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

In recent years, the Oklahoma Supreme Court has ruled on legal challenges to the “gist” of initiative-petition efforts, deciding whether the brief description contained in the gist provides Oklahoma voters a true picture of the proposal before they sign their names to a petition.

The court’s decisions have swung wildly from case to case, in apparent contradiction to precedent, but one pattern has emerged: Whenever an initiative petition would grow government, the court has held a gist is legally sound, even if it leaves out significant information. When an initiative petition would rein in government, the court has nitpicked a gist to death to declare it illegal.

Following the passage of House Bill 1010XX in 2018, which enacted roughly $450 million in tax increases, the group “Oklahoma Taxpayers Unite!” sought to force a referendum vote on the tax increase as allowed by the Oklahoma Constitution. That effort, which was backed by former U.S. Sen. Tom Coburn, required the collection of registered voters’ signatures equal to at least 5 percent of votes cast in the most recent gubernatorial election.

Several groups, consisting primarily of teachers’ unions and similar lobbyist organizations, challenged the referendum effort in court, arguing that Oklahoma Taxpayers Unite’s petition gist, the short description provided to voters on signature forms, failed to fully inform Oklahomans because it did not mention that a tax on “little cigars” would be repealed along with new taxes on tobacco, fuel, and energy production.

The teachers’ union and its allies also argued the petition should be rejected because it did not mention a hotel tax that was included in HB 1010XX that had already been repealed by the Oklahoma Legislature.

They also complained that the petition did not include an exact copy of the bill that would be repealed, and argued the gist was incorrectly structured and misleading because the petition said approval would repeal HB 1010XX. The union argued that the petition did not repeal the law, but would instead “either temporarily or permanently, prevent HB1010XX from becoming law in the first place,” and argued that was a major difference that would confuse voters.

That year, a majority of the Oklahoma Supreme Court held the gist of the petition was legally insufficient because it did not mention the little cigar tax, which would have generated an estimated $1 million of the $474 million in total tax increases contained in HB1010XX.

“The failure to include any mention of the little cigar tax in the gist is troublesome,” the court majority wrote.

The court also held the gist was illegal because it did not mention the already-repealed hotel tax.

The court majority also found the petition was illegal because its pages were not numbered and ruled that the petition should have included a full copy of HB1010XX.

In a dissent, then-Justice Patrick Wyrick, joined by Justice James Winchester, wrote, “In lawyering this petition to death, the Court finds it deficient because (1) it contains a gist that the Court deems insufficient for reasons that have no connection to the actual purposes of a gist nor to the text of any statute or constitutional provision, and (2) the copy of the measure the proponents attached omits 21 characters of text out of approximately 80,000—the entirely non-substantive, never-to-be-codified section numbers, at that. In doing so, the Court unnecessarily departs from our referendum petition precedents. I respectfully dissent.” [Emphasis in original.]

In a separate dissent, Winchester wrote, “I am not persuaded that any of these minor blemishes in the petition would deceive voters when the issue comes up for a vote. The gist and bill together more than adequately inform a signer of the petition.”

The court’s ruling in that case contradicted the court’s precedent in a similar case.

The Oklahoma Supreme Court had ruled in McDonald v. Thompson that the gist of a petition did not have to contain every substantive detail of a proposal, finding in that case that a proposed tax-increase petition could proceed even though the gist specifically indicated teachers would get pay raises from the measure’s passage when all state government employees would have been given raises under the proposal.

In the McDonald case, the court majority held that providing specific mention of teachers but not other state employees was “not deceiving or misleading, but informative of the purpose behind” the initiative petition and “properly describes the effect the new article will have” because the gist also mentioned undefined “certified personnel” as beneficiaries.

But in 2019, the Oklahoma Supreme Court shifted course again and allowed a petition measure to proceed despite containing a more significant flaw than the omission of the “little cigar” tax in the 2018 case.

At that time, proponents of Medicaid expansion were seeking to put that issue before voters, but the initiative-petition gist claimed adults earning no more than 133 percent of the federal poverty level (FPL) would be added to the state welfare program. In reality, expansion authorized individuals with incomes up to 138 percent of the FPL to receive taxpayer-funded benefits.

The impact of that discrepancy was significant, adding $109 million in annual additional taxpayer cost to the program with $10.9 million of that total coming from the Oklahoma state government.

A majority of the Oklahoma Supreme Court held, this time, that such details were no big deal.

“We believe the language of the gist is clear,” the court majority wrote.

The opinion did not address why omission of a $1 million tax on little cigars in the Oklahoma Taxpayers Unite! case meant a gist was legally insufficient but a $109 million omission in the Medicaid case was not a problem.

As a result of the initiative-petition effort, in 2020 Oklahoma voters narrowly approved a ballot measure that allowed able-bodied adults to receive taxpayer-funded Medicaid benefits. The expansion went into effect in 2021.

A recent report by the Legislative Office of Fiscal Accountability, a state fiscal watchdog, shows that Medicaid expansion will cost taxpayers an additional $2.5 billion next year and ultimately force lawmakers to divert hundreds of millions of state taxpayer dollars from other uses.

LOFT reported that the Oklahoma Health Care Authority now estimates Medicaid expansion will cost nearly $2.5 billion in the 2025 state budget year with $213 million coming from state government while the remainder will come from citizens’ federal tax payments.

The LOFT report showed that from July 2021 through April 2024, the total number of individuals added to Oklahoma’s Medicaid program totaled 590,471 with 247,293 of those individuals added as the result of expansion.

From state fiscal years 2013 to 2019, Oklahoma’s Medicaid expenses averaged $5.46 billion per year. But by the 2023 fiscal year, that total had surged to $9.93 billion. The LOFT report noted nearly half the increased spending was for the Medicaid expansion population.

State Sen. Roger Thompson, an Okemah Republican who is co-chair of the legislative oversight committee for LOFT, noted that the $213 million state cost for Medicaid expansion “exceeds what we originally had talked about as far as the state share.” Officials initially projected the state cost of Medicaid expansion would be $164 million.

The LOFT report did not break down how much of the above-estimated expenses are due to the inclusion of individuals earning between 133 percent and 138 percent of the federal poverty level, the extra costs that were not noted in the petition gist that placed Medicaid expansion on the ballot.

This year, the Oklahoma Council of Public Affairs has created the Oklahoma Judicial Scorecard, which provides information on members of the Oklahoma Supreme Court and their rulings. The Oklahoma Judicial Scorecard can be viewed at https://ocpathink.org/judicial-scorecard.