Friday, October 15, 2010

State Questions!

Last night the League of Women Voters of Norman hosted a forum to discuss the 11 state questions that Oklahoma voters will encounter on the ballot in November. The panelists were Rick Tepker, a constitutional law professor at the University of Oklahoma; Rick Farmer, director of communication of the Oklahoma House of Representatives; and David Morgan, emeritus professor of political science at the University of Oklahoma. The moderator was Helen Duchon.

I thought the forum was extremely informative. I learned that apparently, unlike the constitution of the United States, which is short and vaguely-worded, the Oklahoma constitution is complicated and long, and that no one really knows what's in it. Rick Farmer said that a printer at the capital had to be manually shut off because it was being tied up by an aide who wanted a copy of the entire constitution and had been printing for hours. The panelists all shared a laugh at the expense of a state lawmaker who wanted print services to make a pocket-sized version of the Oklahoma constitution that he could carry with him. Rick Tepker posited that such a document would have to have such a tiny font that the whole thing would appear to the naked eye to be page after page of black sheets, as if the whole document was some redacted version of itself.

All this levity about the length of the Oklahoma constitution was in response to questions from the audience primarily about state questions 744 and 754. State question 744 is a measure that would constitutionally require Oklahoma to fund k-12 education at the same per-pupil level as all six of the states that share a border with Oklahoma, regardless of the status of the rest of the budget. In other words, a predetermined constitutional formula based on how much other states spend on education. State question 754 is a measure that would revoke all such predetermined constitutional formulas and formulas based on how much other states spend on anything. The constitutional law professor Tepker said that if either or both of these pass, the result will be litigation. Lots of it. Because no one really knows if legally these two questions can peaceably exist within the same state constitution. And apparently no one knows how state question 754 affects other previously-passed statutes, statutes which may or may not exist, and if they do exist, there may be something like 20 of them, but no one can say for sure because the constitution is so long and, apparently, unprintable.

There also may be a relevant statute to this question, brought up by both Farmer and Tepker, that states that if both of these conflicting statutes pass, then the one with the most votes will be law and the other one would be, I guess, S.O.L. And one other aspect to state question 754 is that it cannot be repealed or amended if it is adopted. And we know this only because that's what it says about itself. Whether a law can make itself unrepealable is still a matter of debate and will certainly be decided in the courts, says Tepker, who is of the opinion that most of the state questions are terrible for the public but would be great for the employment of lawyers.

State question 744 deserves some extra attention because it is, according to Tepker and most everybody who follows these things in Oklahoma, the most important measure on the ballot. It mandates a substantial spending increase for education (close to 20% of the education budget, or $1.0 to $1.7 billion per year, according to Tepker) without any sort of plan to increase the state's revenues to pay for it. The website for the proponents of 744 claims that it can be paid for by eliminating legislator perks and pork barrel projects; or in other words, stuff that will never be eliminated by any legislature anywhere (sorry to break it to you, Tom Coburn). Tepker was asked how the proposal would be funded if it were to pass, and Tepker replied that since the Republicans would likely be in charge of the legislature, a tax increase would be even more unlikely than usual, and that the legislature would have to find ways to cut spending in other areas of government. Some critics of the measure claim that a 20% cut would be necessary across the board. And there are no strings attached to the money, beyond that it has to be spent on instruction costs, not debt relief or construction of new buildings. In other words, no new academic standards or testing would be required. Rick Tepker said that Oklahoma would become California in terms of fiscal gridlock if 744 passed, which isn't likely, according to poll numbers conveyed by panelist David Morgan. Only 27% of people support 744 now, which is down almost 40% from a poll in July. I brought with me to the forum a whole bunch of questions that I had planned to ask about the details of education funding from other states, and how it would fit in with local and federal mandates, and all kinds of arcane things that aren't really that relevant now that I see that 744's support is dwindling.

But there are plenty of other half-thought-out measures that apparently are very popular in the Sooner state. State question 751 is a measure that will allow the state to conduct its business in English only, if it wants. There are some exceptions for federal forms and for tribal languages, but the measure says that if passed, it would prevent the state from being sued for not providing non-English documents. According to Rick Farmer, a woman in Jenks sued the state because the state refused to offer her a drivers license test in Farsi. The lawsuit was quickly thrown out of court. By passing state question 751, the lawsuit could apparently be thrown out of court more quickly, according to Rick Farmer. The English-language-only state question has the support of 85% of the citizens of Oklahoma.

There is a voter ID law on the ballot. State question 746 would require voters to present a valid government issued photo ID in order to vote. 3 other states have tried this, and the Supreme Court threw out a challenge to a similar law in Indiana (which I have previously talked about and made made a graph for). The usual arguments for and against were conveyed by David Morgan (who, I must say, has an excellent voice for radio and public speaking): it could disenfranchise a number of poor or elderly people, but it prevents fraudulent voting to a certain extent. According to Morgan, the editorial board of the venerated Daily Oklahoman claims that if the measure prevents even one fraudulent vote, then it would be a worthy law, no matter how many people (Democrats) it disenfranchised. Most of those in attendance last night were not sympathetic to the Oklahoman's opinion, but a poll puts those in support at 43% and against at 35%.

The question that got constitutional law professor Rick Tepker riled up the most was state question 755. SQ 755 would prohibit Oklahoma courts from using or considering international law or Sharia law when deciding cases. Tepker called it "offensive" with language that is "overbroad." He pointed out that it would also remove any basis for consideration of English common law, the historic root of the U.S. Constitution; and also for the ten commandments, which are popular 'round these parts. But it is all moot anyways; all that state question 755 could do would be to uphold the oaths to uphold the constitution that judges must swear to do already.

