A package of bills moving through the Legislature could block all but the most well-funded groups from getting a question on the ballot through Oklahoma’s initiative and referendum process, experts and advocates are warning.
The Senate is set to consider four joint resolutions that would make it more difficult for state questions to pass or be voted on.
The proposals have already passed the state House of Representatives and could take effect as early as 2023 if they clear the Legislature and are approved by voters later this year.
Perhaps the most far-reaching is House Joint Resolution 1002. It would require citizen-led groups to collect a set number of signatures from each of the state’s 77 counties.
It specifically would require enough signatures of registered voters to equal 8% or 15% of votes cast in the most recent gubernatorial election — depending on if it’s a statutory or constitutional change — in every county.
Currently, signature gathers need to meet that 8% or 15% target regardless of where someone lives in the state.
That means even if signature collectors gathered thousands of verified signatures beyond the current requirement, their effort would be doomed if they fall short in any county.
Other proposals would require constitutional amendments to receive over 55% of the vote and make the state auditor responsible for determining projected costs of state questions.
Professor John G. Matsusaka, executive director of the non-partisan Initiative and Referendum Institute at the University of Southern California, said Oklahoma’s initiative laws already are among the nation’s most restrictive.
If these measures pass, he said groups will struggle even more.
“The way I see it, this will just make everything more expensive,” Matsusaka said. “And it could really make it where only really rich people or groups will be able to use this process.”
The Legislature’s interest in these proposals follows passage of several high-profile state questions opposed by the governor and many in the GOP-dominated Legislature.
Since 2016, voters through citizen-led initiatives have expanded Medicaid to more than 200,000 low-income Oklahomans, changed several drug and non-violent crimes from felonies to misdemeanors and made Oklahoma one of the nation’s largest and most accessible medical marijuana markets.
Republican lawmakers pushing legislation to make state questions more difficult say Oklahomans, especially those in rural communities, should have more information about what’s on the ballot before Election Day. The geographical requirement, they say, will prevent groups from focusing signature collection efforts on more liberal areas in Oklahoma City and Tulsa.
At stake is whether the Oklahoma’s state question process, a cornerstone of state founder’s beliefs in direct democracy and their populist roots, should continue as is or include new roadblocks to make getting on the ballot tougher.
“If I were an Oklahoma voter, I would ask what problem this is trying to solve,” Matsusaka said. “It’s not that there’s been too many questions since I counted and there has been only 10 (citizen-led initiatives) on the ballot in the 21st Century, and that’s not many at all.”
The Path to the Ballot
Oklahoma is one of 28 states with an initiative process, according to the National Conference of State Legislatures. Oklahoma’s is more restrictive than many.
Based on the votes cast in the most recent gubernatorial election, citizen-led campaigns for the 2022 election would need nearly 95,000 signatures for statutory changes and almost 178,000 for constitutional ones.
All of that must be completed in a 90-day window starting when the state approves a petition application.
Matsuska said the 90-day collection period is one of the shortest in the country. Oklahoma’s signature quotas are on the “high end” for states allowing initiatives or referendums, he said.
“I would say it is more difficult to use the initiative process than most other states,” he said.
Oklahoma became the first state to adopt the initiative and referendum as part of its original constitution when founded in 1907. The rules were initially more restrictive, requiring questions to receive a majority of all votes cast in the election (as opposed to votes cast on the proposition alone). That changed in the 1970s.
According to the Oklahoma Historical Society, Oklahomans have voted on more than 400 state questions since statehood. The bulk of those were questions referred to the ballot by the Legislature through a joint resolution passed by majority vote in each chamber.
In the past decade, 25 state questions have made the ballot. Only seven came from citizen-led groups, with four passing: Medicaid expansion in 2020, medical marijuana in 2018 and two related criminal justice measures in 2016 that changed certain low-level drug and property crimes from a felony to a misdemeanor.
It appears no citizen-led efforts will make the 2022 ballot.
The only measures filed with the Secretary of State’s office are marijuana legalization proposals. Signature collecting has not started as they have been tied up in court for months
A group calling itself Oklahomans for Responsible Cannabis Action is attempting to get a pair of state questions on the ballot, including a constitutional change that would legalize recreational marijuana sales.
