Top-Two “Open Primary” Initiatives in Oklahoma: No Facial First Amendment Infirmity; Gist Adequate; Ballot-Title Review Deferred Until Post-Circulation

1. Introduction

This decision addresses whether Initiative Petition No. 448 (“IP 448”), proposing a constitutional amendment to replace Oklahoma’s existing primary-election provision (repealing Okla. Const. art. III, § 3 and creating a new Article III-A), is legally sufficient to proceed to signature gathering.

Parties. Protestants/Petitioners were the Oklahoma Republican Party and Ronda Vuillemont-Smith; Proponents/Respondents were Kenneth Ray Setter, Yvonne Galvan, and Anthony Stobbe.

Key issues. The Supreme Court of Oklahoma considered:

• Facial First Amendment challenge: whether IP 448’s “open primary”/top-two system violates political parties’ associational rights.
• Gist challenge: whether the petition’s “gist” misleads signers by labeling the system “open primary” and by allegedly minimizing general-election changes.
• Ballot-title challenge: whether alleged defects in the proposed ballot title may be reviewed pre-circulation.

2. Summary of the Opinion

The Court (Combs, J.) held IP 448 is legally sufficient for signature gathering. Specifically:

• First Amendment: IP 448 does not present “clear or manifest facial constitutional infirmities” because it does not select party nominees; Washington State Grange v. Wash. State Republican Party is “directly on point.”
• Gist: the gist is not misleading; it sufficiently describes the proposed election system and clearly communicates the practical effect on both primary and general elections.
• Ballot title: any challenge to the ballot title is premature because Oklahoma statutes require ballot-title review to occur after the circulation/signature phase, and because the Attorney General may revise the ballot title post-circulation.

3. Analysis

3.1 Precedents Cited

A. Oklahoma initiative-process cases shaping the review framework

• Gaddis v. Moore (In re Initiative Pet. No. 420, State Question No. 804) (2020 OK 9)
  Used to reiterate that the initiative right is “precious,” doubts are resolved in favor of the initiative, and pre-election constitutional review is limited. The Court leans on Gaddis for the proposition that Protestants bear the burden to show “clear or manifest facial constitutional infirmities.”
• Okla. Grocers Ass’n v. Retail Liquor Ass’n of Okla. (In re Initiative Pet. No. 409, State Question No. 785) (2016 OK 51)
  Cited for gist standards (practical effect; not every regulatory detail) and, critically, for the post-2015 sequencing: ballot-title review “must now statutorily come after the circulation period pursuant to § 8.”
• OCPA Impact, Inc. v. Sheehan (In re Initiative Pet. No. 403, State Question No. 779) (2016 OK 1)
  Reinforces the pro-initiative interpretive posture and supports the “all doubt resolved in favor of the initiative” approach.
• Okla. Prof’l Econ. Dev. Council, Inc. v. Carpenter (In re Initiative Pet. No. 382, State Question No. 729) (2006 OK 45) and Feldman v. Okla. Coal. to Restrict Abortion, Inc. (In re Initiative Pet. No. 349, State Question No. 642) (1992 OK 122)
  Quoted to emphasize the Court’s “zealous” protection of initiative rights.
• Bailey v. Carpenter (In re Initiative Pet. No. 379, State Question No. 726) (2006 OK 89), In re Initiative Pet. No. 9 of Okla. City (1939 OK 238), and Whitson v. City of Kingfisher (1936 OK 97)
  Used to frame the counterbalance: initiative power is fundamental but not absolute and remains subject to constitutional/statutory limits.
• Burrows v. Okla. Best, Inc. (In re Initiative Pet. No. 358, State Question No. 658) (1994 OK 27)
  Provides the key limitation for pre-election review: courts confine review to “clear or manifest facial constitutional infirmities.”

