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Last night the Oklahoma State Election Board posted the docket of legal challenges to the candidacies of those seeking elective office.
Of the many cases, one very notable & high profile statewide office is in the midst of this eligibility drama. The recently appointed Attorney General, Mike Hunter, is facing his own challenger. AG candidate, Gentner Drummond, is contesting Hunter on a matter of meeting residency requirements. The Oklahoma Constitution states that in order to be a qualified candidate, Hunter would have to be deemed qualified as "an elector" of the state for the preceding 10 years. In Hunter's original appointment, the Supreme Court held jurisdiction on eligibility challenges. The high court often limits the 'standing' to challenge so that the citizens generally cannot press a case. But in this hearing, any citizen has broad standing to file a challenge.
Article 6 § 3. Eligibility to certain state offices.
"No person shall be eligible to the office of Governor, Lieutenant Governor, Secretary of State, State Auditor and Inspector, Attorney General, State Treasurer or Superintendent of Public Instruction except a citizen of the United States of the age of not less than thirty-one (31) years and who shall have been ten (10) years next preceding his or her election, or appointment, a qualified elector of this state." |
The 2016 Election Board heard several challenges of candidacy. they provided a web feed for live viewing of the proceedings.
Article 3 § 1. Qualifications of electors.
Subject to such exceptions as the Legislature may prescribe, all citizens of the United States, over the age of eighteen (18) years, who are bona fide residents of this state, are qualified electors of this state. |
The challenge to the AG's qualifications does expose a flaw in Oklahoma election law. Our research of the statutes does not indicate any clear language which prohibits a person from retaining their voter registration after moving out of a particular precinct. But the law does not require candidates to be registered voters. in order to seek elective office. It only requires them to be "qualified electors". And a qualified elector must be a "bona fide resident.
To become a registered voter, you must affirm proper residency.
§26-4-101. Persons entitled to become registered voters - Exceptions. "Every person who is a qualified elector as defined by Section 1 of Article III of the Oklahoma Constitution shall be entitled to become a registered voter in the precinct of his residence..."
As best we can judge, Mike Hunter was not a "qualified elector" of Oklahoma while residing in the DC area, even though a loophole may have let him remain on the Oklahoma voter rolls.
The language to remain a registered voter only stipulates that if you register in a new location, your old registration is thereby invalid. So if Mike Hunter registered to vote in Virginia, Maryland or DC while living there during much of the last 10 years, then Hunter is not a legal Oklahoma voter, nor a qualified Oklahoma elector.
In other words, Hunter is only a qualified Oklahoma voter if he remains completely disconnected from any civic duty to vote in his DC metro home (during the years he worked as a lobbyist).
There is an obvious need to strengthen Oklahoma voter registration law. But the key here, is that "Qualified Elector" is not the same as "Registered Voter". And the Oklahoma Constitution is clear that only real and true adult residents residing in Oklahoma are deemed "Qualified Elector". And Hunter clearly did not reside in Oklahoma for all of the past 10 years.
Typically, the AG's office provides legal counsel to the Election Board members during the contests. But in this case it is obvious that the AG's employees must recuse themselves from any advisory role until the Drummond v Hunter case is adjudicated.
To become a registered voter, you must affirm proper residency.
§26-4-101. Persons entitled to become registered voters - Exceptions. "Every person who is a qualified elector as defined by Section 1 of Article III of the Oklahoma Constitution shall be entitled to become a registered voter in the precinct of his residence..."
As best we can judge, Mike Hunter was not a "qualified elector" of Oklahoma while residing in the DC area, even though a loophole may have let him remain on the Oklahoma voter rolls.
The language to remain a registered voter only stipulates that if you register in a new location, your old registration is thereby invalid. So if Mike Hunter registered to vote in Virginia, Maryland or DC while living there during much of the last 10 years, then Hunter is not a legal Oklahoma voter, nor a qualified Oklahoma elector.
In other words, Hunter is only a qualified Oklahoma voter if he remains completely disconnected from any civic duty to vote in his DC metro home (during the years he worked as a lobbyist).