Jed Green, director of the group, said the number of legal, technical and logistical challenges already in place proves stricter rules are unnecessary.
“It’s very hard to organize on a 77-county level,” he said. “And I think that is the point to all this.”
Cindy Nguyen, policy director of the American Civil Liberties Union of Oklahoma, agreed. Oklahoma’s ACLU chapter has been involved in a number of state question campaigns, including 2016 criminal justice changes (State Question 780) and State Question 805, which sought to reclassify more criminal charges but failed in 2020.
With financial support from its parent organization, the ACLU was able to hire hundreds of signature collectors to canvas the state and collect tens of thousands of signatures. Nguyen said groups without those types of resources face substantial challenges. And if the 77-county requirement was put in place, it would be out of reach for many groups.
"It is a concern because this provides an opportunity for those who are especially impacted by the state questions to not only get involved in the democratic process, but also to have their voices heard," she said.
Oklahoma’s veto referendum process would also be impacted by the geographical requirements.
The state allows citizens to try to repeal recently passed legislation through the state question process. Groups need to collect fewer signatures than initiatives, just 5% of votes in the last gubernatorial election, which would be 59,320 this year.
These have been even rarer since the state requires that all signatures be collected within 90 days of the end of that year’s session.
There have been 20 veto referendums in Oklahoma history, the last coming in 1970, according to Ballotpedia. Several attempts have been made since. All failed.
This includes an unsuccessful attempt to repeal a 2021 bill that cracks down on protesters by increasing penalties for blocking roadways and granting immunity to motorists who kill or injure rioters.
Joshua Harris-Till, a Democratic activist who recently announced plans to run for the party’s nomination in the Fifth District congressional race, led that effort. Adding geographical requirements would effectively keep almost any citizen-led referendum off the ballot, he said.
“Many of these countries don't have a convention center you can line up outside of or these big events where you can get signatures," he said. "So what they are trying to do is just make it more costly and make it, I would argue, impossible to get the signatures you need."
Part of a National Trend?
Oklahoma is not the only state looking at making it harder for citizens to place questions on the ballot.
Kelly Hall is the executive director of the Fairness Project, a progressive organization that has helped pass ballot measures in a number of states, including Oklahoma’s Medicaid expansion measure.
She said there has been “an unprecedented attack” on direct democracy laws across the country. This includes attempts to require a 60% vote threshold in Arizona, mandate citizens to gather signatures from 6% of voters in each of Idaho’s 35 state legislative districts and a Missouri effort to raise the number of needed signatures.
Hall said she sees many of these attempts as retribution for successful state questions some lawmakers didn’t support.
“This is not specific to one issue, but rather where ballot measures demonstrate a disconnect between what matters to voters and what their elected leaders are doing in the halls of power,” she said.
What Comes Next?
There is still a lot of work before the Oklahoma proposals could take effect.
They need to be heard and passed in the state Senate before getting a final vote in the House. If they make it through the Legislature, the proposals will go to a vote of the people under the current state questions requirements.
Hall said she is hopeful that voters would want to protect their voice. But their passage poses a real threat.
“I think one of the ways our rights get taken away from us inch by inch is because they are wrapped up in jargon, hard to understand processes and a slow attrition of our rights," she said. "My concern is that with all the things voters are focused on — the economy, health care, wages — that Oklahoma voters may not be aware of the implications of what a slow attrition of their rights means."
Matsusaka, with USC’s Initiative and Referendum Institute, agreed that voters theoretically wouldn’t want to take power away from themselves. But it happens.
Florida voters approved a 2006 initiative increasing the votes required to approve a constitutional amendment from 50% to 60%.
“It’s not inconceivable that (Oklahoma’s proposals) could pass,” he said. “It could be a low-turnout election or maybe there isn’t a well-funded opposition campaign, that could happen.”
Trevor Brown covered politics, elections, health policies and government accountability issues for Oklahoma Watch. Call or text him at (630) 301-0589. Email him at email@example.com. Follow him on Twitter at @tbrownokc