426, State Question No. 810 Eldon Merklin & Claire Robinson Davey v. Largent (In re Initiative Petition No.)

465 P.3d 1259

IN RE: INITIATIVE PETITION NO. 426, STATE QUESTION NO. 810

Eldon Merklin and Claire Robinson Davey, Protestants/Petitioners,

v.Janet Ann Largent, Andrew Moore and Lynda Johnson, Respondents/Proponents.

Case No. 118,686

Supreme Court of Oklahoma.

FILED MAY 27, 2020

Robert G. McCampbell and Travis V. Jett, GableGotwals, Oklahoma City, Oklahoma, for Petitioners.

D. Kent Meyers, and Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City, OK, for Respondents.

COMBS, J.:

I. FACTS AND PROCEDURAL HISTORY

¶1 On October 28, 2019, the Respondents/Proponents, Andrew Moore, Janet Ann Largent, and Lynda Johnson (Respondents), filed Initiative Petition No. 420, State Question No. 804 (IP 420), with the Secretary of State of Oklahoma. The initiative measure proposed for submission to the voters the creation of a new constitutional article, Article V-A, which would create the Citizens' Independent Redistricting Commission (Commission). IP 420 would vest the power to redistrict the State's House of Representatives and Senatorial districts, as well as Federal Congressional Districts, in this newly created Commission. IP 420 was challenged in two separate cases. In In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, 458 P.3d 1080, certain protestants challenged the gist of the proposition found at the top of the signature sheet. On February 4, 2020, this Court held the gist was insufficient and declared IP 420 invalid because it did not describe the true nature of the initiative petition which was to curtail partisan gerrymandering. Id., ¶¶6-7, 11.

¶2 Two days later, February 6, 2020, the proponents of IP 420 filed a new initiative petition (Initiative Petition No. 426, State Question 810). The Secretary of State published the required notice of the initiative petition on February 13, 2020. Initiative Petition No. 426 (IP 426) is nearly identical to IP 420. It creates a new constitutional article, Article V-A, which would create the Citizens' Independent Redistricting Commission (Commission). Like IP 420, it would vest the power to redistrict the State's House of Representatives and Senatorial districts, as well as Federal Congressional Districts, in this newly created Commission. It provides how a Panel will be selected which will then review applications to be a commissioner and a process for how those commissioners are chosen (§ 4(A)(7) and § 4(B)(4)(b), (f) & (g) of IP 426); it provides a process for approving a redistricting plan (§ 4(E)(1) of IP 426) and a "Fallback Mechanism" if the Commission does not approve a plan (§ 4(F) of IP 426); it also provides certain criteria the Commission shall seek to maximize compliance when creating a redistricting plan (§ 4(D)(1)(c) of IP 426).

¶3 On February 28, 2020, the Protestants/Petitioners, Eldon Merklin and Claire Robinson Davey filed their challenge to the gist of IP 426 pursuant to 34 O.S. § 8 (B).¹ Mr. Merklin was also a petitioner in In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶11, 458 P.3d 1080. The Petitioners claim the gist of IP 426 is affirmatively inaccurate, omits significant details concerning the voting requirements on a redistricting plan as well as details on one of the several criteria used in creating a redistricting plan. They ask this Court to hold the gist of IP 426 is insufficient based upon these claims.

II. STANDARD OF REVIEW

¶4 "The first power reserved by the people is the initiative...." Okla. Const. art. 5, § 2 ; In re Initiative Petition No. 409, State Question No. 785 , 2016 OK 51, ¶2, 376 P.3d 250 ; In re Initiative Petition No. 403, State Question No. 779 , 2016 OK 1, ¶3, 367 P.3d 472. With that reservation comes "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." Okla. Cost. art. 5, § 1; In re Initiative Petition No. 409 , 2016 OK 51, ¶2, 376 P.3d 250 ; In re Initiative Petition No. 403 , 2016 OK 1, ¶3, 367 P.3d 472. "The right of the initiative is precious, and it is one which this Court is zealous to preserve to the fullest measure of the spirit and the letter of the law." In re Initiative Petition No. 382, State Question No. 729 , 2006 OK 45, ¶3, 142 P.3d 400. See In re Initiative Petition No. 349, State Question No. 642 , 1992 OK 122, ¶35, 838 P.2d 1. We have repeatedly emphasized both how vital the right of initiative is to the people of Oklahoma, as well as the degree to which we must protect it:

Because the right of the initiative is so precious, all doubt as to the construction of pertinent provisions is resolved in favor of the initiative. The initiative power should not be crippled, avoided, or denied by technical construction by the courts.

