Out-of-State Ballot Petitioner Ban Upheld in Oklahoma

Brian Doherty | September 10, 2007

The practice of out-of-state professional petitioning is struck a blow by an Oklahoma court. In a decision last week in the case of Yes on Term Limits v. Savage, U.S. District Court Judge Tim Leonard upheld a challenged Oklahoma state law (in effect since 1969) banning out of state residents from being ballot petition circulators and signature-collectors there.

The plaintiffs (one of whom is occasional Hit and Run commenter Eric Rittberg aka Eric Dondero) argued that the Oklahoma law violated "their First Amendment rights to engage in political association and to speak on matters of public concern," as well as their "rights under the Privileges and Immunities Clause to engage in political speech and to practice their chosen profession in Oklahoma" and the Commerce Clause to boot, because it reserves “the trade of gathering signatures for pay to Oklahoma residents alone.”

Judge Leonard decided that "the residency requirement is sufficiently tailored to meet Oklahoma’s compelling state interests in protecting the integrity of its initiative process and policing the process once it has been completed," largely since it is difficult, he claims, to track down or double-check, and impossible to subpoena, out of state signature collectors.

Leonard grants that the Oklahoma law "would increase the cost of the petition drive," but says "there is no indication that the increased cost would be prohibitive."

Ballot Access News's short report. The full decision.

Comments

Mr. X|9.10.07 @ 2:01PM|#

I should note that the Judge was able to point to Mr. Rittberg's falsification of affidavits as a good reason to uphold Oklahoma's law. The decision is still a bad one, IMHO, but facts like that just make it easier for bad decisions to be upheld.

|9.10.07 @ 2:02PM|#

Eric "True® Libertarian™" Dondero falsified affidavits? Say it ain't so!

Eric Dondero|9.10.07 @ 2:12PM|#

Funny to see some so-called libertarians here siding with the State's description of our out-of-state petitioning efforts.

The State described our petitioning efforts as fraud. Essentially, they didn't like the fact that we were collecting signatures for pro-freedom initiatives such as property rights and the right to recall judges. Thus they categorized our efforts as "fraud."

That's what it means today to be opposed to the pro-government line: You're described as "commiting fraud."

Example: In Montana last year there were 5 initiatives. The three conservative/libertarian initiatives were thrown off the ballot, despite the fact that we gathered twice as many signatures as needed. The two liberals one were allowed to stay on.

Very chilling effect on the future of free speech indeed.

|9.10.07 @ 2:33PM|#

DONDEROOOOOOOOOOOOOOOOOO!!!

Funny to see some so-called libertarians here siding with the State's description of our out-of-state petitioning efforts.

Care to point out which of the two posts before yours "sided with the State's description?" Or do you even read posts before claiming their authors are siding with the state?

|9.10.07 @ 3:05PM|#

DONDEROOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!

I should note that the Judge was able to point to Mr. Rittberg's falsification of affidavits as a good reason to uphold Oklahoma's law. The decision is still a bad one, IMHO, but facts like that just make it easier for bad decisions to be upheld.

The "mainstream libertarian" undermining the cause of freedom? I'm shocked, shocked.

GILMORE|9.10.07 @ 3:05PM|#

Eric Rittberg aka Eric Dondero..aka LORD DOUCHEBAG, LIBERTARIAN TORQUEMADA, INSUFFERABLE HUMAN HEMORRHOID

|9.10.07 @ 3:25PM|#

I thought there was Supreme Court caselaw going the other way on this issue, but all I can find is Buckley v. American Constitutional Law Foundation, and it only prohibits states from requiring that signature collectors be registered voters in that state. However, given that, it seems odd that states can require a collector to be a resident. It's not as if being a registered voter is that much more onerous of a requirement than being a resident that one should be unconstitutional and the other acceptable.

Nick M.|9.10.07 @ 3:26PM|#

Let's see. Lying Douchebag gets caught in court being a lying douchebag. Why was he in court? Contesting a law that was created to keep lying douchebags from doing a job which requires people to not to do lying douchebaggy things, ie. copying signatures from one petition to another, tricking people into signing additional petitions with which they may not agree.

