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Brink Introduces Bills to Prevent Another Referendum Debacle

by ARLnow.com | January 19, 2011 at 8:46 am | 653 views | 22 Comments

Del. Bob Brink (D) has introduced two bills in the House of Delegates that attempt to “address the irregularities discovered during the signature gathering process” for last year’s failed effort to change Arlington’s form of government.

One bill, HB 1646, calls for the name and address of a petition signature gatherer to be present on both sides of the petition form. The bill is in response to “numerous reports where the description of the person who signed the forms as petition circulator didn’t match the description of the individual actually gathering the signatures.”

So far, HB 1646 is still awaiting a subcommittee vote.

Brink’s other bill, HB 1670, is broader piece of legislation. The bill addresses an alleged conflict of interest — that the campaign manager for the change-of-government effort was also the notary public that certified the now-disqualified petition sheets.

The bill, which passed a subcommittee on Monday, says that “a notary shall not perform any notarial act with respect to any document, writing, or electronic document that presents a conflict between his personal interest and his official duty.”

On Brink’s web site, at least one constituent worried that bill may be “over-inclusive” and could affect real estate transactions where an attorney is also acting as a notary.

Brink says the legislation is necessary to “improve the voter referendum petition process” and “prevent fraud.”

“Last year’s referendum effort in Arlington taught us valuable lessons about weaknesses in the petition signature gathering process,” Brink said in a statement. “Learning from that experience and passing this corrective legislation will help protect the integrity of voter referenda.”

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  • Arlwhenever

    There are few free-standing, independent conflict-free notaries. Most notaries I’ve used over the decades supply services in conjunction with some other business, whether it be real estate, legal, insurance, financial or some other kind of service with the obvious intention of offering notary services to support their primary endeavor and to bring business in the door. This bill is just another idiotic, elitist, partisan Arlington initiative. It will destroy the availability of notary services for ordinary people.

    • Lou

      Indeed. In my business we routinely review and approve payment applications from businesses that are notarized by employees of that business. I’ve never considered a conflict to exist with the notary, since the validation of the amount requested is my duty anyway.

      • John Antonelli

        Heaven forbid anyone should challenge the machine. It is hard enough to get a referendum on the ballot here lets make it harder so we will all be good little sheeple

  • mehoo

    You have a good point, but you ruin it by calling this bill elitist and partisan. It’s an honest attempt to fix a problem. Take it down a notch.

    • Arlwhenever

      The bill is grandstanding effort which, if passed, will limit the availability of notary services to ordinary people, which is by definition elitist.

      As for partisanship, in case anyone failed to notice, petitions were rejected and petition gatherers are being prosecuted for felonies. Existing laws were adequate to handle the situation (and in the case of felony prosecutions draconian). Brink seeks to create new and higher barriers to protect the political status quo for the next go around.

    • mehoo

      It’s not “elitist” if that’s not its intent.

      It’s not partisan to create new rules that apply equally to all, and would burden each equally. And these new rules are hardly that hard to follow. They are intended to better enforce existing rules.

      Enough already.

  • Shane

    Oh for goodness sakes, doesn’t Brink have better things to do? We should have a sliding scale for putting things on the ballot. If you fall 5,000 signatures short, pay a fine and waive the requirement. If you have a lot of money bankrolling the initiative, better to spend it buying access to the ballot then paying these ex-cons to collect signatures.

    • mehoo

      Or you could just protect the integrity of the petition process by requiring that existing law be followed and the required number of signatures be submitted. It’s no big deal.

  • Wayne Kubicki

    I know there are more than a few readers here who are familiar with the COG petition effort from last year. Query to you – how would either of Del. Brink’s bills serve to prevent the problems that arose in last year’s petition effort?

    • mehoo

      Well, both are designed to assure that existing laws regarding petitions are followed. The first would try to prevent out-of-county residents from carrying petitions around, which is barred by law. I don’t know whether it really matters one bit who carries them around, but having questions about whether the person was legally allowed to do so puts a legal cloud over the entire petition–which is bad for the petition supporters too. Same principle with the second bill, though it may cause more problems than it fixes, as people have noted.

      • Wayne Kubicki

        All true. But I’m not quite sure what either of these bills would remedy in practice.

        I doubt any petition signer (the individual signers, not the petition takers) would actually take note of the petition taker name on the form when signing it. Even if they did, unless name of the taker and the actual person standing in front of them seemed to be of different sexes, what signer would question the ID of the taker?

        As far as the notary goes, it’s my understanding that a notary can sign any document that appears to be “in order”. While tactically it may have been a mistake for the COG folks to have someone involved with the petition drive notarize a lot of the forms, I believe that any other notary would probably have signed them as presented by someone who said they were the petition taker (which apparently was where the real problems were).

        While Del. Brink’s two bills may “sound right,” in practice I’m not at all sure either of them would have prevented the shortcomings that occurred in the COG petition process.

        • mehoo

          Yeah, I’m not sure either.

    • Thes

      Wayne, thank you for your thoughtful question. Considering the principled position you to about the petition at the time it seems you deserve a thoughtful response.

      Back to first principles, the Virginia legislature determined long ago, that petition campaigns in our various districts and jurisdictions should be undertaken and managed by people who live in the district. Getting petitions isn’t really all that difficult, if you do it the right way, but it does take a lot of time and volunteer effort. Virginia has an interest in making sure that organizers of such processes are in fact the ones going to be affected by the outcome — the people who live in the affected district. Virginia thinks its wrong for people to come in from out of state, swoop in for their own purposes, collect voter signatures in a district, and then potentially leave, having left local voters with a difficult or divisive issue on their next ballot. In effect, the “test” for getting something on the ballot in Arlington is not merely that you gather 14,000 signatures, but that *Arlingtonians* gathered 14,000 signatures.

