Talk:Robert E. Lavender on Elections Law

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In re Initiative Petition No. 379, State Question No. 726 (2006)

• (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 recieve 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 recieve 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.

In re Initiative Petition No. 382, State Question No. 729 (2006)

• (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.

In re Initiative Petition No. 365, State Question No. 687 (2002)

• (1) The court appears to have effectively reversed itself in 2006 in In re Initiative Petition No. 379, State Question No. 726, as the two cases appear irreconcilable. In that case, the court invalidated an Initiative Petition because it contained many signatures collected by non-"qualified electors." Moreover, the court in that case did not appear to apply the ""benefit of the doubt" in favor of the circulators test applied in this case, and did not mention the "clear and manifest showing of unconstitutionality standard."