Said lying douchebag posts on a blog, saying that the state is tring to kill the cause of freedom. Lying douchebag presents case of intiatives being thrown even though petitioners gathered twice as many signatures as required. Said lying douchebag has been shown to be a lying douchebag, but wants us to believe that he did not do lying douchebaggy things to gather those signatures he is using as proof that the state is out get freedom.

|9.10.07 @ 3:32PM|#

So here's the lesson to take away from all this:

Eric Dondero has a well-deserved credibility problem.

robc|9.10.07 @ 4:10PM|#

Dondero has a well-deserved credibility problems, and is still right in this case.

|9.10.07 @ 4:11PM|#

Funny to see some so-called libertarians here siding with the State's description of our out-of-state petitioning efforts.

As the poster immediately prior to his complaint, let me address this. Eric the Multi-Lingual claims he was accused of fraud. But he DID commit fraud! Lying on an affidavit is fraud! By doing so he has set back the goals of ballot access activists a decade or more.

I suggest that Mr. Rittberg nee Dondero do some reading of Thoreau. Civil disobedience is not about lying, but courageously telling the truth. You defeat bad law not by tricks such as false affidavits, but by attacking the law directly.

Timothy|9.10.07 @ 4:14PM|#

DONDEROOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!

It seems everybody else has this covered already. But are you ever going to shave that molesterstache or is it some kind of mating plumage for your kind?

DONDEROOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!

|9.10.07 @ 4:24PM|#

I agree with Dondero on this one, it's a bad decision.

|9.10.07 @ 5:10PM|#

I'm confused, did Dondero lie on the affidavits or did the court decide that Dondero's assertions did not meet thier definitions (ie persuading vigourously vs. intimidation and harassment)

Eric Dondero|9.10.07 @ 5:56PM|#

Care to explain to me where it is that I "lied" on an affadavit?

The AG's lawyers in our case made a lot of claims. One of which was that there was a warrant out for my arrest in Colorado.

The next morning, very first action on the agenda of the court, was to correct that assertion, and to chastise the attorney from the AG's office in besmirching my reputation with that entirely inaccurate assertion. Read the court record. She even apologized.

She also said, "Mr. Dondero, isn't it true you were fired from AIG?"

Absolutely false accusation. I was never fired from AIG, but rather left on good terms nearly 2 years ago.

I've come to learn that this is a common tactic by prosecuting attorneys. They just throw things out there to see if they will stick.

Fortunately, my most excellent attorneys shot back at them each time and corrected their entirely inaccurate assertions.

Eric Dondero|9.10.07 @ 6:00PM|#

Thanks for all y'all's support on this.

But something else you should consider.

3 States in the last year have outlawed out of state petitioners: South Dakota, Colorado and Montana. It's having a chilling effect on free speech rights.

But even more frightening is what this means for third party ballot access efforts.

That's still a murky area. Nobody knows yet how this ruling and the three new laws in those states will effect out of state petitioners for say the Libertarian Party or the Constitution Party.

Though, my understanding from Rich Winger is that South Dakota was one state that explicitly wrote in the law an exemption for 3rd party petitioners.

But Colorado? Montana? Oklahoma?

This could severely impact the Libertarian Party's efforts to get on the ballot for 2008.

|9.10.07 @ 6:39PM|#

Only the guilty have reason to fear, Dondero.

|9.10.07 @ 6:41PM|#

This could severely impact the Libertarian Party's efforts to get on the ballot for 2008.

Well, assuming Rudy gets the GOP nom, we won't need an LP candidate; Rudy's been called a libertarian by US News & World Report, so another libertarian would just split the vote!

|9.10.07 @ 7:29PM|#

Care to explain to me where it is that I "lied" on an affadavit?

