¶1 Delilah Christine Gentges sued the Oklahoma State Election Board in the
district court of Tulsa County to prevent implementation of SB 692, commonly
known as the Voter ID Act.1 Ms. Gentges alleged she had standing as a taxpayer
and as a registered voter in Tulsa County. The State Election Board specially
appeared in the district court of Tulsa County and asked the court to dismiss
this suit. The State Election Board contended Ms. Gentges lacked standing and
Tulsa County was not the proper venue for a suit against a State agency. The
district court of Tulsa County rejected these challenges and the State Election
Board asked this Court to assume original jurisdiction to prohibit the district
court of Tulsa County from proceeding further. This Court granted partial relief
by ordering the district court of Tulsa County to transfer the case to the
district court of Oklahoma County.
¶2 Following the transfer of the case to Oklahoma County, Ms. Gentges filed a
motion for summary judgment. She asked the court to declare the Voter ID Act
unconstitutional on the grounds that (1) the Legislature violated Article 6,
Section 112 of
the Oklahoma Constitution by not presenting the referendum designated SB 692 to
the Governor for veto consideration prior to submitting it for a popular vote,
and (2) the identification requirements "interfere to prevent the free exercise
of the right of suffrage" that is prohibited by Article 2, Section 43 and Article 3,
Section 54 of
the Oklahoma Constitution. After review of the parties' summary judgment
paperwork, the trial court ruled (1) the Oklahoma Constitution did not require
presentment of a legislative referendum to the Governor before the referendum is
placed on the election ballot for a vote and (2) Ms. Gentges "lacks standing."
Upon review, we hold that Ms. Gentges does have standing to challenge the
constitutionality of the Voter ID Act but find the Act was properly submitted
for a popular vote. We remand for the trial court to determine whether the
identification requirements "interfere to prevent the free exercise of the right
of suffrage" and to decide Ms. Gentges' constitutional challenge to the venue
requirement in 12 O.S.2011, §
133.
¶3 The parties agree that there are no material issues of fact in dispute on
the issues of standing and the referendum. They further agree that only
questions of law are presented for resolution. The issue of Ms. Gentges'
standing is the first question of law to be determined.
¶4 The trial court's summary judgment order specifically decided one of the
issues raised by Ms. Gentges' motion for summary judgment - whether the Oklahoma
Constitution requires the Legislature to present a referendum, like SB 692, to
the Governor for veto consideration prior to submitting the measure for a
popular vote. The trial court ruled that "the Constitution does not require
presentment of a legislative referendum to the Governor before the referendum is
placed on the election ballot for a vote." In granting this declaratory relief
the trial court must have necessarily concluded that Ms. Gentges had standing to
litigate the issue of whether the Voter ID Act was validly enacted. In other
words, she was not totally without standing.
¶5 The part of the trial court's summary judgment order that ruled Ms.
Gentges "lacks standing" can only be read to apply to her complaint that the
Voter ID Act would "interfere to prevent the free exercise of the right of
suffrage." In challenging Ms. Gentges' standing to litigate this issue, the
State Election Board argued that Ms. Gentges cannot rely on her status as a
taxpayer to challenge the Voter ID Act, because the Voter ID Act involves no
expenditure of public funds. In the absence of such a circumstance to support
standing, the State Election Board has maintained that Ms. Gentges must show
that she suffers injury from having to present a photo ID to vote. The State
Election Board's summary judgment evidentiary material established that Ms.
Gentges possesses a valid photo Oklahoma drivers license. The State Election
Board insists that this undisputed fact demonstrates Ms. Gentges can easily
comply with the Act without any additional burden upon, or injury to, either her
right to vote or her act of voting.
¶6 The State Election Board is correct that Ms. Gentges' status as a taxpayer
is not sufficient to support standing to challenge the Voter ID Act. However,
her possession of a valid photo Oklahoma drivers license is no more relevant to
her standing to challenge the constitutionality of the Voter ID Act than her
financial means to pay a poll tax would be relevant to challenge a burden of
that nature.
¶7 In cases where "[n]o government expenditure is challenged," this Court has
recognized judicial discretion "[to] grant standing to private parties to
vindicate the public interest in cases presenting issues of great public
importance." State ex rel. Howard v. Oklahoma Corporation Commission, 1980 OK 96, ¶ 29, ¶ 31, 614 P.2d 45, 51 (citation omitted).
This discretion is properly exercised to grant standing where there are
"competing policy considerations" and "lively conflict between antagonistic
demands." Id. at ¶¶ 37-38, 614 P.2d at 52 (citations omitted).
¶8 In addition, this Court has said "a suit may be brought [by a private
party] challenging the legality of government action . . . if the plaintiff is
the object of the action at issue." Oklahoma Public Employees Association v.
Oklahoma Department of Central Services, 2002 OK 71, ¶ 16, 55 P.3d 1072, 1079. In such cases,
"there is ordinarily little question that the action . . . has caused . . .
injury, and that a judgment preventing or requiring the action will redress it."
Id.
¶9 In the case at hand, the requirement that voters present certain types of
identification at the time of voting is a new condition upon the exercise of the
right of suffrage. The question of whether this new condition would "interfere
to prevent the free exercise of the right of suffrage" is a matter of "great
public importance" given the fact that "free exercise of the right of suffrage"
is guaranteed by two provisions in the Oklahoma Constitution. The first
provision - Article 2, § 4 - appears in the Bill of Rights and is a guarantee
extended to "those entitled to such right." This Court has said the right to
vote conferred upon a qualified elector by this constitutional provision is "a
basic constitutional right." Sparks v. State Election Board, 1964 OK 114, ¶ 9, 392 P.2d 711, 713. The second
provision - Article 3, § 5 - expresses a limitation on governmental power. The
importance of this limitation is underscored by the observation in Sparks
that: "To deprive a qualified elector of his [or her] right to vote, by law,
would be contrary to the spirit of both Federal . . . and State Constitutions."
Id., 392 P.2d at 713-714.
¶10 There can be no doubt that Ms. Gentges, as a registered voter, is within
the class of "those entitled" to exercise the right of suffrage and has a basic
constitutional right protected by Article 2, § 4. Members of this class
(i.e., registered voters) are likewise the most logical parties to
contest any conditions on the right to vote imposed by action of the
Legislature, because registered voters are "the object of the action at
issue."
¶11 Review of the summary judgment record also reveals this case involves
"competing policy considerations" (i.e., preservation of the integrity of
the election process by verifying the identity of those voting vs. the free
exercise of the right of suffrage). Furthermore, the arguments advanced by Ms.
Gentges and the State Election Board demonstrate "lively conflict between
antagonistic demands."
¶12 The foregoing considerations lead this Court to conclude that Ms. Gentges
has standing to vindicate both her personal interest and the public interest by
challenging legislative action that may arguably "interfere to prevent the free
exercise of the right of suffrage." Accordingly, we reverse the trial court
ruling that Ms. Gentges "lacks standing" to challenge the Voter ID Act on the
ground it would "interfere to prevent the free exercise of the right of
suffrage."
¶13 We do not agree, however, with Ms. Gentges' contention that the
provisions of SB 692 were not properly enacted as a referendum. Ms. Gentges
insists that the fatal defect in the enactment of SB 692 lies in the
Legislature's failure to present the measure to the Governor for veto
consideration prior to its submission to a vote of the people. While she
acknowledges that the Governor has no power to veto a referendum after it
is approved by a vote of the people, she maintains that a bill proposing a
referendum must be presented to the Governor for veto consideration prior
to its submission for a popular vote.
¶14 Ms. Gentges relies on language in Article 5, § 2 of the Oklahoma
Constitution that authorizes the Legislature to order a referendum "as other
bills are enacted." Ms. Gentges further notes that Article 6, § 11 of the
Oklahoma Constitution requires the Legislature's presentment and the Governor's
veto consideration of "Every bill which shall have passed the Senate and
House of Representatives." She points out that this Court has recently
interpreted the "every bill" language in Article 6, § 12 (a related veto
provision) to mean "any" and "all" bills. Coffey v. Henry, 2010 OK 4, ¶ 3, 240 P.3d 1056, 1057.
¶15 Despite the logical appeal of this analysis, its chief problem lies in
giving literal meaning to the single word "every" and ignoring important
qualifying language in Article 6, § 11. The complete text of the presentment
clause in Article 6, § 11 reads: "Every bill which shall have passed the Senate
and House of Representatives, and every resolution requiring the assent of both
branches of the Legislature, shall, before it becomes a law, be presented to the
Governor." The important qualifying language in question is "before it becomes a
law." The complete text clearly indicates that presentment and veto
consideration is required for "every bill" that "becomes law" through the
Legislature's exercise of its granted sovereign power. This is not the only
sovereign power by which law is made, however.
¶16 The first two sections of Article 55 of the Oklahoma Constitution reserve
sovereign power to the people to make law by a process that is different from,
and in addition to, the exercise of sovereign power granted to the Legislature.
That process is by initiative and referendum. Sections 3 through 8 of Article 5
specify how this process is to be fulfilled. Section 3 of Article 56 prescribes a
very different role for the Governor to play in this law making process than the
role played by the Governor in the Legislature's law making process. In
particular, section 3 commands that the Governor "shall submit [petitions and
orders for initiatives and referendums] to the people" and expressly provides
that "The veto power of the Governor shall not extend to measures voted on by
the people."
¶17 As previously noted, Ms. Gentges acknowledges this limitation on the
Governor's veto power, but contends it should be interpreted to apply only
after a measure has been approved by the people. To support this
interpretation, Ms. Gentges basically argues that the enactment of law without
the check and balance of a veto violates the guarantee of a republican form of
government set forth in Article IV, § 47 of the United States Constitution. Ms. Gentges
believes that presentment and veto consideration prior to submitting a
referendum to a vote of the people is the only way for the people to enact law
consistent with a republican form of government.
¶18 Again, despite the logical appeal of this argument, settled law dictates
that the check and balance of the veto is very much a part of a referendum
ordered by the Legislature. In the case of In re Initiative Petition No. 348,
State Question No. 640, 1991 OK
110, ¶ 29, 820 P.2d 772, 780,
this Court cited approvingly Kadderly v. City of Portland, 44 Or. 118,
145-46, 74 P. 710, 720, for the principle that the power of the people "[to]
veto or defeat bills passed and approved by the Legislature" is part of the
republican form of government. This is particularly true of a referendum by
Legislative order in which the Legislature merely recommends the people
enact a particular measure. In such cases, the check and balance of the veto is
preserved; it is simply exercised by the electorate, not the Governor.
¶19 The state of the record does not permit this Court to decide whether the
identification requirements of SB 692 "interfere to prevent the free exercise of
the right of suffrage." We note that Ms. Gentges' motion for summary judgment
reserves this issue as a "factual question." Also, in their response to Ms.
Gentges' motion for this Court to retain this appeal, the State Election Board
and the Intervenors have argued that this reservation by Ms. Gentges prevents
the "the substantive constitutionality of the Voter ID Act . . . from being
reviewed for the first time in this accelerated appeal."
¶20 In remanding this issue to the trial court, however, we believe it
provident to provide guidance to the trial court in resolving this controversy.
We do so to ensure a complete record is made and because the decision resolving
an alleged constitutional violation is reviewed de novo. See Fields v.
Saunders, 2012 OK 17, ¶ 1,
278 P.3d 577, 579.
¶21 "When considering the constitutionality of an act of the legislature, all
pertinent constitutional provisions must be considered together." Fent v.
State ex rel. Office of State Finance, 2008 OK 2, ¶ 21, n.11, 184 P.3d 467, 476 (citing Tate
v. Logan, 1961 OK 136, ¶ 5,
362 P.2d 670, 672). The free
exercise protections of Article 2, § 4 and Article 3, § 5 must be considered
with the Legislature's constitutional power to provide laws for conducting
elections and to detect fraud in such elections set forth in Article 3, § 4 of
the Oklahoma Constitution. This provision expressly provides that: "The
Legislature shall prescribe the time and manner of
holding and conducting all elections, and enact such
laws as may be necessary to detect and punish fraud in
such elections." (emphasis added). While the people have made it clear by
constitutional command that they do not want the civil or military power of the
State to interfere to prevent the free exercise of the right of suffrage, the
people have made it equally clear by a coordinate constitutional command that
they want the right of suffrage protected from fraud. Any assessment of the
impact of statutory law on the exercise of the right of suffrage must
accommodate both of these policies.
