Law & Principles
Trent England | September 14, 2016
Voters' Guide to Ballot Measures
A product of the populist era, the Oklahoma Constitution establishes processes for direct democracy. On the November 2016 general election ballot, Oklahoma voters will decide whether to adopt four constitutional amendments and three changes to state statutes.
Some of these measures are as simple as restating current law. Others would make complex regulatory changes or change legal standards in future lawsuits. The Oklahoma Council of Public Affairs does not support or oppose ballot measures. To help voters, we are providing accurate descriptions and analysis of what these ballot measures say and will do if adopted by voters.
[ State Question 776 ] Reiterating the Constitutionality of the Death Penalty
Description: Article 2, Section 9 of the Oklahoma Constitution, just like the Eighth Amendment in the U.S. Constitution, prohibits “cruel or unusual punishment.” S.Q. 776 would add new language to Section 9, clarifying that capital punishment is not “cruel or unusual punishment.” It would clarify that the legislature can determine methods of execution and specifying that if a method of execution is found invalid, the sentence of death would remain and be carried out by some other valid method.
Impact: When both the U.S. and Oklahoma constitutional prohibitions against “cruel or unusual punishment” were adopted, they were understood not to prohibit capital punishment. Nevertheless, some advocates have claimed and a few judges have held that the death penalty is unconstitutional. The purpose of S.Q. 776 is to reiterate, in the state Constitution, that capital punishment is not unconstitutional in Oklahoma. It also clarifies that the legislature, rather than judges, has the power to determine methods of execution.
[ State Question 777 ] Limiting Regulations of Farming and Ranching
Description: This measure would add a new section to Article 2 of the Oklahoma Constitution. It would declare that “the rights of citizens and lawful residents of Oklahoma to engage in farming and ranching practices shall be forever guaranteed in this state.” It would not overturn any regulations enacted through the end of 2014. Any regulation passed later than that, or in the future, by the state legislature would require a “compelling state interest.”
Impact: The text of S.Q. 777 says its purpose is to “protect agriculture,” which it declares “is the foundation and stabilizing force of Oklahoma’s economy.” It could not be used to challenge any laws enacted in 2014 or earlier. For later laws, or anything enacted by a future legislature, S.Q. 777 would require courts to apply the highest legal standard, often called “strict scrutiny,” in legal challenges to state legislation regulating “agricultural technology and livestock production and ranching practices.” Without proof of a “compelling state interest,” judges would strike down any such legislative acts.
[ State Question 779 ] Sales Tax Increase Directed to State Education
Description: This state constitutional amendment would increase Oklahoma’s state sales tax by an additional one percent. The tax revenue would go into a new special fund, from which 69.5 percent would go to school districts according to the state aid formula, 19.25 percent to state universities and colleges, 8 percent to the State Department of Education for early childhood education, and 3.25 percent to the Department of Career and Technology Education. School districts would be required to use some of their funds to raise teacher pay by at least $5,000. The State Board of Equalization would have power to supervise the legislature’s use of the tax increase revenue to ensure it is used to increase spending levels for state education.
Impact: S.Q. 779 would increase spending on state education programs by an estimated $615 million per year. According to the Tax Foundation, it would raise Oklahoma’s average statewide sales tax to the second-highest in the nation. About 61 percent of the tax increase would fund an increase in public school teacher salaries. Oklahoma’s current average teacher salary is $44,921. A study by the 1889 Institute found that when the cost of living is factored into state average teacher salaries, Oklahoma ranks 30th. That study found that a $5,000 salary increase would put Oklahoma at 15th among the states, just behind Texas.
[ State Question 780 ] Reducing Sentences for Nonviolent Crimes
Description: This measure amends state laws related to certain drug and property crimes. Possessing illegal drugs would become a misdemeanor crime punishable by up to one year in jail and a fine of up to $1,000. For property crimes like theft, fraud, and embezzlement, the seriousness of the offense and level of punishment are based on the value of the money or property involved. This measure amends a number of property crime statutes so that, in most cases, property offenses relating to less than $1,000 would be misdemeanor crimes punishable by no more than one year in jail and maximum fines of $1,000 or less.
Impact: Felonies are crimes punishable by incarceration for more than one year in state prison; misdemeanors are crimes punishable by incarceration for one year or less, usually served in a county jail. Oklahoma has the second highest incarceration rate in the United States, and spends about half a billion tax dollars each year on corrections. S.Q. 780 would change state law so that the possession of illegal drugs would be a misdemeanor instead of a felony. Manufacturing, trafficking, and selling illegal drugs would remain felonies punishable by long terms of imprisonment. Because of reforms passed this year by the state legislature (after S.Q. 780 was written), most of the reductions in sentences for nonviolent property crimes are already set to take effect this fall.
[ State Question 781 ] Directing Sentencing Reform Savings to Counties
Description: This measure will only take effect if voters also pass S.Q. 780. It would require Oklahoma’s Office of Management and Enterprise Services to calculate how much the state government has saved from the reforms made by S.Q. 780 (from fewer people being sent to state prisons) and to transfer that amount of state funds to a new special account. Funds from the account would then be provided to county governments, “in proportion to county populations,” for “rehabilitative services, including but not limited to mental health and substance abuse services.”
Impact: If S.Q. 780 is passed by voters, some people who commit nonviolent crimes will serve their shorter sentences in county jails rather than in state prisons. This means the state will save money, but counties will have higher expenses. S.Q. 781 is intended to capture the state’s savings and make it available to the counties. It earmarks those funds for rehabilitation services, but leaves counties free to design and operate those programs at the local level.
[ State Question 790 ] Repealing Article 2, Section 5 of the Oklahoma Constitution
Description: This measure removes the following section from the Oklahoma Constitution: “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”
Impact: In 2015, the Oklahoma Supreme Court forced the removal of a Ten Commandments monument from the State Capitol grounds. The state Court said that while the monument may have been acceptable according to the First Amendment of the U.S. Constitution, it violated Article 2, Section 5 of the Oklahoma Constitution. In response, state legislators enacted the resolution to send S.Q. 790 to voters to decide whether to repeal this state constitutional language and, in effect, overturn the Oklahoma Supreme Court’s decision.
[ State Question 792 ] Reforming Constitutional Regulations on the Sale of Alcoholic Beverages
Description: This measure would replace Article 28 of the Oklahoma Constitution, which regulates alcoholic beverages. It would eliminate the current distinction between “low-point” beer (required to have less than 3.2 percent alcohol by weight) and other beer and would end the prohibition against selling refrigerated alcoholic beverages. Grocery stores could sell beer and wine, but would be required to maintain a license. Liquor stores would be allowed to sell products other than alcoholic beverages, with some restrictions, and could remain open until midnight rather than being required to close at 9 p.m. Consumers could receive direct shipments of wine, but only for personal use, directly from wineries, and with limits on the number of cases.
Impact: Among the states, Oklahoma has some of the most restrictive regulations of the sale of alcohol. S.Q. 792 would reduce some of these regulations, especially by allowing grocery stores to sell beer and wine and by allowing refrigeration of the products in all stores. Some liquor store owners are concerned that the changes will hurt their businesses because of increased competition with less regulated grocery stores. The Alcoholic Beverage Laws Enforcement (ABLE) Commission would remain and would regulate the sale of alcoholic beverages at all stores.
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.