THE LEAGUE OF WOMEN VOTERS OF OKLAHOMA v. ZIRIAX

THE LEAGUE OF WOMEN VOTERS OF OKLAHOMA v. ZIRIAX
2020 OK 26
Case Number: 118765
Decided: 05/04/2020
THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

THE LEAGUE OF WOMEN VOTERS OF OKLAHOMA, ANGELA ZEA PATRICK, and PEGGY JEANNE WINTON, Petitioners,
v.
PAUL ZIRIAX, SECRETARY OF THE OKLAHOMA STATE ELECTION BOARD, in his official capacity, Respondent.

ORDER

Original jurisdiction is assumed in this matter to review Petitioner's Application to Assume Original Jurisdiction and Issue Extraordinary Relief. In 2002, the Oklahoma Legislature enacted an alternative method for the making of a declaration, verification, certificate, or affidavit. 2002 Okla.Sess.Laws Ch. 468, § 2. A statement signed, dated, and declared made under the penalty of perjury as set forth in 12 O.S.2011, § 426 carries the force and effect of an affidavit "under any law of Oklahoma or under any rule, order, or requirement made pursuant to the law of Oklahoma" except for a deposition, an oath of office, or an oath required to be taken before a specified official other than a notary public. Video Gaming Techs., Inc. v. Rogers Cty. Bd. of Tax Roll Corr., 2019 OK 83, ¶ 4 n. 1; In re Reinstatement of Pacenza, 2009 OK 9, ¶ 25 n. 39, 204 P.3d 58. The affidavit required within the absentee voting statutes (26 O.S.Supp.2019, § 14-101, et seq.) does not fall within this list of exceptions. Therefore, Respondent is directed to recognize affidavits made under the provisions of § 426 in the context of absentee voting. Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, ¶ 24, 87 P.3d 598; 26 O.S.2011, § 2-107. Respondent is further ordered to send absentee ballot voters such forms, instructions, and materials as will facilitate the use of § 426. Id.; 26 O.S.2011, § 14-127, & § 14-128. Respondent is barred from issuing ballot forms, instructions, and materials suggesting notarization and/or a notarized affidavit form is the only means through which the requisite affidavit for absentee voting may be accomplished. Cannon v. Lane, 1993 OK 40, ¶ 12, 867 P.2d 1235; 26 O.S.2011, § 14-127, & § 14-128.

DONE BY THE ORDER OF THE SUPREME COURT IN CONFERENCE THIS 4th DAY OF MAY, 2020.

/S/CHIEF JUSTICE

Gurich, C.J., Darby, V.C.J., Kauger, Edmondson, Colbert, Combs, JJ., concur;

Winchester, Kane (by separate writing) and Rowe (by separate writing), dissent.

Kane, J., with whom Winchester, J., joins, dissenting

"I conclude that our existing statutes do not provide the relief proposed by the Petitioners, so the issues stand presented to the wrong branch of government. I dissent."

Rowe, J., dissenting:

¶1 I dissent from today's order directing the Secretary of the Oklahoma State Election Board to recognize affidavits made under the provisions of 12 O.S.§ 426 in the context of absentee voting.

¶2 In 2010, Oklahoma voters overwhelmingly approved State Question 746, the Oklahoma Voter I.D. Act, which requires voters to provide a form of identification at the polls in order to vote. 26 O.S. § 7-114.

¶3 This Court upheld the Oklahoma Voter I.D. Act in Gentges v. Oklahoma State Election Board:

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.

2014 OK 8, ¶21, 319 P.3d 674, 679.

¶4 Considering the history of voter fraud, the specifics of our absentee voter process, and recent legislative history, I agree with the Respondent that it would be absurd to now open the gates and provide for no verification for absentee ballots but still require in-person voters to provide a valid I.D. See McIntosh v. Watkins, 2019 OK 6, ¶4, 441 P.3d 1094, 1096 ("Statutory construction that would lead to an absurdity must be avoided and a rational construction should be given to a statute if the language fairly permits.").

¶5 Accordingly, I respectfully dissent.