Oklahoma Election 2016: October 2016 Archives

Oklahoma State Question 790 is a legislative referendum which would remove a discriminatory and inconsistently applied provision in the Constitution of Oklahoma that deals with the relationship of religion and government. Its passage would allow the People of Oklahoma through our elected representatives to weigh and balance a variety of public concerns in the development and administration of our laws. Passing SQ 790 would place these questions solely in the context of the well-developed body of Federal jurisprudence concerning the free exercise and establishment clauses of the First Amendment, and would eliminate the added burden of a state provision, the meaning and interpretation of which has shifted over the 109 years since statehood, and which the State Supreme Court has inconsistently applied even within the last two years. Passing SQ 790 would eliminate a provision which discriminates against religious organizations by denying the possibility of even an indirect benefit from an action taken in pursuit of secular state aims.

SQ 790 would delete Article II, Section 5, which reads:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

The proposed amendment was placed on the ballot by Senate Joint Resolution 72, which was approved by a 39-5 vote in the State Senate and a 65-7 vote in the State House. (All five no votes in the Senate and all seven nay votes in the House were from Democrats, as were 2 of the 4 Senate abstentions and 17 of the 24 House abstentions.) The House Rules Committee passed it with a unanimous 9-0 vote. The Senate Rules Committee voted 13-2 in favor.

At the time of its passage, the Oklahoma Constitution was the longest governing document in the world, regulating the price of railroad tickets, regulating who could receive free railroad tickets (and including a special exemption for ministers of religion and YMCA traveling secretaries), decreeing the flash point of kerosene, and defining the term "colored" (although the legal impediments connected with the word were left to legislation -- the "Jim Crow" law passed as the Legislature's first act).

Over its 109-year history, Article II, Section 5, has been cited in about a dozen Oklahoma State Supreme Court cases, involving everything from discounted streetcar fares for parochial school students (OK), to letting private school students ride the public school bus (not OK), to chapel services at a state orphanage (OK), to a cross on the State Fairgrounds (OK), to, most recently, school vouchers for special-needs students (OK) and the Ten Commandments monument on the grounds of the State Capitol (not OK). The rulings have been woefully inconsistent.

The most recent two rulings illustrate the problem:

In Prescott v. Oklahoma Capitol Preservation Commission (2015 OK 54), the State Supreme Court ruled 7-2 that the Ten Commandments monument "operates for the use, benefit or support of a sect or system of religion." Stretching the definition of words to the breaking point, the majority opinion claimed that Judeo-Christianity was a system of religion and that the text of the Ten Commandments was sectarian because it followed the translation that was common to all English-speaking Protestant denominations for over three centuries. (The monument also includes the text of the Ten Commandments in ancient, pre-exilic Hebrew script.) Justice Combs, on this year's retention ballot, wrote a dissent in this case. Justice Winchester, also on the ballot went along with the majority's decision.

Oklahoma Ten Commandments Monument, highlighting the section with the Ten Commandments in ancient Hebrew script

A year later, in Oliver v. Hofmeister (26 OK 15), the Court ruled unanimously that it did not violate Article II, Section 5, for the state to provide funding that parents of special-needs children could use to pay for private school education. The majority argued that the Lindsay Nicole Henry Scholarship is constitutional, because the program is voluntary, because the parents choose the school and may select from religious or non-religious schools, and because the State benefits in that acceptance of the scholarship "relieves the school district of its obligation to the student to provide special education services mandated by the state and federal governments."

It is easy to see how the two decisions might have been reversed: The Ten Commandments are not unique to one Christian denomination or even to Christianity. They are held in respect and reverence by the three great monotheistic religions, so they can hardly be called "sectarian" as understood by the framers of our state's constitution. There is no such thing as a "Judeo-Christian system of religion." It would be more accurate to say that Judeo-Christian is a broad classification that embraces a group of different religions with some common features. The church-affiliated schools that receive state funding in the form of tuition vouchers are benefitting indirectly from state expenditure. The constitutional provision makes no allowance for offsetting state benefit.