Well, Eric, in footnote 7 of the decision, the judge points out that in 1993, you put your signature on an affidavit stating that you were an Oklahoma resident, even though you weren't, and you understood exactly what you were going.

7Notwithstanding the residency requirement that has been on the books since 1969, Rittberg
circulated a petition in Oklahoma in 1993 or 1994; he testified he personally gathered signatures
in Oklahoma and signed the circulator affidavit. Tr. at 75-77. That Rittberg understood the
consequences of this is apparent from the following colloquy:
Q. Are you - Are you aware that you're required to sign an affidavit,
by Oklahoma law, saying you're a resident when you turn your
petitions in?
A. Yeah, I am aware, and, you know, once again, if I would be
violating the law I wouldn't sign the affidavit, and -
Q. Are you aware that you could possibly be prosecuted if you
falsified that affidavit?
A. Oh yes. Absolutely. That's pretty much par for the course in this
business for just about every - everything falsificate - that's falsified.

So maybe he's talking about that.

Robert|9.11.07 @ 12:06AM|#

Civil disobedience is not about lying, but courageously telling the truth. You defeat bad law not by tricks such as false affidavits, but by attacking the law directly.

That's why I'm for uncivil disobedience. The righteous have the advantage when they lie. You should never refuse the weapon of the lie. And besides, fooling your enemies is fun. You defeat bad laws by making monkeys of those who would have you follow them. And lying is something anyone can do. Lie for liberty!

Next time, do what they all do: just get an in-state resident to perjure the witness statement. We used to do that all the time in NY. I don't know how many petition signatures I "witnessed" back in the early 1980s that were actually witnessed by out of staters.

Eric Dondero|9.11.07 @ 12:38AM|#

Robert, not for me. I cannot lie or even fudge the facts. I know others in this business can and do. But I personally am not comfortable with it.

Which essentially screws me, and other honest petitioners.

This in turn will have the effect of scaring honest petitioners like me out of the business, and professional petitioning will be left with nothing but mercs and non-ideological petitioners who aren't afraid to lie to get another sig.

|9.11.07 @ 10:50AM|#

This is an instance where Eric Dondero is right. This decision is an abomination as it is a blatant attack on the 1st amendment (as well as similiar provisions that are found in every state constitution). The REAL agenda here is to make it more difficult to put pro-liberty initiatives, referenda, and candidates on the ballot. This will lead to more power for the establishment politicians and less choice for the people.

As Americans we are supposed to have a right to travel throughout the USA. We do not give up our rights once we cross a state line. For instance, a person who regularly lives in Texas maintains their right to free speech and to petition for a redress of grievances when they enter Missouri or Montana or Oregon or Colorado or anywhere else.

All of the "reasons" given by those supporting this travesty are a smoke screen to cover up the fact that they are attacking the 1st amendment and that they want to maintain power for the establishment politicians. They act as though all petition signature gatherers are liars and this is not true at all. The average petition signature gatherer is more honest than the average politician. Politicians lie to us on an every day basis. They regularly lie about bills and they also regularly pass bills without even reading them. The majority of petition signature gatherers are honest, and even if one isn't honest it is pretty easy to catch them in a lie if one merely takes the time to read the freakin' petition that they are asking you to sign.

Eric Dondero may be wrong sometimes when he talks about foreign policy, but he has done nothing wrong here and he is in fact dead on right when it comes to free speech, petition rights, and ballot access.

|9.11.07 @ 11:39AM|#

While I don't like most states' ballot access requirements, I support the 10th Amendment to the Constitution.

The state of Oklahoma has the constitutional right to protect the integrity of its ballot access process. In this case, it decided that Mr. Dondero lacked any integrity by falsifying the petition records.ges, I wonder if the plaintiff, YOTL, will enter into a civil suit against Dondero to recover what they paid him. They paid him per signature for ones that were useless. Not to mention that their integrity and credibility, as well as their very worhwhile effort, has been flushed down the sewer.

|9.11.07 @ 6:04PM|#

"While I don't like most states' ballot access requirements, I support the 10th Amendment to the Constitution."