B. Oklahoma gist jurisprudence (anti-deception function)

• In re Initiative Petition No. 342, State Question No. 628 (1990 OK 76) and In re Initiative Petition No. 344, State Question No. 630 (1990 OK 75)
  Foundational gist standards: signers must be put on notice of changes; gist must be brief, descriptive, non-deceiving, and reveal design/purpose to prevent deception.
• Ballard v. First Class Educ. for Okla. (In re Initiative Pet. No. 384, State Question No. 731) (2007 OK 48) and Parker v. S.T.O.P. New Taxes (In re Petition No. 347, State Question No. 639) (1991 OK 55)
  Confirm that the gist need not contain policy advocacy; it must convey practical effect.
• Newberry v. Moore (In re Initiative Petition No. 420, State Question No. 804) (2020 OK 10)
  Cited for the strict remedy when a gist is defective: it is “not subject to amendment by this Court” and the petition is stricken.
• Tay v. Green (2022 OK 38)
  Noted as a nuanced exception where severability allowed the Court to sever an inadequately described section and proceed—illustrating the Court’s effort to preserve initiatives when legally possible.
• Cmty. Gas & Serv. Co. v. Walbaum (1965 OK 118)
  Supports the proposition that anti-fraud statutory provisions are “indispensable” and noncompliance can be fatal.

C. U.S. Supreme Court associational-rights and primary-election precedents (substantive constitutional backbone)

• Williams v. Rhodes, 393 U.S. 23 (1968) and Kusper v. Pontikes, 414 U.S. 51 (1973)
  Supply the doctrinal foundation that the First Amendment’s expressive/assembly protections imply a right of political association, including association with a political party.
• Democratic Party of the U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981)
  Cited for the premise that a party has constitutionally protected authority to define who participates in selecting delegates/representatives—i.e., the party can “limit the association.”
• Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986)
  Used in defining “open primary” terminology and reinforcing party associational protections.
• Cal. Democratic Party v. Jones, 530 U.S. 567 (2000)
  The central contrast case: California’s “blanket primary” was unconstitutional because it allowed nonmembers to choose a party’s nominee. Importantly, the opinion relies on Jones not for invalidation here, but for its express identification of a constitutionally safer alternative: a “nonpartisan blanket primary” (top-two system) where voters do not choose party nominees.
• Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)
  Treated as controlling and “directly on point.” The Court uses it to reject the argument that listing party information and advancing top-two candidates “usurps” nomination or forces association; because the system does not select party nominees, burdens are modest and are justified by state interests (including providing information).
• Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992)
  Provide the general balancing framework: severe burdens trigger strict scrutiny; modest burdens are upheld if supported by important regulatory interests.

3.2 Legal Reasoning

A. The Court’s threshold posture: pro-initiative, limited pre-election constitutional review

The opinion is anchored in two intertwined commitments. First, the Court emphasizes Oklahoma’s constitutional reservation of the initiative power and its duty to resolve doubts in favor of that right. Second, it sharply limits pre-election constitutional invalidation to initiatives that display “clear or manifest facial constitutional infirmities.” This is not a merits trial about how the system will operate in practice; it is a gatekeeping review for obvious constitutional defects on the face of the proposal.

B. First Amendment associational challenge: why Washington State Grange controls

Protestants’ theory was that IP 448 burdens party association by (i) allowing all voters to participate on the same primary ballot, (ii) listing “party registration” next to candidate names, and (iii) enabling candidates to reach the general election in a way that might appear like party nomination.

The Court’s rejection proceeds in three steps:

1. Identify the constitutional hinge: nomination vs. non-nomination. The opinion treats “the essence of nomination—the choice of a party representative”—as the key constitutional dividing line drawn by Jones and Washington State Grange. If primary voters are choosing a party’s nominee, associational burdens are severe; if not, burdens are modest.
2. Classify IP 448 as non-nominating. IP 448 advances the two top vote-getters to the general election “without regard to party affiliation,” and it does not label them party “nominees.” This aligns with the “nonpartisan blanket primary” described approvingly in Jones and upheld against facial challenge in Washington State Grange.
3. Reject “forced association” based on ballot party information. Protestants attempted to distinguish Washington State Grange by arguing “party registration” is materially different than “party preference.” The Court finds “no meaningful difference,” stresses the statutory/constitutional disclaimer required by IP 448 (party registration does not imply nomination/endorsement), and expresses confidence that voters can understand the disclaimer—mirroring the U.S. Supreme Court’s confidence in voter understanding in Washington State Grange.

Because IP 448 does not impose a “severe burden,” the Court does not require a compelling interest and narrow tailoring. It holds that the proponents’ asserted interests (independent-voter participation, efficiency, turnout, choice, fairness) are sufficient at the facial-review stage.

C. Gist challenges: labels vs. disclosed mechanics

The gist dispute focused on terminology—calling the system an “open primary”—and placement—whether general-election effects were “buried.”

