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The Legislators in Black Robes Strike Again


Once again, the Oklahoma Supreme Court has usurped the Legislature’s constitutional authority. This time, it has legislated new election rules, behind closed doors, on a compressed timetable, and without public input. All with an election looming in which the new rules will apply.

On Monday, the Court eliminated the requirement that citizens voting by absentee ballot have their identity verified by a notary. If left unaddressed by the Legislature, absentee voters will be permitted to vote with little more than a pinky-swear promise that they are who they say they are, while in-person voters will still be required to show ID at the polling place. The Court’s decision not only harms the integrity of our election process, but was arrived at through a highly unusual process.

The legal challenge to the notarization requirement was launched by a coalition of progressive organizations calling themselves “Let the People Vote.” Their stated reasoning for allowing unverified voting is that voters should not have to risk their health by interacting with a notary in order to cast their vote.

Count me skeptical. In addition to launching this legal broadside in a state in which around one tenth of one percent of the population (approx. 4,000 out of 4 million) have tested positive for the COVID-19, the coalition looks an awful lot like the coalition supporting State Question 802, the Medicaid expansion initiative. They even hired the same law firm. Curiously, the lead plaintiff in the case, the League of Women Voters of Oklahoma, features only two advocacy items on their main webpage, “Let the People Vote” and “Yes on State Question 802.”

The Supreme Court, in a 6-3 decision, held that a separate statute clearly intended to apply to civil lawsuits, not voting, allows absentee ballots to be signed without notarization.

On the substance, the ruling is just bad policy. Our state has an unfortunate history of election fraud, and absentee ballot manipulation in particular. It was not that long ago that a House Speaker was convicted and driven from office for such activity, and the most recent election fraud prosecution in the state involved falsified absentee ballots. With this history, requiring notarization of absentee ballots is a minimal election fraud prevention measure. After yesterday’s ruling, that protection is now gone.

Moreover, as one of the three dissenting justices noted, the decision creates an “absurd” circumstance where the law “provide[s] for no verification for absentee ballots but still require[s] in-person voters to provide a valid I.D.” 

More concerning, the Court took this action in a rushed, highly unusual process largely away from public view. The lawsuit was filed directly with the Supreme Court, not a trial court, so there was no factual development and there is no court to appeal to. The Court truncated the normal deadlines, instead giving the State less than a week to respond to the lawsuit. No public hearing was held (unfortunately, refusing oral argument is not unusual for this Court). Instead, the case was assigned to a Supreme Court Referee, who took argument over the phone. The entire litigation was wrapped up in a mere 11 days, including weekends. On a matter as important as the integrity of our elections, we deserve more than such a slipshod process.

One dissenting justice put his finger on the larger issue, pointing out that “the issues stand presented to the wrong branch of government,” and therefore the Court should not get involved. Unfortunately, it's not surprising that a majority of the Supreme Court ignored this warning in order to legislate from the bench.

Fortunately, this errant decision can be corrected by the right branch of government, the Legislature. Because the decision did not involve constitutional questions, it can be corrected through legislation. Time is of the essence because the Court’s decision is operative immediately and if left unaddressed will govern the conduct of the June primary election. There is some indication the Legislature is prepared to act this week in response.

But even if this narrow voting issue is corrected, what will it take for the Legislature to rouse itself to the danger of a Supreme Court that regularly shows disrespect for the separation of powers? After all, legislating from the bench by the Oklahoma Supreme Court is nothing new. If legislators think the laws they enact during their time in office matter, as I do, and they don’t want to see them erased by an overreaching Court, they need to do something about how those justices are selected to be on the bench in the first place. Here’s a hint: outsourcing the process to the bar, as is currently done, isn’t the answer.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.

The opinions expressed in this blog are those of the authors, and do not necessarily reflect the official position of 1889 Institute.


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