Paul Jacob and two others now known as the "Oklahoma Three" are now free from charges brought by Oklahoma Attorney General Drew Edmondson, a Democrat, who sought to retaliate against the three for a failed 2005 anti-tax petition drive. The drive failed after a special master of the Oklahoma Supreme Court found too many signatures were collected by individuals he didn't believe "intended to reside permanently" in Oklahoma. Two years later, in 2007, Jacob and other organizers were indicted for a 10-year felony charge of "conspiring to defraud the state" - a vague catchall statute on the theory that they intentionally violated residency requirements and that intentional violation amounted to 1) a conspiracy and 2) defrauding the state (so literally, any group effort that violated complex Oklahoma rules could become a 10 year felony). While the state criminal case proceeded in early discovery phases, a federal Constitutional challenge to the residency requirement - on First Amendment grounds - was raised.

Jacob's case is important nationally as Oklahoma became a "dead zone" for petitioners - chilled by the prospect of 10 years in prison. No ballot initiatives qualified in 2008 through the process, and efforts such as Ward Connerly's Oklahoma Civil Rights Initiative was quelled because of the chilled environment and a number of other difficulties all coming to together. The 10th Circuit's refusal to rehear the case and Edmondson's decision not to appeal to the US Supreme Court, puts the 10th Circuit in among other circuits and regions with similar rulings. Here, in the Eastern District of Michigan, Leon Drolet's Michigan Taxpayer's Alliance successfully fought residency requirements in the Andy Dillon recall battle. While the Dillon effort paid off for Dillon by delaying the recall until the regular election, and thereby changing its dynamic, the impact of the residency ruling will be broader ranging for future petition rights, at least until another Circuit disagrees and a case somewhere reaches the US Supreme Court.

The Associated Press wire, here through AzironaCentral.com, reports that AzCRI has dropped its legal challenge to recover signatures. While we had recently received a press release from Jennifer Gratz suggesting AzCRI had very optimistic possibilities in bona-fide challenges to recover valid signatures, it appears that one of the county recorders made voter file access exceedingly difficult in the period of time allowed by Arizona law once the Secretary of State made her ruling a week and a half ago. The re-challenge period would have been 10 days, expiring this coming Wednesday, but AzCRI claimed that the recorders were allowing only access to two voter file computers because of an upcoming Tuesday primary which necessitated that the Recorders' have access to the remainder in the interim.

This brings to three the total of signature drives that fell just short of their mark, but both Colorado and Nebraska did successfully make the ballot. It takes patience to end preferences.

In a disheartening development, according to Arizona Republic, the Arizona Civil Rights Initiative (AzCRI) petitions were, after review by County Recorders (Clerks), rejected because a number of signatures were found to be invalid. AzCRI is the third of five to fail to obtain sufficient signatures, and rumors of paid "blockers" who intentionally signed false signatures on a large scale preceded today's development, suggesting that a new era in blocking and how signature-gathering operations teams will need to respond to it, has emerged. Three other petitions in Arizona apparently failed this year, no petitions in Oklahoma have succeeded since the Democrat Attorney General Drew Edmonson indicted a petition-operation management team for work they did 3 years ago, and others failed in Missouri, to name a few.

The Arizona Civil Rights Initiative initially submitted 334,735 signatures to the state. But following petition reviews by the Secretary of State's Office and the state's 15 county recorders, that number was whittled down to 194,961 valid signatures. That's short of the 230,047 required for a Constitutional amendment.

In positive news though, Nebraska appears to have been sufficient and qualified, according to NCRI's campaign manager Doug Tietz, on KPTM Fox 42's online site reprinting AP wire reports.

Over at my sister site Equality Talk, I detail the story of yesterday's submission of signatures in Oklahoma for the Oklahoma Civil Rights Initiative (OkCRI). I'll let that site do the work, but wanted to alert my readers here to the important national story. Not only is Oklahoma abuzz with the story of being the first of the 5 states in 2008 turn in signatures, but it is abuzz with a long-running signature-gathering and petition-rights suppression story with the Attorney General seeking to crush Paul Jacob and others for a signature-drive in 2005 (documented in ZR's previous entry here), arguing that they should be jailed for 10 years for using what he defines as out-of-state circulators.

