Marian P. Opala on Elections Law
From Judgepedia
2006
Justice Opala concurred in the result in this case, where opinion of Justice Joseph M. Watt invalidated citizens' efforts to place a Tax Payer Bill of Rights (TABOR) on the Oklahoma ballot due to the use of out-of-state petition circulators by the initiative's supporters.
ISSUE:
In that case, even though the Attorney General's Office, as plaintiff, did not raise the issue, the court framed the issue as whether the "petition [was] so tainted with illegality as to require the entire petition to be struck as invalid."
HOLDING:
The court found that "[t]he pervasive pattern of wrongdoing and fraud which, combinde with the resistance to discovery and continued secrecy surrounding the operation, require TABOR to be stricken in its entirety. Nothing less will protect the integrity of the initiative process."
REASONING:
In arriving at that decision, the court reasoned as follows:
- (1) "TABOR was not an Oklahoma initiative , circulated by Oklahomans interested in changing Oklahoma law. Contributions to the effort came largely from out-of-state entities."
- Even though the right of the initiative is deemed fundamental, an individual must be a bona fide Oklahoma resident to qualify as a circulator.
- (2) The premise that a circulator in Oklahoma with the intent to stay only during the petition drive is a resident was a premise "not supported by Oklahoma law."
- (3) Circulation of petitions by out-of-state residents constitutes "corruption," which must be prevented.
- (4) When disputes over signatures arise, residency requirements for petition circulators ensure that the circulators will be Oklahoma residents who are subject to service for appearance in Oklahoma courts.
- (5) "NVO and its out-of-state circulators were paid, imported entities in search of signatories for their own economic benefit-not for the benefit of Oklahoma citizens or their laws. Both Oklahoma's initiative process and its voters deserve more. The importation of out-of-state residents to obtain signatures for a ballot measure in an Oklahoma state election paid for by out-of-state contributors in which these people have no interest is illegal, fraudulent and unsettling (emphasis added)."
- (6) "The primary purpose of the statutory scheme is to protect the public from corrupting influences that might be brought to bear upon the electoral process by agents who are financially interested in the petition's success. This protection can be fully accorded only if petitions which are tainted by illegal circulation may be barred from the public ballot. If the State's sole remedy is merely a criminal prosecution, then the public will be forced to bear the burden of dealing with the very sort of petition which the statutes seek to prevent. Were we to decree the validity of such a petition, we would be affirmatively sanctioning the type of corruption which the statutes outlaw and we would be depriving the public of the protection which the Legislature has conferred. This we will not do. Therefore, we determine that the initiative petition must be struck in its entirety."
- (7) "There was some evidence in the cockfighting petition- In re Initiative Petition No. 365, State Question No. 687 (2002), of the participation of out-of-state circulators involved in the signature collection process. 7,542 signatures collected by a single circulator who was determined not to be a qualified elector because he was not an Oklahoma resident were struck from the signature count. The cockfighting case was decided in 2001. Five years later, with the circulation of the TABOR petition, in excess of 57,000 votes are being disqualified on the same basis with evidence that there were in excess of 60 out-of-state circulators involved. There is no way to determine with any sort of accuracy exactly how many signatures were collected by these out-of state residents as the petition supporters did everything possible to avoid discovery-even the successful discovery was largely unusable because deponents essentially “couldn't remember” or “didn't know” the information attempting to be elicited. Most certainly, if we do not take the opportunity to address the issue of the effect of out-of-state intrusions into a process reserved to bona fide residents of the State of Oklahoma, the problem will only grow and will present itself as a part of essentially every citizen circulation."
- (8) "Excluding all petitions associated with the TABOR initiative does not disenfranchise voters. Rather, it upholds the integrity of the initiative process that has been undermined by criminal wrongdoing and fraud. The Legislature has imposed strong sanctions for such wrongdoing. NVO and its out-of-state circulators committed much more than mere technical violations of Oklahoma law-they attempted to destroy the safeguards by which signatures are obtained and verified. Nothing less than the strong sanction of voiding the entire petition will serve to deter similar activity in the future and to protect the precious right of the initiative to Oklahoma voters."
POTENTIAL FLAWS IN THE COURT'S REASONING:
For discussion of the potential flaws in the court's reasoning, see this link to the discussion page, or click on the discussion tab at the top of this page.
Justice Opala, along with Justices Lavender and Hargrave dissented from the majority opinion of Justice Yvonne Kauger and five others, which invalidated a property-rights based voter initiative what would have protected private property from economic-development and regulatory takings.
ISSUES:
In this case, the court considered whether an initiative that (1) prevents government from taking private property to transfer it to a private party; and (2) requires government to pay compensation to owners of private property whose property values are adversely affected by newly-enacted government regulations violated Oklahoma's broadly-construed requirement that all ballot initiatives contain a single subject.
HOLDING:
The majority of the Court, led by Justice Kauger, held that that the Initiative consisted of two unrelated provisions.
REASONING:
In arriving at that decision, the court reasoned as follows:
- (1) The Initiative runs afoul of Oklahoma's "single-subject rule," the purpose of which is "to prevent the practice of assuring the passage of a law by creating a proverbial 'Hobson's choice,' [("take it or leave it")] in which a legislator or voter is forced to assent to an unfavorable provision provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted."
- (2) "Zoning laws and takings are mutually exclusive."
- (3) The initiative seeks to erase the delineation between zoning laws and takings, instead of addressing two separate types of takings.
- (4) "Whether we explicitly stated it or not, the issue is not how similar or related any two provisions in a proposal are, or whether one can articulate some rational connection between the provisions of a proposed law, but whether it appears that either the proposal is misleading or provisions in the proposal are so unrelated that many of those voting on the law would be faced with an unpalatable all-or-nothing choice."
- (5) "Because [the concern over eminent domain] continues, voters might approve of limitations on the power of eminent domain contained in [the initiative]. However, those who might approve of the first subject would by no means necessarily approve of the unrelated second subject, which would seem to make most zoning laws, with a few exceptions, unworkable. To present the voters with such an all-or-nothing choice is clearly an attempt at logrolling, which violates the basic purpose of the single subject rule."
POTENTIAL FLAWS IN THE COURT'S REASONING:
For discussion of the potential flaws in the court's reasoning, see this link to the discussion page, or click on the discussion tab at the top of this page.
2002
Justice Hargrave concurred in the majority opinion upholding the legal and numerical sufficiency of an initiative petition that sought to ban cock-fighting in the state of Oklahoma.
ISSUE:
In this case, the court considered whether (1) certain signatures should count; (2) a sufficient number of signatures were gathered when accounting for signatures collected by non "qualified electors; and (3) the petition was constitutional."
HOLDING:
As to numerical sufficiency, the Court struck a number of signatures under the theory that they were not collected by "qualified electors," and upheld the validity of many other challenged signatures. The court declined to declare the ballot initiative unconstitutional, holding that "[g]enerally we decline to declare an initiative invalid prior to a vote of the people except when there is a clear or manifest showing of unconstitutionality."
REASONING:
In arriving at that decision, the court reasoned as follows:
- (1) The court established a rule that "[w]hen an opponent attacks signatures that appear on an initiative petition on the basis its signers were not registered voters, a presumption arises that the persons are registered voters."
- (2) The court outright refused to consider the possibility of invalidating the initiative, noting that it would only do so "when there is a clear and manifest showing of unconstitutionality."
POTENTIAL FLAWS IN THE COURT'S REASONING:
For discussion of the potential flaws in the court's reasoning, see this link to the discussion page, or click on the discussion tab at the top of this page.
