SB 1027 violates state and federal constitutions, lawsuit argues

Controversial new law is challenged in the Oklahoma Supreme Court, setting up a showdown over the right to direct democracy.

By Brendan Hoover

A showdown is brewing over the right to direct democracy in Oklahoma.

Senate Bill 1027, a controversial new law passed in May by the Oklahoma Legislature and signed by Governor Kevin Stitt, violates the state constitution, the U.S. Constitution, and the foundational right of Oklahoma citizens to exercise their lawmaking power via the initiative and referendum, according to a lawsuit filed in the Oklahoma Supreme Court on June 12.

Article V, Section 1, of the Oklahoma Constitution outlines who holds state legislative authority, including the House of Representatives and the Senate, “but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.”

“This Court has consistently described the initiative and referendum power as a ‘sacred right’ to be ‘carefully preserved,’” the lawsuit states. “Senate Bill 1027 (SB 1027) imposes a series of new, overlapping restrictions that burden, fragment, and ultimately nullify that right.”

The lawsuit, McVay v. Cockroft, names four Oklahoma voters as petitioners: Steven Craig McVay, a rural Oklahoman; Kenneth Setter, Anthony Stobbe, both proponents of State Question 836 (to change Oklahoma’s primary election system); and Amy Cerato, President of Pike Off OTA.

Oklahoma Secretary of State Josh Cockroft and Oklahoma Attorney Gentner Drummond, both in their official capacities, are named as respondents in the lawsuit.

The attorneys representing the petitioners, Randall Yates and Melanie Rughani of the law firm Crowe and Dunlevy, have asked the Oklahoma Supreme Court to rule the law is unconstitutional in its entirety and prohibit enforcement. “SB 1027 does not prevent corruption or carry into effect the initiative and referendum process as the Oklahoma Constitution permits,” Yates and Rughani argue. “The Court must recognize and strike down this de facto repeal of initiative power.”

SB 1027 imposes undue burden on initiative petition process

The lawsuit challenges three different sections of SB 1027 as unconstitutional:

1. The law’s county-based signature caps;

2. The law’s gist provisions; and,

3. The law’s circulation, compensation, and funding restrictions.

SB 1027’s county-based signature caps are contrary to the plain language of Article V, Section Two of the state constitution, the petitioners say. The law limits the number of petition signatures that may be collected (not counted, an important distinction) per county to 11.5 percent of the voter turnout in the last gubernatorial general election for statutory measures, and 20.8 percent of the voter turnout for constitutional initiatives. “Statewide, SB 1027 would immediately reduce the pool of eligible (statutory) initiative petition signers from 2,470,437 to 132,627, thereby excluding 2,337,809 registered Oklahoma voters—nearly 95 percent—from exercising their constitutional right to initiate legislation,” Yates and Rughani say. “Likewise, it would exclude 2.1 million registered voters from signing a petition for constitutional amendments.”

The county-based signature limits violate citizens’ First Amendment right to petition the government, and they violate equal protection by creating arbitrary distinctions among voters, the lawsuit states. The per-county signature caps make the exercise of the right to initiative practically (and mathematically, in the case of previously rejected ballot measures) impossible, according to the lawsuit.

The Oklahoma Constitution defines how many petition signatures are needed to qualify a measure for the ballot, based on the total number of votes cast at the last gubernatorial general election. For constitutional amendments, 15 percent of Oklahoma’s legal voters must sign a petition, while 8 percent must sign the petition for a statutory initiative. Referendums require 5 percent of legal voters, and 25 percent of voters must sign to qualify previously rejected initiative or referendum measures.

Current law requires that petition signatures be verified by the Secretary of State after they are collected. Each voter who signs must give their legal first and last name, ZIP code, house number, birthday, and birth month. SB 1027 adds “county of residence” to the requirements. A total of four of those data points must match the signer’s voter registration information on file with the state. To overcome the number of signatures that could be invalidated because of errors on petition forms, proponents typically collect a percentage of signatures over the required number. “SB 1027 effectively eliminates proponents’ ability to obtain the requisite signature buffer by limiting the ‘collection’ of signatures per county,” the lawsuit states.

The lawsuit asserts the gist approval requirements in SB 1027 violate Article V, Section 3 of the Oklahoma Constitution, which states, “the veto power of the Governor shall not extend to measures voted on by the people.” Because SB 1027 gives gist approval—a summary of the initiative that is printed at the top of the petition—to the governor-appointed Secretary of State, an effective veto power is created over the people’s right of initiative, the lawsuit claims. The law also requires the gist to include a fiscal impact statement but gives no standards by which the fiscal impact can be determined. “Without an approved gist statement, proponents cannot begin gathering signatures,” Yates and Rughani say.

