At first blush (and second) (and third),marijuana advocate Mason Tvert
andJon Caldara, frontman for the conservative Independence Institute
, are strange bedfellows.
But today, they're partners in a legal love match. They're among the plaintiffs suing Colorado Secretary of State Bernie Buescher over laws intended to prevent fraud when collecting signatures for ballot measures. (Read the document here.) And arguing on their behalf is none other than attorney David Lane, who's represented everyone from controversial former CU prof Ward Churchill to Ballon Boy dad Richard Heene.
"When the government puts down too many hurdles for you to jump over to engage in free speech, it's a violation of the First Amendment," Lane says.
Lane sees common ground between Caldara and Tvert when it comes to ballot initiatives.
"The far right has often been involved in the petition process," he notes. "They've been behind a lot of these measures have gotten on ballots, like TABOR. And medical marijuana got on the ballot via the petition process, too. So these clients approached me and asked if, in my opinion, these laws were violative of the First Amendment. I did the research, and I believe that they are."
Most of the regulations in question have to do with the collection of signatures required for a measure to reach the ballot. Those gathering such scrawls are required to be Colorado residents and can't be paid per signature delivered.
As Lane notes, supporters of these rules argue that stricter guidelines will keep petitioning on the up and up. But he doesn't buy it.
"There can be certain minimal regulatory requirements," he concedes. "Like when you want to have a parade in downtown Denver celebrating Columbus Day, you need a permit. That's a bit of a hurdle, but it's considered reasonable by the Supreme Court because there has to be some order in the process. And that's similar in petitioning. But this process is the purest form of free speech -- so you need a compelling governmental interest in regulating it, or else the government needs to get out of the way and let it happen.
"Now, the legislature allegedly is completely concerned about fraud in the signature-gathering process, so they've thrown down hurdle after hurdle after hurdle to combat it. But it's pretty clear to me is that their real interest is in stopping what they see as harebrained petitions from making the ballot and mucking up the laws in the state of Colorado.
"The Colorado constitution mandates this form of direct democracy, which apparently offends people in the legislature, who are more comfortable with the idea of representative democracy."
In Lane's view, "the statutes in question really have nothing to do with fraud. For example, why does a petition circulator have to be a Colorado resident? How does that stop fraud? Let's say there's a gay rights initiative being circulated in Colorado, and activists want to come here to gather signatures. Don't they have a First Amendment right to do that?
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"And why can't a sponsor of a petition pay circulators by the signature? That will incentivize them to get as many signatures as they can. Right now, there's a requirement that only 20 percent of their pay comes from the number of signatures they collect. That means 80 percent of their paycheck can come from sitting in Starbucks taking a break, de-incentivizing them from gathering signatures. So all of these things are designed to make it more difficult to gather the requisite number of signatures, not prevent fraud."
What about the idea that paying collectors for each signature may inspire some to inflate their numbers, perhaps by phonying up information?
"The Secretary of State still has to go through the ballots," Lane points out. "Anybody who wants to challenge the signatures can, and if some gatherer is out there making up signatures, presumably the Secretary of State will catch those frauds when reviewing the petitions. They match them against addresses, they match them against signatures on record -- so fraud detection isn't affected by this. And if a circulator is fraudulently making up signatures, that's a crime, and you can prosecute that person. Isn't that a big enough deterrent to making up signatures? Aren't the criminal laws already in place to prevent exactly that from happening?"
In contrast, there's no law in place to prevent Mason Tvert and Jon Caldara from being on the same page. And lo and behold, in this case, they are.