Entry for September 25, 2007

Because national and state elections have been unified in time for so long and because the states do have concurrent jurisdiction with the Congress to administer elections, the constitutionality of many elections practices have gone unchallenged. This negligence has allowed partisans to entrench themselves in power by manipulating election rules to their advantage and suppressing voter sovereignty.

The question I raise here is this: Can a State using its authority to police the initiative petition process (on an issue which affects only State government - term limits- tailor that police power so broadly as to also restrict access the initiative on an issue which affects the rights of U.S. citizens to vote for national offices (Congress and President)?

The question directly implicates the principle of federalism in the American system of dual, and sometimes dueling, governments.

In reading, Judge Leonard's decision in Yes on Term Limits v Savage, it is clear that this question could not be raised. However, there is another initiative petition in circulation sponsored by a coalition of parties seeking the restore the rule which bars access to the ballot to requiring only 5,000 signatures - the standard used from 1924 to 1974.

In Oklahoma circulating a petition to access the ballot does not require the petition circulators be voters in Oklahoma. Given the rulings of the Oklahoma Supreme Court and Federal Judge Tim Leonard in YOTL v Savage, one can anticipate that such a requirement will be added by the legislature to ballot access petitioning as well.

To my knowledge, the present initiative on ballot access reform is not using circulators who are not residents of Oklahoma and they are therefore complying with the existing law affirmed by Judge Leonard.

But are the ballot access initiative proponents wrongly assuming that the YOTL v Savage rule also applies to them?

It may not be so clear. The ballot access initiative seeks to allow U.S. citizens residing in Oklahoma, in their capacity as U. S. electors in a national (and federal) election to vote for both state and national offices. Can the State interpose itself to prevent U.S. citizens from exercise their national suffrage rights? If Oklahoma does not apply the rule requiring resident petition circulators to ballot access petitions, can it apply the more restrictive rule to an initiative which seeks to reduce the requirements for ballot access?

What this line of analysis reveals, I hope, is that the real petition requirement for ballot access in a state is as high the U.S. Supreme Court will tolerate. But in states which have the initiative, the right of citizens to lower that barrier below the U.S. Supreme Courts tolerance level can be stymied by the higher signature threshold for initiatives over ballot access petitions. The consequence is that partisan control of state legislatures is used to entrench control of national offices. In other words, in states which have the initiative, the people are restrained from opening the ballot more than the Supreme Court will allow because the state legislature is further insulated behind the barriers to an initiative.

In short, if you can keep your opponents off the ballot for state office, then you can keep them off the ballot for national offices also and you can use the power to 'police' the initiative process to fortify your partisan control.

The Constitution clearly indicates that states must have a wide latitude to conduct their own affairs, but only so long as state actions do not impair the rights of citizens to exercise their power to control the national government. What has happened is that a long period of control of both the national and the state governments by the same partisans has enabled them to entrench themselves with state laws which also protect their control of the national government. This possibility was not sufficiently addressed by the framers. It continues to remain insufficiently resolved because their is now a unitary bi-partisan government bias against federalism at all levels state and national. The language of the U.S. and state constitutions retains a clear federalist intent. Much devious circumlocution is required to sustain entrenchment of the unitary bi-partisan ideology.