Judge Colbert on Elections Law
From Judgepedia
2006
Justice Colbert concurred in the opinion of Justice Joseph M. Watt invalidating 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 disptutes 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." (bolded for emphasis within the decision itself).
- (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, 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:
- (1) With regard to the court's first reason, an argument can be made that prohibiting out-of-state circulators from circulating a petition within a particular state is an unreasonable burden upon the free speech of (1) the individual seeking to hire out of state circulators; and (2) the individual seeking to circulate petitions within a state. A separate argument can be made that this restriction violates the "dormant commerce clause" extension of the commerce clause, by prohibiting out-of-state commerce from entering Oklahoma, in the form of a contractual agreement between an Oklahoma citizen and a non-Oklahoma citizen.
- (2) Although the court speaks with an err of definiteness, Oklahoma law was fairly unclear on the issue of residency prior to this case.
- (3) The assertion the circulation of petitions by out-of-staters is "corrupt" is value-laden, rather than grounded in Oklahoma law. Arguably, circulation of petitions by non-Oklahomans is only "corrupt" if deceptive, rather than transparent. Moreover, circulation of petitions could be viewed as no more "corrupt" than an Oklahoma Corporation hiring an out-of-state advertising agency to conduct its in-state advertising.
- (4) Arguably there are other means of tackling the issue of an out-of-state petition circulator being non-amenable to service of process within Oklahoma when a signature dispute arises. For instance, the court did not address the analogous process in place for out of state corporations: out of state business entities must appoint a statutory service agent within the state to receive legal notices upon behalf of the businesses. Circulators could collect signatures just as out-of-state businesses are permitted to conduct commerce within Oklahoma, and the problem of amenability could be resolved through appointment of a statutory agent, within Oklahoma, to receive all legal notices.
- (5) There is no clear prohibition in Oklahoma or federal law against one circulating a ballot initiative that has the effect of enhancing one's own economic well-being. In the private sector, it is clearly quite common for out of state commercial enterprise to engage in self-interested economic behavior within the state of Oklahoma. The assertions that contributions from out of state are "illegal, fraudulent, and unsettling" may actually be entirely backwards restatement of current constitutional law. For instance, it does not appear to be the case that a political cause or candidate must refrain from accepting or soliciting for out of state contributions. In fact, it may contravene the First Amendment to the U.S. Constitution to prohibit a candidate from receiving or soliciting for out of state funds. Moreover, the statement that "Oklahomans deserve more" appears to be vague, normative, and offered without qualification.
- (6) In concluding that the TABOR initiative must be banned from the ballot 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," the Court fails to explain the underlying reasoning. For instance, it may be that even though the petitioners are financially interested in the petition's success, Oklahoma residents could still benefit from the petition as well. Conversely, if the only benefit is to out-of-state residents, to the detriment of Oklahoma residence, one could reasonably conclude that Oklahoma residents would not vote for such a measure were it to appear on the ballot. The Court appears to ignore these plausible results, and instead operates under the potentially false predicates that out of state interests are mutually exclusive to in-state interests, and that Oklahoma voters are capable of, and perhaps likely to, vote in favor of a measure that damages them and benefits these out-of-state interests. The court does not offer evidence indicating that such viewpoints are justifiable.
- (7) In acknowledging that it is overturning its 2001 precedent due to the number of invalid signatures in the TABOR petition, the Court explains that "[t]he problem will only grow and will present itself as a part of essentially every citizen circulation." This appears to be a "slippery-slope" argument, in which the court acknowledges that it is changing its position on the law because the outcome of the law is less desirable than it was in 2001. It is unclear whether it is proper for courts to consider the outcome of a particular statutory interpretation when engaging in that interpretation.
- (8) In contrast to the court's indication that Oklahoma voters are not "disenfranchised" by the voiding of a petition that may otherwise qualify for the ballot, the court does not account for the fact that the voters no longer have the opportunity to vote on the measure. Further, it may have been inappropriate to characterize the petitioner's conduct as "criminal wrongdoing," given that the Oklahoma Supreme Court handles only civil matters, that the burden of proof is higher in a criminal matter, the issue of specific intent must be demonstrated in a criminal proceeding, and that the petitioners had not been convicted of criminal conduct as of the date of the decision.
Justice Colbert concurred in the majority opinion of Justice Yvonne Kauger, 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 hte 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:
- (1) Oklahoma's "single subject rule," prior to this case, had been construed extremely broadly; so broad, in fact, that it an initiative (1) proposing ad valorem taxes for public schools; (2) outlining how those taxes would be used; (3) increasing the debt limit for school districts; (4) removing certain limits on school contracts; and (5) providing additional funds for schools districts and improvements at state institutions. See Rupe v. Shaw, 1955 OK 223, 286 P.2d 1094.
- (2) The Court acknowledges that the single subject rule is "broad, liberal, and satisfied by all proposed laws but those with the most scattered and disconnected provisions." Given that both prongs of the initiative tackle the regulation of property, one could make the argument that they constitute a single subject.
- (3) Arguably, a very a powerful case can be made, particularly in light of the court's broad application of the single subject rule prior to this case, that the Initiative merely constituted an effort to regulate takings: both physical takings through eminent domain, and regulatory takings through land use regulation.
- (4) Many have made the observation that a physical taking is merely a regulation "that goes to far." See Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393. This prior acknowledgment by the U.S. Supreme Court would appear to indicate that regulatory takings and physical takings constitute a "single subject."
- (5) The court's primary concern appears to be that voters who approve of the eminent domain restriction may also then end up voting for the provision regarding compensation for land use regulations. This concern, as the court voices it (see above), appears to paternally assume that unwitting supporters of eminent domain reform will also support compensation for land use regulation. Alternatively, the court may be presuming that supporters of the eminent domain provision will be forced, against their will, to support the land use provision even though they disagree with it. Either of these presumptions appears faulty. Firstly, it may be equally, if not more, likely that supporters of the eminent domain provision are apt to support other types of property rights, such as those encroached upon by land use regulation. Secondly, one vehemently opposed to compensation for land use regulation is free to vote against the Initiative on the basis. There is no compulsion to do otherwise, as the court appears to indicate. Unfortunately, the only way to discern such preferences would have been to pose the issue to the voters, and the Court's decision, even though sufficient signatures were obtained for ballot access, denies that opportunity.
