [against me, Carpenter, and Johnson] alleging conspiracy to defraud the state of Oklahoma by violating their residency statutes for ballot petitioners—a 10-year maximum sentence, and a $25,000 fine.

I know a lot of people who do initiatives and I’ve been told this is unheard of. And no one who signed an affidavit saying “I am a resident” has been charged or been shown not to be telling the truth. They are charging us with conspiring to help people do something that was illegal, yet they haven’t gone after anybody who they are alleging falsely singed affidavits. I think they know these people would not be found guilty, and what would determine in court whether they were a resident or not is whether they declare themselves one.

reason: Were you aware you were going to be indicted?

Jacob: I have an attorney who was contacted last Friday night about 5 o’clock and they told him I had to be in Oklahoma City on Tuesday. I appeared in court and they unsealed the indictment and we heard the charges for the first time. We pled not guilty, then several policemen came up and handcuffed the three of us together and led us through a barrage of TV cameras and photographers and reporters.

I decided this might be the only chance to speak to the press and told them what I thought of the indictment. It was referred to as shouting, but I prefer to think of it as speaking loudly and clearly. I said it’s hard to believe that using First Amendment rights can lead to this.

Halfway through processing they had our legs shackled—my right leg shackled to Rick Carpenter’s left leg in addition to being handcuffed, and both Susan Johnson’s legs shackled together. We never were locked in a cell when going through processing, but it did take hours and we were handcuffed the whole time to a bar across our seat. It’s a fairly dehumanizing process.

The challenge [to the TABOR signatures] included public employee unions, teachers unions, the AFL/CIO, and also a number of the most wealthy Republican donors in the state, folks with energy companies and banks. This indictment was something Drew Edmondson is winning an awful lot of brownie points for with movers and shakers in Oklahoma. There is a scheduling hearing set for November 8.

reason: There’s an ongoing legal challenge to the residency requirement that led to your arrest, isn’t there?

Jacob: This underlying residency law has been challenged in federal courts in a lawsuit by the organization Yes on Term Limits. They lost at the district court level and it’s on appeal to the Tenth Circuit. In deciding, the court first asks, "does this pose a significant burden on First Amendment rights?" And the court found that the residency requirement for petitioners indeed did, so that it ought to be under “strict scrutiny” [which it passed in the court’s opinion]. I say if it significantly burdens the First Amendment than it should not be a law at all, but then I’m a radical libertarian.

I think the Tenth Circuit will reverse that decision. The judge made a special note that no one had been prosecuted under that law on a criminal basis and no such prosecution was imminent. Then three weeks later I’m being prosecuted.

It’s a malevolent law designed to do against petition rights and the initiative process what folks in Mississippi in the 1950s and 60s wanted to do against freedom riders coming into the state. It’s a law designed to stop us from helping each other control our government.

I love the initiative and referendum process, so I not only fear what this could do to me and my family and kids and grandson. This is a dagger at the heart of people’s ability to directly influence the political decision making process. Initiative and referendum is where people who aren’t bigshot politicians can come up with an idea and, working with their neighbors, really make a difference. If anyone thinking of getting involved as a citizen in the process has to factor in possibly going to prison for 10 years, a lot of husbands and wives will decide that sort of citizen activism isn’t for them.

reason: How many states bar out of state petitioners?

Jacob: Oklahoma, Colorado, Arizona, Michigan, Wyoming, and California—those six states had residency requirements and two states just joined them, South Dakota just passed residency requirement and so did Montana. They also both moved to forbid paying people by the signature, which of course is the only effective way to hire people unless you have lots of union labor available.

reason: You spent jail time for not registering for the draft. Do you see any similarities in the two situations?

Comments

|10.5.07 @ 1:12PM|#

Dude.

|10.5.07 @ 1:28PM|#

In response to the folks here who keep overgeneralizing and saying that libertarians are opposed to unions, abusive things like this:

The challenge [to the TABOR signatures] included public employee unions, teachers unions, the AFL/CIO, and also a number of the most wealthy Republican donors in the state, folks with energy companies and banks.

are why libertarians tend to have a dim view of union political activity (while supporting their right to collectively bargain). This also illustrates why we tend to have a dim view of crony-capitalist large companies, and prefer small businesses.

|10.5.07 @ 2:00PM|#

...are why libertarians tend to have a dim view of union political activity (while supporting their right to collectively bargain). This also illustrates why we tend to have a dim view of crony-capitalist large companies, and prefer small businesses.

