Nichols v. Ziriax
| Docket Number | Case No. 120,646 |
| Decision Date | 21 September 2022 |
| Citation | 518 P.3d 883 |
| Parties | 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. |
| Court | Oklahoma Supreme Court |
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.
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 SQ820 on the November 2022 general election ballot unless he received a proclamation from the Governor by August 26th authorizing SQ820 to be placed on the ballot in compliance with 34 O.S.2021, § 12. Id. ; see also Pet'rs' App., tab D, Letter from Paul Ziriax, Okla. State Election Bd., to Kevin Stitt, Governor of Okla., 1 (June 22, 2022) ( ).
¶6 On August 22nd, Petitioners filed this action, asking this Court to assume original jurisdiction and to issue a writ of mandamus requiring the Respondents to take all necessary actions that would ensure SQ820 makes it on the November 2022 general election ballot. Petitioners argue that Article V, Section 3 of the Oklahoma Constitution mandates that all elections on measures referred to the people "shall be had at the next election held throughout the state , except when the Legislature or the Governor shall order a special election for the express purpose of making such reference." Okla. Const. art. V, § 3 (emphasis added). In an attempt to bolster the initial mandatory language and to avoid the subsequent qualifying language, Petitioners point us to case law interpreting Article V, Section 3 —namely, Allen v. Burkhart , 1962 OK 279, 377 P.2d 821.
¶7 Despite Petitioners' insistence that mandate should issue, Respondents have pointed out several statutory provisions that must be complied with before SQ820 can be put on the ballot. As of August 22nd, the Secretary of State had not certified to this Court the numerical sufficiency of the signatures he reviewed pursuant to 34 O.S.2021, § 8(H). Nor had this Court found the signatures in support of SQ820 to be numerically sufficient pursuant to section 8(H). After that, the Secretary of State would still be required to publish a notice pursuant to section 8(I) of the numerical sufficiency of the signatures in support of SQ820, of the rewritten ballot title, and of the period for filing protests and objections. That notice would commence a 10-business-day period for citizens to file protests and objections with this Court pursuant to section 8(I). If any protests got filed, this Court would be tasked with "resolv[ing] the objection with dispatch." Id. § 8(K). Once "all objections or...
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