Given your comments, you obviously do not support the 1st and 14th amendments to the Constitution.

"The state of Oklahoma has the constitutional right to protect the integrity of its ballot access process."

So you believe that the state of Oklahoma has the right to violate the 1st amendment and to prevent initiatives, referenda, and candidates that the establishment politicians do not like from making it on the ballot.

"In this case, it decided that Mr. Dondero lacked any integrity by falsifying the petition records."

I don't believe that there is any evidence that Mr. Dondero did anything wrong. The worst piece of evidence against him is that the he signed off on a few petitions and used a motel address. So what. That's where he was residing when he collected the signatures. There is nothing illegal about living in a motel. I know people who live in motels year round. What difference does it make where the signature gatherer lives? This has got NOTHING to do with the whether or not the signatures on the petition are valid or not.

"They paid him per signature for ones that were useless."

I'd be willing to bet that the majority of the signatures collected by Mr. Dondero were valid. The state just didn't like the petitions that he collected signatures for because they took power away from big government so they were looking for an excuse to disqualify them.

"Not to mention that their integrity and credibility, as well as their very worhwhile effort, has been flushed down the sewer."

The REAL guilty party here is not the petition signature gatherers like Eric Dondero, but rather the establishment politicians and bureacrats who saw the initiative petitions that were being circulated as a threat to their power so they looked for an excuse to keep them off the ballot. Petition signature gatherers like Eric Dondero are merely being used as scapegoats/sacrificial lambs.

Eric Dondero|9.11.07 @ 6:16PM|#

My validity rate runs in the 80 to 85% range.

That's very high for this business.

Typically firms, like Mike Arno, of National Voter Outreach, pay for 100% if a signature gatherer's validity is above 70%.

Below that they only pay for valid signatures.

Below 50% they usually fire you on the spot.

Eric Dondero|9.11.07 @ 6:23PM|#

Andy, thanks for the support. I know you and I have been on opposite sides of the spectrum many times in the past, (and probably will be again in the future.)

But on this we are in total agreement.

What's being lost here is the increasing "institutionalization" of the liberal movement and the government. They are becomming one in the same.

It's amazing to me that Montana 2006 has been almost totally ignored by the media, and even national conservatives and libertarians.

In MT in 2006 there were 5 initiatives. Mercenary petitioners collected signatures for all 5 petitions.

We libertarian petitioners collected sigs only for the libertarian/conservative initiatives (property rights, spending limits and the right to recall judges.)

Wouldn't you know it, the two liberal petitions (lobbyist limits and minimum wage) qualified for the ballot, even though they had less than half the sigs we had collected.

And of course, they threw out the 3 lib/cons petitions.

|9.11.07 @ 6:26PM|#

This is from the Oklahoma State Constitution. Note that it says, "EVERY PERSON MAY FREELY SPEAK" and that it makes no mention of where that person is from. Also, note that as Americans we have right to travel throughout the USA and that we do not give up our rights when we enter different states.

"Section II-22: Liberty of speech and press - Truth as evidence in prosecution for libel.
Every person may freely speak, write, or publish his sentiments
on all subjects, being responsible for the abuse of that right;
and no law shall be passed to restrain or abridge the liberty of
speech or of the press. In all criminal prosecutions for libel,
the truth of the matter alleged to be libelous may be given in
evidence to the jury, and if it shall appear to the jury that the
matter charged as libelous be true, and was written or published
with good motives and for justifiable ends, the party shall be
acquitted."

|9.11.07 @ 6:30PM|#

According to the Oklahoma State Constitution, the US Constitution is the Supreme Law of the Land. The government officials in Oklahoma who are behind this travesty are obviously breaking the laws which they swore an oath to uphold and defend.


"Section I-1: Supreme law of land.
The State of Oklahoma is an inseparable part of the Federal
Union, and the Constitution of the United States is the supreme law
of the land."

|9.11.07 @ 6:49PM|#

"Andy, thanks for the support. I know you and I have been on opposite sides of the spectrum many times in the past, (and probably will be again in the future.)

