Since my discussion on signature fraud in the initiative and referendum process appeared two weeks ago, Secretary of State Al Jaeger and I have been exchanging notes about the problem and likely solutions.
Initially, I cited the incarceration of a petition leader for signature fraud in the 1960s. Secretary of State Jaeger has added a couple more incidents, noting that his office has prosecuted petition fraud in 1994, 2006 and 2008.
The 1994 case was the most significant because the fraudulent signatures kept a measure off the ballot that would have let voters decide the fate of term limits for public officials.
In 2012, signature fraud kept two measures off the ballot, a major blow to advocates of natural resources and those favoring medical marijuana. The perpetrators of these frauds are now being processed in the criminal justice system.
Secretary of State Jaeger sees the process as involving two rights “on the one hand, the right of the people to initiate measures” and “on the other hand, the right of the rest of the people to know that the signatures were legitimately secured.”
The 2013 legislature will certainly be looking at the initiative and referral process with these rights in mind.
One option could be registration of petition carriers to guarantee that they are legally qualified. Also, because most of the violators have been younger people, circulators need to be trained and required to sign a statement that they have read the basic rules of petition circulation.
All of the major cases 1960s, 1994 and 2012 involved payment to the circulators for collecting signatures. Since the love of money is the root of all evil, payment for signatures led to shortcuts and quotas which, in turn, encouraged fraud.
In recent years, we have seen an increase in the number of out-of-state interests promoting and financing state initiatives. It may take tighter regulation of out-of-state promoters if the practice is going to become a growing industry.
The adoption of the initiative and referendum was based on the idea of citizen involvement, with folks carrying petitions for causes in which they personally believed. Payment for signatures and out-of-state sponsorship certainly dilute this philosophy.
Some legislators think that reclassifying the crime from a misdemeanor to a felony would emphasize the seriousness of contaminating the initiative and referendum.
Historically, the maximum punishment for a misdemeanor – up to one year in jail and a $2000 fine – has never been imposed on violators. So we don’t seem to need the increased penalties of a felony. Even so, there are other persuasive arguments for changing the crime to a felony.
Secretary of State Jaeger argues that if the crime were a felony, the sponsoring committees “would be more likely to instruct and train circulators about the need to get it right.”
“The integrity of the election process is based on following the law,” Jaeger argues, “and that is why it might be worth having it raised to a felony.”
I would add one more point. If the violation were a felony, the threat of rendition (bringing fugitive violators back from outside of North Dakota) would become more real. With so many out-of-state interests and temporary residents involved, the availability of rendition would give enforcement real clout.
While securing the integrity of the initiative and referendum, however, we need to guard against making the process too cumbersome. As Thomas Jefferson once said: “The hole and the patch must be commensurate.” And who can argue with Thomas Jefferson?
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