For those of you who follow my miscellaneous national and topical interests like signature-gathering, and Ward Connerly's SuperTuesday, you'll also know that I follow First Amendment questions of whatever type. The Paul Jacob story hits all three. Connerly is helping a group in Oklahoma collect signatures as I write. Signature-gathering difficulties there are driven largely by politics - and although the people of Oklahoma are quite rational, their Attorney General and special interests seem to have figured out that out and realize they must hamstring the people.

Enter Paul Jacob. Like him or hate him and his efforts, he helped a group in 2005 in Oklahoma collect signatures for a version of TABOR (taxpayer rights initiative). Taxpayer initiatives are serious challenges to government and special interests because when taxpayers can say no and turn the spigot off - special interests and the "governmental class" (the army of people working for the government get to vote, and self-lobby, too) get mad. Mad enough to put people who threaten them in jail.

So, when Democrat Attorney General Drew Edmonson told a grand jury to indict Jacob earlier this year, they jumped. Grand juries would indict cinder block if told to, and even under the best circumstances, a grand jury indictment is under a standard of evidence that there is simply enough evidence to warrant a trial - not that anyone is guilty. Regardless, the indictment was for "conspiracy" to "defraud the state", a stretch of that charge based on the underlying crime of ... coordinating signature-gatherers who did not intend to live in Oklahoma forever. That is, using "out-of-state" signature gatherers invalidates a signature in Oklahoma (nowhere in the Oklahoma code however, could I find a law criminalizing out-of-state gathering, merely the AG interpretation that residency means someone must intend to live in Oklahoma forever). From the non-crime of not knowing exactly where one might live in a few years, and two years following the Oklahoma state court's "referee" refusal to place TABOR on the 2006 ballot, the AG indicted 3 petition drive leaders (with no indictments for any criminal circulator below them, another hard piece of logic to follow). Now clearly this all contrived to make all signature-gathering of any type more difficult, and to plant the fear of criminal prosecution in the hearts of petition-drive leaders.

But the AG made a technical mistake in his grand jury indictment, and misused the multi-county nature of that body, so he had to drop the charges. Yesterday, he reissued the charges under his own office's direct power of prosecution, and is going full-steam ahead.

Whether you are liberal or conservative, or libertarian (I guess if you're authoritarian, you should support the AG), you should take note of this case. It's about control and power. It's about suppressing speech and petitioning. Sure, reasonable rules can invalidate bad or petitions created in error - and although there is probably no compelling interest in state residency requirements even if there were, this case is one of ambiguity in law being used as a blunt hammer to quash dissidents. Even if you are an opponent of Jacob's views, to remain silent when his speech and petition rights are subverted is to invite the same to happen to you when you disagree with the establishment.

In all, this is probably the most important First Amendment case, and clearly the most important petitioning case to arise from the year 2007. Follow it closely. Prevent it from happening in your state. Blog it if you can. Write a letter to the editor if its relevant. And be careful when you travel through Oklahoma.

If it has to do with signature-gathering (particularly if not inside Michigan where one of my sister-sites will pick it up), its a subject ripe for PP&M. And this one is ripe - Ralph Nader has sued the DNC alleging a vast conspiracy (VLWC) by the Demoncratic National Committee to obstruct his ability to get on the 2004 ballot. Frivolous lawsuits, blockers, bogus challenge-phase assertions. The suit itself details some 90 law firms that participated.

This story, from the site "Ballot-pedia", which is a brilliant use of the wiki concept to map out a small universe of specialized knowledge, details it well and provides links to the original source documents and news stories.

Needless to say, while ZR doesn't normally subscribe to conspiracy arguments because they are too complex and usually not the simplest explanation, there is some validity to this one. The DNC didn't make it a secret that it wanted to keep Nader off the ballot - in fact, it admitted it was trying to do so. And various officials admit to using frivolous legal techniques solely to drain Nader. That's abuse of process, and Nader should recover something for it.