But on this we are in total agreement."

There's an expression that politics can often make strange bedfellows. I'm generally willing to work with people who I may have disagreements with on some issues when it comes to working on issues where I agree with them. This is one of the good things about the initiative & referendum process in that it gives people who disagree on some issues the chance to work together on an issue or issues where they do agree. Also, everyone's liberty is threatened when the rights to free speech and to petition are attacked.

"What's being lost here is the increasing 'institutionalization' of the liberal movement and the government. They are becomming one in the same."

Here is one an example of where I disagree with you, or at least partially disagree, or for that matter, only partially agree with you.

Yes, the so called "liberals" attacked the Spending Limits, Stop Eminent Domain Abuse, and Recall Judges petitions in Montana last year, and yes, there were similiar attacks by so called "liberals" against Spending Limits and Stop Eminent Domain Abuse (I don't think the Recall Judges ran anywhere else but Montana last year) petitions in other states, however, this implies that the only attacks against petition rights comes from so called "liberals" or leftists. This is not true as I could site examples of times when Republicans/"conservatives" pulled the same kind of nonsense to attack petition rights. Just because the attack that you pointed out came from the "left" it doesn't mean that there haven't been similiar attacks from the "right".

|9.11.07 @ 7:03PM|#

These Oklahoma government officials are clearly violating this section of the Oklahoma State Constitution as they are trying to make it more difficult to petition for a redress of grievances.


"Section II-3: Right of assembly and petition.
The people have the right peaceably to assemble for their own
good, and to apply to those invested with the powers of
government for redress of grievances by petition, address, or
remonstrance."

|9.11.07 @ 7:08PM|#

Yet another section of the Oklahoma State Constitution that is being violated by these
government officials.

"Section II-1: Political power - Purpose of government - Alteration or reformation.
All political power is inherent in the people; and government
is instituted for their protection, security, and benefit, and to
promote their general welfare; and they have the right to alter
or reform the same whenever the public good may require it:
Provided, such change be not repugnant to the Constitution of the
United States."

|9.11.07 @ 7:13PM|#

The Oklahoma State Constitution says that "ALL ELECTIONS SHALL BE FREE AND EQUAL." How can there be a "free and equal election" when the state actively tries to prevent minor party and independent candidates as well as certain initiative and referenda from qualifying for the ballot?

"Section III-5: Free and equal elections - Interference by civil or military power - Privilege from arrest.
All elections shall be free and equal. No power, civil or
military, shall ever interfere to prevent the free exercise of the
right of suffrage, and electors shall, in all cases, except for
treason, felony, and breach of the peace, be privileged from arrest
during their attendance on elections and while going to and from the
same."

Eric Dondero|9.11.07 @ 8:30PM|#

Let me be very clear about Montana. In no way did I ever misrepresent any of the petitions, when collecting signatures. I was extra careful to present them as separate petitions.

The State of Montana argued that we used "bait and switch" to get voters to sign the petitions. That may have gone on. But I would submit that that would have come from the "mercenary" petitioners who care little about the issues themselves.

Not a single libertarian or conservative petitioner I knew engaged in such tactics. If they had, they would have been shamed out of our movement, and forever tagged by the rest of us as a political whore, and a disgustingly dishonest individual.

|9.11.07 @ 9:31PM|#

"The State of Montana argued that we used 'bait and switch' to get voters to sign the petitions. That may have gone on. But I would submit that that would have come from the 'mercenary' petitioners who care little about the issues themselves."

I'd be willing to bet that if any unscrupulous tactics were used, it was only a very small handful of individuals who were behind it and that this does not represent the majority of signatures that were collected.