      For a variety of technical reasons, Virginia has chosen to achieve this goal by having the formal, sworn “witness” to each set of 26 voter signatures be a local resident. In most cases, this is a good method since it is typically impractical to be the witness to a petition when you weren’t the same dude standing out on the street for an hour collecting all the signatures. Technically, the witness could be a second person who was hanging out with you, but it’s just not usually the way it happens.

      However, in last year’s CAG process, things went blatantly wrong. Paid aggressive, and not always truthful out-of-staters, who were not generally working side-by-side with any Arlington resident, collected the bulk of the signatures. Some of them even admitted from time-to-time they were from out of state, but most declined to give their names to the members of the public whom they solicited. Individual citizens sometimes (independently and without coordination) called the police to investigate, but it is not a crime merely to collect signatures that can never be properly witnessed, so the police went away. Some citizens tried to get the names of the petition collectors, but were rebuffed. Some citizens wanted to sign and did sign, but their petition page at the time they signed contained no information about who would eventually witness their petition, so they are not in a strong position to confirm or deny that the person whose name appears as a witness is different from the person who actually witnessed their signing. (Except in the obvious case that the signature was from a person of another gender from the one who collected it. Or, as they may eventually find out, of a different race or otherwise distinct from their recollection.) Requiring the name of the petition collector (still technically a “witness”) on the front of the form would allow a voter who signs to be able to write down that name, keep it with them and help provide accountability for their own petition sheet being handled in a lawful manner.

      Then came time to submit the signatures. As of today it is still not entirely clear what happened — that may come out at trial — but it appears that the paid campaign manager located some destitute Arlingtonians to sign all the petitions en masse, even though they and she must have known under the circumstances that they signers definitely didn’t personally witness, much less collect, the signatures. This activity has already resulted in some criminal charges being voted by a citizen grand jury. Since campaign manager also personally notarized many of these petitions, the notary in this case was no mere employee or scribe, but the person centrally responsible for winning the petition campaign. Her employment was specifically contingent on her success in getting petitions submitted. Given that the purpose of notaries is that they be trusted agents of the state who are asked to dispassionately record the true signer of a document, it seems like a bad idea to allow a person with such a strong and central conflict of interest to sign such documents. I believe, for example, that you cannot be the notary on documents that by their terms affect you directly (contracts that would pay you money etc.) Brink’s bill would seem to be a common-sense extension of that idea to others whose conflict of interest is similar in scale and scope.

      Finally, we should address the question of whether the “law worked” in this situation. I’d say the answer is the law worked part of the time, but not all of the time. It is true that the petitions signed by felon Cheryl Simmons were ultimately rejected by the Registrar, once she learned of that fact from a member of the public who was following an ArlNow story. But at first, those signatures were counted. However, we now see that William Cockerham has also been indicted for voter fraud. He also signed dozens of petition sheets, representing thousands of voters, and despite the fact that he might have to go to prison, his petition sheets WERE counted. The Registrar specifically refused to become an investigator into whether the petitions were signed by the same person who collected them (she turned that over to the Commonwealth’s Attorney). In short, it is quite possible, and it very nearly happened in this case, that “enough” signatures could be gathered by outsiders in an explicitly fraudulent way, that the item DOES go on the ballot, even though the organizers go to prison for their fraud later.

      So the police refused to take names and investigate at the front end. And the Registrar refused to investigate at the back end. The paid out-of-staters who knowingly collected petitions they knew could never be legally submitted are probably long gone to Colorado or wherever they came from. Most of their illegally-obtained signatures WERE counted in the Registrar’s totals. They may never be charged with a crime, due to the impracticality of tracking them down and identifying them.

      This is a problem. Allowing voters to see the name of the petition collector on the front of the sheet will empower them slightly more to keep track of what’s going on. Possibly, so will insisting that a notary not be the person most economically benefited by the document the are notarizing. They won’t “solve” the problem, but they are good steps forward. There are probably others.

      • cj

        +10

  • NICH

    The petition drive was designed to get the attention of the elected officials in Arlington and to show them that they have competition. The fact the Del. Brink is introducing this bill shows that the petition drive has worked.

    • mehoo

      The fact that the petition failed shows that it didn’t work.

      • NICH

        When the idea of the petition drive was started, we knew that it likely be unsuccessful the first try. The goal was to gain momentum and play a part in Arlington politics. We were very successful in gaining press coverage and the attention of the politicians. The next time this initiative is attempted we will have more support to make it work.

        • mehoo

          And more opposition too, perhaps.

          While I think the idea of a ward system isn’t a bad one, your petition would have done more harm than good. The County’s government is working okay. It’s state law that needs changing, not county government.

    • Seriously?

      No, the petition effort showed that you were successful in getting the attention of County *Prosecutors.* Two grand jury indictments and thousands of voter signatures thrown out based on presumptively fradulent practices? I can’t think of a worse way to make your case to Arlington voters.

  • http://arlingtondirt.blogspot.com/ TGEoA

    The bill is in response to “numerous reports where the description of the person who signed the forms as petition circulator didn’t match the description of the individual actually gathering the signatures.”

    WTF? Currently it is required by law to describe the person collecting descriptions?

    • mehoo

      Probably means a guy named “Barbara Leanne” was holding the clipboard.

  • Dan

    It should also include penalties for acts such as shoving a shopping cart at a petition gatherer and bloviating against the petition from the dais of the county board…..

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