A group dedicated to opening Oklahoma’s primary elections can move forward with its initiative petition, the Oklahoma Supreme Court ruled today.
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.”
In late June, attorneys for the Oklahoma Republican Party and former Tulsa County GOP Chairwoman Ronda Vuillemont-Smith argued before the state Supreme Court that SQ 836 would violate the First Amendment by forcing political parties to support candidates they may not normally support. In a 6-3 decision Tuesday — where six justices joined a majority opinion finding the petition sufficient “to pass constitutional muster” — Justice Douglas Combs wrote that the proposal “does not impose any severe burden on protestants’ associational rights” and is “legally sufficient.”
“Proponents’ asserted interests in allowing independent voters to participate, in electing the most popular candidates, in gaining efficiency, in increasing voter participation and turnout, in providing voters with greater choice, and in promoting fairness is sufficient to pass constitutional muster,” Combs wrote. “We do not find any clear or manifest facial constitutional infirmities in the proposed measure.”
Combs’ opinion was joined by Chief Justice Dustin Rowe, Justice James Winchester, Justice James Edmondson, Justice Noma Gurich and Justice Richard Darby. In a separate writing, Justice Dana Kuehn was joined by Court of Civil Appeals Judge Robert Bell to concur that the petition should advance but to dissent as to the finding of constitutionality at this stage. (Bell joined the court for the case owing to Justice Travis Jett’s recusal, and Justice M. John Kane IV concurred in part and dissented in part but did not write to explain his position.)
“The people’s right to propose law and amendments to the Oklahoma Constitution through the initiative process is precious, and any doubt as to the legal sufficiency of an initiative petition should be resolved in its favor,” Combs concluded. “Protestants have not met their burden to prove IP 448 contains any clear or manifest facial constitutional infirmities. Nor have they demonstrated the gist is misleading. Their challenge to the proposed ballot title is premature at this stage. We therefore hold, on these grounds, that IP 448 is legally sufficient for submission to the people of Oklahoma for signatures.”
In Kuehn’s separate writing joined by Kane and Bell, she said they “agree with the majority that Initiative Petition 448 should go to а vote of the people” but have concerns about the court’s “shifting jurisprudence” on whether a petition’s constitutionality should be reviewed before it goes to a vote of the people.
“I disagree with the decision to determine whether the petition itself violates the Oklahoma Constitution,” Kuehn wrote. “In State Chamber of Oklahoma v. Cobbs I explained that Title 34 and the Oklahoma Constitution, read together, do not give this court the authority to determine the constitutionality of the merits of any initiative petition before it is put to a vote of the people.”
The majority found that SQ 836’s “gist” — or description — met petitioners’ obligations.
“We find the gist is not misleading insofar as it uses the term ‘open primary’ to describe a primary system that the U.S. Supreme Court has previously labeled a ‘non-partisan blanket primary.’ The primary system being proposed is sufficiently described in detail within the gist,” Combs wrote. “Potential signatories who read the gist should not be confused or misled by any label. The proponents could choose any label they want, so long as their gist proceeds to define what they mean by that term. Here, they’ve chosen the label ‘open primary,’ and their gist proceeds to define exactly what they mean by that term.”
Petitioners of SQ 836 will have 90 days to collect nearly 173,000 valid signatures from Oklahoma voters. The Vote Yes on 836 campaign released a statement from petitioner Tony Stobbe, a U.S. Coast Guard veteran and Oklahoma voter registered “No Party” with the State Election Board.
“State Question 836 is about making sure every voter has a voice in our elections, giving our voters more choices, and making the system fair for everyone, regardless of their party affiliation,” Stobbe said. “Today’s ruling is a victory for Oklahoma voters and a defeat for the insiders and power-brokers who benefit from today’s closed, exclusionary primary process. We are eager to begin collecting signatures and to take this transformative conversation directly to the people. In the next few weeks, you’ll see our volunteers on street corners, in parking lots, at sporting events, and in every corner of the state, talking with everyday Oklahomans about why it’s time to open our primaries and put voters first.”
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. On Monday, the Supreme Court issued a temporary stay of SB 1027, pending full litigation of its challenges.
(Update: This article was updated at 6:45 p.m. Tuesday, Sept. 16, to include comment from Tony Stobbe and additional information. It was updated again at 1:35 p.m. Wednesday, Sept. 17, to correct reference to which justices joined Vice Chief Justice Dana Kuehn’s separate writing.)
