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| Melanie Wilson Rughani |
With the state's uninsured rate being the second-highest in the country,[1] rural hospitals closing by the dozen, and residents experiencing poor health outcomes across the board, a group of citizens proposed an initiative petition to expand Medicaid in Oklahoma. And at a special election in the middle of a global pandemic, citizens turned out in droves to vote in favor of Medicaid expansion.
Getting the measure to a vote of the people was no easy task. Because Oklahoma, unlike many other states, provides no protection for statutory measures passed by initiative petition, proponents of the measure opted to draft it as a constitutional amendment. This prevented the state Legislature — which had repeatedly declined to expand Medicaid on its own — from voting to repeal or water down the measure immediately after it was passed.
But Oklahoma has one of the highest signature requirements in the nation for such initiative petitions — 15% of the votes cast in the last gubernatorial election — or currently 177,958.[2] At the same time, it also has one of the shortest periods within which to collect those signatures — 90 days, compared to a year or more in other states.[3]
Accordingly, while a large number of circulators were volunteers, Oklahoma's high signature threshold and short timeline effectively forced proponents also to rely on costly paid circulators. In addition, before they could reach the ballot, proponents had to contend with a preelection court challenge, as well as a plethora of other administrative hurdles.
As challenging as this process was, next time may well be even harder. This year, following the Medicaid vote, Oklahoma state legislators have introduced 27 different bills aimed at limiting Oklahomans' right of initiative.
Some would amend the state's constitution to require a supermajority of the voters to approve an initiative petition.[4]
Others would make it more difficult to reach the ballot in the first place, either by increasing the number of signatures required or imposing onerous geographic distribution requirements, demanding that the signature threshold be met in each of Oklahoma's 77 counties, not just statewide. These measures would substantially increase cost and logistical complexity, and make signature collection cost-prohibitive for all but the most well-funded proponents.[5]
Others would impose high filing fees, extend an already lengthy legal process, create more administrative roadblocks, or even punish anyone who represents an initiative petition campaign by making them ineligible for future state contracts.[6]
This scenario is not unique to Oklahoma. Oklahoma is one of 24 states where the people have the right of initiative petition, or some other form of direct democracy procedure. And in many of these states, as frustrated citizens increasingly turn to initiative petitions to enact important policy changes, frustrated legislators have in turn moved to constrict that citizens' right.
In 2016, Arkansas voters passed a ballot initiative to legalize marijuana, and in 2018, they raised the minimum wage. In response, in 2019, the Arkansas Legislature passed a number of laws to overhaul the initiative process.
It did what it could by statute, eliminating the state's preelection review procedure, so a proposed initiative's legality would not be reviewed until after signatures are collected, and thus groups could spend enormous sums circulating petitions before knowing whether their measure would withstand legal scrutiny.
It also placed measures on the ballot that, if approved by voters, would have made the signature-collection process substantially more difficult — by increasing the number of counties where voter signatures must be collected from 15 to 45; eliminating the 30-day cure period for correcting or replacing signatures initially disqualified; and moving up the deadline for submitting initiative petitions.[7]
These proposed amendments were ultimately defeated at the ballot box.
Similarly, after Florida voters approved ballot measures to legalize medical marijuana and restore voting rights for persons convicted of felonies, the Florida Legislature passed a number of laws aimed at making the initiative process more difficult.
It shortened the life span of an initiative from eight years to two; it substantially increased the signature threshold for judicial preclearance, meaning that there must be substantial upfront investment that may well be wasted; it placed restrictions on paid petition gatherers; and it required ballot title language to include a fiscal impact statement.[8]
Other states have proposed similar changes to the ballot initiative process.
In Idaho, after voters approved a Medicaid expansion initiative in 2018, lawmakers proposed bills to increase the number of signatures required (from 6% of registered voters to 10%), increase the number of legislative districts those signatures must come from (from 18 to 32 of 35), and shorten the signature-collection period (from 18 months to 180 days).[9]
In Ohio, after voters overwhelmingly approved an initiative to prevent gerrymandering in the redistricting process, legislators introduced bills that would have required a 60% supermajority to pass such initiatives, imposed a shorter time period for signature circulation, and required that any signatures be submitted by April before a November election — effectively forcing proponents to conduct signature drives in the dead of winter in Ohio.[10]
In Missouri, after voters approved ballot initiatives for Medicaid expansion and redistricting reform, legislators introduced bills to require a supermajority to approve ballot initiatives, increase the signature threshold and impose geographic distribution requirements.[11]
As then-Michigan Rep. Martin Howrylak, a Republican, put it after his party introduced a similar bill in response to the passage of a redistricting ballot initiative: "It saddens me that my own political party is advocating for it," he told The Detroit News. "When we say reforms, we really mean obstacles to the general public."[12]
The Oklahoma lawmakers who have introduced these bills to modify the petition process maintain that they are not trying to take away the people's initiative petition rights, but are simply attempting to prevent those rights from being hijacked by out-of-state interests. They urge that initiative petitions — originally designed to be a tool for ordinary citizens to propose laws and check the power of special interests on the legislature — are increasingly being used as a tool for well-funded national organizations to promote their policy agendas.[13]
It is true that some initiatives in Oklahoma, and elsewhere, have been supported (in part) by national groups. But to the extent that out-of-state funding is a problem, the changes proposed by these lawmakers would only make that problem worse.
It is already extraordinarily difficult to collect the required hundreds of thousands of signatures in the requisite 90-day circulation period in Oklahoma — so difficult, in fact, that nearly every initiative petition that has reached the ballot in recent years has had to rely on paid signature collectors.
The more difficult and expensive lawmakers make the initiative process — whether by increasing signature thresholds, imposing unwieldy geographic distribution requirements, or creating additional administrative hurdles — the more likely it is that grassroots efforts will be shut out from the process altogether.
