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Undo 802


Why is it that when conservatives suffer a major loss, they give up, accept the new status quo, and fall back to the next retreat position? When progressives suffer a major loss, they regroup and try again. And again. Until they finally wheedle the American public into giving in. I propose a change in strategy. The Oklahoma Legislature should make undoing State Question 802 its top legislative priority for 2021. This will not be an easy task (legislators seem to prefer avoiding difficult tasks) but it is a critical one. The normal legislative process, with all its pitfalls and traps for the unwary, will only bring the topic to another vote of the people. So why spend so much political capital and effort if the same result is possible? Three reasons. 

First is the disastrous consequences of the policy. Forget that it enriches already-rich hospital and pharmaceutical executives. Forget that it gives the state incentives to prioritize the nearly-poor covered by expansion over the destitute covered by Oklahoma’s existing Medicaid. Here’s all you need to know: legislators are now required by the state constitution to fund the state’s portion of Medicaid expansion, to the tune of $100 million. This means even when large portions of the economy have been shuttered, general collections are down, oil prices briefly go sub-zero, and have spend months below $40 a barrel, leading to the declaration of a revenue failure, the state budget must begin with full funding for Medicaid. Sound familiar? Welcome to 2020, though fortunately without the Medicaid mandate.


Education, normally a top priority for state budgets, now plays second fiddle. While the constitution requires funding for that as well, the legislature has a great deal more latitude with the education budget. That means it can experience deep cuts during the budget process, whereas the budget for Medicaid is locked into the state constitution, determined largely by federal eligibility guidelines, federal contributions, and the number of enrolled individuals. The legislature is nearly powerless to react to low revenue years by adjusting Medicaid. 


Second, the radical disparity between in-person and absentee votes on SQ 802 raises concerns about the legitimacy of the election. Less than 7,000 votes separated the yeas from the nays. However, a sizable majority, 55 percent of in-person, election-day votes were cast against Obamacare expansion, while an incredible 80 percent of mail-in ballots were in favor of the proposal. Mail-in votes are considerably easier to defraud. Additionally, supporters of 802 sued to remove Oklahoma’s best defense against mail-in fraud, the requirement that each ballot be notarized. The pro-802 party won a questionable judicial victory, and only fast action by the legislature prevented the scheme from succeeding. Absentee ballots were also likely less-informed than the in-person votes, because the No-on-802 campaign didn’t start in earnest until the week before the election, after many absentee ballots had been mailed. 


Third, a constitution is really no better than ordinary law if it is subject to revision on simple majority votes. The US Constitution requires two thirds of each chamber of Congress or two thirds of the states to propose an amendment or convention. Then three quarters of the states must ratify it. If an amendment fails at any of these stages, it has no legal impact - a city council meeting has more national legal effect than an amendment ratified by only 36 states. There are some scholars who argue this is too rigorous. But very few would say that it should be the same half-plus-one that creates ordinary statutes. 


Amending the Oklahoma constitution ought to be materially more difficult than amending a statute. (The exception is that any attempt to undo a prior amendment ought to be subject to the same rules applied as the original. So an “Undo 802” amendment should require only a bare majority. Had 802 required a two thirds majority, that same standard should apply to attempts to repeal it.) A constitution is a written pre-commitment that a government will or will not do certain things. It’s supposed to be where we put things that are too important to leave to a majority vote. It holds absolutely no value if it can be amended as easily as an ordinary statute. Is this anti-democratic? Perhaps; it is at least counter-majoritarian. So were many of the safeguards the framers put into the US Constitution. Federal judges are unelected and have life tenure. Every state, no matter its size or population, gets two senators. The framers did not set out to build a democracy, they set out to build on a foundation of democracy, overlaid with safeguards designed to prevent the worst aspects of democracy, like a slight majority dominating a large minority.  


In Oklahoma, a referendum can amend either statute or the constitution, and the procedure is the same. The only difference is that amending the Constitution by referendum hamstrings the legislature. There are times when this is a good thing. We don’t want them to be able to hand out favors to those who put them in office. But when considering the state budget, especially a line item that will be as all-encompassing as Medicaid, the legislature needs some room to operate. 


One parting question: should absentee voting be available to everyone? Certainly voting should be available to everyone. It is a fundamental right of every citizen, born or naturalized. But if you want the privilege of voting absentee, you ought to be required to meet some burden of proof that you really can’t go to the polling place on the appointed day like everyone else. Real medical issues, unavoidable travel, working the entirety of the time polls are open, these are good reasons for an accommodation. Do you really want to trust the future of democracy to those who simply can’t be bothered to stand in line? Voting should be free, but that doesn’t mean it should be costless, if for no other reason than to acknowledge the cost that has been paid by others to ensure we have the right to vote.


Voting rights and legitimacy issues aside, conservatives should not give up the fight just because “the people have spoken.” Can you imagine progressives giving up on an important issue because they lost one vote? The legislature must show some backbone and send 802 back to the people.  


Mike Davis is a Research Fellow at 1889 Institute. He can be reached at mdavis@1889institute.org. 


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

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