By Jay Chilton, CIJ

OKLAHOMA CITY – OCPA Impact, an advocacy organization associated with the Oklahoma Council of Public Affairs, filed a challenge to the gist of State Question 779, commonly known as the Boren Penny Tax.

What is a Gist?

The “gist” is defined by Webster’s New Twentieth Century Unabridged Dictionary as; “The main point of a question; the point on which an action rests; the essence of a matter.”

When collecting signatures for a ballot initiative from the public in Oklahoma, the petitioners are required to provide a, “simple statement of the gist of the proposition,” for the voters to read. Further, the gist must provide a legally sufficient explanation so that the voter who is asked to sign the petition can properly understand the issue.

Not Unprecedented

As recently as 2007, in another initiative petition relating to public education, the Court ruled against a petition on the grounds that it did not fulfill its requirement, “to prevent deceit and fraud,” in relation to the intent and ultimate effect of the proposal. In that ruling, the Court wrote that, “a potential signatory, looking only at the gist, did not have sufficient information to make an informed decision about the true nature of the proposed legislation.”

The challenge to the gist of SQ 779 by OCPA Impact makes a similar claim.

Supporters of the tax such as Amber England, Executive Director of Stand For Children, have claimed that the people of Oklahoma have made clear their desire to vote on the issue. From a legal standpoint that claim is irrelevant.

If the gist is found to be insufficient, none of the signatures would be allowed because the insufficiency of the gist would have potentially deceived the people signing the petition, rendering it invalid.

The gist provided to Oklahoma voters during the signature collection phase of the ballot initiative process reads as follows:

“This measure adds a new Article to the Oklahoma Constitution. The new Article creates a limited purpose fund to improve public education. It levies a one cent sales and use tax to provide revenue for the fund. It allocates funds for specific institutions and purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, high school graduation rates, college and career readiness, and college affordability, improving higher education and career and technology education, and increasing access to voluntary early learning opportunities for low-income and at-risk children. It requires an annual audit of school districts’ use of monies from the fund. It prohibits school districts’ use of these funds for administrative salaries. It provides for an increase in teacher salaries, It requires that these funds not supplant or replace other education funding.”

Constitutional Reasoning

The gist of SQ 779 was said to be, “dead on arrival,” by the Oklahoma Supreme Court Justices who dissented with the majority ruling on an earlier challenge to the proposal that the initiative petition could proceed in January. That challenge focused on the Oklahoma Constitution’s single subject rule, which is designed to prevent the manipulative combination of different proposals together in order to win support for unpopular proposals, often called “log rolling.”

In paragraph four of Justice Taylor’s dissent – Taylor was joined by Justices Kauger and Winchester – on Jan. 12, Taylor excoriates the petition by saying, “Initiative Petition No. 403 violates Article XXIV, Section 1 of the Oklahoma Constitution, violates Oklahoma’s seperation of powers as set out in the Constitution, and deceives the voters by failing to identify each crucial change to be voted on in the gist.”

The distinct changes in Oklahoma law Taylor refers to are:

1. A public-school-teacher pay raise
2. An increase in the state sales tax
3. The marriage of common education and higher education
4. An increase in the Board of Equalization’s powers

Taylor said that each of the four issues should be separate conditional propositions.

The reason he said the gist deceives voters is because the language used – and the meaning of that language – is quite different from the language used in the legal filing for the petition and the ultimate result of the language used in the potential law itself.

“The biggest problem is the gist’s description of the Board of Equalization’s power,” Justice Taylor wrote in his dissent. “The new powers given to the Board of Equalization … clearly are not addressed by the one minor sentence in the gist.

“The gist is easily deceitful to the voters in this respect and must fail.”

The gist does not explain to the voter that the law would alter the manner in which tax dollars are appropriated in Oklahoma, usurping the powers of the legislature and granting those powers to the executive branch through the Board of Equalization. In fact, the gist does not mention the Board of Equalization or any changes to the appropriations process at all.

Justice Taylor continued to denounce the gist of SQ 779 in relation to its material joining of common education sector with the historically separate and distinct higher education sector.

He also referred to a ruling by the Oklahoma Supreme Court in 1908, Regents of University v. Board of Education, to support his conclusions. In the unanimous ruling, the Court agreed with the Regents of the University of Oklahoma that the university – or higher education generally – is not a part of any “public schools” consideration. Higher education is autonomous, independent and unanswerable to common education and the Board of Education.

“The term ‘public schools,” as used in section 5, art. 13, of the Constitution of Oklahoma, does not include in its meaning the University of Oklahoma,” the ruling states.

Taylor’s dissent states that SQ 779’s gist seeks to mislead voters and attempts to blur that long-held standard for the purpose of diverting tax dollars, ostensibly collected for common education, to the coffers of higher education.

“The gist also lumps common and higher education into what it calls ‘public education.’ Public education, or public schools, has long referred to common education, not college,” he wrote. “Voters would not be able to discern how Initiative Petition No. 403 marries common education and higher education for the first time in this state.”

The gist, as presented to the voters who signed the petition, only mentions higher education one time and in a manner regarding it as subordinate to items such as reading in early grades, high school graduation rates, and college and career readiness among others. It places “higher education” on a level commensurate with “career and technology education.”