Increasing the number of signatures or requiring that they be gathered in far-flung areas of the state would effectively guarantee that the only initiatives to reach the ballot would be the ones that can afford to pay an army of lawyers and signature collectors.
Similarly, some lawmakers contend that geographic distribution requirements are necessary because, they say, signature collectors for ballot initiatives tend to focus on urban areas and exclude rural voters. But this is primarily a function of necessity, born of high signature counts and short collection periods. Rural voters have just as much a say at the ballot box: Everyone's votes count the same on election day.
Furthermore, urban voters are not the only ones employing the initiative petition: In recent years, for example, initiatives to outlaw abortion and legalize medical marijuana in Oklahoma were both proposed by citizens from rural areas.[14]
Yet requiring that the requisite signature threshold be met in each of Oklahoma's 77 counties, as legislators have proposed, would allow voters in a single area — including the most populous ones, like Oklahoma City or Tulsa — to effectively veto a measure. It would also create arbitrary logistical hurdles that would make it inordinately difficult for any grassroots initiative campaigns to succeed.
It is unclear whether these proposed changes to the initiative petition process in Oklahoma and elsewhere will ultimately become law. What is clear, however, is that, as citizens increasingly make use of their state's constitutional right of initiative, legislators throughout the country now find themselves engaged in a tug-of-war for power with the very people they represent.
Melanie Wilson Rughani is a director at Crowe & Dunlevy PC, where she co-chairs the initiative petitions and appellate practices.
Disclosure: Rughani represented the proponents of State Question 802, the initiative petition to expand Medicaid in Oklahoma, which is discussed in this article.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See Chris Casteel, "Oklahoma maintains second-highest rate of residents without health insurance," Sept. 16, 2020, available at https://insurancenewsnet.com/oarticle/oklahoma-maintains-second-highest-rate-of-residents-without-health-insurance.
[2] See Okla. Const. Art. V, §2.
[3] See 34 O.S. §8; see also National Conference of State Legislatures, https://www.ncsl.org/research/elections-and-campaigns/initiative-and-referendum-processes.aspx#/ (comparing various state laws governing initiative petitions).
[4] See, e.g., HJR1004, 1007, 1008, 1034, 1035, 1038; SJR4 (proposing supermajority requirements of anywhere between 55% to a 2/3 vote); see also Kayla Branch, "Lawmakers target Oklahoma's initiative petition process after uptick in successful state questions," The Frontier, Feb. 15, 2021, available at https://www.readfrontier.org/stories/lawmakers-target-oklahomas-initiative-petition-process-after-uptick-in-successful-state-questions/ (discussing these and other efforts).
[5] See, e.g., HJR1002, 1039; SJR7, 8, 10; SB917.
[6] See, e.g., SB1011, SB506, HB1767, SB947, HB2076.
[7] See Andrew DeMillo, "GOP lawmakers create hurdles for citizen ballot initiatives," AP News, June 22, 2019, available at https://apnews.com/article/7cc8d895068b4380a5fa1f6562b64fe1.
[8] See Blaise Gainey, "DeSantis Okays Law Making It Harder to Pass Citizens Initiatives Despite Calls to Veto," WFSU Public Media, Apr. 10, 2020, available at https://news.wfsu.org/state-news/2020-04-10/desantis-okays-law-making-it-harder-to-pass-citizens-initiatives-despite-calls-to-veto.
[9] See Cynthia Sewell, "Lawmaker's proposal would make Idaho one of the most difficult states for citizen-led initiatives," The Idaho Statesman, Mar. 11, 2019, available at https://www.idahostatesman.com/news/politics-government/state-politics/article227420829.html; William L. Spence, "Bill making citizen initiatives more difficult introduced; Legislation would raise signature requirements for grassroot campaigns," Lewiston Morning Tribune, Mar. 5, 2019, https://dnews.com/local/bill-making-citizen-initiatives-more-difficult-introduced/article_fdaae94f-77a4-560f-bb47-02249e3aa579.html.
[10] Ari Berman, "After Voters Passed Progressive Ballot Initiatives, GOP Legislatures Are Trying to Kill Future Ones," Mother Jones, Dec. 20, 2018, available at https://www.motherjones.com/politics/2018/12/after-voters-passed-progressive-ballot-initiatives-gop-legislatures-are-trying-to-kill-future-ones/.
[11] See Jeanne Kuang, "Missouri lawmakers consider making ballot initiatives harder for voters to pass," Kansas City Star, Feb. 17, 2021, available at https://www.kansascity.com/news/politics-government/article249323870.html; Reid Wilson, "GOP targets ballot initiatives after progressive wins," Feb. 20, 2021, available at https://thehill.com/homenews/state-watch/539654-gop-targets-ballot-initiatives-after-progressive-wins.
[12] Jonathan Oosting, "Michigan House Republicans vote to toughen petition drive rules," The Detroit News, Dec. 13, 2018, available at https://www.detroitnews.com/story/news/local/michigan/2018/12/13/michigan-house-republicans-vote-toughen-petition-drive-rules/2297896002/.
[13] See, e.g., Kayla Branch, "Lawmakers target Oklahoma's initiative petition process after uptick in successful state questions," The Frontier, Feb. 15, 2021, available at https://www.readfrontier.org/stories/lawmakers-target-oklahomas-initiative-petition-process-after-uptick-in-successful-state-questions/ (discussing these and other efforts).
[14] See, e.g., Initiative Petition No. 406, State Question No. 782, proposed by a resident of Noble, Oklahoma; Initiative Petition No. 412, State Question No. 788, proposed by a resident of Owasso, Oklahoma, both available at https://www.sos.ok.gov/gov/questions.aspx.