Drew Edmondson’s Prosecution of Paul Jacob Is Unconstitutional

The federal Tenth Circuit Court of Appeals has declared unconstitutional an Oklahoma law banning non-residents from helping to collect signatures for ballot initiatives in the case of Yes on Term Limits, Inc. v. Savage.

But in state court, a prosecution under the invalid law “is still pending.” Oklahoma attorney general Drew Edmondson is using it to persecute anti-tax activists like Paul Jacob.

In 2007, he indicted Paul Jacob, Susan Johnson, and Rick Carpenter for seeking to place on the ballot a Taxpayer Bill of Rights that would have limited the rate of growth of state government spending.[i] These activists, dubbed the “Oklahoma 3,”[ii] were “led in handcuffs from the courtroom” for their role in hiring petition circulators from across the country to help them gather the hundreds of thousands of signatures needed to put the initiative on the ballot.[iii] If convicted, they face up to 10 years in prison.>[iv]

Although Edmondson had previously opined that there was nothing wrong with using people coming from out-of-state to circulate petitions, as long as they resided in Oklahoma for the duration of their work,[v] (and Oklahoma’s Secretary of State had given the same advice[vi]), Edmondson changed position and got “the Oklahoma 3” indicted for violating a frequently-unenforced, patently-unconstitutional Oklahoma statute banning non-resident petition circulators — a statute interpreted by the state supreme court to ban all but “permanent” state residents from gathering petition signatures.[vii]

The federal appeals courts have struck down such requirements, and less restrictive ones requiring only brief residency, as violating the First Amendment.[viii] That includes the federal appeals court with jurisdiction over Oklahoma, which struck down restrictions on non-resident petition circulators contained in a municipal ordinance in 2002.[ix]

Edmondson’s office and his supporters defended the prosecutions as a way of keeping people from outside the state from participating in Oklahoma state politics.[xvii] Such a purpose is flatly at odds with the First Amendment, which protects non-residents and residents alike,[xviii] and fully applies to petition circulators.[xix] As one citizen noted in The Oklahoman, “The prosecution of Paul Jacob and others for the alleged crime of using out-of-state petition circulators, and the law on which that prosecution is based, are dangerous attacks on our constitutional right to petition for redress of grievances. The tradition of coming to the political assistance of others is well established in American history, law and practice. Should Virginians have stayed home during the Revolution and not assisted the other colonies? Should people not have gone to Alabama in the 1960s to fight injustice?”[xx] Out-of-staters played critical roles in the fight to end segregation in states like Mississippi and Alabama.[xxi] Even today, they continue to play a critical role in movements for political change, like the push for term limits, whose leading exponent is Paul Jacob, the most prominent of the “Oklahoma 3.”[xxii]

Moreover, there is no little irony in Edmondson whining about outsiders meddling in Oklahoma politics, given that out-of-state opponents of the initiative routinely harassed the petition gatherers, without Edmondson or anyone else questioning their right to come into the state to do so.[xxiii]

[i] See Barbara Hoberock, Tabor Petition Circulators in Court, Tulsa World, Jan. 29, 2008, at A5 (2008 WLNR 1747048); Jennifer Mock, Petitioners Charged, Oklahoman, Dec. 8, 2007, at 6A (2007 WLNR 24444214).

[ii] See Oklahoma 3, Ballotpedia (http://ballotpedia.org/wiki/index.php?title=Oklahoma_3).

[iii] See Marie Price, Oklahoma Multicounty Grand Jury Indicts Three People Associated with TABOR, Oklahoma City Journal-Record, Oct. 3, 2007 (2007 WLNR 19430704); Nolan Clay, Courts: Leader of Political Movemenet Calls Charges an Attack on First Amendment: Grand Jury Indicts Three Over Signature Gathering, Oklahoman, Oct. 3, 2007, at 1A (2007 WLNR 19432037).

[iv] Marie Price, Oklahoma Multicounty Grand Jury Indicts Three People Associated with TABOR, Oklahoma City Journal-Record, Oct. 3, 2007 (2007 WLNR 19430704) (handcuffed);see In re Initiative Petition No. 379, 155 P.3d 32, fn. 40 (Okla. 2006) (noting that the referendum would need over 200,000 signatures to go on the ballot).

[v] See Ballotpedia, Oklahoma 3 (“While opposing a 2002 initiative to ban cockfighting, the OGBA [Oklahoma Gamefowl Breeders Association] found much evidence that out-of-state petitioners were being used in support of the initiative, a charge they brought to the attention of AG Edmondson and were told that it was perfectly legal for individuals to come into Oklahoma from out of state, declare residency, and circulate petitions. The OGBA issued a statement wondering why that same attorney general has filed felony charges against the Oklahoma 3 for doing the same thing: ‘It was as if the same law that put three people under arrest this month, in leg chains, did not apply to the exact same thing done during the signature gathering of the cockfighting petition. We now ask, is it law or politics?‘” Ballotpedia, Oklahoma 3) (available at http://ballotpedia.org/wiki/index.php?title=Oklahoma_3); In re Initiative Petition No. 379, 155 P.3d 32 (Okla. 2006) (state supreme court upholds initiative to ban Cockfighting, and holds that petition circulators need only become “residents” of the State, and need not yet even have registered to vote, for their petitions to qualify an initiative for the ballot; excluding only the signatures of petition circulator who lacked a present abode in Oklahoma).