Paul Jacob, one of the principal forces behind the Term Limits movement and an architect of the recent TABOR drives, voluntarily submitted himself to Oklahoma authorities yesterday to be indicted by Oklahoma attorney general Drew Edmondson. Jacob was indicted for helping bring non-Oklahomans into the state to petition for their Stop Overspending drive, which was thrown off the ballot in 2005 because non-Oklahomans allegedly were involved in signature collection and this allegedly violated Oklahoma's residency requirement, which is poorly and unclearly defined.

Jacob's story here.

Speaking from my experience with Michigan signature-gathering and management, its clear that opponents will throw everything they can at you. Don't think for a moment that exercising your rights in this arena isn't risky. This attack on Jacob is a fundamental attack against American liberty and self-government. It's meant to crush Jacob personally using the raw power of government and to scare the rest of us into inaction. Speaking to those forces - I, for one, am invigorated by your threats and the battle is on. In all my endeavors, I will strive to follow the law as it is, but I will not be intimidated by threats of misapplication of vague laws. To my supportive readers - if you can assist Jacob, please do so.

The Missouri Secretary of State Robin Carnahan, with the final approval of Attorney General Jay Nixon, have blatantly abused of the power of his office with this writing of the "ballot summary" for the Missouri Civil Rights Initiative (MoCRI):

Constitutional Amendment to Add Article I, Section 34, Relating to Banning Affirmative Action Programs, 2008-009

[full text]

Submitted by: Mr. Tim Asher

Mr. Tim Asher
Missouri Civil Rights Initiative
P.O. Box 545
Grain Valley, MO 64029
(816)812-4929

Petition sample form approved for circulation on June 21, 2007. Official ballot title certified by Secretary of State on July 19, 2007.

OFFICIAL BALLOT TITLE AS CERTIFIED BY
SECRETARY OF STATE

Shall the Missouri Constitution be amended to:

* ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
* allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona fide qualifications based on sex?

The total cost or savings to state and local governmental entities is unknown. Most state governmental entities estimate no costs or savings, however, costs or savings related to future contracts are unknown. Some local governments estimate no costs or savings, but prohibition of certain municipal policies may result in unknown costs.

This is what could have happened in Michigan, but the Secretary of State made a fair attempt at some compromise. Here, the worst possible bias has been inserted - and the language is completely untrue, even in the context of Grutter and case history that gives states any standing for preference use. Preferences under Grutter were not "designed to eliminate discrimination against" minorities or women, they were desgined to create "diversity" for their alleged educational benefits. The courts have clearly recognized the state right to programs that "eliminate discrimination against" individuals - enforcing anti-discrimination law, full outreach and publication requirements, and other programs are distinct from preferences. So the Secretary of State has just invented a new (old) reason for the programs - one that the Courts have never accepted since even before Bakke v. Regents of University of California. It would be impossible to ban programs intended for something that are already banned - hence a subtle legal and logical problem with this analysis. The major problem obviously is that the Secretary's language is so obviously slanted that it is worthy of rejection by the courts.

Apparently, the lesson the left has learned from Michigan is that they didn't go far enough in their twisting of language, and negative and dirty campaigning. Unfortunately, they're just digging a further grave for the words "affirmative action," which were once noble words with meaning in the 1960s. But when you cry wolf - or mis-define a word too often - people catch on.

DailyKos and the equally liberal FireUpMissouri have apparently taken on Frontpagemag.com for calling the Secretary of State out on this, and the news of this backstory has apparently only hit the blogospere so far. It appears that MoCRI will file some kind of legal challenge to the language. ZR is prepared to predict that this tactic and a number of other escalating pre-election legal and other maneuvers will be the primary tool opponents will rely on. They have become convinced that subterfuge and the further misuse of the channels of raw power they control are the only means to stopping what they can't stop through persuasion at the ballot box. With five states, it would be hard to imagine that the legal gauntlet in at least one state might simply be too hard to run. A Democratic Secretary of State or Attorney General or appointed court in any state will present new and different challenges for these initiatives.

Peter Schmidt, a deputy editor at the Chronicle of Higher Education, has written a new book entitled "Color and Money: How Rich White Kids Are Winning the War over College Affirmative Action," which is due to be released in early August. The link above and Amazon ad now in the right bar provide further detail, and while ZR earns a referral fee through Amazon, clicking it does not obligate you to purchase (although ZR would be happy if you chose to do so, and, in general, would be happy if you used us as an "Amazon portal" whenever you choose to use their or their affiliates like Office Depot, etc., online services).