The problem comes down to two words, one of which -- "indirectly" -- is overly broad, and the other -- "sectarian" -- has changed meanings since 1907.

Of all the private organizations in Oklahoma, only organizations which are religious in nature must be screened off from even an indirect benefit from government expenditure. Interpreted literally, the provision is absurd. Churches, religious schools, convents, and monasteries benefit indirectly from government spending on law enforcement, street resurfacing, sidewalks, and water and sewer service. A government that is banned from doing anything that might indirectly benefit a sectarian institution will be doing nothing at all.

But what does "sectarian" mean? Is anything religious necessarily sectarian, or did the framers of the Oklahoma Constitution understand a distinction between those two terms?

The same Constitutional Convention that adopted Article II, Section 5, saw no conflict with opening its proceedings with prayer or giving religious ministers a special exemption for free railroad tickets. The Constitution of the proposed State of Sequoyah, which was drafted by many of the same leaders who created the Oklahoma Constitution, had a provision similar to Article II, Section 5, but it also designated Sunday as a "perpetual day of rest" and banned atheists from holding public office.

The Oklahoma public schools that my parents and grandparents attended included prayers and Bible reading. At Catoosa Elementary School in 1970, Mrs. Paul's 2nd grade class opened each day with the Pledge of Allegiance and the Lord's Prayer.

For the first six decades or so of our state's history, the idea that the Ten Commandments were sectarian would have seemed ridiculous. What could be less sectarian than a document held in esteem by all the denominations of Judaism -- orthodox, conservative, and Reform alike -- dozens of Protestant denominations, Roman Catholicism, Greek and Russian and Syrian Orthodoxy, and even modern religions like Mormonism and Christian Science?

What was considered sectarian? Whether infants should be baptized, whether communion was a symbolic memorial or involved the transubstantiation of bread and wine into flesh and blood, whether the church should be governed by bishops, elders, or the membership of the congregation. Promotion by public schools or city governments of a civic religion of generic Protestantism was not seen as a violation of this constitutional provision by the men who put it there.

To the framers of the Oklahoma Constitution, "sectarian" was a code word for Catholic. While Article II, Section 5, is not identical to the unsuccessful Blaine Amendment to the U. S. Constitution, it is in the same vein and shares the same motivation. In the late 19th century, America experienced an influx of immigrants from Ireland and southern Europe. These immigrants were happy to become Americans, but they did not want their children to become Protestants, and they reacted to the public schools' generic Protestantism by setting up their own parochial schools. In reaction to this, politicians who wanted immigrants to assimilate passed provisions like the Blaine Amendment and Article II, Section 5, to ensure that choosing to avoid the prescribed path of religious assimilation would always carry an extra financial burden.

In one case dealing with this constitutional provision, the State Supreme Court noted that a chapel on the grounds of the State's Whitaker Orphanage near Pryor would be used for "non-sectarian, non-denominational religious worship" -- a juxtaposition that would have made perfect sense to the framers of Oklahoma's Constitution but apparently baffles seven of the nine members of our current State Supreme Court.

A few weeks ago I debated in support of SQ 790 against Jim Huff, one of the plaintiffs in the Ten Commandments monument case. Mr. Huff repeatedly made the claim that approval of SQ 790 and repeal of Article II, Section 5, would leave a hole in the law regarding the relationship of religion and government. He claims that its passage will lead to more lawsuits.

On the contrary. The "hole" would be filled by a well-defined body of jurisprudence regarding the First Amendment's "establishment" and "free exercise" clauses. If SQ 790 passes, state, local, and school officials in Oklahoma will have the guidance of dozens of First Amendment cases across the entire country. The two lawsuits mentioned above could have been avoided if Article II, Section 5, were repealed, because precedents in other states already established the constitutionality of the legislature's actions.

