My Turn: Ruling in Ben Stevens' case is state censorship

Posted: Friday, September 23, 2005

A Department of Law opinion guided Division of Elections director Laura Glazier to set back a petition to recall Alaska Senator Ben Stevens, saying, "the grounds submitted in this case were not 'sufficiently particular,' and therefore I have not certified the petition." Her wise pass-along assures a swift court challenge.

The Supreme Court has ruled "the recall process is fundamentally a part of the political process." When elected, a senator has "acceded to that legislative position subject to the constitutional right of Alaska's citizens to seek his recall before the end of the specified term."

In the Sen. Scott Ogan case last year, Judge Sharon Gleason ruled in Valley Residents versus State, "In reviewing the legal sufficiency the court is to 'take the allegations as true' and 'determine whether such facts constitute a prima facie showing of the statutory grounds for recall' (and) analysis of the motivations of citizens behind a recall petition is outside the scope of judicial review."

Petitioners need not be experts on statutes and their applicability, just to state their reasoning and qualified grounds for recall. To uphold voters' constitutional rights over their elected officials, the law affirms that appearances alone count, allegations may be made and opinions matter. Moreover, legal precedents are superior to a political department's slack opinion. The voters' opinion is higher still.

Alaska's Supreme Court rejects "such a tight legal straitjacket" that only "an attorney who is a specialist in election law matters" could prepare a valid petition. Gleason found it "legally sufficient in alleging corruption," when petitioners alleged "Ogan actively promoted the interests of his employer to the detriment of his constituents ..., " stating "this conduct alleges a violation of (the Legislative Ethics Act) AS 24.60.010, which provides in relevant part that 'a legislator ... may not represent another person for compensation before an agency, committee, or other entity of the legislative branch.'"

The LEA says 'a fair and open government requires that legislators ... conduct the public's business in a manner that ... avoids ... even appearances of conflicts of interest." Judge Gleason's ruling noted Ogan's failure "to recognize an obvious conflict of interest between his duties to his constituents and those to his employer." Naturally, neglect of duties "in this context overlaps with the ground of corruption."

Recall sponsors are allowed 200 words, a form of protected speech, to describe their grounds and state what clearly is their 'political voice.' The Department's sliced those to just 30 words and only looked at the two grounds expressed in exact wording: lack of fitness and corruption.

The Stevens recall petitioners strongly tackled conflicts of interest ("conflicting interest" and "conflicting goals" and "contracting in conflict with his duties as senator") as well as bad faith ("By necessity, one of any two such contracts was signed in bad faith."). Thus "sufficient particularity" was shown on grounds of a third standard: neglect of duty.

A typical letter to the editor allows 225 words that can often change voter minds in an upcoming election, whether factual or not. Obviously, the DOL's razor-cut editing acts like 'prior restraint,' an attempt to stifle or ban free expression. And that's 'the essence of state censorship.'

The First Amendment says "Congress shall make no law ... abridging the freedom of speech ... or right of the people peaceably to assemble, and to petition the government for a redress of grievances." Applied through the Due Process clause of the Fourteenth Amendment, a safeguard from invasion by state actions, the prohibition against prior restraint becomes one of our most secure speech rights.

Accordingly, courts consider it "the most serious and least tolerable infringement on rights to have one's political voice censored." Only exceptional circumstances justify such a restraint. "The proper redress of speech one hates is to refute it."

As Justice Thurgood Marshall said, "The right to hear is the flip side of the right to speak." Ben still has a statutory right to address voters, and a responsibility to answer constituents' questions during the recall process. He'd better bring some work products along for the upcoming debate, or simply resign now, because the voters are listening.

• Seattle resident Stephen Taufen is the founder of the Groundswell Fisheries Movement. A former resident of coastal Alaska, he remains involved in fish policy matters and writes for industry trade journals.

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