“These are First Amendment rights. The state has an obligation to draw bright lines. To the extent I can do that, I will.”
So said the recently sworn-in secretary of state, Scott Gessler, when I asked him about the confusing state of rules governing how Coloradans put laws and constitutional amendments on the ballot.
Gessler is correct. Despite endless grousing by our civic elites about the petition process, it happens to be a basic right in this state — and one that many of us treasure. The rules should be clear and fair.
And at the moment, they’re neither.
Let’s consider clarity first. Two years ago, in one of the legislature’s periodic efforts to frustrate citizen activists with more red tape, lawmakers passed a 24-page bill that included a requirement that petition circulators be state residents. This rule was not new, but its inclusion was odd given that a few months earlier, the U.S. Court of Appeals for the 10th Circuit, which includes Colorado, ruled that a similar residency requirement in Oklahoma was unconstitutional.
As that court pointed out, professional out-of-state circulators were no more likely to engage in fraud than in-state workers — and maybe less so.
So what were petition circulators now supposed to do? Even Colorado officials didn’t know. On the one hand, the attorney general’s office informed a lawyer suing Colorado on behalf of the Independence Institute that the state would not object to a court order barring enforcement of the residency rule. And yet petition forms released by the secretary of state still required every circulator to swear “I was a resident of Colorado” while working.
Predictably, a federal judge last fall issued an injunction barring the state from enforcing the residency rule. End of story, right? Wrong. The folks at the Independence Institute who put Amendment 63 on the ballot — and remember, it lost — have been fighting a lawsuit over residency data because some circulators put down temporary addresses such as motels.
The attorney behind the lawsuit, Mark Grueskin, insists the case isn’t about the residency rule. “The essence of the lawsuit,” he told me, “is that people who circulate petitions ought to tell the truth . . . . You have to be in LaLa land to think that spending a few nights in a motel makes you a resident of this state. What we want here is a court to say that circulators have a constitutional and statutory obligation to tell the truth.”
By giving temporary addresses, Grueskin says, circulators insulate themselves “from any sort of inquiry regarding their activities.”
Grueskin may have a point, but many circulators have been putting down temporary addresses for years without objection. And as recently as last summer, in another case, a lawyer with the attorney general’s office defended the idea that hotels and motels qualified as circulator residences.
See why honest circulators — and most of them do this for a living — might be confused?
To his credit, Gessler opposed the 2009 bill revamping petition rules because of another troubling provision: It barred ballot sponsors from paying circulators by the signature. As I explained in a column at the time, there is no evidence this form of payment boosts fraud. Not surprisingly, a federal judge issued a preliminary injunction in June barring enforcement of that provision, too.
Shouldn’t legislators be embarrassed that a law of such recent vintage has been found so constitutionally deficient? And speaking of obnoxious features, another provision holds initiative authors potentially liable for “attorney fees and costs” if they defend the measure against a protest — even though they typically have no control over day-to-day signature gathering.
Gessler can’t clean up this mess by himself, but he can do a lot better job than his predecessor in drawing “bright lines.” And meanwhile, he can try to enlist fair-minded lawmakers from both sides of the aisle to take on petition reform yet again — although this time not with an eye to stifling our rights.
E-mail Vincent Carroll at vcarroll@denverpost.com.
