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Analysis: S.Q. 802: After legal ruling and petition drive, stage is set for Medicaid Expansion vote

Oklahomans Decide Healthcare organized the successful citizen initiative drive to place a constitutional amendment on the ballot in 2020. The measure advancing Medicaid expansion survived legal challenges before signature-gathering, and supporters went on to gather around 300,000 valid names – the highest number for any ballot measure in state history.

Patrick B. McGuigan


OKLAHOMA CITY, OK – Although voters still must render a verdict on State Question 802 – and although the Affordable Care act upon which it is predicated.

remains under legal attack — advocates for expansion of Medicaid coverage in Oklahoma have ready fashioned a modest niche in Sooner State history.

In late October, the group “Oklahoma Decides Healthcare” submitted more then 313,000 signatures on their constitutional initiative petition seeking to signficantly expand the federal program’s reach within the state.

At the time, campaign manager Amber England commented:

“From Guymon to Broken Bow and from Altus to Miami, this campaign has been everywhere, and we have been overwhelmed by the tremendous outpouring of support for Medicaid expansion all across this state. It’s why we stand today with a mandate from a record-breaking number of Oklahoma voters who want the chance to bring more than a billion of our tax dollars home from Washington every single year to deliver healthcare to our neighbors, keep our rural hospitals open, and boost our economy.”

In comments sent to The City Sentinel and other news organizations, Shannon Fleck, Minister and Executive Director at the Oklahoma Conference of Churches, said, “This isn’t a partisan issue — this is a human issue. As Oklahomans, we have a moral obligation to stand up for families who are working hard but can’t afford access to healthcare.”

Questions aboute the initiative’s ‘gist’ statement

When the petition campaign organized last spring, legal concerns were submitted about the measure’s “gist” statement of meaning, and likely impacts of the proposition.

Legal proceedings resulted to determined if the initiative in original form was valid, centering among other things on a contention that the fiscal impact was significantly understated.

The Oklahoma Council of Public Affairs (OCPA), a free-market “think tank” based in Oklahoma City, filed the challenge.

State officials and advocates of strict interpretations of existing state law touching on ballot measures contended the language of the initiative was misleading.

Foes of the initiative pointed to a 2018 decision of the state Supreme Court to bolster their contentions.

The state attorney general’s office said the “substance” of the initiative was valid – but that the “gist” statement should be re-crafted and new petitions fashioned before signature-gathering began.

As journalist Ray Carter reported in a story The City Sentinel posted, the Supreme Court made “an apparent about-face” from its 2018 decision, ruling the initiative could advance “even though its gist contained material several justices conceded was misleading to voters. The ruling was issued within hours of hearing oral arguments on the case.”

Crowe and Dunlevy Attorney defended language

A lawyer with the Crowe and Dunlevy firm represented the initiative advocates.

Melanie Rughani, the attorney, contended, “This is not a question about whether the gist is accurate,” Rughani said. “I think it’s very clearly accurate. The question for the court is whether the gist is sufficient, because it doesn’t include one detail about the very complex income-calculation formula provided in the federal Medicaid laws.”

Carter, an experienced journalist, now serves as director of the Center for Independent Journalism, which is funded by OPCA. His articles are often featured at The City Sentinel.

The Yes On 802 campaign is described, in Oklahoma Decides Healthcare literature as “working to put Medicaid expansion on the ballot in 2020. It is supported by a growing coalition of Oklahoma doctors, nurses, patients, business executives, non-profit organizations, healthcare advocates and hospitals.”

Lankford notes cost of expansion unclear

After signature-gathering ended, one of Carter’s follow-up stories, posted at The Ctiy Sentinel website, included reflections of U.S. Sen. James Lankford, who observed, “No question, if we expand Medicaid in Oklahoma, no one really knows what dollar amount that will mean for Oklahoma,. It will be a significant amount.”

The Oklahoma City Republican, speaking at an event hosted by Americans for Prosperity-Oklahoma, pointed out that the federal government pays 90 percent of expansion costs under existing law, but that the state’s share would require trade-offs.

Lanford commented, “Oklahomans will have a pretty significant new bill if they want to do that. The decision right now, at 23rd and Lincoln down the street, is the decision of are they prepared to be able to find additional tax revenue in other places, not do other programs, to be able to expand Medicaid.”

In the end, state officials verified the validity of around 300,000 signatures, far more than the 177,958 needed for ballot status.

Once upon a time, the legal system waited until voters gave a political verdict on ballot initiatives. However, in the 1990s, a divided state Supreme Court allowed pre-circulation and pre-vote challenges to ballot initiatives via a ruling in a case involving a pro-life ballot measure. Since then, ballot initiative campaigns have often faced challenges before voters could consider a measure.

In 2018, the state’s High Court agreed that summary of a measure presented to people considering whether or not to sign a petition had to accurately reflect the contents of the issue before entering the initiative circulation stage.

In 2019, they took at least a half-step back from that position.

If the state constitutional measure ultimately prevails (and it leads in opinion polling), its full impact could depend on the status of the Affordable Care Act, which continues to face litigation.

Note: Pat McGuigan is the author or editor of ten books including “The Politics of Direct Democracy in the 1980s.” 

Rev. Shannon Fleck.  Photo provided.
Rev. Shanon Fleck, executive director at the Oklahoma Conference of Churches, is a strong supporter of State Question 802, the Medicaid Expansion initiative. Photo provided.
The Oklahoma Council of Public Affairs sought to prevent circulation of a Medicaid Expansion Initiative, advancing legal arugments the proposed constitutional amendment’s petition summary (and other aspects of the proposal) violated earlier legal precedents. The state Supreme Court said the initiatiative could go into the field for signature-gathering, although some justices agreed with parts of arguments OCPA made. File photo
Patrick B. McGuigan has covered Oklahoma City politics and policy closely since 1990. He is publisher of The City Sentinel newspaper and the founder of CapitolBeatOK, an online news service.  Photo provided.
Patrick B. McGuigan has covered Oklahoma City politics and policy closely since 1990. He is publisher of The City Sentinel newspaper and the founder of CapitolBeatOK, an online news service. Photo provided.


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