There is a war against direct democracy brewing behind the scenes in California, and advocates of the initiative, referendum and recall process (the same process that helped elect our current Governor and oust Gray Davis) need to wake up and take action before the war is lost!  To wit:

   1.  The "Ballot Initiative Strategy Center," a liberal think-tank that is the darling of Legislative leaders, has taken aim at reducing the influence of direct-democracy in California (and thereby further empowering the Legislature) by issuing a 64-page report criticizing the initiative process and making recommendations for changes.  These recommendations will serve as a pretext for the Legislature to enact "reforms" that will only expand their power vs. the people’s power.  The report includes ad hominen criticisms of alleged misrepresentations by signature gatherers in trying to persuade voters to sign petitions, and leverages these occasional problems (which can otherwise be dealt with enforcing rules already on the books, and the fail-safe method of the voter actually reading the petition’s short official Title and Summary before signing) into a recommendation that all signature gatherers must preregister and file public disclosure forms with the Secretary of State.  Of course, such a process will make signature collection (otherwise a fundamental right under the Federal and State Constitutions) harder, more bureaucractic, and more expensive.  It will "chill" the process.  

   Other questionable recommendations include making the sworn "circulator" portion of a petition publicly disclosable (currently election officials review these statements).  Further, though California law already prevents felons from circulating petitions, this outfit would expand that ban to include "certain" misdemeanor crimes in the ban, even if the person is a legally registered voter.  Many legal voters who can legally sign a petition would be made unable to "self-certify" their own signature on a petition if this group has its way.

   But the biggest hose job from the "Ballot Initiative Strategy Centers" involves their proposal to eliminate privacy rights for petition signers.  Currently, privacy laws protect the names and addresses of those who sign initiative, recall and referendum petitions.  When the petitions are turned in to election officials, they are not subject of a Public Records Act request in order to protect the privacy of signers.  But Orange County residents will recall that after a recall was launched against its trustees, officials of the scoflaw Capistrano Unified School District illegally gained access to the recall petitions with intention to use the information for an "enemies" list in the Board President’s office.  That "enemie’s list" became a count in a Grand Jury indictment against the officials of the school district, and caused changes in the Orange County Registrar’s office.  

   Unfortunately, the Ballot Initiatitive Strategy Center’s recommendation is in fact to allow the public to have not only the type of access CUSD used to try to prepare its’ "enemies" list, but also it would go further and allow actual copies of such petitions to be taken home!  Given the CUSD scandal, this is hardly a reform, rather, it is a huge step backwards for privacy rights, rights proven needed as a result of the CUSD fiasco.  Such a change would be a huge discouragement to citizen participation in signing petitions, especially for those fearful of CUSD type repriesals.  

   The report urges other changes, most of which are unnecesaary because they are covered by existing law.  One of the other changes, however, would interfere with contractual relations and dictate that professional signature gatherers could only work by hourly wage rather than the usual incentive-based performance method.  Such a change would drastically alter the manner of signature collection in California, and it would almost surely suppress, rather than enhance, the exercise of free speech.  

   Finally, the report takes particular aim at one signature gathering company, Arno Political Consultants, and calls for an Attorney General investigation of the company based on poorly corroborated claims of "violation of state laws" in signature gathering.  Arno is a responsible company.  There may be a bad apple or two in the signature gathering business that don’t follow the rules, but it is certainly not Mike Arno or his company.  Anectodal reports of a handful of problems when 600,000 signatures are collected for a measure are to be expected.  Nevertheless, Art Torres and the Democratic party have recently joined the Ballot outfit in a chorus of criticism of Arno because they find it convenient politically to use these claims to try to tar a measure currently in circulation that they don’t like (and that I am working on – Presidential elector reform).  Even Rick Hasen, a Loyola Law Professor and election law blogger, joined the liberal choir by essentially repeating the Torres Democratic party press release critical of Arno’s company on his blog.  I was pleased to point out to Rick after reading his blog today the irony that an initiative he himself helped author, Proposition 62 "open primary," (which was ultimately defeated at the polls), had paid Arno’s company $1,300,000 to qualify the initiative.  (Though the information has been public on the Secretary of State’ website for three years, Hasen claims to have not known it at the time he wrote his blog this morning, which included a reference linking Arno to the elector initiative.)

   2.  Large retail stores Target and Home Depot are launching a legal strategy to shut down signature gathering of any type outside their stores.  The law in California allows for signature collection in large shopping malls (see one of my prior posts here).  But Target and Home Depot have been chipping away at the law legally, and recently won a major case in a Los Angeles Appellate Court (Van v. Home Depot, B190831) that states that the California law, known as the Pruneyard decision, does not apply to the immediate front area of their stores, even when they are located in a large shopping mall.

   Now Target and Home Depot are trying to take their decision even further by seeking a permanent injunction against a signature gatherer that would allow the stores to call in police to actually remove signature gatherers from their premises.  The case is named Target v. Hart, it is in Los Angeles Superior Court, Case Number BC376354, and if Target gets its order, expect police and sheriffs departments to begin throwing initiative, recall, and referendum advocates in paddy wagons if they are anywhere near the entrance to a big "box" retail store.

   3.  Back to Rick Hasen.  Hasen is very critical of California’s constitutionally-protected initiative process and thinks the influence of initiatives on the political process of California should be reduced (something the Legislature would agree with).  He thinks a way to blunt the influence of initiatives is that statewide initiatives should be subject to a vote only in general elections, and not in primaries (or presumably "special" elections).  Hasen is working on a project to ban initiative votes at any time other than in a general election during a two-year election cycle.  Of course, this plan would further erode the people’s "direct democracy" rights in California by making opportunities to pass intiatives more rare.  Look out for this one!  The grand-daddy of them all, Proposition 13, was an initiative passed at a primary election!

   If all these proposals were to be enacted, and if the large retail corporations have their way, the initiative power in California will be about as relevant as the freedom of speech clause in the old Soviet Constitution.  The time is now to research and monitor these proposals, take on the anti-free speech corporations, and start the drumbeat in favor of preserving our direct democracy rights!

This entry was posted on Monday, November 5th, 2007 at 12:00 am and is filed under Blog Posts.