But, but, but, you can't be against one without being for the other. It just doesn't make sense! They're EXACT OPPOSITES!

They aren't? Oh, I'm sooo confused.

Stephen the Goldberger|10.5.07 @ 2:07PM|#

speaking of libertarians being arrested:
http://news.yahoo.com/s/ap/20071005/ap_on_re_us/tax_evaders_arrested

Big Nanny|10.5.07 @ 2:37PM|#

I am not against Unions, I don't think there should be laws protecting their right to collective bargain. If 1000 people decide to get together and press their employer that that is their right, but the law should not intervein.

I don't really have a problem with a state not letting non-residence influence thier local politics. If that is the decision of the people of a state then fine, it is their business.

|10.5.07 @ 2:58PM|#

The crux of the matter here is not the idea of the law, which Jacobs was trying to obey, but its ambiguity. What is a "resident"? Basically, the state courts 'moved the goalposts' from what it traditionally means to be a state resident, just for this one statute.

To me, his best argument is that the definition of "resident" under the statute was ambiguous at the time he took the actions in question, and that he made a good faith attempt to comply with the law.

That's even before all of the First Amendment issues.

|10.5.07 @ 3:36PM|#

I'm real confused here...as usual.

How can a state (any state) say that only residents of that state can be employed in that state?

It makes perfect sense to say that only residents of a state can sign a petition (or that only residents' votes will count on that petition) but how can a state say that petitions can only be circulated/presented by residents of that state? Can Florida make a law that says you have to be resident of Florida to work at Disneyworld?

Isn't there some ACTUAL interstate commerce issue here? Or am I confused... again.

Thanks in advance, joe, for 'splaining this to me.

CB

|10.5.07 @ 3:39PM|#

You can thank the idiots who believe that money corrupts everything for these type of laws exsisting, preventing paid petitioners from advancing political ideas on the ballot.

As far as unions: Libertarian thinking is against unions in the modern day because employees are given fair market value for thier labor. Back in the day when unions were a force of good and not socialism, real monopolies existed and were trading selectively with customers offering different prices to certain parties in order to stifle competition. Competition is something any pro free market person would tend to side with, modern unions seek to make thier labor worth more than the free market value and it forces the company to either cut costs somewhere else or sell thier product at a higher price and lose business. Big Business and small business are still, at the end of the day businesses.

Statism wants to pass laws that benefit few and hurt many. (Laws that take away freedoms)

Libertarianism wants laws that benefit many and hurt as few as possible. (Laws that allow maximum freedom)

|10.5.07 @ 4:05PM|#

If 1000 people decide to get together and press their employer that that is their right, but the law should not intervein.

And if the employer thinks the proper response to collective pressure is collective termination, you're cool with that?

Hallie|10.5.07 @ 4:16PM|#

Welcome to what America will look like under a Hillary Clinton presidency--ruthless suppression of political dissidents.

|10.5.07 @ 5:33PM|#

And if the employer thinks the proper response to collective pressure is collective termination, you're cool with that?

Yep!

Economic Freedom|10.5.07 @ 6:21PM|#

And if the employer thinks the proper response to collective pressure is collective termination, you're cool with that?

When you consider what Unions have done to the Detroit Big 3 Auto makers, I would say yes yes amd hell yes!

I would rather have a company grow and provide employment for many, rather than have a few employees working for higher than free market value with little threats on losing thier jobs for lack of focus. (union pay and rules)

Welfare states hurt many to benefit the few, so do unions.

Toyota, Nissan, and Honda have mannaged to build plants here and are still making a killing in the auto market.

Robert|10.5.07 @ 8:14PM|#

Any statement from his sister Kathy about this? I forgot, does Kathleen Richman have a blog?

|10.7.07 @ 10:36PM|#

I'm confused at why hand and leg cuffs were needed. Is petition fraud a violent crime?