Losing Our Initiative
When ballot petitioning becomes a crime
On Tuesday, longtime libertarian political activist Paul Jacob was indicted on felony charges in Oklahoma for conspiracy to defraud the state, along with Susan Johnson of National Voter Outreach and Rick Carpenter of Oklahomans in Action.
It isn't Jacob's first time with the guns of the state aimed at him. He served five months in jail in 1984, after a year on the run, for refusal to register for the draft.
I interviewed him by phone Thursday morning about his legal troubles and the threat they pose to citizen power over their government.
reason: What happened to you Tuesday?
Jacob: I was named along with two other people in an indictment brought by Oklahoma Attorney General Drew Edmondson.
The background: In 2005, Oklahomans in Action launched an initiative campaign to bring two measures to the ballot in Oklahoma, one of them a taxpayer bill of rights (TABOR) that puts a cap on the rate by which state government spending can increase and only allows that cap to be overridden by a vote of the people.
I worked at the time for Americans for Limited Government and we were making significant contributions to that campaign. My job was to help the campaign get on the ballot and help them find a petition company. I helped Rick Carpenter decide on National Voter Outreach, who had done successful initiatives in Oklahoma 10 or 15 times over the past 10-15 years.
As this campaign unfolded, it met with ferocious opposition. Tactics included hiring "blockers" at $100 a day who admitted going into stores and lying to managers that a petitioner had cursed them out or treated them rudely and urging the manager to throw them out. As someone would talk to the petitioner, these folks would come around and begin yelling and be abusive. People trying to get groceries are doing petitioners a favor to stop as it is; they don't want to be involved in a street fight.
reason: Is this common when interests are opposed to the content of a petition drive?
Jacob: The ferocity by which the powers that be opposed this drive is something I've never seen before. I saw a lot of harassment during my years working on term limits initiatives, but when it came to TABOR it increased tenfold and the worst case was Oklahoma. Something ran in the paper that mentioned petitioners were going to post offices, and the next day every petitioner at a post office was told to leave by police.
That sort of thing made it very difficult for the petitioners. They were falling behind. One of the things I asked the petitioning company about was the rules on people coming in from out of state to collect signatures. 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.
I asked for any court precedents, as often times no matter what the law says as written or what an official tells you, you want to know what judges have up their sleeve. There was a recent case [involving a petition regarding a ban on cockfighting] in which the petition was alleged to have been circulated by people who were not Oklahoma residents. The court basically upheld the signatures collected by every one of those people, even people they could not find.
So the petition company moved forward and hired people who came to Oklahoma, and over 300,000 signatures were collected, more than enough to put the TABOR on the ballot. The TABOR was challenged on the signatures as well as challenged on constitutionality. The signature challenge was the most well-funded challenge I'd ever heard of, and one thing they challenged was circulators who moved to Oklahoma and declared residency and had not lived there for months or years or their whole life.
reason: How was this resolved, given the vagueness of the statute?
Jacob: The court in this case ruled that the definition of residency was living in Oklahoma, having a domicile, and intending to remain in Oklahoma permanently. That's a pretty wide definition of residency, since courts have long ruled that someone who sleeps under the interstate had rights, and that person doesn't have a domicile. You don't usually have to say you are never going to leave your state to have rights in that state. The statute just specifies "bonafide resident," but what bonafide means is the issue.
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?
Jacob: A friend of my mother years ago said she sure was glad I had changed politically because I was a big supporter of term limits, and she knew me politically only as an opponent of the military draft. But I didn't change one iota. I happen to believe people ought to be free and the way to keep people free is to keep people in charge of politicians rather than the other way around.
But it's different this time. In the 1980s I stood up to fight a law, but I was not trying to defy the law here, and I believe I obeyed it. One connection is, both cases involve people signing their names. When I didn't sign my name to a draft registration form, the federal government didn't like it. Now I'm facing prosecution because as an advisor I suggested something regarding people signing their names to a ballot petition.
The difficulty of keeping a free country is involved in both cases. I've got a 7-year-old, I've got a 15-year-old, and a 23-year-old with an almost two-year-old son, and a wife who I like to think needs me. I don't want to be going through this, but we have got to stop government from rolling over us. I didn't choose this fight, but I'm going to fight these guys and we have to band together as a people. I have been moved in the last two days by the amount of good wishes and help pouring out from people left, right, and in between. I'm not going to let this politician in Oklahoma roll over our initiative rights, so I plan to fight with everything I got. I hope in the end we win and I think we will.
Senior Editor Brian Doherty is author of This is Burning Man and Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement.