426, State Question No. 810 Marc Mccormick v. Moore (In re Initiative Petition No.)
| Decision Date | 27 May 2020 |
| Docket Number | Case No. 118,685 |
| Citation | 465 P.3d 1244 |
| Parties | IN RE: INITIATIVE PETITION NO. 426, STATE QUESTION NO. 810 Marc McCormick, Laura Newberry, Roger Gaddis, and, Claire Robinson Davey, Protestants/Petitioners, v. Andrew Moore, Janet Ann Largent and Lynda Johnson, Respondents/Proponents. |
| Court | Oklahoma Supreme Court |
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.
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 re Initiative Petition No. 420, State Question No. 804, 2020 OK 9, 458 P.3d 1088 and In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, 458 P.3d 1080. On February 4, 2020, this Court handed down its decisions in both matters. We held in 2020 OK 9, 458 P.3d 1088 that IP 420 did not violate the single subject rule and we would not address the First Amendment issues due to uncertainty in federal jurisprudence, i.e., IP 420 did not clearly or manifestly violate the First Amendment. We found the initiative petition was legally sufficient but did note it was troubling that the proposed opinion would prohibit a person from serving as a commissioner if they changed their party affiliation within the last four years preceding the appointment because this provision would apply a retroactive restriction "well prior to the enactment." In re Initiative Petition No. 420, State Question No. 804, 2020 OK 9, ¶33 n.17, 458 P.3d 1088. In the related opinion, we 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" in the redistricting process. In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶7, 458 P.3d 1080.
¶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. Initiative Petition No. 426, like IP 420, requires the Commission's Secretary to gather information from the Department of Corrections about the home address of state and federal inmates and add this information to the Federal Decennial Census data so that incarcerated people can be counted in their home communities rather than place of incarceration. Sections 4(C)(2)(e) and 4(C)(3)(a) of IP 426. The provisions in IP 426 concerning the qualifications to be a commissioner differ from those in IP 420 and, arguably, are less restrictive than those found in IP 420. Section 4(B)(2)(a-f) of IP 426 provides for the qualifications of a commissioner. A member of the Commission shall have been continuously domiciled in this State for the five years immediately preceding the date of appointment and shall not have changed their registered political affiliation in the four years immediately preceding the date of appointment or since the date the initiative petition was filed (February 6, 2020), whichever period is shorter.1 In addition, in the five years immediately preceding the date of appointment to the Commission, the commissioner shall not: 1) have held, or have an immediate family member who has held, a partisan elective office at the federal, state or political subdivision level in this State,2 2) have registered, or have an immediate family member who has registered, as a lobbyist with the Federal Government or the State of Oklahoma,3 3) have held office or served as a paid staff member of a political party, or have an immediate family member who has held office or served as a paid staff member of a political party,4 have been nominated, nor have an immediate family member who has been nominated, as a candidate for elective office by a political party in this State,5 have been an employee or paid consultant of the Oklahoma State Legislature or U.S. Congress, or have any immediate family members who have been an employee or paid consultant of the Oklahoma State Legislature or U.S. Congress.6 The definition of "immediate family member" is less restrictive in IP 426. It provides that the term shall "refer to, with respect to an individual, a spouse, parent, sibling, or child (including step-parent, step-sibling, or step-child)." Section 4(A)(9) of IP 426. Initiative Petition No. 420 had also included "father-in-law, or mother-in-law" which is not part of IP 426's definition.
¶3 On February 28, 2020, the Protestants/Petitioners, Marc McCormick, Laura Newberry, Roger Gaddis, and Claire Robinson Davey filed their challenge to IP 426 pursuant to 34 O.S. § 8 (B). First, the Petitioners claim reallocation of prisoners to their home addresses for purposes of redistricting does not achieve population equality, is arbitrary, unsystematic, and would violate Article I, § 2 of the United States Constitution. In addition, not counting all "group quarters" identified in the Federal Decennial Census, such as, college students, nursing home residents, and residents of mental health facilities the same as prisoners would violate the Equal Protection Clause of the United States Constitution. Petitioners also challenge the constitutionality of provisions in IP 426 that place restrictions on who can be a commissioner.
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, 142 P.3d 400).
¶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 As to challenged initiative provisions, this Court has consistently confined our pre-election review under Section 8 of Title 34 of the Oklahoma Statutes to "clear or manifest facial constitutional infirmities." In re Initiative Petition No. 358, State Question No. 658, 1994 OK 27, ¶7, 870 P.2d 782. Accordingly, the Petitioners in this matter bear the burden of demonstrating the proposed initiative petition contains clear or manifest facial constitutional infirmities. See In re Initiative Petition No. 403 , 2016 OK 1, ¶3, 367 P.3d 472 ; In re Initiative Petition No. 362, State Question No. 669 , 1995 OK 77, ¶12, 899 P.2d 1145.
III. ANALYSIS
¶7 The Petitioners argue reallocation of prisoners to their home addresses for purposes of redistricting does not achieve population equality, is arbitrary and unsystematic, and would violate both Article I, § 2 of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. They assert the United States Census Bureau counts prisoners in the decennial census at the place where they are incarcerated and they interpret opinions of the United States Supreme...
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