OKLAHOMA CITY – Legislators across the nation in recent years have crafted myriad exotic measures in their efforts to derail ballot initiatives that enable voters to bypass lawmakers and implement the public’s will.
This year in Oklahoma, for example, legislators have introduced no fewer than 27 measures that are “aimed at squashing Oklahomans’ right of initiative,” said Melanie Wilson Rughani.
Ms. Rughani is an attorney with the Oklahoma City law firm Crowe & Dunlevy, where she co-chairs the Initiative Petitions and Appellate Practice Groups.
Some of the Oklahoma legislation proposes to amend the state Constitution to make it harder for the people to approve an initiative petition “by requiring anywhere from 55% approval to a two-thirds supermajority at the ballot box,” Rughani related.
Those measures include House Joint Resolutions 1004, 1007, 1008, 1034, 1035, and 1038, and Senate Joint Resolutions 4 and 5.
Other legislation is designed to “keep such measures from even reaching the ballot,” Rughani said, “either by effectively doubling the number of required signatures or by making an already onerous collection process effectively impossible.” Those measures include HJRs 1002 and 1039, SJRs 7, 8, and 10, and Senate Bill 917.
Still, others would “extend an already lengthy legal process (SB 506); create more administrative hurdles” (HB 1767 and SB 947, both of which would require supporters of a proposed constitutional amendment to declare whether the issue they are promoting would have a fiscal impact on the state, and if so, identify the potential source of funding for that proposal); and “impose excessive fees” (SB 1011, which would require circulators of a petition “initiating a proposition of any nature, whether to become a statute law or an amendment to the Constitution,” the backers of the proposal would have to post a filing fee of $1,000 with the Secretary of State.
One measure (HB 2076) would punish any individual, entity or subsidiary of an entity “that represents a state official, a campaign for elective state office, or a campaign for a state initiative or referendum,” by making them ineligible for state contracts, Rughani noted.
“And that’s not all,” she continued. Several “shell” bills (HBs 1208-1212 and HJRs 1042-1044) “leave room to quietly create unknown impediments later in the legislative session.”
LEGISLATION A REACTION TO PROGRESSIVE MEASURES
The stultifying legislation is a reaction to progressive Oklahomans who are “working around” the Republican supermajority in state government on certain issues, such as criminal justice reform and health care.
• State Question 788, legalization of medical marijuana, was a citizen initiative that Oklahoma voters approved in 2018.
• State Question 802, expansion of Medicaid coverage for low-income adults, was a citizen initiative that Oklahoma voters approved last year after years of resistance from an intransigent Governor and Legislature.
• State Questions 780 and 781 were approved by voters in 2016 despite resistance from law enforcement officers and district attorneys.
“It is, by definition, the job of elected officials to respect the will of the people,” Rughani said. “With initiative petitions, however, the Legislature has consistently done the opposite.”
When citizens proposed, and approved, statutory initiatives for criminal justice reform in 2016 and medical marijuana in 2018, “the Legislature responded each time by passing laws to weaken those measures,” Rughani noted. Proponents of SQ 802 avoided a similar fate by writing expansion into the Constitution. “So this time the response has been more drastic: rather than just undercutting the law it doesn’t like, some legislators are eyeing destruction of the right of initiative petition altogether.”
With its “deep populist roots,” Oklahoma has “a storied history of direct democracy,” Rughani wrote recently. “We were the first state to enshrine the initiative into our Constitution. The framers called it ‘the first power reserved by the people,’ and our courts have held it to be a ‘sacred’ and ‘fundamental’ right.”
Nevertheless, in more than a century, “fewer than 50 citizen-initiated measures have actually made it to the ballot,” she noted.
“This is because our laws already make the process exceedingly difficult.” Oklahoma has one of the highest signature requirements in the nation (currently 177,958 for a constitutional amendment), along with one of the shortest periods to collect those signatures (90 days, compared to a year or more in other states). “The process is lengthy and complex, and opportunities for missteps abound,” she said.
Between 1989 and 2014, only 12 initiative petitions qualified for the ballot, according to the Oklahoma Policy Institute. Of those proposals, five passed and seven failed.
Despite the hurdles, state residents have begun turning more often to initiative petitions to resolve important policy issues — “issues the Legislature itself either cannot or will not address,” Rughani said.
“If legislators want to reduce the number of initiative petitions, they could work to address the needs of their constituents in the first instance, rendering such petitions unnecessary. Instead, however, legislators are proposing bills to make them practically impossible.”
Many people think Oklahoma’s laws are “easy” in terms of getting an initiative petition passed, Rughani said.
“We have been able to get several passed by working with organizations,” she said. “But it takes a large amount of money and an organization” – because of the 90-day requirement for securing a sufficient number of signatures. That’s why it’s almost impossible to succeed with just a grassroots volunteer organization, she said.
In any well-run initiative petition campaign, Rughani said, the error rate is around 10%: people whose signature on the petition isn’t exactly the same as it appears on their voter registration card. “Which is why the professionally run campaigns” secure hundreds if not thousands of more signatures than what are required, in order to have a sufficient cushion when signatures start getting tossed out.
Initiative petitions “help ensure a government ‘of the people, by the people, and for the people’,” Rughani said. “We must all make sure the Legislature is working for the people, not against them.”