There is an obvious need to strengthen Oklahoma voter registration law. But the key here, is that "Qualified Elector" is not the same as "Registered Voter". And the Oklahoma Constitution is clear that only real and true adult residents residing in Oklahoma are deemed "Qualified Elector". And Hunter clearly did not reside in Oklahoma for all of the past 10 years.
Typically, the AG's office provides legal counsel to the Election Board members during the contests. But in this case it is obvious that the AG's employees must recuse themselves from any advisory role until the Drummond v Hunter case is adjudicated.
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Two years ago, the Oklahoma Senate provided live video coverage of the Eligibility hearings. It is expected that this same accommodation will be provided at next Wednesday's proceedings.
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Statutes For Contesting A Candidacy
§26-5-118. Contests of candidacy.
Any candidate, hereafter referred to as petitioner, may contest the candidacy of any other candidate for the same office, hereafter referred to as contestee, by filing a written petition with the secretary of the election board with whom said candidate filed the declaration of candidacy. In the event only one candidate files for an office, a petition contesting the candidacy may be filed by any registered voter who is eligible to vote for the candidate. Added by Laws 1974, c. 153, § 5-118, operative Jan. 1, 1975. Amended by Laws 1990, c. 306, § 4, emerg. eff. May 30, 1990; Laws 1994, c. 360, § 1, eff. July 1, 1994; Laws 1997, c. 130, § 1, emerg. eff. April 17, 1997. §26-5-119. Time for filing contest. The petition must be filed no later than 5:00 p.m. on the second business day following the close of the filing period. Added by Laws 1974, c. 153, § 5-119, operative Jan. 1, 1975. Amended by Laws 2011, c. 196, § 8, eff. Nov. 1, 2011. |
§26-5-120. Grounds for contest.
Said petition must allege that the contestee was not qualified by law to become a candidate for the office for which he filed a Declaration of Candidacy and must contain the reasons therefor. Reasons not appearing on the face of the petition shall be considered waived and shall not be grounds for a contest.
Laws 1974, c. 153, § 5-120, operative Jan. 1, 1975.
§26-5-121. Deposit required for contest.
The petition must be accompanied by a cashier's check or certified check in the amount of Two Hundred Fifty Dollars ($250.00).
Added by Laws 1974, c. 153, § 5-121, operative Jan. 1, 1975. Amended by Laws 1976, c. 90, § 3, emerg. eff. May 6, 1976; Laws 1999, c. 88, § 7, emerg. eff. April 13, 1999.
§26-5-122. Date for hearing contest.
When such a petition is properly filed, the secretary of the appropriate election board shall set the matter down for a hearing, said hearing to be not fewer than three (3) days from the date of filing of said petition.
Added by Laws 1974, c. 153, § 5-122, operative Jan. 1, 1975.
§26-5-123. Service of notice.
It shall be the duty of the petitioner to cause a true copy of the petition and notice of the date and place of the hearing to be served on the contestee.
Laws 1974, c. 153, § 5-123, operative Jan. 1, 1975.
§26-5-124. Time for service of notice.
Said service shall be made in person, where possible, within twenty-four (24) hours after the date and place of the hearing has been set by the election board secretary.
Laws 1974, c. 153, § 5-124, operative Jan. 1, 1975.
§26-5-125. Sheriff to serve notice - Secretary of election board made agent for constructive service.
Service shall be made by the sheriff of the county of residence of the contestee as to all offices, except that of sheriff, in which case the same shall be served by the county clerk of the appropriate county, and the certificate of returns of such sheriff or county clerk, showing the inability to make such service within the aforementioned time, shall be deemed sufficient proof of the absence of the contestee, or the inability to serve such petition and notice upon him, and to justify the constructive service herein provided. When personal service is impossible, within said time, it is hereby made the duty of said petitioner to serve said true copies upon the secretary of the appropriate election board. Provided that for the purpose of such constructive service, the Secretary of the State Election Board and the secretaries of the county election boards are hereby made and constituted the service agents for all candidates who file declarations of candidacy with them. By filing his declaration of candidacy, each candidate shall thereby be conclusively presumed to have accepted the terms and provisions hereof and specifically the aforesaid constructive service. When constructive service becomes necessary, said constructive service shall be made at the date, time and place of said hearing, after proof of inability to personally serve the contestee has been returned to the petitioner.
