By Constitution Staff

In an unanimous opinion in December, the federal Tenth Circuit Court of Appeals declared unconstitutional an Oklahoma law banning non-residents from helping collect signatures for ballot initiative petitions. The Denver court's ruling, in the case of Yes on Term Limits, Inc. v. Savage, follows unanimous rulings by the Sixth and Ninth Circuit Court of Appeals in similar cases from Ohio and Arizona. In their decision, the three judge panel declared the right to circulate petitions in the United States of America is "core political speech," and fully protected by the First Amendment to the U.S. Constitution.

The residency requirement was challenged last year in federal court by Yes on Term Limits which wanted to limit the terms of statewide elected officials. The chairman of the committee was James Dunn who was the 2006 Republican nominee for Oklahoma Attorney General against Drew Edmondson, the Democrat incumbent. In addition to Yes on Term Limits, plaintiffs in the lawsuit included professional petition circulators Sherri Ferrell of Florida and Eric Dondero of Texas. The plaintiffs said the state's ban on out-of-state circulators significantly burdens the plaintiffs' First Amendment rights to engage in political association and speech in promulgating their views within Oklahoma, making it less likely that the term limits proposal would be submitted to the voters. On September 7, 2007, Judge Tim Leonard upheld the residency law, but the case was appealed by the plaintiffs to the Tenth Circuit Court of Appeals.

Professional petition circulators, mostly based outside the state, have played a key role in circulating initiative petitions in the past. That came to an end in 2006 when the Oklahoma Supreme Court made a ruling involving the Taxpayer Bill of Rights (TABOR) initiative petition, which would have placed limits on state government spending. The circulators of that petition collected 299,029 signatures, but needed just 219,564 valid signatures to get the proposal on a statewide election ballot. The court invalidated about 80,000 signatures, including 57,850 that were collected by nonresident circulators. A state statute requires petition circulators to be residents of Oklahoma.

Last October, Attorney General Drew Edmondson indicted three persons involved in the TABOR initiative. The three targets were Paul Jacob, president of Citizens in Charge and senior fellow with the Sam Adams Alliance; Susan Johnson, president of National Voter Outreach, a petition management firm with a track record of successful petition drives in Oklahoma; and Rick Carpenter, president of Oklahomans in Action, which promoted the 2005 initiative to cap state spending. The "Oklahoma Three," as they are now known, were led in handcuffs from the courtroom for their role in hiring petition circulators from across the country to help gather signatures needed to put the initiative on the ballot. If convicted, they could face up to 10 years in prison and a $25,000 fine. At the time, Jacob responded to the indictment saying, "The underlying statute in this case is unconstitutional and should be struck down, thus rendering this whole charade moot. But, whether it is constitutional or not is really beside the point, because we sought to understand and abide by the statute as it was written."

Unlike most states, Oklahoma requires petition circulators to be residents, however no one is exactly sure what that means in this context. The Oklahoma State Election Board informed circulators that any United States citizen could become a resident by entering Oklahoma with the intent to reside. When circulators from other states came to work in Oklahoma, each acknowledged that they knew about the residency requirement and swore they were Oklahoma residents. Previous initiative petition campaigns (such as the union-funded minimum wage increase measure) also used circulators who claimed residency upon moving into the state and were not prosecuted. The difference could be the measure was not opposed by the Attorney General.

The Yes on Term Limits committee held off on their petition drive while the case was on appeal. They sought to limit the terms of the Attorney General, Lieutenant Governor, State Treasurer, Insurance Commissioner, State Auditor and Inspector, Superintendent of Public Instruction and Labor Commissioner. Currently, Oklahoma legislators are term limited, and the Governor can serve no more than two, consecutive terms.

In a December 26th, 2008 editorial, The Wall Street Journal called for Edmondson to end his prosecution of the Oklahoma Three. The article noted that Edmondson is planning a run for governor in 2010 and "is angling for support from public employee unions and other special interest groups that oppose tax and spending constraints. But more generally, his continued prosecution of the Oklahoma Three sends a chilling message to others who might consider exercising their right to petition government."

In an column by Paul Greenberg, Edmondson is called "a bully with considerable power." Greenberg noted that Edmondson is planning a bid for governor of Oklahoma and said that Edmondson has "more ambition than respect for the rights of others."

Given the December court ruling, a conviction is deemed unlikely. Still, Edmondson has indicated that he will not drop the case and says he will appeal.

EDITORS NOTE: After we went to press with this article, Edmondson decided to drop the case against the Oklahoma Three.