Schmidt has been the Chronicle's "beat" reporter on affirmative action since well before the Michigan lawsuits were concluded, and is considered by both sides of the debate to be a neutral and unbiased resource on the topic. As such, he is a rare and valuable resource, and ZR looks forward to reviewing the book. His website "Color and Money" also provides details, along with a chapter-by-chapter listing of the content, which appears exhaustive.

This Rocky Mountain News story is chock full of ironies, goodies, and evidence of why CCRI is needed in Colorado.

You see, apparently, Denver is doing too well in its melding of peoples and ethnicity. It's a common thread in voting rights civil rights questions - when blacks and whites integrate, those in the race industry get scare and start to worry about "dilution". Too much success, even at diversity - especially at diversity, threatens the diversity industry.

Check out the headline alone:

Blacks fear losing their voice
Population shifts dilute traditional city strongholds

Apparently, Denver, unlike Detroit, has been far more successful in social integration. Sounds good, doesn't it? Well, the diverse ones are concerned about "blacks losing their voice".

Come on.

The caption to the only black councilman's photo says it all:

Denver City Council President Michael Hancock is the lone black member on the council. To remain politically viable, he says, black politicians must address issues that cross racial lines.

Exactly. That should be exactly what we want. Politicians crossing racial lines - regardless of who the heck they are or what color their skin is. That's why "racial gerrymandering," prompted by Democrats who want easy inner-city races, and happily accepted by Republican leaders who can't see in the long-run who understand that concentration in inner-cities makes all suburban and rural races slightly more Republican (not necessarily creating 90%-one-party districts similar to the city districts, but marginally helping the Republicans across the board). Indeed, the gerrymandering plan in Michigan, that Democrats love to criticize because Republicans mostly wrote the last one, is partially brought on by a Democratic insistence on tightly drawn inner-city districts. In the long-run though, this is bad for both parties, and it should stop.

Read more »

Representative Glenn Steil (R), has proposed this Constitutional Amendment through joint resolution, requiring that it be placed to a vote of the people. I post only the summary, since the amendemnt is rather intricate in the sections it affects. The basic idea is this though:

Cut the number of legislators in half, and double term limits. It's a fascinating political compromise, and although I don't officially support or oppose it yet, it is clearly an attempt to get term limit expansion on the ballot in both a winnable way and a way that legislators can go back to their constitutuencies and have something to claim they weren't being self-serving. It would also change the dynamic of elections.

HOUSE JOINT RESOLUTION C
January 22, 2007,
Introduced by Rep. Steil and referred to the Committee on Appropriations
A joint resolution proposing an amendment to the state constitution of 1963, by amending sections 2, 3, and 54 of article IV, to reduce the number of senators and representatives and to increase term limits.
Resolved by the Senate and House of Representatives of the state of Michigan, That the following amendment to the state constitution of 1963, to reduce the number of senators and
representatives and to increase term limits, is proposed, agreed to, and submitted to the people of the state:

In major news that ZR appears first to report publicly, HB 4024 - HJ2 was read and introduced yesterday and referred to the House Ethics and Elections Committee.

Sponsored by Rep. Dave Hildenbrand (R), HB 4024 is an attempt to place on the 2008 ballot a ballot question that would call for a Constitutional Convention, which would thereby convene in 2009. Hildenbrand may be doing some bidding for former Speaker DeRoche, whom Tim Skubic speculated wanted to chair a convention as a road to the Governor's mansion (mirroring the way George Romney did in 1963). The problem for DeRoche previously was the timing. There will be a 2010 ballot question by law (Michigan's Constitution requires the question be asked every sixteenth year). A 2010 ballot question could only have produced a Convention as early as 2011, doing gubernatorial candidates little good.