[vi] See, e.g., The People Speak:.Petitioner Indictments Short Democratic Rights, Muskegon Phoenix, Jan. 19, 2008 (“Three initiative leaders were brought up on criminal charges by the attorney general (Drew Edmondson) for hiring out-of-state petition carriers to help place an initiative on the ballot after they had been assured that it was legal”) (>www.muskogeephoenix.com/opinion/local_story_019144605.html); Deposition of Susan Johnson in In re Initiative Petition No. 379, June 26, 2006, at pp. 108-09 (Oklahoma Secretary of State’s office confirmed that petition circulators need merely live in Oklahoma for the duration of their work); In re Initiative Petition No. 379, 155 P.3d 32, fn. 40 (Okla. 2006) (citing this uncontradicted evidence, but finding it legally irrelevant).

[vii] See In re Initiative Petition No. 379, 155 P.3d 32 (Okla. 2006) (blocking the TABOR initiative, and ruling that “Residency requires a person to have a true, fixed, permanent home . . . present abode, in and of itself, is not conclusive”). The court so ruled even though it admitted that such restrictions are supposed to be leniently applied, “because the right of the initiative is so valuable, all doubt as to the construction of pertinent provisions is resolved in favor of a measure.”

[viii] See, e.g., Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008) (unanimously striking down Arizona’s ban on out-of-state petition circulators); Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000).

[ix] See Chandler v. City of Arvada, 292 F.3d 1236 (10th Cir. 2002) (striking down ordinance prohibiting nonresidents of the city from circulating initiative, referendum, or recall petitions in the city

[xvii] See Nolan Clay, Grand Jury Indicts Three Over Signature Gathering, Daily Oklahoman, Oct. 3, 2007 (available at 2007 WLNR 19353867) (quoting Assistant Attorney General McCormick as saying that “Oklahomans are supposed to decide for Oklahomans, not people from Minnesota or Massachusetts or Nevada”); Larue Boyd, Letters, Inside Joke, Forbes, Jan. 7, 2008, at 12 (“As an Oklahoma native, I applaud our state for not allowing people from outside Oklahoma to try to influence our political system. We do not need outsiders to tell us how to run our affairs”) (2008 WLNR 4006486).

[xviii] Chandler v. City of Arvada, Colorado, 292 F.3d 1236 (10th Cir. 2007) (ordinance barring non-residents of city from circulating initiative, referendum, or recall petitions in the city violated their First Amendment rights); VanNatta v. Keisling, 151 F.3d 1215, 1217-18 (9th Cir. 1998) (striking down law limiting out-of-state political contributions); Landell v. Sorrell, 382 F.3d 91, 146-47 (2d Cir. 2004) (same), rev’d in part on other grounds, 548 U.S. 230 (invalidating all challenged restrictions); Warren v. Fairfax County, 196 F.3d 186, 190 (4th Cir. 1999) (invalidating law prohibiting non-residents from using public forum).

[xix] See American Constitutional Law Found., 525 U.S. 182, 192, 206 (1999) (Supreme Court reaffirms that circulation of a petition is fully protected by First Amendment); Meyer v. Grant, 486 U.S. 414, 421-22 (1988) (“[T]he circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’ ”); Krislov v. Rednour, 226 F.3d 851, 866 (7th Cir.2000) (stating that “circulating nominating petitions [for political candidates] necessarily entails political speech”).

[xx] Bob Waldrop, Who’s Next on Political Hit List?, Oklahoman, Oct. 10, 2007, at 12A (2007 WLNR 19942699).

[xxi] See, e.g., New York Times v. Sullivan, 376 U.S. 254 (Supreme Court upholds First Amendment right of national civil rights activists to criticize Alabama police chief (and Democratic National Committee member) Bull Connor for brutally enforcing segregation in Birmingham, Alabama, and overturns Alabama court’s libel judgment against the New York Times for carrying their criticism in a newspaper advertisement); Sanders v. Russell, 401 F.2d 241, 245 (5th Cir. 1968) (invalidating restriction on out-of-state lawyers because it made it impossible for Mississippi black people to obtain counsel, and blocked NAACP lawyers from bringing school desegregation suit on their behalf; appeals court notes that “literally hundreds of civil rights cases that have come to us in which out of state lawyers have had the laboring oar. It is no overstatement that in Mississippi and the South generally negroes with civil rights claims or defenses have often found securing [in-state] representation difficult”), citing NAACP v. Button, 371 U.S. 415, 443 (1964) (Supreme Court notes that desegregation lawsuits “at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation”)..

[xxii] See Paul Jacobs, Wikipedia (http://en.wikipedia.org/wiki/Paul_Jacob); Edward H. Crane & Roger Pilon, The Politics and Law of Term Limits, pp. 27-44 (1994).

[xxiii] See Editorial, Oklahoma’s Most Wanted: The Latest Thing in Political Felonies: a Petition Drive, Wall Street Journal, Nov. 19, 2007, page A18 (“Ironically, it is perfectly legal for opponents of a petition to solicit money and manpower from out-of-state. And sure enough, public sector unions opposed to the Tabor initiative recruited people from [out-of-state] outfits . . .They also set up Web sites that advertised the location of signature gatherers and urged their members to harass them”).