A Deep Freeze Overtakes Colorado’s Petition Process (Updated)
Most restrictions on petitioning and initiative rights have some type of chilling effect on actual usage of the petition process. In Colorado, one provision of a malicious 2009 law, House Bill 1326, has resulted in such a deep freeze that it may put an end to the state’s citizen initiative process entirely. Already two victims of HB 1326 are faced with losing their homes to pay for their defense against false and ridiculous allegations of ‘fraud.’
For fear of sharing their fate, who would dare sign up as the sponsor of an initiative?
We’ve been talking for some time about the federal court challenge to nearly every part of this 24-page bill, including the fact that last summer a federal judge barred the state from enforcing the bill’s ban on nonresident signature collectors and its restriction on paying workers by the signature. But the court has yet to decide on the part of 1326 that allows initiative proponents to be sued and personally held liable for wrongdoing committed by others working on the effort.
The slow-moving federal court case and a poorly rewritten definition of ‘fraud’ have entrapped activists Jon Caldara and Linda Gorman in a storm of litigation that could leave each of them in bankruptcy, despite the fact that (1) they personally are not alleged to have done anything wrong, and (2) the measure has already been voted on and failed.
Was this law written to shut down petition activity in Colorado? Beware: similar laws could be coming to YOUR STATE.
There’s more: one of the same legislators, whose support of HB 1326 may have annihilated Colorado’s initiative, now wants to drive a nail in the coffin.
The Worst Legislative Attack on Petition Rights in Modern History
Thicker than many small town phonebooks on Colorado’s mountainous Western Slope and affecting nearly every aspect of circulating a petition in the state, House Bill 1326 is the biggest single legislative attack on statewide petition rights in modern history. Two of the bill’s provisions – banning out of state petition circulators and prohibiting paying them by the signature – had previously been declared unconstitutional in other states. Yet, the risk of violating citizens’ most fundamental constitutional rights didn’t stop this bi-partisan legislative attack. Moreover, these two parts of the bill were merely the tip of the iceberg.
The bill also required petition management companies to go through a licensing process and report their payroll to the state, mandated government training for petition circulators, placed a warning statement on petitions, and significantly changed the deadline to turn in petition signatures, (which has now been struck down as unconstitutional).
All the above portions of 1326 make it harder to use the state’s petition process, while doing little to insure ballot integrity, the stated purpose of the bill. If all this wasn’t enough to chill Coloradoans’ petition rights, two other changes made by 1326 bring on the deep freeze: (1) changing the definition of ‘fraud’ to include a circulator filling in the wrong address and (2) allowing opponents of a petition effort to come after those who sponsor a petition personally, threatening their finances and future.
Most of the changes made by 1326 have been challenged in federal court in a case known as Independence Institute v. Buescher. The judge in that lawsuit has already ruled in a preliminary injunction that Colorado can’t enforce the ban on out of state circulators and the restriction on paying per signature, finding them likely to be ruled unconstitutional when the case goes to trial. Witnesses are still being interviewed in that challenge and it is unknown when a trial will be held. In the meantime, the rest of 1326 stands, and a case moving swiftly through state courts shows just how dangerous the remaining portions of the bill are.
Throwing Around the F-Word
HB 1326 was passed with overwhelming bi-partisan support in a wave of allegations of circulators committing fraud during the 2008 election cycle. The bill dedicated nearly two pages of state law to a discussion of this alleged fraud. However, as Citizens in Charge Foundation’s 2010 report “Is the ‘F-Word’ Overused?: A Report On Petition Signature Fraud” (opens PDF) discovered, allegations of fraud and its actual occurrence are two very different things. In fact, Colorado’s own Secretary of State responded to our request for records of verified forgery or fraud between 1999 and 2008 by declaring that they “[had] not identified any instances…of forgery or fraud”.
Despite this widespread lack of proven fraud in the ten years preceding the passage of 1326, legislators relied on unsubstantiated allegations of wrongdoing in the collection of a few signatures out of hundreds of thousands gathered in 2008. These allegations, along with a general distaste among Colorado’s General Assembly for the people’s petition rights (Colorado has had more restrictions on petition rights struck down in court than any other state) were enough to override the warnings of petition rights activists that the bill would result in far less petitioning of government.
Included in the bill is a rewrite of the definition of fraud. The ‘F-Word’, fraud, is a serious charge and shouldn’t be thrown around lightly. As we outlined in “Is the ‘F-Word’ Overused?” forging a signature on a ballot petition or fraudulently collecting a signature is a purposeful attempt to deceive election officials or initiative proponents into accepting a signature as that of a registered voter who supports the issue in question appearing on the ballot, when that is untrue. Like any allegation, it should have to be proven in a court of law, and those responsible for committing it should themselves be punished accordingly.