SB 1027 also places numerous restrictions on how petitions are circulated, funded, and paid for, all of which are unconstitutional, the lawsuit states. The law’s ban on non-resident circulators mirrors another Oklahoma law that was ruled unconstitutional by a 2008 federal court ruling. The ban on out-of-state contributions in SB 1027 violates the United States Supreme Court’s ruling in Citizens United v. FEC, the lawsuit says, while prohibitions to compensating petition circulators on a per-signature basis and campaign disclosure requirements both violate the First Amendment. “Even before SB 1027’s passage, due to the short 90-day time limit to collect signatures imposed by the Legislature, proponents were effectively required to hire professional petition circulations firms to manage the signature-collection effort, at great expense,” Yates and Rughani say.

Price quotes to hire a professional petition circulation firm after the introduction of SB 1027 increased by nearly $2 million on average, the lawsuit claims.

The cumulative effect of SB 1027 is a de facto repeal of Oklahomans’ constitutional right to the initiative and referendum process, according to the lawsuit. “Even if viewed in isolation, each of SB 1027’s challenged provisions imposes an unconstitutional burden: all reduce the quantum of speech and the exercise of initiative and referendum rights without justification,” Yates and Rughani say. “Viewed together, their cumulative effect is devastating: they render the constitutional right formally available but practically unusable.”

State lawmakers, led by a Republican supermajority, have been chipping away at Oklahoma’s initiative petition process for years after a string of state questions were enacted into law at the polls. State Questions 780 and 781 passed in 2016, reducing low-level felonies to misdemeanors and creating a state fund for mental health treatment and criminal justice diversion programs. State Question 788 was approved by state voters in 2018, legalizing medical marijuana, and State Question 802 went into effect in 2021, expanding Oklahoma’s Medicaid program.

Lawmakers approved HB 3826 in 2020, which required valid petition signatures to match three of five data points from each signer’s voter registration file, as well as allowing the Oklahoma Secretary of State’s office to contract with outside vendors to electronically verify signatures. In 2024, SB 518 increased signature verification to four of five data points, as well as levying up to a $750 fee to file an initiative petition with the Secretary of State. Then, HB 1105 lengthened the period for opponents to challenge the constitutionality and signature verification of initiative petitions from ten business days to ninety days, giving opponents twice as long to challenge ballot measures than proponents have to collect signatures.

The response

A team of five lawyers from the attorney general’s office submitted a response to the lawsuit’s request for a preliminary injunction to SB 1027. The team includes Solicitor General Garry Gaskins II, Director of Special Litigation Zach West, and Assistant Solicitors General Cullen Sweeney, Will Flanagan, and Ellen Carr.

Because two of the lawsuit’s plaintiffs, Kenneth Setter and Anthony Stobbe, are proponents to SQ 836, considering an injunction to SB 1027 is premature until the constitutionality of SQ 836 is decided, the respondents claim. Oral arguments as to the validity of SQ 836 were held before the Oklahoma Supreme Court on June 24, but no ruling has been issued yet. The Oklahoma Republican Party challenged both the constitutionality of the measure and its gist.

The respondents also claim that the lawsuit challenging SB 1027 is unlikely to succeed on its merits. “In deciding the constitutionality of statutes, a legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably, and plainly inconsistent with the Constitution,” they argue.

In the example of the per-county signature caps, the limitations apply equally to all state voters, the lawyers said. “Under SB 1027, the counties are treated the same, and thus the people within the counties are treated the same.”

What’s next?

On June 30, the Oklahoma Supreme Court ruled that the petitioners’ motion for a preliminary injunction to temporarily block the enforcement of SB 1027 is held in abeyance pending resolution of the constitutionality of SQ 836. The proponents of SQ 836 have also filed a separate lawsuit against SB 1027, arguing that it should not retroactively apply to the ballot measure, which was filed in January. A motion for an injunction in that case is also dependent on the outcome of the challenge to SQ 836, the Oklahoma Supreme Court ruled.

No hearings for oral arguments in either case against SB 1027 had been set as of July 22. However, amicus briefs have been filed in support of the lawsuit by several parties, including former attorney general and federal judge Robert Henry, the League of Women Voters of Oklahoma, the Oklahoma Appleseed Center for Law and Justice, and the Oklahoma Academy for State Goals. Parties filing amicus briefs in opposition of the lawsuit include: a group of sixty-five Oklahoma Republican legislators represented by attorneys from the American Center for Law and Justice, a national firm known for participating in anti-abortion litigation; former governor Frank Keating, and former Oklahoma attorneys general Scott Pruitt and John O'Connor. Oklahomans for Life, an anti-abortion advocacy group, applied to file an amicus brief but were denied by the Supreme Court for missing the deadline to apply.

____________________