A Happy Resolution to Paul Jacob's Prosecution for Facilitating Out-of-State Ballot Petitioning

Brian Doherty | January 22, 2009

Back in October 2007, I interviewed long-time libertarian activist Paul Jacob (who spent some jail time in the 1980s for refusing to register for the draft) on his prosecution for being involved, essentially, in petitioning for a redress of grievances from the government without following their detailed rules.

Specifically, Oklahoma declared that only residents of the state could petition to get anything on the ballot, with the definition of resident somewhat ambiguous. Some excerpts from Jacob from that interview:

In most of the country now anyone from anywhere can petition. Oklahoma has a residency requirement, but [National Voter Outreach] was told by people with the state election board and secretary of state that this requirement could be met by anyone who moved to Oklahoma and declared themselves a resident. There was no requirement they live the rest of their days in Oklahoma; if they ended up not getting a job after this, they could go elsewhere to find a job. I don’t know of any agency you can go to to have them declare you a resident. If the petitioner declares themselves a resident and lists an Oklahoma address, then that’s a resident.

That ended up not being true, and Jacob and two of his compatriots got indicted for conspiracy to defraud the state for helping organize and hire such non-resident petitioners. Jacob thought the underlying law was blatantly unconstitutional:

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.

....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.

Now the good news: those charges have been dropped, after the law underlying the charges was overturned. From Associated Press via Tulsa World:

Attorney General Drew Edmondson said Thursday he has decided not to ask the U.S. Supreme Court to overturn a federal appeals court that struck down an Oklahoma law barring nonresidents from circulating initiative petitions.

Edmondson also said his office dismissed criminal charges against three people accused of violating Oklahoma's out-of-state petitioner ban......."The statute under which these defendants were charged has been declared unconstitutional, and the appellate process is complete," Edmondson said. "The statute is no longer enforceable."

Paul Jacob of Virginia, a national leader of the term limit movement, Susan Johnson of Michigan, head of a signature-gathering company, and Rick Carpenter of Tulsa, director of Oklahomans In Action, were accused of conspiracy to defraud the state by using out-of-state circulators to collect signatures for the so-called taxpayer bill of rights in 2006.

And Wirkman Virkkala, who hipped me to the good news, has a nice tribute to Jacob, with a possibly controversial conclusion for those who privilege strict constitutionalism above liberty:

.....the verdict that overruled Oklahoma’s law was decided on the basis of an expansive reading of the Bill of Rights, as covering the states, and that some strict reconstructionists would say it’s a bad ruling.

I have trouble with this position, especially when a looser reading of the Constitution helps good people remain free.

Jacob himself emailed me his official statement of reaction. An excerpt:

The charges brought against us by the attorney general have now been dismissed. They should never have been brought in the first place. We did not break the law and, as we all now know, the law itself is unconstitutional.

Our prosecution has sadly had a chilling effect on Oklahomans, who want to reform their government and to hold it accountable through the petition process. My goal throughout this ordeal has been to encourage Oklahomans and Americans everywhere not to let their rights be eroded through fear and intimidation. Today we have won a victory.

But the battle to protect citizen rights is far from over.

As President of Citizens in Charge, I look forward to working with all Americans to see the voter initiative process triumph over attacks from politicians. The will of the people should always prevail over the desires of politicians.

An entire documentary history of this stupid and now failed prosecution can be found at Free Paul Jacob.

Comments

|1.22.09 @ 7:36PM|#

This case underscores the folly of falling for the frivolous argument that the Bill of Rights does not apply to the states and that the framers did not intend for them to apply to the states.

If the Framers had intended to so limit the reach of the Bill of Rights, they certainly could have inserted language to that effect. They chose otherwise. All they had to do was insert a preamble that contained such a limitation. Thus, absent a clear, unequivocal command that the rights secured by the amendments were only to be effective against the federal government, one must reject all arguments to the contrary.

One of the most sophomoric arguments is that the founding generation was ONLY concerned about limiting the power of the central government and that they did not fear their own state governments. The argument runs that the bill of rights were adopted in response to the fears of the anti-federalists that states rights would be destroyed by an unchecked federal sovereign. Sure, some of the founding generation voiced this concern, but it was hardly THE ONE AND ONLY reason why the Bill of Rights became part of the constitution. Many knew the horrors that state governments had inflicted upon its citizens-be it murder, theft, capricious taxation, graft, corrupt legislatures and judges and the like.

Thus, the framers were just as wise to the reality of tyrannical state governments as to the intuitive fear of a large federal government.

|1.22.09 @ 8:09PM|#

It has been my understanding that, at least since a late 1960s case involving welfare, the states could not have a residency requirement longer than 30 days.

I know some state universitues have stricter rules than that regarding "on state tuition," and have never understood how there was not a uniform standard.

Kevin

|1.23.09 @ 7:24AM|#

I have to disagree with you libertymike. The Bill of Rights only applied to the federal government until the 14th Amendment was interpreted to apply them to the State governments in the late 19th century. As early as 1833 it was found that the Bill of Rights only applied to the federal government. Considering that individual States felt the need to enact their own "Bills of Right", this lends credence to the idea. The Constitution was for the organization of a federal government by a group where most members believed in States rights. To claim that they intended it to be all encompassing is disingenous.

|1.23.09 @ 7:26AM|#

This is not to say that the Founders didn't realize the possibility of tyrannical power in the hands of State governments, only that they didn't feel that they had the mandate to address it in the Constitution.

Andrew_M_Garland|1.23.09 @ 10:42AM|#

Future news:

"As you know, the State of --- arrested 136 in the opposition party who were suspected of violating up to 37 laws governing elections and behavior. This was two months before the election.

The election ocurred without incident. We are pleased to report that a thorough investigation has revealed that no laws were broken, and these people have today been released. Sorry."

|1.23.09 @ 11:30AM|#

Marcvs-

I believe that you are referring to the Barron case as that was decided in 1833 by the United States Supreme Court. Yes, in that case, the court basically held that the bill of rights does not apply to the states.

However, Justice Marshall's opinion, like any Supreme court opinion, does not represent the only school of thought on the matter. For example, many contemporaries of Justice Marshall. disagreed. For example, check out some of the opinions written by Joseph Henry Lumpkin, Chief Justice of the Georgia Supreme Court. In Campbell v Georgia, he opined that the bill of rights reflect the natural rights philosophy under which our nation was birthed and that for which it stands is binding upon both the feds and the states. Campbell v Georgia 11 GA 353 (1852). In the opinion, Lumpkin does write that the primary reason the bill of rights was adopted was to check the feds, but not the only reason.