During oral arguments held Tuesday, attorneys for the Oklahoma Republican Party argued to the Oklahoma Supreme Court that a proposed initiative petition is unconstitutional because it forces political parties to support candidates they may not normally support. In contrast, the petition’s proponents told justices there is precedent to do just that based on past rulings of the U.S. Supreme Court.
State Question 836, also referred to as Initiative Petition 448, would end Oklahoma’s closed primary system and replace it with open primaries where “all candidates for a covered office would appear on the same primary ballot without regard to party affiliation, and any qualified voter could vote for any candidate without regard to party affiliation.”
“A voter in the open primary could vote for only one candidate per covered office,” the petitioners’ suggested ballot title continues. “The two candidates receiving the most votes in the open primary would advance to the general election, without regard to party affiliation and without regard to whether the candidates have been nominated or endorsed by any political party. If only two candidates for a covered office qualify to appear on the ballot, then those candidates would automatically advance to the general election.”
Proponents of SQ 836 believe it would encourage more participation from voters and would force those running for office to listen to all of their constituents rather than just those who are aligned with a candidate’s political party.
The Oklahoma GOP has sued to stop SQ 836 leaders from beginning the signature collection process for it to be placed on a ballot. Attorney Benjamin Sisney opened Tuesday’s arguments for the Republican Party, saying the proposed state question would limit the ability of political parties to select their candidates.
“IP 448 forces political parties to associate with candidates they don’t support while the party’s name is being used to declare something to the voter that the party does not wish declared,” Sisney told the court. “At the same time, it prevents the parties from associating with candidates they do support, all on the official ballot, which of course happens at the most critical point in the election process, the moment before the vote is cast.”
Currently, 19 states, including neighboring Texas and Arkansas, have some version of open primaries, and an additional eight states have systems considered “semi-open” elections where independents can vote in either a Democratic or GOP primary. Currently, in Oklahoma, the Democratic Party allows independents to participate in its primary elections, but the Republican Party — which holds a major and growing registration advantage — only allows registered Republicans to participate in its primaries.
Robert McCampbell, who represents SQ 836 organizers, told justices that much of what is before the court had been decided in Washington State Grange vs. Washington State GOP. That case went before the U.S. Supreme Court in 2008. In a 7-2 decision, the court ruled that the state’s top-two primary system does not infringe upon the rights of individual parties. The Republican, Democratic and Libertarian parties in that state argued Initiative 872 would violate their First Amendment and 14th Amendment rights by preventing them from controlling which candidates they could endorse.
“It’s all right there,” McCampbell said of the 2008 case. “IP 448 (in Oklahoma) lines up with what the Supreme Court approved in Washington State Grange. It’s not a coincidence that’s how IP 448 reads. In both systems, all of the voters get to vote in the primary election regardless of party affiliation. All of the candidates are on the ballot regardless of party affiliation. The top two vote-getters advance to the general election regardless of party affiliation. Importantly, in both systems, the voters are not selecting nominees for a political party. The voters are selecting candidates to advance to the general election.”
In a rebuttal, GOP attorney Trevor Pemberton said McCampbell cherry-picked items from the Washington case to tailor its holdings around his argument.
“They took what were the most favorable parts of the Grange case, and they overlaid them on top of what is otherwise an unconstitutional approach,” Pemberton told the court. “Why is the distinction significant? We’re talking about preference, which in a preference you’re not associating with anybody, and therefore it doesn’t surprise me at all that in Grange they said that this passes constitutional muster. There was no association. If there is no association, there is no associational right. It’s simply somebody saying I would prefer to be, for instance, a member of your family, relative to your family, but you’re not actually a member of either. When you’re associating, you’ve crossed a line. What they’re asking to do is to stretch Washington beyond its limits and the First Amendment beyond its limits.”
Justices questioned both attorneys. In one instance, Special Justice Robert Bell — a Court of Civil Appeals judge elevated for the case after new Justice Travis Jett recused — asked McCampbell about independent voters under the current closed primary system.
“Under the present system, the political parties have one person that comes out of the primaries and gets to the general election, and if this goes through, that might be a moot point. They might have two individuals in the same party go to the general election. That could be a better situation for the political party. And in the end, if this went through, it would actively include 488,000 Oklahomans who have been left out of this process — the independent voter?”
“Correct,” McCampbell responded.
In another exchange, Vice Chief Justice Dana Kuehn asked McCampbell if the challenge to SQ 836 is placing the cart before the proverbial horse.
“Does our constitution directly state that the people get to vote on these measures before the court can actually make a determination on the constitutionality of something, do you agree?” Kuehn asked.
McCampbell said the state’s constitution aligns with Kuehn’s point.
“Yes, I’m asking this court to reject this protest, and if the court rejects this protest because it’s not ripe yet and it hasn’t gone to the polls yet, yes, that’s a good result,” McCampbell responded. “If the court takes it up on the merits and rejects it on the merits, that’s a good outcome, too. I hope the court rejects it one way or another.”
Justice James Edmondson did not attend Tuesday’s oral arguments. If Republican Party’s challenge is rejected by the court, petitioners of SQ 836 would have 90 days to collect nearly 173,000 valid signatures from Oklahoma voters. A new law passed this legislative session to limit the number of signatures that can be collected in larger counties could apply to SQ 836’s efforts, but it is also facing pending court challenges from SQ 836 supporters.