Amended by Laws 1983, c. 171, § 8, emerg. eff. June 6, 1983.
§26-5-126. Hearing of contest.
The petition may be heard without formal pleadings being filed in answer or reply thereto. The election board with whom the petition is filed shall have the authority to issue subpoenas and compel the attendance of witnesses and the production of evidence. Such election board shall have the authority to receive the testimony of witnesses under oath, said oath to be administered by the secretary of the board. At the conclusion of the hearing, the board shall render its decision and the vote of the individual members in writing. The decision of such board shall in all cases be final.
Laws 1974, c. 153, § 5-126, operative Jan. 1, 1975.
§26-5-127. Candidacy may be stricken.
If the election board determines that the contestee was not qualified to become a candidate for the office for which he filed a Declaration of Candidacy, it may order that his candidacy be stricken and that his name not be placed on the ballot.
Added by Laws 1974, c. 153, § 5-127, operative Jan. 1, 1975.
§26-5-128. Declaration may be amended.
If said contestee's Declaration of Candidacy may be amended or corrected to conform to law, the election board may order the same to be done, if the board determines such amendment or correction to be proper at the time of its order or decision.
Laws 1974, c. 153, § 5-128, operative Jan. 1, 1975.
§26-5-129. Answer to contest - Deposit required.
Should the contestee desire to appear in answer to said contest, said contestee shall be required, at the time of filing his answer, or, if no answer is filed, at the time of his appearance, to deposit with the secretary of the election board a cashier's check or certified check in the same amount as that filed by the petitioner.
Laws 1974, c. 153, § 5-129, operative Jan. 1, 1975.
§26-5-130. Burden of proof on petitioner.
The burden of proof shall be upon the petitioner to sustain the allegations in his petition. However, failure of the contestee to appear or answer thereto shall be deemed to place him in default, and shall constitute an admission of the allegations of the petition, in which event, if the board determines that the factual allegations of the petition constitute appropriate grounds for disqualification, such contestee's candidacy shall be stricken.
Laws 1974, c. 153, § 5-130, operative Jan. 1, 1975.
§26-5-131. Disposition of deposits.
In the event the petitioner is successful at said hearing, his deposit shall be returned to him, and all costs of such hearing shall be deducted from the deposit of the contestee, and the balance, if any, shall be returned to said contestee. If the contestee does not file an answer or make an appearance, or if the petitioner is unsuccessful, all costs incurred shall be paid from the deposit made by the petitioner, and the balance, if any, shall be returned to said petitioner.
Laws 1974, c. 153, § 5-131, operative Jan. 1, 1975.
Said petition must allege that the contestee was not qualified by law to become a candidate for the office for which he filed a Declaration of Candidacy and must contain the reasons therefor. Reasons not appearing on the face of the petition shall be considered waived and shall not be grounds for a contest.
Laws 1974, c. 153, § 5-120, operative Jan. 1, 1975.
§26-5-121. Deposit required for contest.
The petition must be accompanied by a cashier's check or certified check in the amount of Two Hundred Fifty Dollars ($250.00).
Added by Laws 1974, c. 153, § 5-121, operative Jan. 1, 1975. Amended by Laws 1976, c. 90, § 3, emerg. eff. May 6, 1976; Laws 1999, c. 88, § 7, emerg. eff. April 13, 1999.
§26-5-122. Date for hearing contest.
When such a petition is properly filed, the secretary of the appropriate election board shall set the matter down for a hearing, said hearing to be not fewer than three (3) days from the date of filing of said petition.
Added by Laws 1974, c. 153, § 5-122, operative Jan. 1, 1975.
§26-5-123. Service of notice.
It shall be the duty of the petitioner to cause a true copy of the petition and notice of the date and place of the hearing to be served on the contestee.