If SQ 790 fails, Oklahoma officials will only be able to guess, based on a dozen inconsistent rulings, whether their actions will be regarded as constitutional when the inevitable lawsuit is brought to the State Supreme Court.

Because of the clarity that repeal of Article II, Section 5, will bring to the interaction of government and religion in Oklahoma, I am voting YES, to APPROVE SQ 790.

MORE comments -- a couple of further thoughts I've posted elsewhere that may help summarize the case:

Regarding their Ten Commandments monument, Texas officials could make decisions based on dozens of 1st Amendment establishment and free-exercise precedents from cases across the US. Oklahoma officials are burdened with an overly broad ("indirectly") provision with few precedents (about a dozen) and shifting definitions ("sectarian"). But the existence of Article II, Section 5 is no excuse for our State Supreme Court. The seven justices who ruled against the monument should be blamed for wrongly claiming that there is a "Judeo-Christian system of religion" (Judeo-Christian is a label for a broad grouping of religions with some common elements; if it's a system, where's its hierarchy, where are its rituals set down?) and that the monument is "sectarian" (its text is revered by all denominations or sects of Judaism and Christianity, and is even regarded as holy scripture by Islam).

When Article II, Section 5, was placed in the Oklahoma Constitution, and similar "Blaine Amendment"-type provisions were added to other state constitutions, the framers wanted to encourage children to be indoctrinated in the state religion of the day (generic protestantism) and make it harder for families who wanted to educate their children in their own religion. The motivation for those who want to keep it today hasn't changed, but the state religion has been changed (by the U. S. Supreme Court in the 1960s) to atheism and materialism.

MORE: After the jump, a summary of the Oklahoma State Supreme court cases citing Article II, Section 5.

Oklahoma State Question 779, an initiative petition promoted by University of Oklahoma President (and former Oklahoma governor and senator) David Boren, would amend the Oklahoma Constitution, establishing a permanent 1 cent on the dollar sales tax (a permanent increase in the state sales tax rate from 4.5 cents per dollar to 5.5 -- a 22% increase) to be used for funding K-12 schools, Career Tech, and higher education. Complex language is intended to ensure that this permanent sales tax is in addition to and not in place of existing state funding.

Here is the text of the proposed new Article XIII-C, which would be added to the Oklahoma Constitution if SQ 779 is approved:



There is hereby created in the State Treasury a limited purpose fund to be known as the "Oklahoma Education Improvement Fund." The fund shall consist of the proceeds of the sales tax levy and the use tax levy provided in Section 2 of this Article XIII-C, and any monies or assets contributed to the fund from any other source, public or private.


There is hereby levied upon all sales, not otherwise exempted in the Oklahoma Sales Tax Code, an additional excise tax of one percent (1.0%) of the gross receipts or gross proceeds of each sale of tangible personal property, or of other goods and services subject to the sales tax as provided in the Oklahoma Sales Tax Code. Except as otherwise provided herein, this tax shall be collected, reported, and remitted or paid in accordance with the Oklahoma Sales Tax Code. There is hereby levied and there shall be paid by every person storing, using, or otherwise consuming within this state, tangible personal property purchased or brought into this state, an additional excise tax on the storage, use, or other consumption in this state of such property at the rate of one percent (1.0%) of the purchase price of such property. Said tax shall be levied on the storage, use or consumption of personal property as provided in the Oklahoma Use Tax Code. Except as otherwise provided herein, this tax shall be collected, reported, and remitted or paid in accordance with the Oklahoma Use Tax Code. This sales tax levy shall be in addition to, and shall not supplant, the general sales tax levied in the Oklahoma Sales Tax Code or any other sales tax authorized by Oklahoma law and this use tax levy shall be in addition to, and shall not supplant, the general use tax levied in the Oklahoma Use Tax Code or any other use tax authorized by Oklahoma law. All revenue from the sales tax and the use tax levied pursuant to this Article XIII-C, and penalties and interest thereon, collected by the Oklahoma Tax Commission shall be paid to the State Treasurer and deposited into the Oklahoma Education Improvement Fund.


