Limitations on petitions challenged

Alexia Aston

The Oklahoman USA TODAY NETWORK

Justices hear concerns over signature cap rules

The fate of an Oklahoma law that caps the number of signatures in a single county and places other guardrails on the state’s initiative petition process lies in the hands of the Oklahoma Supreme Court after justices heard arguments about the bill’s constitutionality Tuesday, Nov. 18.

Republican lawmakers backed Senate Bill 1027 as a priority to create more representation for rural voters during the initiative petition process, but opponents sued, arguing that the law disenfranchises voters in urban areas.

During oral arguments Tuesday, a couple of state Supreme Court justices expressed skepticism about the authority over the initiative petition process that the bill grants to the executive branch. Another justice questioned whether rural voters were receiving adequate information about state questions during the initiative petition process before SB 1027 was signed into law in May. The bill mandates that the maximum number of signatures from a single county cannot exceed 11.5% of the number of votes cast in that county in the most recent gubernatorial election. For constitutional amendments, that maximum is 20.8% of votes cast.

Many of the oral arguments and questions from justices focused on a portion of SB 1027 that authorizes the secretary of state to remove a petition’s gist if it’s deemed to violate parts of the law.

The bill requires a gist to be written in basic words explaining the measure, not contain euphemisms, words or phrases regarded as code words, or an apparent attempt to deceive voters, and not reflect partiality, among other provisions.

The plaintiffs in the lawsuit contend that law threatens restrictions on legislative authority, separation of powers, equal protection and political speech and association.

Attorneys for the state argued, however, that the Legislature is allowed to shift who’s responsible for overseeing a petition’s gist. They also contend that nothing in the Oklahoma Constitution, nor in the U.S. Constitution, prohibits the Legislature from implementing “such a basic and commonsense effort.”

Attorney Randall Yates from the law firm Crowe and Dunleavy argued the case on behalf of the petitioners — Amy Cerato, Steven McVay, Anthony Stobbe and Kenneth Setter, who are described in court documents as Oklahoma voters. Yates told justices that the state’s argument relies on the denial and redistribution of the initiative right.

“They say if some are disenfranchised, others are franchised in their place, but the Constitution recognizes no such tradeoff,” Yates said. “Lawmakers may not restrict or diminish the political voice of some in order to enhance the relative influence of others.”

Yates said leveling the playing field for rural and urban voters is not of government interest. He cited a 2014 U.S. Supreme Court ruling in McCutcheon v. FEC that struck down the aggregate limits on the amount an individual may contribute during a two-year period to all federal candidates, parties and political action committees combined.

In the majority opinion, the court wrote, “No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field...’” Special Justice James Huber, who was appointed to the state Supreme Court bench to be part of the panel hearing the case, pushed back against Yates, saying SB 1027 increases the information given to rural voters by requiring signature gatherers to go outside of urban areas.

“By placing a cap, isn’t that really the least restrictive alternative to ensure that rural voters are informed and are a part of the process from the get-go rather than showing up on election day and seeing this state question on the ballot?” Huber said.

Yates argued that the state’s 90-day window for proponents to gather petitions requires signature gatherers to go where people are, like the Oklahoma State Fair in Oklahoma City. He added that if the state’s interest is to promote education, there are constitutional ways to achieve that.

Yates also argued that authorizing the secretary of state to oversee a petition’s gist allows the state official to exercise powers that the Constitution reserves to the state Supreme Court or to the people themselves, carrying profound First Amendment consequences.

“The gist statement is inseparable from the direct one-on-one communication political speech entitled to the highest level of protection,” he said. Yates contended that SB 1027 creates a chilling effect by deterring someone from engaging in protected activity. He said people will not invest the time, money and resources to change the law with the burdens imposed by the Senate bill. Zach West, the director of special litigation for the attorney general’s office, argued on behalf of the state and in favor of SB 1027. During oral arguments, he told justices it’s nearly undisputed that initiative petition campaigns in Oklahoma do not spend any substantial time seeking signatures outside of the major metropolitan areas.

“It was eminently reasonable for the Legislature to consider this the discarding of suburban and rural Oklahomans — a major issue worth addressing with Senate Bill 1027,” West said.

Justice Doug Combs asked West how the bill would not disenfranchise someone who signs the petition but not be counted as a result of the county caps.

West said the bill does not prohibit campaigns from gathering more than it needs, or a buffer, because in some cases, signatures are unable to be verified.

Combs said it’s problematic that SB 1027 cuts off signatures collected in a single county yet expects signature gatherers to create a buffer. “I don’t understand how the state can legitimately argue that ... you can sign it. You count. You don’t,” he said. “That’s a problem.”

West also addressed the petitioners’ arguments regarding the separation of powers, saying that the Oklahoma Constitution requires the Legislature to enact suitable regulations to the initiative petition process.

“What could be more suitable or reasonable than a modest effort to ensure that at least some Oklahomans from across the state get to participate in initiatives at the front end, at the signature-gathering state?” West said.

He pointed out that various states with an initiative process have geographic restrictions, including Arkansas, Colorado and Florida.

“The petitioners challenged the county caps under the First Amendment,” West said. “If the petitioners’ federal arguments were sound, then presumably these 10 to 15 states with geographic restrictions, all of those provisions would’ve been enjoined. They’d be unconstitutional as well. “ West also referenced Yates’ comparison between a petition’s gist and free speech, saying if Yates’ analysis is correct, a petition’s proponents seemingly have a right to politically advocate and mislead in the gist.

Justice Noma Gurich said she’s concerned that the oversight of a petition’s gist would be shifted from the Oklahoma Supreme Court to the state secretary, an official appointed by the governor.

“When the governor’s been basically eliminated from this process by the Constitution, you have a governor who’s now going to control the content of the gist,” she said.

West said the gist is a legislative-created entity, adding that it’s basic in the separation of powers in Oklahoma for the Legislature to put the executive branch in charge of a petition’s gist.

The oral arguments came about a month after the state Supreme Court granted supporters of State Question 836 temporary relief from SB 1027. The state question seeks to open primary elections in Oklahoma to all voters, regardless of political registration, a proposal the state Republican Party has opposed.

The plaintiffs in the suit against SB 1027 also back SQ 836, court documents say.

“They say if some are disenfranchised, others are franchised in their place, but the Constitution recognizes no such tradeoff. Lawmakers may not restrict or diminish the political voice of some in order to enhance the relative influence of others.”

Randall Yates

Attorney from the law firm Crowe and Dunleavy who argued the case on behalf of the petitioners