SQ 820
The Oklahoma Supreme Court denied a request to order State Question 820 onto the November 2022 general election ballot. (Screenshot)

The Oklahoma Supreme Court today unanimously denied a petition that would allow State Question 820, which aims to legalize recreational marijuana, on the ballot for the Nov. 8 general election.

Although the petition for SQ 820 received at least 117,000 verified signatures (well in excess of the required 94,911) and was submitted to the Secretary of State’s Office almost a month before the deadline, delays in the counting and verification process meant the petition could not clear all the required statutory hurdles in time to appear on the November ballot, the court ruled.

“Petitioners have no clear legal right and respondents have no plain legal duty to put SQ820 on the November 8, 2022 general election ballot unless it is in full compliance with 34.O.S.2021 §§ 8 and 12 (the state statutes governing initiative petitions),” Justice Douglas Combs wrote in the court’s majority opinion.

In their original petition, filed Aug. 22, proponents of SQ 820 argued that the question was required by law to appear on the November ballot:

Article V, Section 3 of the Oklahoma Constitution makes clear that, if an initiative  petition is signed by the requisite number of Oklahoma voters, it “shall” be submitted to a vote of the people “at the next election held throughout the state.” This constitutional mandate  provides for only one exception: when the governor calls an earlier special election for the  initiative. Here, proponents submitted an initiative petition signed by the requisite number of  voters more than four months before the next general election, and no special election has been called. Nevertheless, the Election Board refuses to commit to placing the initiative on the next  general election ballot unless the governor says so. What’s worse, the reason the Election Board offers for its refusal to comply with the plain text of the Constitution is an alleged time  crunch — a time crunch created entirely by the government’s own inefficiency.

The Supreme Court agreed that the delay was caused by the government’s counting process moving unusually slowly owing to a recent law that required new verification procedures. However, justices found that the state was not legally required to put the question on the November ballot because the possibility of a special election was still open.

“SQ 820 will be voted on by the people of Oklahoma, albeit either at the next general election following November 8, 2022, or at a special election set by the governor or the Legislature,” the court wrote in its decision.

Counting delays

Whether SQ 820 would appear on the November ballot became a matter of keen political interest because of expectations that it might affect voter turnout in an election where the governorship, two U.S. Senate seats and a number of other key offices are in play. In June 2018, when SQ 788 legalizing medical marijuana was on the ballot, voter registration and turnout spiked, particularly among Democrats.

Organizers for the SQ 820 campaign submitted 164,000 signatures to the Secretary of State’s Office on July 5, almost a month before the Aug. 1 deadline. In the past, signature counts have taken two or three weeks, but a law passed in 2020 required new verification procedures, and the count — the first of its kind in the state — ended up taking almost seven weeks.

The Secretary of State’s office contracted with Western Petition Systems to verify the signatures. The agreement pays the company, founded by longtime Oklahoma political pollster Bill Shapard, $300,000 per year.

The court’s decision notes that, although WPS was contracted to provide scanning machines for an electronic count, much of the count was conducted manually anyway because the WPS machines “frequently generated ‘wildly inaccurate’ digital text.”

The decision also notes that WPS provided only four staff members — who were Shapard’s family members — to assist with the count. Shapard’s count also used temporary workers, who were provided through another organization’s contract with the state.

Because of these delays, the court ultimately found that the question could not be placed on the November ballot because there was not sufficient time for public objections to be submitted and heard. When that window closed, four objections had been filed. All four were denied, but two of them — one filed by John Stotts, Karma Robinson and Mary Chris Barth and another Jed Green and Oklahomans for Responsible Cannabis Action — were granted a possibility of rehearing.

SQ 820 would allow adults age 21 and up to legally purchase marijuana from dispensaries without a medical license. It would not alter the rights of those currently in the state’s medical marijuana program.

It would also impose a 15 percent excise tax on purchases, which would be dedicated to help fund the Oklahoma Medical Marijuana Authority. That tax would also be divided up in several other ways, including some funds for schools, court systems and drug-addiction treatment programs. Medical marijuana patients would not be subject to that tax.

SQ 820 would also provide judicial process for people to seek “modification, reversal, re-designation, or expungement of certain prior marijuana related judgments and sentences.” Supporters call that component an important step for Oklahoma’s criminal justice system.

SQ 820 campaign director Michelle Tilley released a statement on the court’s decision.

“Of course we are disappointed that the Court did not grant our request to place SQ 820 on the November 2022 ballot. It is disappointing that the Secretary of State’s unqualified vendor, combined with rival amateur campaigns and political special interest groups, delayed the process, thereby preventing Oklahomans from voting on this in November,” Tilley said. “However, we cannot lose sight of how far we have come. This is a big deal. Now the petition phase is finished, and Oklahomans will be voting on whether to legalize recreational marijuana here, and we can soon realize the tax revenue and other benefits it will bring to our state.”

Read the Oklahoma Supreme Court’s majority opinion

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(Correction: This article was updated at 7:10 p.m. Wednesday, Sept. 21, to correct reference to the author of the majority opinion. It was updated again at 8:30 a.m. Thursday, Sept. 22 to include a quote from Tilley.)