Generally speaking, when fraud occurs there is a greater chance that the fraud was committed by somebody who was hired locally off the streets than by a seasoned pro who traveled from out of state. Why? Because the seasoned pro wants to keep their reputation up so they continue to get work, whereas the person hired off the street has less incentive to do things on the "up and up" since they do not regularly gather petition signatures and therefore do not have any long term plans for such work. So banning out of state petitioners will not eliminate the possibility of petition fraud. If anything, it may actually increase it.

I think that cases of petition fraud are blown way out of proportion. I know of one initiative drive where a few petitioners committed fraud - and these petitioners in question were hired locally off the streets - and this was used as an excuse to throw out thousands of signatures that were perfectly valid, which was like throwing the baby out with the bathwater.

The majority of petition signatures are collected in an honest manner, and as I said above, the average petitioner is certainly more honest than the average politician.

Petition coordinators & proponents have a vested interest in making sure that signatures are valid and they usually catch forgeries before they are turned in to the state.

If a petition signature gatherer is using dishonest tactics to get people to sign petitions it is not very difficult to catch them in a lie, all that it takes is READING THE FREAKIN' PETITION. If a petitioner tells you something and you don't believe what they are saying READ THE DAMN PETITION. It is really that simple. People need to take personal responsibility instead of running to the government like a bunch of cry babies.

It is funny how some people get all bent out of shape over allegations surrounding ballot initiative & referendum petitions but they completely ignore the fact that there is all kinds of fraud that takes place on a regular basis in every state legislature and city council in this country, as well as in the halls of Congress. At least with petition signature gatherers a person has a chance to READ the petition. How often does a member of a state legislature or a city council or a member of Congress give people a chance to READ a bill before they vote on it? How often does a member of a state legislature or city council or Congress read a bill themselves before they vote on it? How often does a member of a state legislature or city council or Congress ever consult you before they vote on a bill? There is FAR MORE FRAUD in the halls of government than there is in the signature collection of ballot initaitives & referenda.

Eric Dondero|9.11.07 @ 10:23PM|#

Yup, yup, and yup.

I agree 100% Andy. I think you most definitely do have much more chances for fraud from locally hired petitioners.

In fact, I do believe 1 guy was caught in MT commiting fraud, and the petitioning company turned him in to the State. And he was a local.

Ironic, that they used the case of that 1 guy and painted the rest of us - especially us out of stater professionals - with that same brush.

Mr. X|9.13.07 @ 9:57AM|#

Eric,
Are you denying the colloquy in the decision where you admit to falsifying affidavits?

I agree that the decision is incorrect, but I was noting that it was unfortunate that your behavior provided a factual justification for the decision.

I see Andy's using his Cut-and-Paste Lawyering Manual for Kids (c) to enlighten us all as to what the law really says. Monday morning lawyering is less than useless, in my opinion, but whatever makes people happy.

|9.13.07 @ 5:44PM|#

"Mr. X | September 13, 2007, 9:57am | #

Eric,
Are you denying the colloquy in the decision where you admit to falsifying affidavits?

I agree that the decision is incorrect, but I was noting that it was unfortunate that your behavior provided a factual justification for the decision."

There is nothing illegal about living in a motel, furthermore, this has NOTHING to do with whether or not the signatures that Eric collected were valid. There are many states that have petitions that don't even have petition circulator affidavits on them, and for the states that do have them, the ones that claim that a petition circulator has to live in that state most of the year and/or be a registered voter in that state and that they can't use a motel address do this on blatantly unconstitutional grounds. The real agenda that these states are pushing is to make it more difficult to put initiatives, referenda, recalls, and minor party & independent candidates on the ballot.

I have several disagreements with Eric Dondero but this is not one of them. Eric did nothing wrong here. If anything, Eric should be commended for collecting signatures on pro-liberty petitions and for taking part in this law suit.

"I see Andy's using his Cut-and-Paste Lawyering Manual for Kids (c) to enlighten us all as to what the law really says. Monday morning lawyering is less than useless, in my opinion, but whatever makes people happy."

In other words, I'm posting facts which can't be disputed. God forbid somebody who isn't a member of the BAR Association dare to talk about any facts concerning the law.