Here's the text of the proposed joint resolution to create place the issue on the ballot:

HOUSE BILL No. 4024
January 22, 2007, Introduced by Rep. Hildenbrand and referred to the Committee on Ethics and Elections.
A bill to provide for submitting the question of whether to call a constitutional convention to the electors of this state.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. (1) At the 2008 general November election, the question of whether to call a constitutional convention to draft a general revision of the state constitution of 1963 shall be submitted to the electors of this state. The question submitted to the electors shall be substantially as follows:
"Shall a convention of elected delegates be convened to draft a general revision of the state constitution of 1963 for presentation to the state's electors for their approval or rejection?
Yes ____
No ____".
(2) If a majority of electors approve the question presented in subsection (1), a constitutional convention shall be called in accordance with section 3 of article XII of the state constitution of 1963.

With all due respect to the Republican former-Speaker and Representative, ZR opposes this unwise effort that risks major achievements by the people in restraining tax growth, protecting the civil rights of all, defining marriage, and allowing the people access to their Constitution.

The following update was added to my original response to the news of the Constitutional Convention recommendations by Citizens for Michigan.
UPDATE: 1/3/2007
A closer reading of Phil Power's original op-ed (and several variations across different papers now), shows that he is against a Constitutional Convention, and would prefer that all or most of C4M's recommendations be adopted by the legislature or in segments through the normal process. He's also listed as resigned from the C4M board - originally ZR thought this was due to other considerations, but some of it may have to do with their recommendation of the "ConCon" (Constitutional Convention). Why is Power against the ConCon? Because their are too many radical right and left wingers around today, and he is the self-proclaimed paragon of the Center for Michigan. I suspect it is a combination of factors - and that Power remains highly allied with C4M, but is pursuing the other track (legislative placement on the ballot of specific issues) on this issue. With his point that each individual issue should be addressed, I concur so long as the people of Michigan vote on them. And some of the recommendations of C4M are worthwhile - even a blind squirrel gets its nuts - such as reform of the Regents and Judicial (s)election processes, cleaning up unconstitutional sections, etc. But the serious changes to our tax levying process, lengthening term-limits, and ending the citizen-initiative are serious policy changes. Say no to anything that curtails the citizen-initiative, and if you have a serious proposal to lengthen term-limits or the tax-process, while I would probably oppose both I have no objection to groups either collecting the signatures or getting the legislators to put it on the ballot and letting the people decide. I suspect C4M knows though what the outcome of those votes is likely to be and thinks it can squeeze them into a ConCon.

The Michigan Daily has an interesting story speculating on the next state for a Civil Rights Initiative, modelled after CCRI, WCRI, and MCRI (California, Washington, and Michigan Civil Rights Initiatives).

Here's my analysis, cross-posted on their response section (UPDATE, as a reader correctly pointed out, I left the office before I realized neither Wisconsin or Texas were states allowing citizen initiatives. I errantly assumed the writer had researched this, which was a mistake I should not have made. There are 18 Constitutional amendment states - see here http://www.iandrinstitute.org/statewide_i&r.htm):

Florida is probably out because it has been tried there (in the infamous 2000 election year) and the infamous Florida Supreme Court pulled out an arcane and twisted ruling requiring petitioners to use roughly six petitions to get it through (the legal principle of not addressing "multiple objects" was applied, requiring a separate petition for race and gender and a separate petition for each of the public hiring, contracting, and education).

This was the result of, or following, Governor Jeb Bush's backing away from the plan (thinking it would protect George Bush in 2000), but only after he issued an executive order called "One Florida" which ended preferences in most of higher education. Although a weaker version of California, Washington, and Michigan, One Florida can be called a victory in most significant aspsects, so Florida is out.

Texas is off the list because it is not an initiative state, and Hopwood ended preferences there for many years, but when Grutter happened that legal ruling lost force. There has been serious talk in Texas of going back to preferences - for this reason, I'd consider some kind of legislative pressure there an important priority.

Wisconsin is off the list because it is not an initiative state, although legislative pressure would be nice since it is the home of the selective U-Wisconsin. Topping my list is Oregon, Arizona, and Colarado, in no particular order. Colorado's legislature narrowly (one vote) refused to pass similar legislation, and there is a strong base of supporters in Colorado. Colorado is also the home of the Adarand Construction company, which is famous for a strong US Supreme Court decision in the 90s on set-asides. It is also the home of Coors Brewing, which has been ridiculously savaged by opponents because the now-dead former owner donated to Connerly. That might present a difficult political dynamic. UPDATE: Other considerations - Nebraska, an initiative state with one moderately selective institution, Montanan only because it lost a Senate seat for the R's (although that makes it a better-timed candidate if the R's care at all in 2012) and has a tradition of petitioning, and Ohio, which would be a Michigan-sized target and of political interest to everyone in 2008 (this alone could bump them up to the top, or completely knock them off the list).

