The SCJ recently issued a rather straightforward decision in a dispute over whether petition signatures were valid for listing a candidate:
The issue was straightfoward because the SJC ruled that the statutory language was unambiguous. After deferring to the Secretary of State’s interpretation of what in "presence" meant regarding the statutory need of an affiant signature-gatherer to witness a signature, the Court held, based on the plain language of the statute, that when the statutory "presence" test is not met as the Secretary concluded, then "the petition," and not just that particular signature, gets tossed – because that’s the language the statute uses. In brief, as to the remedy, the statute is clear, and says what it says. All the Court did was defer to the Secretary on the ambiguous part, then read and apply the Legislature’s unambiguous rule about the consequences.
What’s interesting is how the Court’s ruling then gets reported and how this point gets diluted. The Portland Press Herald had three pieces about the decision: A Bill Nemitz article, an editorial, and a letter to the editor.
Nemitz said, accurately, that the court found that "State law is crystal clear." All he needed to do, to make this point crystal clear, was instead of using the words "State law," was to say , more precisely, "the statute passed by the Legislature." The SJC wasn’t making up "law"; it was simply reading the statute as written by the Legislature.
This point was similarly fuzzy in the editorial. It notes that "the ruling was on the narrow technical issue of whether the law required an entire sheet to be thrown out…;" then "the court ruled that even if there was no fraud, the entire petition page should be removed." These statements are correct, so far as they go, but miss that key point: the Court was simply asked to read a statute written and passed by the Legislature establishing the rules, found that the statute itself was unambiguous, and that ended the issue, since the Legislature, not the Court, sets the rules.
So what’ s the big deal? Do we really expect newspapers to read like legal briefs? Nina Totenberger can’t be everywhere, can she? No, of course, not. But when the limited nature of a ruling isn’t spelled out, then readers can misinterpret. The letter to the editor called the court "biased" for having "established an unrealistic standard…." But the Court didn’t set the standard – that’s the point. The judiciary takes a hit for a law passed by the Legislature, and for having done something it didn’t do.
So I guess the moral of the story is that precision in reporting is useful if only so that if someone doesn’t like the result of a ruling, he can know who to blame.
As for the decision itself, the statute does seem to be quite clear that the petition is invalid if it doesn’t comply with the specified requirements, including that all signatures be witnessed by the affiant. This clarity is reinforced by the fact that for one type of petition defect not involved in this case, the statute creates an exception to the broad language, stating that only those particular signatures and not the whole petition will be invalid.
The Court might have made its task easier. Once the affiant, Hoffman, testified that he read the statute, incorrectly, as not requiring that he see the person sign, and testified that he conducted himself accordingly, and once it became clear that there were in fact at least three signatures on it that he clearly did not witness, the oath truly became invalid as to all signatures. Except perhaps for a friend whom he might remember, he would have no way in retrospect to say which signatures he witnessed and which he did not. Once he said he hadn’t followed the rule in general, there was no way to say that any of the signatures met the test.
To me, the arcane and immaterial question not addressed (hmm, maybe not addressed beause it’s arcane and immaterial?) is what was the "petition"? As the Court said, the statute is clear that the "petition" gets tossed. A petition isn’t just one signature, which answers this case — once you accept that "petition" means, at a minimum, a set of petition sheets, then there weren’t enough signatures here, and the case is over.
But there’s an argument that the "petition" means more than just the set of sheets that the particular affiant was using. When people go gather signatures, they typically get multiple sets of petition sheets. Multiple signature-gatherers then collect signatures on multiple sets. The statute, however, at least at times seems to treat all those collected sheets as one "petition." So, technically, does that mean that if one affiant misses one signature, the whole petition, meaning not just that sheet, or set of sheets, but every sheet and form, even those gathered by different affiants — gets tossed? Again, the question is arcane and immaterial, because whatever the answer, the correctness of the decision here remains. But it does leave this particular question open.