Significantly, HB 1326 changed Colorado’s standard of proof for fraud from “beyond a reasonable doubt” – the standard used in criminal proceedings nationwide to insure that innocent people aren’t punished – to a “preponderance of evidence,” a much weaker standard usually reserved for civil matters. On top of that, legislators also added incorrectly filling out the petition form, even the address, as an act of ‘fraud’.
Jon Caldara and Linda Gorman were proponents of the Colorado Healthcare Amendment, which appeared on the ballot last November as Amendment 63 and would have established a right to privately contract for healthcare. No matter what one’s position is on Amendment 63, and as always we take none, everyone should be appalled at what has happened to these two individuals. And it can and likely will happen to other citizens who propose new ideas via initiative petition. An opponent of their effort have come after them personally for alleged actions by people who worked on the petition drive, not for their own actions.
Allegations have been made that over 50 circulators committed fraud during the petition drive. However, the only ‘fraud’ alleged is that these circulators didn’t properly fill out their part of the petition form, even though state law wasn’t clear on how to properly do so. If the lawsuit moves forward, the initiative proponents will have to pay attorney’s fees – for their own legal counsel and possibly their opponents’ costs as well – to litigate each allegation. The costs could go as high as half a million dollars: a sum few petition activists have lying around.
HB 1326 required all petition circulators to be residents of Colorado – though it didn’t define what a resident is for such purpose – and it also re-defined fraud to include improperly filling out a petition form, even the circulator’s address. It did one more thing: it allowed any registered elector to challenge petition signatures, and, if ‘fraud’ was used in the gathering of those signatures, collect attorney’s fees from the proponents of the initiative.
The “circulator affidavit” on a petition sheet requires a petition circulator to write down their “address of Colorado residence” — as only Coloradans would be circulating. But after the federal judge ruled the state couldn’t legally prevent people from out of state from collecting signatures, non-residents were allowed to come in. The dilemma came at the end of the petition drive when workers from other states had to decide which address to put down: their home state address or the one they used while they were working in Colorado. Since the law didn’t define what ‘residence’ meant for a petition circulator, it was no guide. Furthermore, the affidavit circulators are required to fill out on petitions, which was written by the Secretary of State, did not allow for circulators to put their permanent address in their home state. Thus, far from committing fraud, circulators simply sought to cope with a poorly crafted affidavit (that conflicted with the law) by putting the address where they resided when working in Colorado.
A Nail In the Coffin
Now the lives of two activists hang in the balance – along with the future of citizen-powered government in Colorado. Entrapped by a poorly written affidavit and a stretched definition of ‘fraud’, workers on the campaign for Amendment 63 were forced to put themselves in danger of violating the law no matter what they did. Even more outrageous, it is not the circulators who filled out the petition affidavits, nor the petition company they worked for, who are being threatened by financial ruin in a lawsuit that could cost as much as half a million dollars to defend, it is the two individuals, Jon Caldera and Linda Gorman, who proposed the ballot measure who are liable.
In addition to restricting petition rights, the state legislature created a loophole in the law that allows any private citizen to go after those who propose initiatives (they don’t like).This new Colorado system makes anyone who sponsors an initiative a prime target for financial ruin through litigation costs, and a cash cow for their opponents and unscrupulous attorneys.
Caldara and Gorman are standing up for their rights in court, arguing that not only is the case moot because their initiative has already been voted on and lost, but that the underlying law violates their First Amendment rights. A separate challenge to HB 1326 continues in federal court, but will proceed more slowly than the state litigation threatening Caldara and Gorman. In the meantime, Colorado’s petition process may be dead: potential initiative activists live in a state of fear to sponsor any new measure to change state law. Few have the money to defend against their opponents bleeding them on attorney fees to fight mere allegations of ‘fraud’.
If the damage to Colorado’s petition process were not severe enough already, one of the sponsors of 1326 has announced plans to introduce new legislation that would require a 60 percent supermajority vote to pass constitutional amendments by voter initiative, putting control of the state’s constitution in the hands of just 40 percent plus one of the state’s voters. This supermajority hurdle would ensure that even if a petition to amend the state constitution could make it on the ballot without, or despite, bankrupting its proponents, its opposition would only have to convince a minority of the voters to reject it. Popular reform measures would be swamped and defeated by big business or big labor (or both) outspending the measures by enough to diminish support to a mere 59.9 percent.
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