Oregon would present some operational considerations favorable to Ward Connerly, who is a few miles (well, quite a few, but 300 compared to Michigan's 2000 is a big difference) south of the border in Sacramento, and Arizona presents a similar situation, perhaps with slighly more selective law schools and undergraduate institutions.
[UPDATE: Legislative pressure should be applied in both Texas and Wisconsin to change the law through traditional legislation.]

(UPDATE, given my error in which states allow citizen initiatives, I'd say the front runners are Arizona, Oregon, and Colorado).

Inside HigherEd contains this fantasically ironic report, although the authors, perhaps for politically-correct reasons or perhaps honestly, oppose MCRI. The report concludes:

Our research on these issues shows that voters are not getting much substantive information on MCRI from news articles.

Not surprising, but true and incisive. The researchers, claiming to have exhaustively reviewed the news literature to date, write:

In the course of investigating the persistent disagreement about affirmative action after the University of Michigan Supreme Court cases, we noticed what appeared to be a disturbing trend within the print news media’s coverage of affirmative action and MCRI. It seemed to us that instead of writing about the deeper moral issues surrounding race-conscious policies like affirmative action, print news pieces focused on covering more sensational aspects related to the aftermath of the Michigan Supreme Court cases and the campaign for MCRI.

Hmm. What might cause this? Part of the blame purely lies with the media, for being drawn to the "horse race" and "sensational." But certainly part of it has to go squarely to By Any Means Necessary (BAMN), which predicated its campaign on the sensational and the horse race, rather than on the issues. I surely made every effort during my tenure with MCRI as Director of Media Relations to keep it on the issues. An examination of the press releases I wrote is detailed proof of this (I maintain an archive of them on this site, if you go to the work samples page and follow the links). Still, BAMN's presence was something to constantly be contended with, and the distortions, personalizations, and distractions biased the media coverage even as I helped give them an opportunity to report on issues. And since I left, MCRI has generally pursued a similar strategy, even as the BAMN noise level rose.

The authors make this solid point:

We realize that it is often the case that in elections, the news media tend to pay more attention to the “horse race” between candidates than to the actual issues at stake. Nevertheless, there seems to be something qualitatively different about an election focused on a public policy issue. What else is there to cover if not the issues up for debate?

Finally, they seem compelled to gratuitously show their own bias:

Moreover, MCRI does not venture into unfamiliar territory. The initiative arises from a distinct — and rather disgraceful — legacy. In 1996, California voters approved Proposition 209, a ballot initiative nearly identical to MCRI. In the years since its passage, California has experienced sharp declines in the number of black and Latino students applying and admitted to state universities, a decrease in the number of contracts awarded to minority-owned businesses and minority contractors, and a significant drop in the number of enrolled minority students at prestigious state law schools.

One wonders why, and how far our academic environment has sunk, the researchers felt the need to expose their bias this way. Of course, the why is to protect their careers - anyone who studies this toxic issue must tow that line.

It's almost as if the authors are arguing that a more civil debate would have allowed opposition forces to win. But then why did opposition forces choose the paths they did?

The remainder of the authors work details the methodology of their research. Their interesting point:

... our research shows that fewer than 7 percent of the articles in our database even referred to scholarly research at all.

That certainly proves that the media could care less about the intellectual arguments, which is unfortunate. But I think the answer to why the opposition didn't actively push the media on the "scholarly research" on preferences is that it just isn't that strong for them, in some cases quite against them, in some cases provably manipulated or biased, and in most cases mixed. Basing a defense of preferences on research would expose the research!

The authors make a compelling case, without knowing it, for the quality work done by Barbara Grutter and William B. Allen with the cross-partisan group Towards a Fair Michigan (TAFM), whose sole mission was to sponsor academic debates giving both sides of the issue a "civil" hearing of their arguments. Unfortunately, one well motivated group can not change the whole tone of a debate. But TAFM made a dent.