A. Monies in the Oklahoma Education Improvement Fund shall be apportioned by the State Treasurer, appropriated by the Legislature, and distributed monthly for the educational purposes established herein, as follows:

1. Common Education: Sixty-nine and one-half percent (69.5%) of said monies shall be apportioned among and between all the several common school districts of the State in proportion to the school population of the several districts, on the basis of the state aid formula for common education then in effect.

(a) Monies from the Oklahoma Education Improvement Fund shall be specifically identified and segregated from other monies appropriated and apportioned among the several common school districts of the State on the basis of said state aid formula.

(b) The common school districts shall use eighty-six and one-third percent (86.33%) of the additional funds provided to them under this Article XIII-C to increase teacher salaries as required by Section 4 of this Article, and to otherwise address and prevent teacher and certified instructional staff shortages in the manner most suited to local district circumstances and needs, including but not limited to differentiated compensation methods or performance pay.

(c) The common school districts shall use thirteen and two-thirds percent (13.67%) of the additional funds provided to them under this Article XIII-C to adopt or to expand programs, opportunities, or reforms to improve reading in the early grades, to improve high school graduation rates, and to increase college and career readiness. The common school districts may use the amount apportioned to them under this Section 3(A)(1)(c) only to adopt or to expand said programs, opportunities or reforms, and may not use the amount apportioned to them under this Section 3(A)(I)(c) to maintain programs, opportunities or reforms established prior to the effective date of this Article XIII-C.

(d) The State Auditor and Inspector shall approve auditors who shall annually audit the use made of the monies distributed to the school districts under this Article XIII-C to ensure that it is used only for the purposes specified in this Article XIII-C..

2. Higher Education: Nineteen and one-quarter percent (19.25%) of said monies shall be paid to the education and general operating budgets of the institutions under the authority of the Oklahoma State Regents for Higher Education, for use in improving college affordability, or otherwise in the improvement of higher education.

3. Career and Technology Education: Three and one-quarter percent (3.25%) of said monies shall be paid to the Oklahoma Department of Career and Technology Education, for use in the improvement of career and technology education.

4. Early Childhood Education: Eight percent (8%) of said monies shall be paid to the State Department of Education, for use in increasing access to and enhancing the quality of voluntary early learning opportunities for low-income and at-risk children prior to entry into the common education system.

B. Monies expended or distributed from the Oklahoma Education Improvement Fund as provided herein shall be used only for the purposes specified in this Article XIII-C, Section 3.c. None of these monies distributed from the Oklahoma Education Improvement Fund to common school districts may be used to add superintendent .positions or increase superintendents' salaries.


Each common school district of the State of Oklahoma shall pay each teacher employed by such district a salary at a rate that is at least $5,000 greater than the salary schedule transmitted by such district in the most recent year prior to the adoption of this Article XIII-C.


A. Monies expended or distributed from the Oklahoma Education Improvement Fund shall supplement, and shall not be used to supplant or replace, other state funds supporting common education, early childhood education, higher education, or career and technology education, including but not limited to the Permanent School Fund, the Oklahoma Education Lottery Trust Fund, the Education Reform Revolving Fund, the Common Education Technology Revolving Fund, the Higher Education Capital Revolving Fund, the Oklahoma Tuition Scholarship Revolving Fund, the Common School Fund, appropriations from the Legislature as provided in Article XIII, Section 1a of the Constitution, and any other appropriations from the Legislature used for educational purposes.

B. The Legislature shall appropriate the monies from the Oklahoma Education Improvement Fund solely to supplement other funds supporting common education, early childhood education, higher education, or career and technology education. The Legislature shall not appropriate such monies to supplant or replace any other state funds supporting common education, early childhood education, higher educ.ation, or career and technology education.

