Nichols v. Ziriax, 120646

CourtSupreme Court of Oklahoma
Writing for the CourtCOMBS, J.
Citation2022 OK 76
PartiesMICHELLE TILLEY NICHOLS and MICHELLE JONES, Petitioners, v. PAUL ZIRIAX, Secretary of the Oklahoma State Election Board; TOM MONTGOMERY, Chairman of the Oklahoma State Election Board; TIM MAULDIN, Vice Chairman of the Oklahoma State Election Board; HEATHER MAHIEU CLINE, Member of the Oklahoma State Election Board; JERRY BUCHANAN, Alternate Member of the Oklahoma State Election Board; DEBI THOMPSON, Alternate Member of the Oklahoma State Election Board; and THE HONORABLE J. KEVIN STITT, Governor of Oklahoma, Respondents.
Docket Number120646
Decision Date21 September 2022

2022 OK 76

MICHELLE TILLEY NICHOLS and MICHELLE JONES, Petitioners,
v.

PAUL ZIRIAX, Secretary of the Oklahoma State Election Board; TOM MONTGOMERY, Chairman of the Oklahoma State Election Board; TIM MAULDIN, Vice Chairman of the Oklahoma State Election Board; HEATHER MAHIEU CLINE, Member of the Oklahoma State Election Board; JERRY BUCHANAN, Alternate Member of the Oklahoma State Election Board; DEBI THOMPSON, Alternate Member of the Oklahoma State Election Board; and THE HONORABLE J. KEVIN STITT, Governor of Oklahoma, Respondents.

No. 120646

Supreme Court of Oklahoma

September 21, 2022


THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Application to Assume Original Jurisdiction and Petition For Writ of Mandamus

Melanie Wilson Rughani, CROWE & DUNLEVY, Oklahoma City, Oklahoma, for Petitioners.

Zach West, Solicitor General, and Thomas R. Schneider, Deputy General Counsel, OFFICE OF ATTORNEY GENERAL, Oklahoma City, Oklahoma, for Respondents.

Denise Lawson, GLENN COFFEE & ASSOCIATES, PLLC, Oklahoma City, Oklahoma, for Amici Curiae, State Chamber Research Foundation Legal Center, the Oklahoma Farm Bureau Legal Foundation, and the Oklahoma Cattleman's Association.

COMBS, J.

¶ 0 Petitioners are the proponents of Initiative Petition No. 434, State Question No. 820 (hereinafter "SQ820"), which in simple terms would legalize, regulate, and tax marijuana that is recreationally used by adults through the enactment of new laws to be codified at title 63, sections 431 through 446 of the Oklahoma Statutes. Petitioners ask this Court to assume original jurisdiction and to issue a writ of mandamus that would require Respondents to print SQ820 on the ballot for the general election being held November 8, 2022. At the time Petitioners filed their petition for an emergency writ on August 22nd, this Court had not even certified the number of signatures on SQ820's initiative petitions as numerically sufficient pursuant to 34 O.S.2021, § 8 (H). That was not accomplished until August 25th. But beyond that, before SQ820 could be placed on the ballot, it would still need to clear several other statutorily imposed hurdles set forth in the general provisions of title 34 of the Oklahoma Statutes. Chiefly, SQ820 would still need to survive any citizen protests challenging the sufficiency of the signatures or the rewritten ballot title. See 34 O.S.2021, § 8 (I), (K). Because it was not clear whether any protests would be filed or, if some were filed, whether the protests could be disposed of prior to the deadlines for printing ballots and for mailing ballots to absentee voters, this Court decided on August 29th to assume original jurisdiction and hold this matter in abeyance so that the process could play out a little further. The Secretary of State took actions on August 31st that commenced the 10-business-day period to file protests. Prior to the September 15th deadline, citizens filed four protests. This Court denied two of the protests on September 16th. Now that it is clear SQ820 cannot be printed on ballots in time to comply with the deadline for mailing ballots to absentee voters that is set forth in 26 O.S.2021, § 14-118 (A) and 52 U.S.C. § 20302(a)(8)(A), we deny the requested writ of mandamus.

FACTUAL BACKGROUND

1 On January 4, 2022, Petitioners Michelle Tilley Nichols and Michelle Jones filed Initiative Petition No. 434, State Question No. 820, which if approved by voters would legalize, regulate, and tax marijuana used recreationally by adults through the enactment of new law to be codified at title 63, sections 431 through 446 of the Oklahoma Statutes. After an unsuccessful constitutional challenge to the measure, see In re State Question No. 820, Initiative Petition No. 434, 2022 OK 30, 507 P.3d 1251 (decided Mar. 28, 2022), Petitioners began gathering signatures on May 3rd. Petitioners had 90 days in which to gather signatures under 34 O.S.2021, § 8 (E)--or until August 1st--but they completed that process nearly one month early. On July 5th, Petitioners delivered 118 boxes of signature pamphlets (on special paper required by the Secretary of State's vendor) to the Secretary of State for "a verification and count of the number of signatures on the petitions" in compliance with 34 O.S.2021, § 6.1 (A). [1]

