By Dennis Polhill
Every two years the State of Colorado accuses hundreds of thousands of its citizens of violating election laws. This accusation is implicitly made when signatures on initiative petitions are ruled invalid by the Secretary of State.Yet no one is fined or imprisoned for their crimes.
These criminals are not pursued because the State’s mission is to frustrate petitions, not to enforce the law. Besides, persecuting thousands of everyday citizens for exercising their fundamental right to petition would not stand up in any fair Court or in the court of public opinion.
A complex maze of rules and laws has been installed to make petitioning more difficult. Some politicians themselves have fallen victim to the abstract and arbitrary procedures by failing to satisfy the increasingly restrictive ballot access requirements.
It is now more difficult to exercise one’s petition right in Colorado than one’s voting right. The legitimacy of mail in ballots is attested by the signature of the lone voter. That same voter, to exercise the petition right, must similarly attest his own signature under the identical penalties of law. But in addition, the petition circulator attests the signature and then the notary attests the circulator, and finally all are ascertained by the State.
Outrageous examples are abundant: William is disqualified because he signed as Bill; another is disqualified because the name has too many characters for the computer; an entire petition is invalidated because the notary made an error in the date. Famous Coloradoans have been invalidated — including a Speaker of the State House of Representatives and the Nuggets’ coach. Colorado has been embarrassed on the national stage more than any other state. Twice the U.S. Supreme Court has invalidated legislative attempts to limit petition rights. Badge, circulator reporting, black ink signatures and blue petition book requirements are gone, thanks to the Supreme Court’s protection of the First Amendment right to petition.
Interestingly, the petition only gives people the right to vote. Evidently petition opponents subscribe to the Benito Mussolini philosophy of government, “Give me the right to nominate and you can vote for whomever you please.”
Elected representatives seem comfortable infringing on the Constitution and ignoring their oath of office. In Article V of the Colorado Constitution the people delegate the authority to legislate to the General Assembly, but “reserve to themselves the power to propose laws and amendments.” The petition is not a right that the political establishment can issue and rescind or throttle and unleash. It is a “Reserved Power.” The General Assembly’s authority cannot go beyond enabling and facilitating the process.
Historically, issue opponents carried the burden of challenging signature validity. This is because the Constitution defines a signature as “prima facia evidence,” meaning that it is presumed valid until proven otherwise. But the legislature changed this, and made a law requiring that the Secretary of State check signatures.
Technicalities benefit opponents as long as an idea can be defeated by denying people the vote. It is Colorado’s rigid, drop-dead requirements that cause controversy over technicalities. The signature controversy would disappear, if there were reasonable cure and carry-over provisions. The purpose of a petition is to demonstrate public interest. Does public interest subside if the petition is one signature short or one day late?
Expect continued attacks on the Initiative process, like this year’s Senate Bill. This bill would impose geographic distribution on petitions; the state would be divided into four zones, and petitions would need a certain number of signatures from each zone. The stated goal is to prevent Denver from imposing unpopular ideas on rural areas.
Though meritorious in intent, the proposed solution cannot succeed. First, this mechanism does not give veto power to rural areas. Instead it adds another technicality. Second, geographic distributions have previously been proposed and defeated. Third, no one has proposed geographic distributions for legislative bills. Fourth, if it is a good idea, it should also apply to elected officials? Should the election of the Governor not count, if not popular enough in some area? Fifth, petition defenders will bring an expensive legal challenge for restricting the process. Sixth, geographic discrimination suggests that there is also a need for quotas on the basis of race, gender, party affiliation, physical disability, affluence, intellect, and more.
Dennis Polhill wrote this article for the Independence Institute, a free-market think tank in Golden, www.i2i.org.
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