C. In order to ensure that the monies from the Oklahoma Education Improvement Fund are used to enhance and not supplant funding for education, the State Board of Equalization shall examine and investigate appropriations from the Fund each year. At the meeting of the State Board of Equalization held within five (5) days after the monthly apportionment in February of each year, the State Board of Equalization shall issue a finding and report that shall state whether appropriations from the Oklahoma Education Improvement Fund were .used to enhance or supplant education funding. If the State Board of Equalization finds that education funding was supplanted by monies from the Oklahoma Education Improvement Fund, the State Board of Equalization shall specify the amount by which education funding was supplanted. In this event, the Legislature shall not make any appropriations for the ensuing fiscal year until an appropriation in that amount is made to replenish the Oklahoma Education Improvement Fund.


A. This Article XIII-C shall become effective on July 1 immediately following its passage.

B. Nothing in this Article XIII-C shall be construed as conflicting with Article X, Section 23 of the Constitution.


The provisions hereof are severable, and if any part or provision hereof shall be void, invalid, or unconstitutional, the decision of the court so holding shall not affect or impair any of the remaining parts or provisions hereof, and the remaining provisions hereof shall continue in full force and effect.

Article X, Section 23, is the balanced-budget requirement in the Constitution of Oklahoma.

Before you even get to the question of whether common schools should get more state funding or teachers should get raises, there are numerous reasons to defeat this proposition:

1. This is a logrolled proposition, in violation of the Oklahoma Constitution's single-subject rule. The essence of logrolling is to link unpopular provisions, which could not pass on their own, with provisions that enjoy public support. Boren has framed this issue so that you have to give him more money for OU if you want to give more money to K-12 schools. That's selfish and greedy on his part. The lavishly funded Tulsa Technology Center will get more money too, even though they can barely figure out how to spend the money they take in through their dedicated property tax levy. The high priests of the Oklahoma Supreme Court pretended not to see the obvious logrolling, so it's left to the voters to punish logrolling by defeating it at the polls, along with the unjust judges who approved it (including Supreme Court justice Combs and Civil Appeals Court judge Thornbrugh, on the ballot for retention in November).

2. There's no mechanism for reducing the tax rate if the tax generates more revenue than is needed. We will have the same problem we already have with dedicated property tax levies for TCC, Tulsa Technology Center, the library, and the health department. Taxpayers lose, money gets wasted, other needs go unfunded.

3. Our cities and towns will have some of the highest combined sales tax rates in the nation. This will hurt border communities, as shoppers cross the state line to avoid the higher tax rate. This will hurt Oklahoma's poorest citizens, as the regressive tax on food, clothing, and other necessities hits even harder.

4. Sales tax is a highly volatile revenue source. Just ask your city's finance director.

5. The degree of detail, the specificity of the earmarks, and the severability clause all indicate that this is really statutory language, not constitutional language.

Any additional funding for post-secondary education should be tied to a College Realignment and Closure Commission, modeled after the military's successful efforts to cut costs by reducing duplication, consolidating commands, and closing inefficient bases. There is considerable overlap between our comprehensive universities, regional universities, community colleges, and career tech schools. (For example, if you want to learn computer programming, any one of those four types of taxpayer-funded, post-secondary institutions will offer what you need.) Colleges are often located based on political considerations of the turn of the 20th century, rather than the population distribution of the early 21st century. And Oklahoma colleges don't need any more taxpayer money for subsidizing culturally corrosive garbage or persecuting dissenters from the official left-wing ideology.