¶2 This is the first general election year in which the Secretary of State has been tasked with the verification of signatures on initiative petitions. Previously, section 6.1 only required the Secretary of State to "make or cause to be made a physical count of the number of signatures on the petitions," see 34 O.S.2011, § 6.1 (A) (amended 2020); but in 2020 the Legislature amended section 6.1 to require the Secretary of State to "make or cause to be made a verification and physical count of the number of signatures on the petitions," see Act of May 21, 2020, ch. 125, sec. 7, § 6.1(A), 2020 Okla. Sess. Laws 451, 454 (codified at 34 O.S.2021, § 6.1 (A)). The new legislation specifies that this new verification duty requires the Secretary of State to match at least three of six data points required on the signature sheet--such as the voter's first name, last name, zip code, house number, or numerical month and day of his or her birth--with that voter's registration records on file with the Oklahoma State Election Board. See id. secs. 2, 7, §§ 2(A)--(B), 6.1(A)(8), 2020 Okla. Sess. Laws at 452--53, 455 (codified at 34 O.S.2021, §§ 2 (A)--(B), 6.1(A)(8)). If the Secretary of State could not verify a signature in this manner, he could not include the signature in the total count. See id. sec. 7, § 6.1(A)(8), 2020 Okla. Sess. Laws at 455 (codified at 34 O.S.2021, § 6.1 (A)(8)). The new legislation also allows the Secretary of State to purchase "any tangible or intangible assets, including, but not limited to, software, necessary to carry out" the duties of counting and verifying signatures. See id. sec. 7, § 6.1(C), 2020 Okla. Sess. Laws at 455 (codified at 34 O.S.2021, § 6.1 (C)).

¶3 With their early start for counting signatures, Petitioners were hopeful they could get SQ820 on the November 2022 general election ballot. When Petitioners dropped off their signature pamphlets, the Secretary of State's Office advised them that the counting and verification process would likely take two to three weeks--which was historically how long it had taken to manually count signatures--or that the process may be even faster due to the new electronic counting process that would be conducted by the Secretary of State's vendor, Western Petition Systems (hereinafter "WPS"), on its newly created software. Pet'rs' App., tab C, Nichols Aff. ¶ 8, at 2. In order to facilitate the process, Petitioners met with the Secretary of State's Office to ensure the signature sheets were formatted and printed correctly so that the signature pages would scan through the WPS machines as expected. Id. ¶ 9, at 2.

¶4 Nevertheless, the initiative petition process got bogged down in the Secretary of State's Office. Petitioners, who had a campaign representative on site each day to observe the counting and verification process, claim that most of the work still had to be performed by individuals doing manual data entry because the scan of signature sheets using WPS software frequently generated "wildly inaccurate" digital text. Id. ¶¶ 12, 18, at 2--3. Consequently, most signature sheets had to be looked at individually so that names, addresses, and other data points could be corrected through manually typing them into the WPS program. Id. ¶ 18, at 3. Moreover, WPS is a small local business owned and operated by Bill Shapard, a political pollster, and his company could only supply four employees--who happen to be his family members--to lead the electronic verification process. See id. ¶ 14, at 2. Quickly it became obvious that the team was processing only 1,000 signature sheets per day, and there were approximately 23,000 signature sheets to process. See id. ¶ 20, at 3. That meant the process would take at least four-and-a-half weeks for data input. Petitioners offered volunteers to enter data and suggested acquiring more machines or working past 5 o'clock in order to speed up the process, but the Secretary of State refused these measures. Id. ¶¶ 20, 22, at 3. Instead, the Secretary of State hired and trained numerous temporary workers and reallocated some of his full-time staff. See Resp'ts' Resp. ex. A, Bingman Aff. ¶¶ 11 & n.1, 18, at 3--4. Petitioners also suggested speeding up the count by seeing if they had met the 95,000-signature threshold without processing all the signature sheets, but they were told no interim reports could be run because, with how the software was designed, the signatures could not be verified until the very end, after all the signature sheets had been processed. See id. ¶¶ 12--16, at 3--4; Pet'rs' App., tab C, ¶¶ 21--22, at 3. Ultimately, the signature and verification process did not conclude until August 17th, after nearly seven weeks.

¶5 On August 10, 2022, Respondent Paul Ziriax advised Petitioner Michelle Tilley Nichols that the State Election Board had an "internal" deadline of August 26th for printing the November 2022 general election ballots and that there would be no wiggle room with that self-imposed deadline. See Pet'rs' App., tab C, Nichols Aff. ¶ 23, at 4. Mr. Ziriax also informed Ms. Tilley Nichols that he would not be printing...

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