Sizemore: Four Lawsuits Challenge Legislative Arrogance

Since Democrats took control of the Oregon legislature in November of 2006, their legislative leaders and local minions have behaved with a level of arrogance that has surprised even this somewhat calloused observer. Because they are in the majority, Democrats have behaved as if they are above the law and can do anything they wish.

As of this date, January 2, 2008, there are four state and federal lawsuits aimed at reining in some of their more egregious actions.

Not counting valid signatures.
This lawsuit challenges the actions of Democrat Secretary of State Bill Bradbury, who instructed county election clerks not to validate the petition signature of any citizen, once the county clerks had determined (by little more than guessing) that the person’s signature on a petition did not closely match that person’s voter registration card.

This lawsuit stems from a petition drive aimed at stopping the Democrat’s effort to enact a state domestic partnership law just one election after Oregon voters approved a constitutional amendment defining marriage as only between one man and one woman.

Right after the Democrat majority passed the law, a referendum signature drive was commenced to put the question to a public vote. The required number of signatures was collected, but several county clerks threw out enough valid petition signatures, allegedly for “not matching” voter registration cards, that the secretary of state was able to declare the petition insufficient.

Sponsors of the petition have filed a lawsuit in federal court and as of this writing have obtained an injunction from a federal judging, staying implementation of the domestic partnership law. A formal hearing on the merits is scheduled for February. The secretary of state will have a problem defending his actions. Several county clerks rejected signatures for not matching, even after the persons who signed the petitions presented affidavits swearing that the signatures were indeed theirs. Talk about arrogance!

Here’s my take on this one: The local Democrat machines have been cheating in the signature verification process for several years. They claim that they have the right to say whether a signature is yours or not, and that you as a citizen have no right to challenge their decision. They even claim that the courts have no right to review their decision, which is of course a clear violation of the signers’ right to due process. I think we will win this one in February and the domestic partnership law will go to a public vote.

Holding an illegal special session.
The first thing the Democrat controlled Oregon legislature did last session was pass a law declaring that they will convene again a year later for a test run on annual sessions. The problem the legislature has is this: The Oregon Constitution expressly states that the legislature will meet every other year, not annually. The biannual provision in the Oregon Constitution was borrowed from the Indiana Constitution, which was designed specifically to stop the legislature from meeting so often, and the court will take legal notice of this bit of legislative history.

What makes this kind of behavior especially obnoxious is the fact that not too long ago, Oregon voters were asked to change the state’s Constitution to allow for annual sessions, and they said “No”. Never ones to let something so trivial as the will of the people or the language of the Constitution stand in their way, legislators voted to meet annually anyway, just this once, to see whether annual sesions would be better.

State Senator Larry George and retired Circuit Court Judge Ted Abram of Klamath Falls have filed a lawsuit in Marion County Circuit Court asking the court to stop the legislature from violating the Oregon Constitution. The weakness in the case is the fact that Oregon’s Constitution allows the legislature to meet anytime they need to, if they declare an emergency, a term which oddly enough is not defined. The strength of the case is the fact that the court must find meaning in every word in the Constitution and therefore must reconcile these two concepts. It is a pretty tough sell to claim that the legislature’s desire to test drive annual sessions is an emergency.

In this case, legislators stated in their bill that their reason for meeting is that they are test driving annual sessions. Besides, how could they foresee an emergency more than a year in advance.

Here’s my take: I think we will win on this one, but the win will be somewhat hollow. The special session will be cancelled by the court, but the Democrat governor will respond simply by calling an emergency session at his own directive, which he has the constitutional authority to do.

An emergency session called by the governor should be shorter and more focused, and probably would not be the free-for-all the currently scheduled one would be. (In the interest of full disclosure, several Republicans joined the Democrats in voting for this illegal session. Senator George is reportedly taking heat from some fellow Republicans for initiating this lawsuit, but the wiser choice for Republicans who voted for this travesty would be to announce that they do not want to engage in an unconstitutional action and welcome the opportunity for the courts weigh in on the matter.)

Cheating on ballot titles.
The Democrat majority added a new weapon to their arsenal this past legislative session. They started writing their own ballot titles for measures they referred to the ballot and then exempted those ballot titles from review by Oregon courts. Their ballot titles were crafted by proponents of the measures and were designed to pass, not to honestly inform voters.

A lawsuit challenging this course of action has been filed in Marion County Circuit Court. Plaintiff is Senator Gary George, father of the aforementioned Senator Larry George. Senator George contends that the Oregon Constitution prohibits the state legislature from passing special laws that do not apply equally to all persons and things in the same class. In other words, the legislature cannot pass a law exempting only their ballot titles from court review. The law must apply to all ballot measures.