Funding for common schools needs to go back to a local model -- local funding, raised locally, spent locally, under local control. In FY2016, local and county funds accounted for 28% of school funding, while state sources (including earmarked funds and appropriations) amounted to 61%. That ratio needs to be reversed. Property-rich districts like Union and Tulsa shouldn't be receiving state aid at all, beyond targeted assistance for special needs. District taxpayers should have the option of voting in a higher permanent support levy. Rural county assessors should suffer a penalty for failing to assign true market value to local property, as their sloth results in lower property taxes and lower levels of local support. Under the current system, the state steps in and subsidizes that behavior by supplementing lower property tax collection with state funds. The system hurts well-managed counties that are paying their fare share of taxes in favor of poorly-managed counties that aren't. Making local districts more responsible for their own funding would have the natural consequence of encouraging various types of consolidation and efficiency, including administrative consolidation, campus consolidation, and distance learning. If kids on a Queensland cattle station can learn math over the radio from a teacher 200 miles away, surely rural Oklahoma children can learn math over the internet.

SQ 779 is a rotten apple. I plan to throw it out on November 8 by voting no, against SQ 779.

MORE: Here are the opening paragraphs and a few other key passages from Justice Taylor's dissent, which was joined by Kauger and Winchester:

¶1 I respectfully dissent to the Court's decision finding no constitutional infirmity with Initiative Petition No. 403. The Court is presented with a clear example of logrolling--what Article XXIV, Section 1 of the Oklahoma Constitution intends to prevent. An extremely popular one-time pay raise for a group of state employees paired with other less popular tangentially related questions is repulsive to this constitutional provision. The plain language of Article XXIV, Section 1 requires each proposition in an initiative petition to be of one general subject. This proposed constitutional article to provide a pay raise for a small group of state employees, paired with an increase in funding for common education and higher education, a 1% sales tax, and the enhancement of the Board of Equalization's power is a perfect example of what Article XXIV, Section 1 was written to prevent. Even if logrolling were not the determinative issue, the proposed initiative petition impacts several other constitutional provisions in which allocations for salaries are delegated to the Legislature, and only the Legislature.1

¶2 The Respondents admitted during oral argument that amending our founding document to give a pay raise to one group of state employees is unprecedented. Unprecedented may undersell this point. Stop and think about this proposal for a moment--our Constitution will be amended to grant a onetime pay raise to a group of state employees. Is constitutional amendment to become the new vehicle for pay raises for state employees going into the future? It is evident that this unprecedented constitutional pay raise is being proposed because it is the popular subject in this collection of independent and unrelated provisions. Without the pay raise provision, Initiative Petition No. 403 would likely stand no chance with the voters.

¶3 It is the duty of this Court to follow the rule of law and the Oklahoma Constitution. This case is not simply an approval or disapproval of increasing pay for common education teachers of this state. If that were the case, it would sail through these challenges and be adopted by the people. I would send Initiative Petition No. 403 back to the Respondents and require the questions of a public-school-teacher pay raise, an increase in the state sales tax, the marriage of common education and higher education, and an increase in the Board of Equalization's powers to be presented to the voters as separate conditional propositions....

¶18 In a future budget year, where failure of revenue will require the Legislature to make cuts across the board to all agencies, the Legislature will cut common education and higher education at its own peril due to the powers now given to the Board of Equalization. If the Board of Equalization does not approve of the Legislature's decisions on education appropriations, then the Board of Equalization can shut down the entire legislative branch of government until it follows the command of an executive branch entity. We may very well see the Legislature grind to a halt as the Board of Equalization test-drives its new power.

¶19 There is a reason that a state employee pay raise through constitutional amendment has never been utilized before. The Oklahoma Constitution sets forth precise appropriations procedures for the Legislature to utilize, and the Legislature only. This proposed provision thwarts a core function of the Legislature and clashes with other constitutional provisions which control the appropriations process. See Okla. Const. art. 5, §§ 55-56;4 Okla. Const. art. 13A, § 3; 5 Okla. Const. art. 13, § 1A.6 In essence, Initiative Petition No. 403 contains internal logrolling and causes external logrolling of other relevant constitutional provisions...

