IMAGE: eben dickonson |
Gay-rights advocates have blasted U.S. District Court Judge Michael Mosman’s decision to put a hold on domestic partnerships for same-sex couples in Oregon until a Feb. 1 court hearing.
But the temporary injunction issued last month by Mosman hinges less on gay rights and more on a technical issue that could drastically alter the state’s voter-initiative system by changing how the state treats petition signatures.
As such, some backers of gay rights say the upcoming court battle reflects a long-overdue need to treat signatures with the same care as votes in an election.
Lawyer Dan Meek, a staunch critic of how the state handles petition signatures, wishes the battle were over a different law. Reforming Oregon’s initiative system, however, has been needed for some time, Meek believes.
“I’m a strong supporter of civil unions,” Meek says. “But nevertheless you can’t pick and choose. Either you have a process that respects the voters or you don’t.”
Last year the state Legislature passed a law giving same-sex couples many of the same rights enjoyed by married couples. Opponents turned in petitions calling for a referendum on that law. But the state ruled there weren’t enough signatures to qualify for the ballot. Now the petitioners are suing in federal court, claiming the state violated their First Amendment and 14th Amendment rights under the U.S. Constitution.
After a courtroom victory Dec. 28 that delayed domestic partnerships and called into question the state’s method of handling petition signatures, Beaverton lawyer Herb Grey now hopes to win a ruling Feb. 1 that would put a referendum on the November 2008 ballot, quashing civil unions until at least after the election.
“The whole purpose of this case is to make sure that every voter’s voice is counted,” Grey says.
Still reeling from their Dec. 28 defeat, lawyers at the state Department of Justice are preparing to argue why elections officials should not be required to treat petition signatures the same as ballot votes. If they prevail, the domestic partnership law may go into effect after the Feb. 1 hearing.
At the center of the dispute is Mosman, who on Dec. 28 issued the delay of the domestic-partnership law. The decision enraged civil-rights advocates and gay couples, who staged rallies around the state on Jan. 2, the day the law would have gone into effect.
“Judge Mosman has a troubling past on the issue of equal rights,” reads a news release from state Rep. Chip Shields (D-Portland), referring to a memo Mosman wrote in 1986 when Mosman was a U.S. Supreme Court clerk. The memo said “privacy does not extend to protect ‘sexual freedom’ in the absence of fundamental values of family and procreation.” The court then narrowly upheld an anti-sodomy law in Georgia.
In Oregon’s domestic partnership battle, elections officials threw out signatures from the referendum petition because they didn’t appear to match, or because the voter was considered inactive. Those who wished to challenge the decision were denied a chance to prove why their signature should be counted. In regular elections, voters are informed if their ballots are in danger of being disqualified, and get a chance to correct errors.
Grey argues petition signatures should have the same protections. He came to the Dec. 28 hearing armed with a 2003 9th Circuit Court of Appeals decision saying ballot initiatives, “like the election of public officials,” are a fundamental right with 14th Amendment equal-protection guarantees.
Lawyers for the state argued that the potential harm to gay couples in delaying domestic partnerships far outweighed the harm to petitioners. They were stunned when Mosman gave them little credence.
“It’s an issue we thought would be discussed more,” says DOJ spokeswoman Stephanie Soden.
But the 9th Court ruling is powerful ammunition. Mosman indicated that he considers it relevant to the current case, opening the door for sweeping changes in how the state treats petition signatures. If he rules that the referendum should qualify for the ballot, same-sex couples face at least a 10-month wait before the state recognizes them. Meantime, says state Rep. Tina Kotek (D-Portland): “Smoldering outrage is probably a good phrase.”
FACT: Oregon Secretary of State Bill Bradbury ruled that the petition fell 96 signatures short of the needed 55,083. But that’s an estimate based on a random sampling of the signatures. If just five of the rejected signatures are deemed valid, there are enough to qualify for the ballot.
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What we really need is an article that explains the difference in signature verification processes in referendums vs. elections, because I think there is a different standard.
On Referendum 303, the county officials determined that the referendum had failed by a statewide total of 5 sampled signatures. They disqualified 55 sampled signatures solely as "not matching" each voter's registration card. When over a dozen of the rejected voters then visited their county elections offices and vouched for their own signatures on the petitions (including by sworn affidavits), within the 30-day verification period, the Secretary of State ordered the county officials not to consider these "verbal statements and/or affidavits." In essence, he declared those voters to be non-persons who were not allowed to identify their own signatures.
The Secretary of State also fails to require the counties to notify voters whose signatures are rejected as "not matching," thus affording them no opportunity to contest their wrongful rejection. If a voter's ballot is rejected for a non-matching signature, state law requires that the voter be notified by mail and be allowed 10 days to show that the signature is hers. The same could easily be done for rejected petition signatures, if the outcome of the petition hinges on the outcome (which it almost never does).
While the lawsuit merely challenges the disqualification of signatures, the net effect is that the entire signature-verification process will have to be changed, sampling and all. The statistical sampling aspect is very important because, unlike an election where signatures are individually counted and verified, in a referendum the process is meant as an approximation.
I can understand the logic behind statistical sampling, which is to say that I understand not allowing a person to challenge the invalidation of his signature because it would statistically validate several others which are probably invalid. However, the whole process doesn't work right if it violates the signatory's fundamental rights. So, each and every signature will need to be looked at and this whole statistical sampling business will need to be scrapped.
What I think is ludicrous about petitioning and signature validation is that I don't have that extra layer of protection of having the ballot mailed to my house. Any joe schmo can forge my signature on a petition sheet and, so long as it looks close enough, he has co-opted my voice and I would never know about it!
I'm straight by the way. I'm currently rubbing off on a picture of Judge Mosman in exercise of my privacy rights--not for personal gratification or anything.
I think the gay community should start sending referendums to the ballot that only affect the lives of us straight people to give people like Mosman a taste of how it feels. Why don't you ban us from eating hot dogs? I don't eat 'em anyway. Besides, hot dogs are not natural and don't reflect family values.