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December 18, 2008

Court reverses initiative petition ruling

Tim Talley

OKLAHOMA CITY (AP) — A federal appeals court Thursday ruled that an Oklahoma law that bars nonresidents from circulating initiative petitions in the state is unconstitutional and reversed a lower court that had upheld the statute.

In a 16-page decision, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver overturned the ruling by Senior U.S. District Judge Tim Leonard in Oklahoma City and sent the case back to him for more hearings.

Leonard had ruled that state officials presented “overwhelming evidence” that questioned the integrity of professional petition circulators and cited evidence of wrongdoing in other states by professional, paid circulators.

But the appellate court said the record did not support the district court’s conclusion that nonresident circulators engage in fraudulent activity more than resident circulators and ruled the state failed to prove that its ban was narrowly tailored to protect the initiative process due to a higher rate of nonresident circulator fraud.

The appellate court said the state’s ban on nonresident circulators, which subjects violators to criminal prosecution, violated the First Amendment’s free speech protections as well as the Fourteenth Amendment.

Charlie Price, spokesman for Attorney General Drew Edmondson’s office, said state attorneys may ask the appellate judges to reconsider or rehear the case, or appeal directly to the U.S. Supreme Court.

The appellate court’s ruling could have an impact on the state’s prosecution of three people indicted on felony charges by the state’s multicounty grand jury for allegedly using out-of-state residents to circulate an initiative petition.

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, are charged with conspiracy to defraud the state by using out-of-state circulators to collect signatures for the so-called taxpayer bill of rights in 2006.

Price said the case is still pending.

Oklahoma’s law, similar to those in other states, was challenged by Yes on Term Limits, which wants to use nonresident, professional petition circulators to put an initiative on the ballot to enact two-term limits on the statewide offices of lieutenant governor, state auditor and inspector, attorney general, treasurer, labor commissioner and schools superintendent.

The group’s attorneys alleged that the law barring nonresidents and other Oklahoma laws that limit the initiative process are among the most restrictive in the nation.

In its ruling, the appellate court said the circulation of initiative petitions is “core political speech” involving interactive communication about political change and deserves the highest level of First Amendment protection.

The appellate judges rejected findings by the lower court that Oklahoma has a “compelling interest in protecting and policing both the integrity and the reliability of its initiative process.”

“Oklahoma has failed to prove that banning all nonresident circulators is a narrowly tailored means of meeting its compelling interest,” the ruling states. “Oklahoma has also failed to prove the ineffectiveness of plausible alternatives to the blanket ban on nonresidents.”

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