I have been asked by more than one friend if we should refer House Bills 1177 and 1196 to a public vote. My tentative answer right now is no… but I’m open to persuasion.
House Bill 1177 adds “the name, phone number, and email address of the petition circulator” to the Secretary-of-State-approved form that ballot question petition circulators must provide to signers. House Bill 1196 requires ballot question sponsors to submit sworn statements and absurd amounts of personal information from each petition circulator with their petitions. Both bills are part of the Republican Legislature’s war against initiative and referendum.
HB 1177 is the lesser of these two evils. I have asked circulators to tell me their names. Circulators who conceal their identities from me don’t get my signature. I have always offered my contact information whenever I’ve circulated a petition, whether for ballot questions or candidates, and when I go door to door, the first thing I say is my name. HB 1177 isn’t really an invasion of privacy—when you circulate a petition that can put a candidate or an issue on the ballot, you enter the public sphere. It’s just an additional and unnecessary hassle for petition sponsors, who must customize the ever-burgeoning circulator compelled-speech hand-out for each circulator who volunteers for the cause.
HB 1196 is more invasive, more time-consuming, and more legally daunting. If a petition sponsor makes just two mistakes in collecting all that information, HB 1196 whacks that sponsor with up to a $5,000 fine and kicks them out of participating in ballot question petition drives and campaigns for four years. Curious: I know we take away felons’ right to vote during their sentence, and we only allow sex offenders to circulate ballot question petitions under supervision, but is there any other crime for which we abridge a person’s right to associate and work with a political committee?
Both bills infringe on our right to petition. But do they infringe enough to warrant a referendum campaign? Will potential signers and voters understand the infringement enough to be motivated to sign the petition and to vote these restrictions down? The marketing campaign would have to revolve around the general intent—elitist legislators trying to kill our right to vote on laws—rather than on the election-nerdy particulars.
Such a referendum campaign on election-nerd issues can work. We got people to vote big against Referred Law 19 in 2016 by calling it an Incumbent Protection Plan and an attack on voter rights… but we also got it to pass thanks to the abstruseness of the bill.
HB 1177 and HB 1196 are the kinds of small changes that the Legislature can keep passing, year after year, to erode our initiative and referendum rights. The way to eat an elephant is one bite at a time… but that’s also the way the GOP Elephant eats initiative and referendum. We could march petitions to stop these two bites, but that would not put back the bites taken in previous years or the bites that will be taken by future Legislatures.
I’m not ready to say, “Don’t refer HB 1177 and HB 1196” for sure. I want to review all of the bills that passed this year and compare damages and referendum prospects.
But I will say this: with so many attacks on initiative and referendum, perhaps it is finally time to wage war in court on all of the restrictions the Legislature has imposed on popular democracy. Instead of attacking just the name/phone/email requirement on the circulator form, let’s challenge the entire circulator form as unconstitutional compelled speech. Instead of attacking the new affidavits from each circulator, let’s attack all of the state’s unconstitutional restrictions on circulators (and yes, that may include our ban on out-of-state circulators, which would likely fail a court challenge as it has in other states). Let’s get the ACLU on board to review all of the statutes on initiative and referendum and identify all of the restrictions that a judge could annul. That tack worked for the Libertarians this year; maybe it would work for us advocates of direct democracy.