Laws 1974, c. 153, § 5-123, operative Jan. 1, 1975.
§26-5-124. Time for service of notice.
Said service shall be made in person, where possible, within twenty-four (24) hours after the date and place of the hearing has been set by the election board secretary.
Laws 1974, c. 153, § 5-124, operative Jan. 1, 1975.
§26-5-125. Sheriff to serve notice - Secretary of election board made agent for constructive service.
Service shall be made by the sheriff of the county of residence of the contestee as to all offices, except that of sheriff, in which case the same shall be served by the county clerk of the appropriate county, and the certificate of returns of such sheriff or county clerk, showing the inability to make such service within the aforementioned time, shall be deemed sufficient proof of the absence of the contestee, or the inability to serve such petition and notice upon him, and to justify the constructive service herein provided. When personal service is impossible, within said time, it is hereby made the duty of said petitioner to serve said true copies upon the secretary of the appropriate election board. Provided that for the purpose of such constructive service, the Secretary of the State Election Board and the secretaries of the county election boards are hereby made and constituted the service agents for all candidates who file declarations of candidacy with them. By filing his declaration of candidacy, each candidate shall thereby be conclusively presumed to have accepted the terms and provisions hereof and specifically the aforesaid constructive service. When constructive service becomes necessary, said constructive service shall be made at the date, time and place of said hearing, after proof of inability to personally serve the contestee has been returned to the petitioner.
Amended by Laws 1983, c. 171, § 8, emerg. eff. June 6, 1983.
§26-5-126. Hearing of contest.
The petition may be heard without formal pleadings being filed in answer or reply thereto. The election board with whom the petition is filed shall have the authority to issue subpoenas and compel the attendance of witnesses and the production of evidence. Such election board shall have the authority to receive the testimony of witnesses under oath, said oath to be administered by the secretary of the board. At the conclusion of the hearing, the board shall render its decision and the vote of the individual members in writing. The decision of such board shall in all cases be final.
Laws 1974, c. 153, § 5-126, operative Jan. 1, 1975.
§26-5-127. Candidacy may be stricken.
If the election board determines that the contestee was not qualified to become a candidate for the office for which he filed a Declaration of Candidacy, it may order that his candidacy be stricken and that his name not be placed on the ballot.
Added by Laws 1974, c. 153, § 5-127, operative Jan. 1, 1975.
§26-5-128. Declaration may be amended.
If said contestee's Declaration of Candidacy may be amended or corrected to conform to law, the election board may order the same to be done, if the board determines such amendment or correction to be proper at the time of its order or decision.
Laws 1974, c. 153, § 5-128, operative Jan. 1, 1975.
§26-5-129. Answer to contest - Deposit required.
Should the contestee desire to appear in answer to said contest, said contestee shall be required, at the time of filing his answer, or, if no answer is filed, at the time of his appearance, to deposit with the secretary of the election board a cashier's check or certified check in the same amount as that filed by the petitioner.
Laws 1974, c. 153, § 5-129, operative Jan. 1, 1975.
§26-5-130. Burden of proof on petitioner.
The burden of proof shall be upon the petitioner to sustain the allegations in his petition. However, failure of the contestee to appear or answer thereto shall be deemed to place him in default, and shall constitute an admission of the allegations of the petition, in which event, if the board determines that the factual allegations of the petition constitute appropriate grounds for disqualification, such contestee's candidacy shall be stricken.
Laws 1974, c. 153, § 5-130, operative Jan. 1, 1975.
§26-5-131. Disposition of deposits.
In the event the petitioner is successful at said hearing, his deposit shall be returned to him, and all costs of such hearing shall be deducted from the deposit of the contestee, and the balance, if any, shall be returned to said contestee. If the contestee does not file an answer or make an appearance, or if the petitioner is unsuccessful, all costs incurred shall be paid from the deposit made by the petitioner, and the balance, if any, shall be returned to said petitioner.
Laws 1974, c. 153, § 5-131, operative Jan. 1, 1975.