¶22 Also, laws governing the right to vote must "be reasonable and not
destructive to some constitutional right." Swindall v. State Election
Board, 1934 OK 259, ¶ 0, 32 P.2d 691 (syllabus 1). One test
is whether the voting law "was designed to protect the purity of the ballot and
not as a tool or instrument to impair constitutional rights." Sparks, 1964 OK 114, ¶ 13, 392 P.2d at
714.
¶23 This guidance in no way limits the issues nor precludes the trial court
from considering other law or matters that may bear on the constitutionality of
the Voter ID Act. It simply represents the baseline scrutiny the trial court
must give to resolve this constitutional controversy.
¶24 Based on the foregoing consideration, we affirm the trial court's ruling
that the Voter ID Act was validly enacted, but reverse the trial court's ruling
that Ms. Gentges lacks standing to challenge the Voter ID Act on the ground that
it violates the free exercise of suffrage provisions in the Oklahoma
Constitution. We remand this case to the trial court to decide Ms. Gentges'
constitutional challenges to the Voter ID Act and to the venue provision in 12 O.S.2011, § 133.
¶25 COLBERT, C.J., REIF, V.C.J., WATT, WINCHESTER, EDMONDSON, TAYLOR, and
GURICH, JJ., concur.
¶26 KAUGER and COMBS (by separate writing), JJ., concur in
result.
COMBS, J., with whom KAUGER, J., joins, concurring in result:
¶1 I concur in the majority opinion that the plaintiff in this case
has standing to challenge the constitutionality of the Oklahoma Voter ID Act. I
further concur in the majority opinion in that the Oklahoma Constitution does
not require the Legislature to present a referendum, like SB 692, to the
Governor for veto consideration prior to submitting the measure for a popular
vote.
¶2 I additionally concur that the issue of the constitutionality of the Voter
ID Act is not properly before this court for review at this time. The
trial court's ruling reflects the only issues addressed were the plaintiff's
lack of standing and that the Voter ID statute did not have to be presented to
the Governor before it was submitted to a vote of the people. There is nothing
in this record to reflect the trial court ruled on the issue of the facial
constitutionality of the Voter ID Act. In truth and fact the record is very
clear the trial court determined only two issues: 1) the plaintiff's standing or
lack thereof; and 2) a finding that there is no constitutional requirement that
a referendum be submitted to the Governor for consideration prior to a popular
vote.
¶3 The majority, having determined the plaintiff has standing, remands this
case to the trial court to address all remaining issues, including any issue
concerning the merits of the Voter ID Act. I disagree, however, with the
majority's attempt to frame the issues for the trial court on remand. The
litigants should be allowed to try their case before the lower court without any
indication what the appellate court would like to be considered. Our case law is
clear: in a public law controversy this court is free to change the theory
presented by the parties below and followed by the trial court.1 However this review must be
based upon the record brought for review.
¶4 As this court stated in Russell v. Board of County Commissioners,
1997 OK 80, ¶ 10, 952 P.2d 492, 497:
[w]hen resolving a public-law controversy, the reviewing court is
generally free to grant corrective relief upon any applicable legal theory
dispositive of the case. Appellate freedom to raise and settle public-law
issues sua sponte is circumscribed not by arguments tendered by the
parties but rather by the record brought for review. (Emphasis
applied.)
¶5 Although I agree with the majority that the constitutionality of the Voter
ID Act is of great public interest and any ruling of the trial court concerning
the Act's constitutionality will be reviewed by this court using a de
novo standard without deference to the decision of the trial court, that
review must be based on the record. Here we have no decision by the trial court
on this issue. The trial court order is silent as to the constitutionality of
the Voter ID Act. The Attorney General's position assailing the deviation of our
summary judgment procedure is well taken. There are only two issues before us at
this time.
¶6 Addressing the facial constitutionality of the Voter ID Act without a
record, evidentiary materials, or a final order is a precedent we should not
set. The litigants should be allowed to fully litigate their respective
positions without prior indication from this court as to what issues we feel are
important to the discussion. To do otherwise, is to issue an advisory opinion
and attempt to limit or at the least emphasize certain constitutional issues in
the trial court. I would let the parties argue their respective positions and
develop their own record without any specific direction as to issues by this
court.
