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Point of View: Retaliation by legislation? In bills to curb initiative petitions, legislators choose power over democracy

Melanie Wilson Rughani
Melanie Wilson Rughani

Last year, with hundreds of thousands of uninsured and hospitals closing by the dozen, Oklahomans had had enough. After a decade of legislative inaction, citizens took matters into their own hands: they put forth—and approved—an initiative petition to expand Medicaid.

Some legislators have, to put it mildly, not taken it well.

This session, legislators have proposed 27 — yes, 27! — different bills aimed at squashing Oklahomans’ right of initiative. Some would amend the Constitution to make it harder for the people to approve an initiative petition, requiring anywhere from a 55% to 2/3 supermajority at the ballot box (e.g., HJR1004, 1007, 1008, 1034, 1035, 1038; SJR4). Others are designed to keep such measures from even reaching the ballot, either by effectively doubling the number of required signatures, or by making an already onerous collection process effectively impossible (e.g., HJR1002, 1039; SJR7, 8, 10; SB917). Still others would impose excessive fees (SB1011), extend an already lengthy legal process (SB506), or create more administrative hurdles (HB1767, SB947). One would even punish anyone who “represents” an initiative campaign by making them ineligible for state contracts (HB2076). And that’s not all: several shell bills leave room to quietly create unknown impediments later in the session (HB1208-1212; HJR 1042-1044).

It is, by definition, the job of elected officials to respect the will of the people. 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. Proponents of SQ802 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 now eyeing destruction of the right of initiative petition altogether.

Oklahoma, with its deep populist roots, has a storied history of direct democracy. 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. Yet, in over a century, fewer than 50 citizen-initiated measures have actually made it to the ballot. 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.

Despite these hurdles, the people recently have turned more and more to initiative petitions to address important policy issues — issues the legislature itself either cannot or will not address. 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.

Initiative petitions help ensure a government “of the people, by the people, and for the people.” We must all make sure the legislature is working for the people, not against them.

The foregoing should not be understood as, or considered a substitute for, specific legal advice. For inquiries, please contact Melanie Wilson Rughani, or another licensed attorney.

Melanie Wilson Rughani is an attorney with Crowe & Dunlevy where she co-chairs the Initiative Petitions and Appellate Practice Groups.