Visit www.OklaJudges.com to learn more about your Oklahoma Supreme Court justices.

It’s election season. Absentee ballots have already started going out. Election integrity is on the minds of many and for good reason. What many don’t know, or have forgotten, is that the Oklahoma Supreme Court nearly weakened election integrity in 2020. Fortunately, the Oklahoma Legislature passed a bill to fix the problem, but there would have been no problem to fix if not for the Court’s illegitimate activism.

In 2020, an unprecedented number of people chose to vote absentee in order to avoid contracting COVID-19. And while there’s nothing wrong with availing yourself of a lawful means of voting, progressives were not willing to let a crisis go to waste. The League of Women Voters of Oklahoma filed a lawsuit asking the Oklahoma Supreme Court to force the Oklahoma State Election Board to accept absentee ballots without the legally required notary’s validation of the signature on the affidavit. And the Oklahoma Supreme Court obliged.

To understand how the Court could have undermined the integrity of the election, let’s begin with the text of the statute. Oklahoma law requires “[a]n envelope bearing an affidavit stating that the voter is qualified to vote and that the voter has personally marked the ballots, and has not exhibited the marked ballots to any other person.” The law explicitly requires the signature on the affidavit to be notarized (at no charge). 

In an attempt to eviscerate provisions it has never liked, the League of Women Voters of Oklahoma asked the Court to interpret our election laws (found in Title 26) through the lens of our civil procedure laws (found in Title 12). The argument was that in Title 12, in a section dealing with admissible evidence in court, the law permitted a sworn statement made under penalty of perjury to be used in lieu of a notarized affidavit. The Oklahoma Supreme Court bought that argument and ordered the Oklahoma State Election Board to inform voters that they could forgo the notary requirement.

The Court may have believed that it was just remedying the unanticipated consequences of inconsistent legislative drafting. But if it had read the law more carefully, the Court would have avoided its serious blunder. The Court ignored that Title 12 also defines “affidavit” in the same section of law as “a written declaration, under oath, made without notice to the adverse party.” The “adverse party” language clearly demonstrates that this provision could not possibly apply to the affidavit required for an absentee ballot. It clearly applies only to court proceedings.

The State briefed this decisive issue as well as others, but these arguments went completely unanswered by the Court. The dissents didn’t mention the argument either, though Justice Rowe’s dissenting opinion noted how absurd it is to require an I.D. for in-person voting but not for absentee ballots. 

The Oklahoma Legislature happily rushed to pass a bill fixing the issue before the election. Unfortunately, the Legislature is not always so quick to jump in and fix problems caused by the Oklahoma Supreme Court. It would be great if legislators would be more vigilant in responding when the judiciary encroaches on the legislature’s authority.