However, in terms of funding from the increased sales tax, higher education would receive nearly three times – $125 million – the amount received by early-childhood programs, and Science, Technology, Engineering and Mathematics (STEM) programs – $50 million each. Higher education’s more than 20 percent share of all revenue collected by the tax would be 10 times that of the $12.5 million earmarked for the CareerTech system. Meanwhile, little more than half of the taxes collected would be allocated to raise teacher pay.

“The gist is dead on arrival,” Taylor concluded. “(T)he gist or proposed ballot title deceives potential signatories and potential voters. (T)he gist does not satisfy the statutory requirements set out by the Legislature.”

Additional Gist Deficiencies

In addition to the deficiencies outlined by Justice Taylor, OCPA Impact highlighted several other issues any of which, they believe, should render the gist legally insufficient. Those additional issues include:

1. The gist says the new law would, “improve college affordability,” but the proposal requires no changes in the affordability of state colleges.
2. The gist states that funds from the new tax could not be used to increase administrative salaries. This is inaccurate, the ban only applies to superintendents, any other administrative positions would be eligible to benefit from the increased funds.
3. The gist implies a nonexistent requirement that the usage of all funds from the new tax would be subject audit. No audit requirements exist for any of the monies directed to the State Department of Education, Department of Career and Technology Education or the State Regents for Higher Education.

One point of concern for OCPA Impact received mockery and ridicule by a few members of the Capitol press corps, but upon further investigation, is found to be a valid consideration.

The gist says that the proposal, “levies a one cent sales and use tax to provide revenue for the fund.” Challengers of the proposal say that this is misleading, that it is not sufficient to merely say that taxes would be increased by a single penny but rather, would be raised by a full percentage point.

“Voters shouldn’t be led to believe this proposal merely asks them to spare a penny that they might find in their cushions or underneath the floor mats in their car,” said Dave Bond, CEO of OCPA Impact, “but that’s more or less how it’s currently worded.”

The difference is one of calculated deception. Several reporters asked Bond why his organization would challenge the wording in the gist of, “one cent,” in favor of more accurate wording to reflect the reality of a full percentage point rise in state sales taxes. The claim by the reporters that, “everyone knows that one cent means one percentage point,” stands in direct contravention the language used by supporters of the tax during their efforts to persuade Oklahoma voters to accept the increase.

When OU President David Boren began the signature campaign to put his penny sales tax initiative on the November ballot on February 16, he told supporters and reporters that all is takes is a penny to improve education for Oklahoma children.

Even before collection of signatures began, Boren claimed the tax would only be one penny when he asked a reporter on Oct. 21, 2015 during the launch of the campaign, “Are our kids worth a penny; is our economic future worth a penny?”

Boren’s statement carried enough weight with Kurt Hochenauer, author of the Okie Funk blog and English professor at the University of Central Oklahoma, to prompt his posting of an article to his blog entitled, “Only One Penny” in which he claims,“It’s only one penny. It’s not going to bankrupt anyone.”

The Blue Oklahoma blog echoed those sentiments in an Oct. 7, 2015 post entitled “Boren Plan Deserves Serious Consideration” which read, “Sure, I agree that the tax proposal, as it stands, is regressive, but that can be fixed with credits and rebates in the tax code, and, it’s only ONE CENT.”

Boren’s statement, “Our children are worth a penny,” has been repeated multiple times, not only by him, but by many of the supporters of SQ 779 since the beginning of the campaign.

But when simple math is applied to the issue, the result is far more than, “only one penny.”

According to the USDA, the average family of four spends over $200 a week on groceries. At 52 weeks in a year, that total comes to more than $10,000. A one percentage point rise in sales taxes would increase food expense for Oklahoma families by more than $104.

A similar study finds that the same family spends more than $2,000 on clothing rendering a more than $20 increase in the family’s budget.

In the Oklahoma City metro area, an average family of four dishes out more than $4,000 per month on expenses such as housing, food, child care, transportation, health care and other needs. With a one percent rise in sales taxes, the same \family would pay $500 more annually to maintain the same standard of living.

Supporters Respond

Supporters of the tax claim that a challenge to the gist should have been raised prior to the collection of signatures. However, since the Oklahoma Supreme Court only allows one challenge to an initiative petition prior to the collection of signatures, and challenges on constitutional grounds can only be filed before signatures are collected, the timing of the challenge, from a legal perspective, is proper.

OCPA Impact filed an unsuccessful constitutional challenge to the tax prior to the collection of signatures, disallowing them the option of filing a challenge to the gist – a statutory challenge – until after the signature collection phase was completed.

Furthermore, the supporters claimed in their response brief that the gist is sufficient.

“There is nothing deceitful or misleading about the statement in the gist, and nothing more is required,” they wrote.

“Yes for 779 responded today with a brief filed that rebuts the latest delay tactic by a special interest lobbying group that wants to deny Oklahomans an opportunity to vote on a comprehensive solution to the education funding crisis and the severe teacher shortage,” Ward Curtin, spokesman for Yes for 779, said.

“We are confident in the work of our legal team and the validity of the petition.”