by Max Brantley
I noted recently objections to the effort by Arkansas's duopoly casinos at Southland and Oaklawn, in league with their friend Attorney General Dustin McDaniel, to make the referendum process prohibitively difficult in Arkansas so as to discourage future casino amendments, along with other potential laws unpleasant to the business lobby.
The item, quoting Paul Jacob, a term limits and referendum crusader, drew a rejoinder from the Friday Law Firm, which challenged Jacob's representation of case law in favor of a vigorous referendum process. (Free speech restrictions are not the only potential problems with the casino/McDaniel effort to limit the process, by the way. The Arkansas Constitution also suggests problems with the proposed legislation.) The Friday firm cited some law favorable to a more restrictive approach. Their law would make it impossible to hire canvassers on a per-signature basis on state campaigns, the most efficient means of gathering signatures.
Jacob has responded with a lengthy note. In the hopes that an open-minded legislator might take a look (and might I say that, to date, Rep. Nate Bell of Mena has been a noteworthy advocate of preserving the referendum process), I reprint Jacob's note below. Following Jacob's note is a note, too, from David Couch, a Little Rock lawyer following the debate, who debunks an inadequate fiscal impact statement on this punitive measure:
Enjoyed your piece on our sending the federal court decision on the Colorado pay per signature case to representatives and emphasizing its bearing on SB 821. The Friday firm lawyer is absolutely correct that an 8th Circuit case back in 1999-2000 held a North Dakota pay per signature ban (and a residency requirement) to be constitutional in a challenge that indeed I was involved in, with U.S. Term Limits one of the plaintiffs.
But he misses the forest for the one thin tree standing on the North Dakota plains.
That North Dakota case has been largely discounted by other federal circuits and even by at least one federal district judge in the 8th Circuit (as you'll see below), because there was no evidence introduced to show the burden the law places on First Amendment activity. I take my share of the blame for not having put together a more thorough challenge way back then, but live and learn.
On the other hand, the recent Colorado case, which Citizens in Charge Foundation spent a good deal of time working on over the last three years, was exhaustively briefed with numerous depositions and reams of evidence and then an eight-day trial — something I’d never before experienced, having been in a lot of constitutional court challenges.
The judge’s findings of fact and his ruling striking down Colorado’s mere 20% limit on productivity based pay (i.e. the number of signatures gathered), based on such exhaustive evidence from experts across the country, provides a complete road-map to challenging the outright ban on such pay found in Sen. Ingram’s SB 821.
If Arkansas SB 821 passes, I’m confident all that evidence will be brought to a federal court in Arkansas. Moreover, those behind SB 821 will have to admit (a) they don't have a single verified case of fraud, i.e. no conviction of anyone for anything (because, inexplicably, no one has been charged and prosecuted), and more importantly, (b) they have no evidence whatsoever that per signature pay increases the incidence of fraud or that banning per signature pay reduces fraud.
Citizens in Charge Foundation did an open records study in all 26 initiative and referendum states, which found that, between 1998 and 2008, states which banned pay based on the number of signatures gathered had more verified fraud cases than states like Arkansas that allowed pay to petition circulators based on the number of signatures.
Care to guess the state with the most verified cases of actually prosecuted and convicted fraud? North Dakota! The state with restrictions on out-of-state circulators and pay per signature
Courts have admittedly been mixed on pay per signature. The Sixth Circuit has struck it down. The Ninth has joined the Eighth in upholding it, though again citing clearly in the written decision that had there been more evidence of any burden on the plaintiffs, the court would have used strict scrutiny and perhaps ruled differently. A ban on productively pay for petitioners was struck down in neighboring Mississippi a decade or so ago. It was upheld in Nebraska in, again, a badly evidenced and argued case.
As I mentioned above, that same North Dakota case upholding a productivity pay ban also found residency requirements for petitioners constitutional. Not only have three federal circuits found unanimously against residency in the last five years, but so did a federal judge in Nebraska recently.
Last year, the State of Nebraska paid our attorneys $250,000 to cover our legal fees when we won the case, Citizens in Charge v. Gale, overturning the state's residency requirement. Nebraska is in the 8th Circuit, too. Nonetheless, the federal judge ignored that North Dakota case, striking down Nebraska’s law. Then, the Nebraska AG thought so much of the North Dakota case’s precedent that he declined to appeal our victory to the 8th Circuit.
That speaks volumes about the legal precedent being relied upon for SB 821.
If SB 821 passes, in addition to effectively undermining our most fundamental political rights for a time, it will also undoubtedly cost the state money to defend. Including, before all is said and done, the cost of legal fees for the First Amendment attorney who takes the lawsuit to challenge and overturn SB 821 in federal court.
Arkansas has one of the best initiative and referendum systems in the country. I’d hate to see it undercut. And if it is, I’ll sure want to see it restored.
Sorry to be long-winded.
FROM DAVID COUCH
Attached is the fiscal impact statement that was passed out at the committee hearing on Wednesday. As you can see it totally misses the mark. The only thing that they looked at was possible costs associated with imprisonment of people who may be convicted for violating the law. The big hidden costs in these bills are not addressed. This bill would require that the Board of Election Commissioners establish and provide a training program for paid canvassers which I assume would have to be statewide because I sincerely doubt that it would be fair to have someone from Lake Village or Bentonville come to Little Rock for training. This program is just not going to magically appear and operate and there will have to be materials associated with it and someone to administer it. It would also require that the secretary of state provide some type of “proof of registration” which would include a photo. The secretary of state is going to have to provide registration forms, keep a registration database and provide photo ID’s to these people at no charge because the constitution prohibits the state from charging someone to be a canvasser. If voter ID cards were going to cost the state $300,000 then here is another $300,000 arguably. SB821 is on the agenda today at 11. I don’t see where any amendments have been filed yet but I’m going and taking Paul Spencer with me just to keep an eye on these scoundrels. I agree with everything that Paul Jacob said in his email to you. I had the North Dakota case with me Wednesday in case the Friday Firm lawyers decided to tout the constitutionality of this obviously unconstitutional proposal.