Opinion:Nichols v. Ziriax, 2022 OK 76
Subject matter:Initiative Petitions
Date Decided:September 21, 2022
Trial Court:N/A
Route to this Court:Original Action
Facts:On January 4, 2022, Petitioners Michelle Tilley Nichols and Michelle Jones filed Initiative Petition No. 434, State Question No. 820, which if approved by voters would legalize, regulate, and tax marijuana used recreationally by adults through the enactment of new law to be codified at title 63, sections 431 through 446 of the Oklahoma Statutes. After an unsuccessful constitutional challenge to the measure, see In re State Question No. 820, Initiative Petition No. 434, 2022 OK 30, 507 P.3d 1251 (decided Mar. 28, 2022), Petitioners began gathering signatures on May 3rd. Petitioners had 90 days in which to gather signatures under 34 O.S.2021, § 8(E)–or until August 1st–but they completed that process nearly one month early. On July 5th, Petitioners delivered 118 boxes of signature pamphlets (on special paper required by the Secretary of State’s vendor) to the Secretary of State for “a verification and count of the number of signatures on the petitions” in compliance with 34 O.S.2021, § 6.1(A).Secretary of State took seven weeks to count and verify the signatures–after telling proponents it would only take them 2-3 weeks. State election board advised proponents that it had an internal deadline to print ballots for the November election on August 26. Proponents filed an application to assume original jurisdiction with the Court on August 22, requesting a writ mandating the Governor and the Secretary of the STate Election Board to put SQ820 on the November ballot. Secretary of State filed notice with the Court on August 22 that signatures were certified; Court counted signatures and issue order on August 25 ordering the Secretary of State to publish notice. Secretary of State published notice on August 31. That triggered 10-day time period for protests. Four protests were filed, including one that challenged the ballot title. The Court denied relief in two of the protests on September 16 and shortened time for rehearing; the Court denied relief in the third protest and adopted the Attorney General’s ballot title 
Standard of Review:In order to obtain a writ of mandamus, Petitioners must show: (1) that they have a clear right to the relief sought, (2) that Respondents have a plain legal duty regarding the relief sought, (3) that Respondents refuse to perform that duty, (4) that the duty does not involve discretion, and (5) that Petitioners have no plain and adequate remedy in the ordinary course of the law.
Analysis:At this point in time, SQ820 is not in full compliance. There is still a possibility of rehearing in two of the protests, which prevents this Court from fully resolving those objections in compliance with 34 O.S.2021, § 8(K). That, in turn, prevents the Secretary of State and the Governor from taking their final steps in compliance with 34 O.S.2021, § 12.
Outcome:Writ of mandamus denied. 
Vote:DARBY, C.J.; KANE, V.C.J.; and KAUGER, WINCHESTER (by separate writing), EDMONDSON, COMBS, GURICH, and KUEHN, JJ., concur.ROWE, J. (by separate writing), concurs in part and dissents in part.
Other: The Court admits in paragraph 9 that the drop dead date to get SQ820 on the ballot was not less than 45 days preceding the election. Federal law requires absentee ballots to be mailed not less than 45 days before the election. The drop dead date is September 23.