Another pointless headline-grabbing state question deals with "Obamacare". State question 756 would prohibit forcing any person or employer to participate in the federal health care law. Rick Tepker railed against this question as well, saying that "if it passes, it does nothing, I repeat, nothing to make the [federal] health care law unconstitutional," and it also does nothing to make it constitutional. Since the U.S. Constitution's Supremacy Clause trumps whatever our state does, the law will have no effect except to be reported on by the "lamestream" media. Tepker believed that the law would be deemed "null and void" immediately upon passage, which would mean no disruption in Medicare funding for Oklahomans. He compared it to the city council of some town in Vermont declaring that the war in Iraq is unconstitutional; a plea for attention worth nothing.

The rest of the measures on the ballot are not overtly controversial, but they still reflect the political composition of the conservative legislature that put them on the ballot. State question 747 would put term limits on all the statewide elected offices that don't already have term limits, such as lieutenant governor, attorney general, treasurer, labor commissioner, corporation commissioner, state auditor, and the state schools superintendant. And you thought entrenched interests only existed among politicians whose name you had heard of. Brad Henry, our term-limited Democratic governor, opposes the measure (sour grapes?). David Morgan revealed that 69% of voters were in favor of this measure, which Rick Tepker complained would take away the ability of the voters to elect the best person for the job if that person had already served 8 years.

State question 750 is a measure whose effect is to lower and make relatively consistent the number of signatures required to get a state question on the ballot. Currently in Oklahoma, one needs to collect a number of signatures equal to a certain percentage of the voters in the previous statewide election, held every 2 years. State question 750 would set the threshhold at the same percentage of voters, but count the voters for the statewide election for governor only, an election that always features a lower turnout than the one for president. It's a complicated explanation for a state question, David Morgan said, which is why there is no polling data on it. When asked if there was anything in the measure to prevent frivolous petitions, Morgan replied that silly questions would still be allowed, and that state question 750, if it would have any effect, would probably result in more state questions on ballots in the future. Another related question led to a lecture by Rick Farmer about the history of state questions. A third of state questions have come from people circulating a petition, but were less likely to pass than the two-thirds of state questions that have come from the legislature. The eleven state questions on the ballot this year (state question 744 from petition, all others from the legislature) are in fact a new record.

The apportionment commission is the subject of state question 748, and if you've never heard of this commission, it might be because it has never, in the entire history of statehood, actually convened a meeting. The apportionment commission is set up to meet if and only if the legislature fails to act on redrawing state house, state senate, and congressional districts in the legislative session following the decennial national census. The apportionment commission would be changed from a commission controlled by possibly-partisan statewide office holders (attorney general, state superintendant, treasurer) with no skin in the map-redrawing game, to a commission controlled by the governor, the speaker of the state house, and the president pro-tem of the senate. Legislators put state question 748 on the ballot as a measure that would give legislators more power (but only theoretically) over decisions that affect legislators, in the event that legislators cannot act on the matter before then. David Morgan said that there was no polling data on this question.

A shift toward legislative branch power is also the point of another ballot measure about a commission most people don't care about. State question 752 adds a couple of people and a couple of rules about the existing people on the Judicial Nominating Commission, which meets to select a list of nominees that the governor can appoint to the state supreme court. Currently the commission is composed of 13 people, with 6 non-lawyers appointed by the governor. State question 752 would add two more people, chosen by the house speaker and president pro-tem of the senate; and it would also mandate that the six non-lawyers must also not have a lawyer in their immediate family. In addition to making me ineligible to be one of the governor's choices on the commission (oh drat!), state question 752 also has the effect of shifting power ever so slightly away from the American Bar Association and towards the state legislature, according to Rick Farmer. Farmer recommends that if one is pro-ABA, one should vote no on this measure, and if one is anti-ABA, one should vote yes on this measure.

The one remaining state question involves the state's Rainy Day Fund, which has a more formal name that I forgot to write down when I was taking notes. State question 757 would raise the limit on the Rainy Day Fund from 10% of the budget to 15% of the budget. Oklahoma topped out the Rainy Day Fund for a couple of years before the recession of 2008, according to Farmer, and the fund has apparently helped out with the economic situation in the state since then. Rick Farmer characterized three positions from the political left, right, and center. He says the left would look at surplusses as evidence that the government should spend more, the right would look at it as evidence that the government should tax less, and centrists would look at it like a savings account where the state could tuck some money away for, as they say, a rainy day. Savings accounts are popular with many people in the center, according to Farmer, and indeed, poll numbers show support for the measure at 53%, compared to 29% against, according to David Morgan.

After the question and answer session, moderator Helen Duchon asked the panelists if there were any state questions that they would actually vote yes on. Rick Tepker answered first and advised skepticism generally for all state questions. He loathes with a passion state questions 755 (Sharia Law) and 756 (Obamacare), and he wouldn't vote yes on any of them, with the possible exception of 752 (Judicial Commission) and 757 (Rainy Day Fund). David Morgan pointed out tactfully that many of the questions were intended to get "a certain political party's base" out to the polls to vote. He too would vote no on all of the measures, except for maybe the unimportant ones. Rick Farmer ended by saying, "I am an at-will employee of the speaker of the house," and then gave out the recommendations of speaker Chris Benge (R-Tulsa): no on 744 (Education Funding), yes on everything else. This elicited gasps of displeasure from the audience.


A numeric guide to the state questions on the 2010 Oklahoma ballot:

744 = public education funding (the big one)
746 = voter id law
747 = term limits for low-profile statewide offices
748 = apportionment commission, the one that's never met
750 = petition signature threshhold
751 = English only
752 = judicial nominating commission, the one with all the lawyers
754 = no predetermined constitutional formulas, or, the anti-744
755 = no Sharia law
756 = no Obamacare
757 = rainy day fund increase

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