OKPOLICY.ORG
This past session, the Oklahoma Legislature passed Senate Bill 1027, which imposes sweeping restrictions on the initiative petition process. These changes include caps on the number of signatures that can be collected in a single county, a ban on out-of-state funding for signature-gathering campaigns, a requirement that all signature gatherers be registered Oklahoma voters, burdensome reporting requirements for initiative petition campaigns, and expanded powers for the Secretary of State over the approval of initiative petitions.
In June, concerned Oklahomans filed two lawsuits with the Oklahoma Supreme Court to challenge this bill. Both suits were filed against Secretary of State Josh Cockroft and Attorney General Gentner Drummond, in their official capacities.
The first case, McVay et al vs Cockroft and Drummond, challenges SB 1027 in its entirety; the second, Setter and Strobbe vs Cockroft and Drummond, disputes its retroactive application to State Question 836, a measure to implement an open primary system in Oklahoma. SQ 836 was filed before the legislative session began, meaning that the SB 1027 rewrote the rules after the process had already started.
Legal Challenges to SB 1027 |
||
| Plaintiffs | Defendants | Overview |
| Steven Craig McVay, Amy Cerato, Kenneth Ray Setter and Anthony Stobbe | Josh Cockroft, in his official capacity as Oklahoma Secretary of State, and Gentner Drummond, in his official capacity as Oklahoma Attorney General | Challenges SB 1027 in its entirety as unconstitutional |
| Kenneth Ray Setter and Anthony Stobbe | Josh Cockroft, in his official capacity as Oklahoma Secretary of State, and Gentner Drummond, in his official capacity as Oklahoma Attorney General | Challenges retroactive application of SB 1027 to State Question 836 |
These lawsuits are critical steps to protect Oklahomans’ constitutional right to the initiative petition. The Supreme Court must act with haste to strike down SB 1027 as a blatantly unconstitutional limit on free speech and democracy. Any Oklahoman who values democracy should care about the outcomes of these cases and support the overturning of SB 1027.
Where are we in this process?
Both cases were filed with the Oklahoma Supreme Court on June 12, 2025, just weeks after the legislative session ended in Oklahoma. Since then, there have been a few developments in each case. In both cases, the plaintiffs have asked the Supreme Court to place a preliminary injunction, or block, on SB 1027 until the case is decided. They have also requested that the court issue a stay, or a pause, on the signature collection of SQ 836 until SB 1027 is settled. The Court is currently reviewing a legal challenge to SQ 836 brought by the Oklahoma GOP before signature collection can begin. The Supreme Court has stated that it will rule on the injunction and stay only after the legal challenge is decided.
Meanwhile, both sides have submitted written arguments. In McVay et al, several other arguments have been filed by third parties, called amicus curiae, or “friends of the court.” These are groups and individuals who have an interest in the outcome of the case and believe they can offer unique insights and arguments for the court to consider. Notably, a retired federal judge has filed a brief against SB 1027, while 65 Oklahoma legislators submitted one in support of the bill. In McVay et al., the petitioners have also requested that the Supreme Court hold oral arguments to provide a more thorough explanation of their case. At the time of publication, the Court has not ruled on that request; if it decides not to hear oral arguments, its decisions will rely on the written briefs.
Once the court resolves the legal challenges to SQ 836, it is expected to move quickly on the two cases challenging SB 1027. In the past, cases involving the initiative petition process have been some of the highest priorities to the Oklahoma Supreme Court, which has tried to resolve them quickly. The Court will likely first rule on the motions for an injunction and stay, then turn to the substance of each case.
Plaintiffs convincingly argue that SB 1027 is unconstitutional
The plaintiffs in McVay et al argue that SB 1027 should be struck down in its entirety because it violates both the US Constitution and the Oklahoma Constitution. One of the bill’s most egregious provisions is its county signature cap system. These caps restrict Oklahomans’ ability to have their voices heard through the signature-gathering process and pose a significant barrier to petition campaigns successfully collecting enough signatures to reach the ballot.
The Oklahoma Constitution clearly defines the number of signatures required for each type of petition for it to reach the ballot, based on the total votes cast for governor in the most recent gubernatorial election: 5 percent of voters for referendum petitions, 8 percent of voters for statutory amendments, 15 percent of voters for constitutional amendments, and 25 percent of voters for reintroducing a previously-failed state question. Importantly, before SB 1027, there was no cap or limit on the number of signatures campaigns could collect from a specific county. By imposing county caps, SB 1027 unconstitutionally alters the formula outlined in the state constitution.
For referendum and statutory initiative petitions, campaigns can only collect a maximum number of signatures in each county equal to 11.5% total number of votes for governor in the most recent general gubernatorial election within that county. For constitutional initiatives, that cap rises to 20.8%. Taken together, these limits mean that over 94% of Oklahoma voters will not be able to sign an initiative petition. [Click here to see how these limits impact your county.] Plaintiffs also note that these caps make it mathematically impossible for a campaign to collect enough signatures to put a previously-failed state question back on the ballot, which requires signatures from 25% of the voter base.
