Supporters say State Question 836 will open up primary elections to the almost half-a-million Independents who can't vote in closed Republican primaries.
The state Republican Party, which is challenging the question before it hits the ballot next year, argues closed primaries serve as its process for nominating candidates for the General Election, and that forcing them to allow anyone registered as Republican to potentially appear on a ballot without that formal nomination violates the party's first amendment right to associate.
State Supreme Court Justice Dana Kuehn appeared to question that line of thinking in an exchange with a GOP attorney.
"Would you agree with me that Article Two, Section One of the Oklahoma Constitution says that all political power is 'inherent in the people' of this state?" Kuehn asked.
Benjamin Sisney, an attorney representing the Oklahoma Republican Party, replied plainly, "Yes."
Kuehn pressed him on whether the state supreme court should consider the U.S. Constitution-based challenge he presents at all, considering Oklahomans have yet to vote on the question of whether to reform their own constitution.
"You're today asking us, before any process has happened, to take away… that very important constitutional provision," She said. "How can I read that constitutional provision any other way?"
Sisney said the Oklahoma and U.S. Constitutions can live side-by-side, as they have always done. The language contained in State Question 836, he says, can't live within the parameters set by either of those documents.
"Our central argument is this… forces political parties to associate with candidates they don't support, while the party's name is being used to declare something to the voter the party does not wish declared," Sisney said. "At the same time, it prevents the parties from associating with candidates they do support."
And that, he said, will remain the case whether Oklahomans vote on it or not.
The merits of the GOP's argument aside, Kuehn said, she's not convinced the court should rule at all before Oklahoma voters have had their say on whether to open the state's primaries.
A handful of other justices were apparently on the same page as Keuhn, but still asked questions that dove into the details of the First Amendment violation claims made by the state Republican Party.
Among those issues are whether the short description on the signature page, or gist, of the question is misleading compared to the public's understanding of what the term "open primary" means. Justice Douglas Combs asked Sisney about that and other terms being tossed around during the arguments.
"This case is a question of definitions, buzzwords, if you will," Douglas said. "Open primary. Non-partisan. Blanket Primary, etc.. What's your definition of an open primary?"
Sisney hinged his definition on the one provided by the U.S. Supreme Court in its 2008 opinion of a case with a similar legal question called Washington State Grange v. Washington State Republican Party.
"Basically, there is a ballot that is designated as a party ballot, and any voter can choose either party's ballot."
The question is relevant, the justices point out, because that's not what State Question 836 proposes to voters, despite using the term "open primaries" in its gist and ballot title – the longer explanation appearing before them at the polls.
Part of the ballot title reads:
"In the open primary, all candidates for a covered office would appear on the same primary ballot without regard to party affiliation, and any qualified voter could vote for any candidate without regard to party affiliation. A voter in the open primary could vote for only one candidate per covered office. The two candidates receiving the most votes in the open primary would advance to the general election, without regard to party affiliation and without regard to whether the candidates have been nominated or endorsed by any political party."
The description is far closer to what's known as a blanket primary. But Frederic Dorwart, who's representing supporters of the state question, said the terminology used doesn't matter, at least not as much as the relative substance of the change.
The Oklahoma primaries are commonly known as being a "closed" arrangement, Dorwart said, so the terms used are meant to indicate the relative systemic change of them being more "open" to voters who aren't Republican – or any other single party.
"I don't think that's confusing to voters," Dorwart said. "This court has always said it will make constitutional determinations based on what a proposition actually does, not based on the label that's placed on it."
Ultimately, he said, the gist and ballot title can always be tweaked leading up to the election, as the formal process for all state questions demands.
The court agreed and recessed. It could choose not to make a ruling on the case altogether, and avoid ruling on any constitutional questions before votes have been cast.
Or, it could uphold the challenge and stop the ballot from appearing on the ballot at all.
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