Friday, December 16, 2011

Mickey Mouse Signatures and the Recall

The recent revelation that the GAB will not automatically strike fraudulent and duplicate signatures has led to the expected lawsuits and cries of unfairness and partisan bias. Some of these stories are simply good old fashion "working the ref."  Others are trying to throw a negative light on the entire recall, and claim that the whole enterprise is fixed and corrupt (very popular line of counterattack -- no criticism for the tactic, as it is sometimes accurate). Some are valid, thought provoking criticisms, but despite the complaints, this will most likely not have any real effect on the Walker recall, except in the need for campaigning spending.

The argument that Walker will only have 10 days to review the signatures (if that limit remains) is mitigated by the fact that Walker and his family are not checking signatures with some hardy band of volunteers. Every single signature examined by the GAB will be closely watched by at least two sets of well-trained, and possibly well paid, eyes from both sides of the aisle. This recall, like the earlier Senate ones, involves two heavily financed sides, both willing to spend whatever it takes to win. Let's not let that fact escape our mind.

But this does point out that signature gathering remains the most difficult and most important part of the recall process. Let's look at this in further detail.

The initial arguments against the current signature rules are resting on 14th amendment due process grounds. While I took a great Advanced Political Process course in law school, I'll defer to others on this one. So let me point to a few informative blog posts from law professors Rick Hasen and Ann Althouse (also here).

Striking a recall due to signature failure

Earlier this year, we saw an Phoenix City Council recall where the petitioners handed in over 4000 signatures. The needed 2329. Yet the petition was rejected. Now, it could be that Phoenix has a high standard, or it could be that there were many fraudulent signatures. What it does show is that even when the opposition has a seemingly insurmountable number of signatures, it is possible to get it tossed out.

Burden of Proof Shifting

Th big question is whether the burden of proof for the validity of the signature should be on the signature gatherers or the targeted official (it has to be on one or the other Whatever the ruling from the electoral commission, it's going to benefit one side). The Walker proponents are saying that it should not be on the targeted official. However, what would be the impact of Walker's interpretation on a more traditional recall? In a typical school board/city council/mayor recall, petitioners are frequently the ones without the deep pockets. The elected officials could be able to bleed the petitioners white in legal actions, and prevent the recall from getting to the ballot. This may be a better result, but the impact has to be acknowledged.

The impact could also be felt on general elections. Will a tighter signature rule damage the hopes of insurgent candidates?

Signatures as the scapegoat
In 1914, California recalled state Senator E.E. Grant. The recall was interesting for a number of reasons, but one was the problem with signatures. After Grant lost, the Progressives decided to tinker with the mechanisms of the recall law. However, they couldn't come up with a good answer They settled for increasing the penalty on fraudulently singing a petition.

The complicated future of signature gathering:
Before being forced  to back down, the GAB proposed allowing voters to print out the petition, sign it and mail it in. The UK, which is considering a recall law, would allow people to sign up at the Post office.

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