By limiting the number of people who can sign an initiative petition, the Legislature not only made it functionally impossible for campaigns to succeed but also infringed on the First Amendment rights of everyday citizens who wish to express themselves through their signatures. For a law that restricts free speech to be upheld, the government must prove that the law is “narrowly tailored” to serve a “compelling government interest” and that it employs the “least restrictive means” possible to achieve that goal. In short, the state must prove to the court that it has a legitimate reason to impose signature caps and that these caps are the best way to serve that purpose. This is a very high bar for the government to meet. Lawmakers argued that these county caps were the only way to ensure campaigns collect more signatures from rural Oklahomans. But the plaintiffs in McVay et al make two key points in response: (1) the government cannot dictate that some signatures matter more than others, and 2) that the state could increase rural participation by expanding the 90-day collection period instead of imposing unconstitutional caps.
The plaintiffs in McVay et al also argue that several other provisions of SB 1027 are unconstitutional. By granting the Secretary of State more power over the gist statement, SB 1027 shifts excessive power to the executive branch and infringes upon the free speech of petitioners. The gist statement is the official explanation of the initiative, provided to potential signers by the petitioners themselves. The Secretary of State’s role is to ensure the proper administration of the initiative petition process. At the same time, Oklahoma courts already have processes in place to ensure that gist statements are accurate and fair. Oklahoma does not need to grant the Secretary of State — an unelected bureaucrat — expanded authority over the initiative petition process.
Finally, the plaintiffs close by explaining that the restrictions around signature collectors and campaign funding are, once again, unconstitutional limits on free speech. Collecting signatures, like canvassing for a political candidate, is protected speech. Therefore, restricting the collection of signatures to only registered Oklahoma voters unfairly denies other individuals their right to participate in political expression. In fact, the 10th Circuit Court of Appeals struck down a similar ban on non-residents collecting signatures in 2008. By passing SB 1027, lawmakers knowingly signed up to waste state funds on a battle they have already lost.
Similarly, the restrictions on out-of-state funds used to support signature collection are blatantly unconstitutional. Not only does this violate the Citizens United ruling that governs existing campaign finance law, but SB 1027 also unfairly singles out petition campaigns by imposing additional reporting requirements not faced by political candidates. While the state argues that these restrictions are necessary to prevent fraud and corruption, it has failed to produce sufficient evidence that such fraud currently exists. In fact, Oklahoma already has extensive processes in place to verify signatures and prosecute fraud among initiative petition campaigns; if such fraud were widespread, those safeguards would have caught it.
In its responses to the plaintiffs in both McVay et al and Setter, the state relies on weak arguments that downplay the importance of the initiative petition and assert sweeping legislative authority. Briefs filed by the state and aligned amicus curiae argue that the Supreme Court need not look too closely at the contents of SB 1027, but should take the state at its word. The state attempts to redefine key terms such as “collected” and “initiative” to minimize the harms of the bill. Further, proponents themselves cannot agree on what SB 1027 actually does. At times, the state argues that the bill’s restriction on signatures “collected” in a county is actually a restriction on the number of signatures that are “counted” from that county. In contrast, the brief filed by 65 legislators who support the bill affirms that SB 1027 does require a hard cap on the total number of signatures collected from a single county.
The state even advances the tone-deaf argument that a voter who was excluded from signing a petition due to the county caps has not been harmed because they can “still use their voice and efforts to gather signatures elsewhere, to their hearts’ content.”
Adding to the irony, the group of 65 legislators who filed a brief in support of SB 1027 — many of whom argued the bill was needed to protect Oklahoma from out-of-state interests — used an out-of-state law firm to help write their brief. This hypocrisy undermines the very rationale used to pass this bill. Overall, the arguments by the state are unconvincing and should not pass muster with the Supreme Court. Just because the legislature has cried wolf does not mean that the wolf actually exists.
If justice still exists in Oklahoma, the Supreme Court will strike down SB 1027
For over a century, the Supreme Court of Oklahoma has staunchly upheld the right of citizens to easily and freely participate in the initiative petition process. They must continue that tradition now. SB 1027 is a blatantly unconstitutional attack on the sacred rights of Oklahomans to have a voice in the laws that govern their lives. Lawmakers passed this bill to consolidate power further and limit accountability to their constituents. The future of democracy and good governance in Oklahoma depends on this law being struck down.
If justice is still alive in Oklahoma, the Supreme Court will swiftly act to knock down this law. Oklahomans who care about democracy and freedom should follow this case closely and fight to maintain the strength of the initiative petition process.