¶24 Public support for a public-school-teacher pay raise is very high in this state. I could not agree more that it is a noble goal and purpose. Yet this Court has an obligation to follow the rule of law and the Constitution. And when such a well-supported measure is used as a Trojan horse to add provisions into the Constitution which are only tangentially related to public-school-teacher pay raises, the Constitution and the Court become the gatekeepers. The voters should decide these issues, but they should not be forced to support public-school-teacher raises along with an increase in the sales tax, the marriage of common education and higher education, and an increase in the power of the Board of Equalization all in one vote. I respectfully dissent.

Oklahoma State Question 777 proposes an amendment to the Constitution of Oklahoma. It would add a new Section 38 to Article 2, which would read:

Section 38. To protect agriculture as a vital sector of Oklahoma's economy, which provides food, energy, health benefits, and security and is the foundation and stabilizing force of Oklahoma's economy, the rights of farmers and ranchers citizens and lawful residents of Oklahoma to engage in farming and ranching practices shall be forever guaranteed in this state. The Legislature shall pass no law which abridges the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices without a compelling state interest.

Nothing in this section shall be construed to modify any provision of common law or statutes relating to trespass, eminent domain, dominance of mineral interests, easements, rights of way or any other property rights. Nothing in this section shall be construed to modify or affect any statute or ordinance enacted by the Legislature or any political subdivision prior to December 31, 2014.

shallwegather-webimage2.jpgThis proposed amendment began life as HJR 1012 during the 2015 legislative session. The House approved it 90-6; the Senate approved a different version 39-6; then the House adopted the Senate version by an 85-7 vote.

The markup above shows the changes from the original House version to the version finally approved by both Senate and House. The original House version said "farmers and ranchers" instead of "citizens and lawful residents of Oklahoma"; the change was made on the House floor. The Senate version added "dominance of mineral interests, easements, rights of way" before "or any other property rights." The Senate version also added the final sentence grandfathering any laws enacted in 2014 (the session prior to passage of this resolution) or earlier.

There are active, evidently well-funded campaigns on each side of the issue. The "yes" website is http://www.oklahomarighttofarm.com/, the "no" website is http://www.votenoon777.com/.

There seems to be a good deal of propaganda on each side of the issue, aiming to provoke an emotional response rather than argue the pros and cons.

While SQ 776 aims to disarm judicial activists, SQ 777 hands them a loaded howitzer. On the Oklahoma Right to Farm FAQ page, the vote yes folks say, "Oklahoma's courts will ultimately determine the scope of Right to Farm." How about we determine the scope before we approve it?

Two other states have approved a similar constitutional provision. North Dakota passed such a bill by a 2-to-1 margin in 2012; Missouri by a very slim margin in 2014. On the other hand, this year, North Dakota voters reaffirmed the state's ban on corporate farming.

This is a bit of a tangent, but I've seen some people claim that the American Legislative Exchange Council (ALEC) is behind SQ 777. Today I even saw the claim that "ALEC runs Oklahoma." That's like saying Ree Drummond runs my kitchen because we use some of her recipes. ALEC is an organization where limited-government, free-market legislators can exchange ideas and share solutions. (It's analogous to the National Conference of State Legislatures (NCSL), which serves legislators who are looking for solutions involving bigger government. The main difference is that ALEC is privately funded, and NCSL receives tax dollars.) Some of those solutions involve model legislation, providing a starting point which legislators can adapt to their specific goals and the unique circumstances of each state.

In the case of "Right to Farm," SQ 777 shares a name with ALEC's model right-to-farm legislation, but little else. The ALEC model bill is statutory, not constitutional, and it includes specific definitions that SQ 777 lacks. The ALEC model bill provides a process for handling complaints against farmers; SQ 777 has nothing of the sort.

While I appreciate the concerns of groups like the Oklahoma Farm Bureau and the Oklahoma Cattlemen's Association, I don't believe that a constitutional amendment like that proposed in SQ 777 is the right solution. I will be voting NO -- AGAINST SQ 777.

