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Oklahoma Supreme Court Dissenters Jump the Rails

By Jonathan Keim | January 28th, 2016

Some dissents are fun to read. Others are baffling. A recent dissent from an election law decision by the Oklahoma Supreme Court fits into the latter category.

The case involves a challenged petition to amend the Oklahoma Constitution. If successful, the amendment would create an education improvement fund that is filled by a sales and use tax. The amendment would raise the pay of teachers, make other distributions from the fund, and create structural changes to the way the state manages its education spending in light of the new fund. Overall, the majority opinion rejects the argument that the initiative violates the state constitution’s “single-subject rule,” a provision that requires legislation to address only a single subject.

The fun starts with a dissent by Justice Taylor (joined by Justices Kauger and Winchester), which argues that both creating an education improvement fund and simultaneously providing for its funding/spending amounts to “logrolling.” (If simultaneously paying for a spending increase counts as “logrolling,” it’s hard to see why that’s a bad thing, much less why the state constitution would forbid it.)

As odd as that argument is, it’s definitely not the oddest. Justice Taylor’s other major argument goes something like this. The amendment requires the Board of Equalization to determine whether the legislature is cutting its own spending to account for the improvement fund’s outlays, and if so, it restricts the legislature’s permissible appropriations. The Board thus acts as a check against the legislature. But, Justice Taylor argues, the state constitution grants the legislature the sole power to make appropriations for education, so amending the constitution to create a check on this power violates the separation of powers.

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