Non-partisan initiative petition struck down

The petition, circulated in 2008 by the group Tulsans for Better Government, was challenged by City Councilor John Eagleton on two grounds: That the petitions lacked a warning against false signatures that is required by state law to be on all initiative petitions, and that the number of signatures submitted fell short of the requirement of 25% of the vote in the last general election.

34 O.S. 3 requires (emphasis added):

Each initiative petition and each referendum petition shall be duplicated for the securing of signatures, and each sheet for signatures shall be attached to a copy of the petition. Each copy of the petition and sheets for signatures is hereinafter termed a pamphlet. On the outer page of each pamphlet shall be printed the word "Warning", and underneath this in ten-point type the words, "It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such petition when he is not a legal voter". A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet. Not more than twenty (20) signatures on one sheet on lines provided for the signatures shall be counted. Any signature sheet not in substantial compliance with this act shall be disqualified by the Secretary of State.

Only one of the signature sheets submitted to the Tulsa City Clerk had the copy of the petition attached and that copy lacked the required statutory language. There was no evidence that any of the other pamphlets had a copy of the petition with the required language. Eagleton, in his filing, cited Community Gas and Service Company v. Walbaum, 1965 OK 118 (case citations omitted):

The warning clause is just as essential to guard against and prevent fraud, deception or corruption of the initiative and referendum process as are such other indispensable requirements of the statute as (1) the pre-circulation filing of a copy of the petition required by 34 O.S. 1961 § 8 ; (2) timely post-circulation filing of the petition in compliance with 34 O.S. 1961 § 8 ; and (3) the execution of a circulator's verification prescribed by 34 O.S. 1961 § 6 .

Eagleton's second point, involving the number of signatures, is a bit complicated: City Clerk Mike Kier used the April 1, 2008, voter turnout as the basis for the required number of signatures, which he determined to be 3,427. 12,985 votes were cast for Prop. 1. 13,065 votes were cast for Prop. 2.

Eagleton argued that the last general election at which every voter in the city was allowed to vote was on April 4, 2006. 77,341 votes were cast in the mayor's race, so that an initiative petition would require 19,336 signatures to make it onto the ballot. Only 6,675 valid signatures were submitted by Tulsans for Better Government.

While voters in every precinct could vote on two charter change proposals in 2008, that was a special election; only the voters in five city council districts had a general election. The distinction is backed up by the ballots distributed to voters: If you lived in council districts 1, 2, 5 or 7, your ballot was headed "SPECIAL MUNICIPAL ELECTION" and had only the two propositions. If you lived in districts 3, 4, 6, 8, or 9, your ballot was headed "GENERAL MUNICIPAL ELECTION" and had the city council race followed by the two propositions. (Click on the images above to see a full photographs of the ballots for districts with no council race and for District 3. These photos were taken of the ballots that are stored along with the certified results in the files of the Tulsa County Election Board. Many thanks to Patty Bryant and her great team at the Election Board for their assistance in accessing records of past elections.)

By contrast, on April 4, 2006, every voter in the city received a "GENERAL MUNICIPAL ELECTION" ballot. (Click the image below to see the ballot that was used for voters in council districts 1, 2, 7, and 8, where there was no council general election. There was a general election for mayor and auditor, as well as a special election to decide six charter change propositions.)

Eagleton's arguments won the day. Eagleton's filing in the case cited Neidy v. City of Chickasha, a 2008 Oklahoma Supreme Court case in which the Court ruled that special elections could not be used to determine the number of required signatures. (Emphasis in the original.)

The use of a special election to determine the sufficiency of signatures on a referendum petition offends the Oklahoma Constitution.

What constitutes a qualifying general municipal election was addressed by the Oklahoma Supreme Court in Belisle v. Crist, according to Eagleton's petition:

The Court also determined that a preceding general municipal election in which all voters were not eligible to participate should not be considered, only the last general municipal election where all qualified municipal voters could vote and only qualified municipal voters could vote. (Emphasis added.)