Scarp: Substance, not form, at heart of petition rights - East Valley Tribune: East Valley Voices

Scarp: Substance, not form, at heart of petition rights

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Mark J. Scarp is a contributing columnist for the Tribune. Reach him at

Posted: Saturday, May 18, 2013 7:12 am | Updated: 7:13 pm, Fri Nov 1, 2013.

When our nation’s founders wrote the language in the First Amendment guaranteeing the right to “petition the government for a redress of grievances,” there were no words describing the form of that petition.

Obviously the intent was to make sure the content of your complaints to your government would never land you in jail or to suffer some other harm.

Now, of course, common sense would say that for your petition to have any effect, your words would have to be legible and understandable to a reasonable person. Skywriting or putting a couple of thousand words on a thimble head might impede that legibility or understandability, for example.

Which is why courts, and our state supreme court in particular, have avoided a strict format for one of the most important exercises of the First Amendment (which applies to state government in Article 2, Section 5 of the Arizona Constitution): initiative, referendum and recall ballot petitions.

Lawmakers are still intent on writing more restrictive rules, avoiding consideration of the dangers of too much emphasis on form over substance.

Senate Bill 1493 passed out of committee last week on its way to going before the entire Arizona Senate.

At least one provision makes sense: If a voter who requests early ballots didn’t use them for two straight years, that voter may stop receiving those ballots in the mail unless he/she confirms in writing he or she wants to keep getting them. Taxpayers paying the postage certainly have an interest in seeing ballots mailed only to people who actually have some demonstrated desire to use them.

But much of SB 1493 is unneeded form-over-substance thinking. For one thing, it would make it a class 6 felony to return someone’s early ballot directly to a polling place if the returner is a paid or volunteer worker for a political committee or other group that directs someone on its behalf to pick up or bring back a ballot to the polls.

And in an era when paper is quickly giving way to electronic means in so many forms of government record-keeping, the bill would require “strict compliance” with the law (the words “strict” or “strictly” appear three times in a single paragraph of SB 1493). This means that only paper, not an online version, of an application and statement for referendum, initiative or recall petition, would be valid.

The Arizona Supreme Court found as valid an online version of such an application of statement by those behind 2012’s ultimately unsuccessful effort to continue a one-cent statewide sales tax. Secretary of State Ken Bennett sought to disqualify the petitions, which otherwise had enough valid signatures, based on a non-paper form of the application filed with his office.

In recent years all kinds of efforts have been undertaken in legislative halls across the country, including Arizona, to tighten up on elections rules. Real reforms suggested by the shocking revelations of the antiquated ways several states conducted voting in the 2000 presidential election – including modernizing voting devices to insure better accuracy and less likelihood for fraud – are to this day largely incomplete.

Instead, lawmakers have tended to concentrate on the voter rather than the voting, despite having virtually nothing but anecdotal claims on which to rely.

Yet despite a drumbeat of these anecdotal descriptions of widespread voter fraud that underlies many such election-reform efforts, an exhaustive national investigation based here in the Valley found that in reality, the number of actual cases was, in the investigators’ words summarizing their efforts, “infinitesimal.” In other words, not affecting the outcome at all.

A 10-week probe conducted in early 2012 examined every reported claim of election fraud in the United States since 2000. Results were reported last August by News21, based at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication. Disclaimer: I am a faculty associate at the Cronkite School but did not participate in this investigation.

According to their summary of those results (, the investigators found that between 2000 and 2012, when 146 million Americans voted in various elections, only 10 actual cases of in-person voter impersonation on Election Day were discovered.

As Capitol Media Services’ Howard Fischer reported last week in the Tribune, the Arizona Supreme Court opinion upholding an online petition application as valid, written by Chief Justice Rebecca Berch, found that what was for the court to decide was if the people behind the petition were in “substantial compliance” with state law.

“She said that ‘strikes the appropriate balance between protecting our citizens’ right to initiate new laws and the integrity of the election process,’” Fischer reported Berch as saying.

This weighing of interests is what keeps form and substance in the proper context.

Until members of the Legislature have substantial and documentable evidence of elections tampering, voter fraud or of what actual harm results from filing an online versus a paper document, they ought to drop these expeditions into the world of Better Forms Through Government.

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