Thanks to the support of generous donors (see the Spotlight sidebar on the home page for a list), here is the first in the BatesLine series on the state questions on the Oklahoma 2016 ballot. We will seek to get behind the ballot titles to the legal substance of the question and try to uncover the history, rationale, and people behind each proposal.

State Question 776 is a legislative referendum that would add a new Section 9A to the Constitution of Oklahoma. This new section would say:

All statutes of this state requiring, authorizing, imposing or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative or referendum. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the Legislature. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. The death penalty provided for under such statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments, nor shall such punishment be deemed to contravene any other provision of this Constitution.

As Section 9A, it would fall immediately after Section 9, which is identical to the 8th Amendment to the Federal Constitution.

SQ 776 began as Senate Joint Resolution 31, which was was unanimously recommended by Senate and House committees, passed unanimously by the State Senate, and passed by an 80-10 vote in the State House. I have heard people ignorantly claim that the legislature is punting the issue to the voters, but under Article 24, amendments to the Oklahoma Constitution must be ratified by a vote of the people, whether they originate as an initiative petition or as legislation.

Audio of the Senate SJR31 floor presentation and debate is available online. On that page, click the SJR31 link in the left sidebar. This will advance the audio to that point in the session and also bring up the bill summary and history for further exploration. You can also watch video of the House SJR31 floor debate; click the "Agenda" tab and then the SJR31 link. The House Rules Committee discussion is here, which you'll find a more detailed discussion of the rationale behind this proposal.

If you put this amendment in a spray can, the label would read "Judicial Activism Repellent." This is an attempt to defend Oklahoma's use of capital punishment against a number of back-door strategies being employed by death-penalty opponents who know they can't win a direct attempt to delete the death penalty from Oklahoma law.

Activists have been pressuring drug companies to stop making the drugs used for lethal injections. As supplies of drugs needed for reliable and tested combinations have dried up, states have been forced to find new sources and new combinations of drugs in order to carry out the law. Application of these new combinations isn't straightforward, leading to errors as in the case of Clayton Lockett. That in turn leads to public outcry, a positive outcome from the perspective of death-penalty opponents.

During the House Rules committee discussion of the proposal, State Rep. Mike Christian mentioned a concern that the U. S. Supreme Court would ban lethal injection as "cruel and unusual punishment," making it urgent to find an alternative method (nitrogen hypoxia was mentioned as a new possibility in addition to electrocution and firing squad) and clearing a constitutional path to move existing cases to any new method.

old_sparky.jpgOf course, the only reason we are using lethal injection is because these same death-penalty opponents protested electrocution, hanging, and firing squad as inhumane.

The proposed amendment attempts to address problems raised by this situation. While methods of execution would continue to be limited by the "cruel and unusual" clause of the 8th Amendment of the U. S. Constitution, state judges would be barred from going beyond federal precedent to find additional methods of execution cruel and unusual under the Oklahoma Constitution.

Under the proposed amendment, a person is sentenced to death and not to a specific method of execution, so that a death-row convict will not be spared just because the expected method is unavailable.

"Shall not be deemed" in the final sentence is a restraint on activism by the State Supreme Court: They aren't allowed to comb the State Constitution for some other pretext for halting executions. If SQ 776 passes, the judges can't disingenuously imagine ambiguity or silence on the issue.

It's sad that this sort of amendment is necessary, but our theocratic method of selecting judges and justices means we wind up with a legal priesthood that selects a Sanhedrin of judges whose values are out of sync with the people they rule. Under the principle of self-government, judges should be of the people -- sharing the views and values of the people, but wiser, more consistent, and capable of reconciling conflicting circumstances. (The evolution of modern America makes more sense when seen as a decades-long process of colonization and proselytizing by a worldview alien to that which framed our Constitution, built the nation, and carried us through the Great Depression and World War II.)

I will vote YES, FOR SQ 776.

About this Archive

This page is a archive of entries in the Oklahoma Election 2016 category from October 2016.

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