In re Initiative Petition No. 403 , 2016 OK 1, ¶3, 367 P.3d 472 (quoting In re Initiative Petition No. 382 , 2006 OK 45, ¶3 ).

¶5 However, while the fundamental and precious right of initiative petition is zealously protected by this Court, it is not absolute. Any citizen can protest the sufficiency and legality of an initiative petition. In re Initiative Petition No. 409 , 2016 OK 51, ¶2, 376 P.3d 250 ; In re Initiative Petition No. 384, State Question No. 731 , 2007 OK 48, ¶2, 164 P.3d 125. "Upon such protest, this Court must review the petition to ensure that it complies with the ‘parameters of the rights and restrictions [as] established by the Oklahoma Constitution, legislative enactments and this Court's jurisprudence.’ " In re Initiative Petition No. 384 , 2007 OK 48, ¶2, 164 P.3d 125 (quoting In re Initiative Petition No. 379, State Question No. 726 , 2006 OK 89, ¶16, 155 P.3d 32 ).

¶6 The gist of an initiative petition is required by 34 O.S. 2011, § 3, which provides in pertinent part: "[a] simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet." The gist is required to be in "simple language" and should inform "a signer of what the measure is generally intended to do." In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶20, 927 P.2d 558. Each signature sheet is attached to a copy of the initiative petition and is therefore available for review by any potential signatory. Id. The two combined form what is called the "pamphlet." Id. The gist must be short and because it will appear at the beginning of every page of the petition it can contain "no more than a shorthand explanation of a proposition's terms."²

In re Initiative Petition No. 362, State Question No. 669, 1995 OK 77, ¶10, 899 P.2d 1145. It need not contain the more extensive requirements for ballot titles contained in 34 O.S. Supp. 2018, § 9. Id. This Court described the importance of the gist and ballot title, as well as the requirements, in In re Initiative Petition No. 344, State Question No. 630 , where we explained:

[T]he statement on the petition [the gist] and the ballot title must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition. The limitations ... are necessary to prevent deception in the initiative process.... The voters, after reading the statement on the petition and the ballot title, should be able to cast an informed vote.

1990 OK 75, ¶14, 797 P.2d 326. In McDonald v. Thompson, we noted ballot titles have specific statutory requirements that are more stringent than a gist because a ballot title is all a voter will see in the voting booth. 2018 OK 25, ¶10, 414 P.3d 367. Whereas, a potential signatory, at this stage of the process, may review the text of the petition itself to answer any questions or provide further details not found in the gist contained on the signature sheet. Id.

¶7 This Court further explained in detail how the gist of an initiative petition should be evaluated in In re Initiative Petition No. 409 , where we stated:

This Court has long held that the purpose of the gist, along with the ballot title, is to "prevent fraud, deceit, or corruption in the initiative process." The gist " ‘should be sufficient that the signatories are at least put on notice of the changes being made,’ " and the gist must explain the proposal's effect. The explanation of the effect on existing law "does not extend to describing policy arguments for or against the proposal." The gist "need only convey the practical, not the theoretical, effect of the proposed legislation," and it is " ‘not required to contain every regulatory detail so long as its outline is not incorrect.’ " "We will approve the text of a challenged gist if it is ‘free from the taint of misleading terms or deceitful language.’ "

2016 OK 51, ¶3, 376 P.3d 250 (footnotes omitted) (quoting primarily In re Initiative Petition No. 384 , State Question No. 731 , 2007 OK 48, 164 P.3d 125 ). Because the purpose of the gist is to prevent fraud, deceit or corruption in the initiative process, any alleged flaw created by an omission of details in the gist must be reviewed to determine whether such omission is critical to protecting the initiative process. In re Initiative Petition No. 363, 1996 OK 122, ¶¶18-20, 927 P.2d 558. "The sole question ... is whether the absence of a more detailed gist statement ... without more, perpetuates a fraud on the signatories." Id. ¶19.

III. ANALYSIS

¶8 IP 426 is essentially a refiling of IP 420 which happened almost immediately after this Court determined the gist statement in IP 420 was insufficient. In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶11, 458 P.3d 1080. Although there are some differences between the two proposed measures they are nearly identical and were submitted by the same proponents. In In re Initiative Petition No. 420, State Question No. 804, this Court determined the gist statement, through its omissions, failed to alert potential signatories about the true nature of the proposed measure...