This is especially intriguing given the following two facts: First, Measure 49, which gutted Oregon’s property rights protections, passed primarily because it had an official ballot title crafted by opponents of private property rights and adopted by the legislature on a party line vote. The ballot title was so deceptive that the measure was all but undefeatable. If this lawsuit s successful, that election could be nullified/

Second , if the legislature is allowed to engage in this kind of skullduggery, there will be a lot of voter confusion come this next general election. Here’s why:

Next November, there will be several measures on the ballot with official descriptions that are accurate and neutral and have been reviewed by the Oregon Supreme Court to insure this. On the same ballot in the same election, there also will be several measures with official ballot titles that have not been reviewed by the court and are in fact deceptive and biased. Voters will for the first time not be able to trust what is written on their official ballots.

This is my take: This one is too close to call. Clearly, what the Democrats in the state legislature are doing is dishonest and should be stopped. One has to wonder whether any judge would be bold enough to set aside the Measure 49 election results and require an honest election with an unbiased ballot title. The court might be willing to stop the legislature from cheating on ballot titles in the future, but it would take a lot of courage to throw out the Measure 49 election results.

But there is reason for hope. After all, there has to be a point at which a ballot title is so deceptive as to make a sham of the election. For example, if a measure increases taxes, but the ballot title says it lowers taxes, then clearly such a ballot title would be unconstitutional. This simple illustration proves the court has both the power and the duty to review ballot titles, even if the legislature says it doesn’t.

This is not to say that every ballot title must be reviewed by the courts, but rather that there must at least be the opportunity for review. In the current case, the legislature prohibited public comment and court review of their phony ballot titles.

Trying to shut down the initiative process.
This past session, on what was pretty much a party line vote, the Democrat majority in the Oregon legislature passed House Bill 2082, which was designed to make it even more difficult to put citizen initiated measures on the ballot. Several of the provisions of this bill are unconstitutional, doing things that the U.S. Supreme Court has already ruled that states cannot do without violating First Amendment rights.

A lawsuit has been filed asking a judge to rule much of this bill unconstitutional. One provision of HB 2082 requires paid petition circulators (but not volunteer circulators) to undergo training by the Secretary of State before they can be issued a badge and circulate petitions. I informed the legislative Rules Committee during hearings that the Supreme Court of the United States has invalidated badge requirements for petitioners, but they ignored me and the court’s rulings and adopted a badge requirement anyway.

Another provision of HB 2082 makes it illegal for petition circulators to assist signers by filling in for them the optional information on petition sheets. In the past, a signer would sign the first petition and completely fill out the address portion on just that one petition. If the signer wanted to sign other petitions the circulator was carrying, he or she would just sign them and not have to fill in the address portion, which takes some time and effort to complete. Later, the circulator would fill in this purely optional information for the signer. This method made it a lot faster and easier for voters to sign multiple petitions.

At the request of their public employee unions donors (and masters), Democrats made this practice illegal in Oregon. All red herring rhetoric aside, their reason was to slow down the initiative process and make it more expensive to get issues on the ballot. Are you getting the impression that Democrats are not all that fond of democracy?

My take on this case: I believe the court will throw out some provisions and keep others. The badge requirement almost certainly will be tossed. There is also the possibility that the court could say that the remaining provisions of the bill may affect future petitions, but not ones already circulating.

I will be watching this case with special interest, because currently all of the circulators carrying my 2008 petitions may be illegal. Last week, they were legal circulators, but this week they are suddenly not qualified to circulate.

Paying by the signature. Just as a final note, a new lawsuit is being filed to challenge Oregon’s ban on paying petition circulators by the signature. This case will be filed in federal court and this time I believe our side will prevail. Currently, there are six figure fines and serious prison time attached to paying circulators by the signature and if that is not a wet blanket on the First Amendment right to circulate petitions, I can’t imagine what is. Several friends with strong conservative convictions will no longer sign on as sponsors of measures, because of the potential penalties attached to being a chief petitioner. Not many folks are willing to risk going to prison, just to give people the right to vote on some issue.

The thing to keep in mind with this issue is that you are free to pay “by the piece” for almost any kind of work. Paying for results is a tried and true method of insuring that you get what you pay for, as opposed to paying by the hour. In the case of petition circulating, however, this method of payment has been outlawed simply because it works and helps us control costs.

Altogether, there are five court challenges to laws sponsored by the Democrats and the public employee unions. They are: Tossing out valid signatures to keep people from voting on domestic partnerships; holding an illegal special session; cheating on official ballot titles; unconstitutionally trying to shut down the initiative process by overburdening it with rules and restrictions; and unconstitutionally outlawing a legitimate way of paying people who circulate petitions.

There is a lot at stake in these cases. They may sound boring or technical, but the outcome of each will affect whether the people of Oregon or the politicians run this state.