• Terminology. The Court acknowledges the U.S. Supreme Court’s taxonomy distinguishing “open primary” from “blanket primary,” but holds the gist is not misleading because it does not rely on the label alone; it explains the mechanics (single ballot, any voter may vote for any candidate, top two advance). The opinion effectively treats the label as secondary so long as the gist defines the term operationally.
• General-election effects. The Court points to the gist’s explicit statement that the “two candidates receiving the most votes” advance to the general election regardless of party affiliation and regardless of nomination/endorsement, concluding this is neither hidden nor unclear.

D. Ballot-title challenges: statutory sequencing makes pre-circulation review premature

The Court provides a statutory-history explanation of the 2015 amendments to 34 O.S. § 8 and § 10, emphasizing the Legislature moved ballot-title review to the post-circulation stage. The opinion underscores two practical reasons:

• the ballot title is not printed on the circulated petition; and
• the Attorney General may review and rewrite the ballot title after circulation under 34 O.S.2024, § 9(D), making early judicial review both premature and potentially advisory.

Relying on Okla. Grocers Ass’n v. Retail Liquor Ass’n of Okla. (In re Initiative Pet. No. 409, State Question No. 785) and Tay v. Malone (In re State Question No. 813, Initiative Petition No. 429), the Court dismisses ballot-title objections at this stage.

3.3 Impact

A. Election-law impact: confirms Oklahoma’s openness to top-two systems at the facial-review stage

The most immediate effect is doctrinal: the Court signals that a top-two primary structure framed as non-nominating, coupled with an express disclaimer that party registration does not equal endorsement/nomination, is unlikely to be struck down as facially unconstitutional under the First Amendment during pre-election review. Litigants challenging such systems will face an uphill battle unless they can show the initiative, on its face, actually selects party nominees or compels party association.

B. Litigation-strategy impact: shifts challengers toward (i) as-applied evidence and (ii) post-circulation ballot-title disputes

By emphasizing the narrow “clear or manifest facial constitutional infirmities” threshold, the decision steers constitutional challenges toward as-applied litigation after implementation (or at least after a concrete administrative interpretation). Separately, by enforcing the post-2015 statutory timing rules, it channels ballot-title disputes to the later, post-circulation window—when the Attorney General’s review and any revised ballot title are known.

C. Drafting impact for proponents: “define your label” and disclose the mechanics

The gist analysis rewards drafters who clearly describe operational effects (who votes, what ballot, how advancement works, what appears on the ballot), even if they select a contested shorthand label. Conversely, it cautions that deception is evaluated by practical notice: the Court focuses on whether signers are “put on notice of the changes being made,” not on terminological purity.

4. Complex Concepts Simplified

4.1 “Facial constitutional challenge” vs. “as-applied” challenge

A facial challenge argues a law is unconstitutional in all (or nearly all) of its applications based solely on its text. An as-applied challenge argues a law may be generally valid but unconstitutional in how it is implemented in particular circumstances. Here, Oklahoma’s pre-election review is especially limited: only “clear or manifest” facial defects justify stopping an initiative before voters can sign and consider it.

4.2 The nomination line: why it matters

The U.S. Supreme Court treats a political party’s choice of its nominee as central to associational freedom. Systems like the unconstitutional “blanket primary” in Cal. Democratic Party v. Jones let nonmembers help pick a party’s nominee. A top-two system, by contrast, is structured so that no party nominee is chosen in the primary; the primary merely selects two finalists for the general election.

4.3 “Gist” in Oklahoma initiative practice

The “gist” is the short statement printed atop each signature sheet. Its job is not to include every detail, but to avoid deception by accurately describing the measure’s practical effect so signers are on notice about what they are supporting.

4.4 Why ballot-title review is later

Oklahoma law separates the petition (with the gist) from the ballot title used on the election ballot. Because the ballot title can be reviewed and rewritten by the Attorney General and is challenged after signatures are filed, courts generally do not entertain ballot-title disputes before circulation.

5. Conclusion

IN RE INITIATIVE PETITION NO. 448, STATE QUESTION NO. 836; THE OKLAHOMA REPUBLICAN PARTY v. SETTER (2025 OK 56) reinforces three key principles of Oklahoma initiative and election law:

• Pre-election constitutional review is narrow and focused on “clear or manifest facial constitutional infirmities,” with doubts resolved in favor of the initiative right.
• Top-two, non-nominating primary systems—modeled on the “nonpartisan blanket primary” discussed in Cal. Democratic Party v. Jones and upheld in Wash. State Grange v. Wash. State Republican Party—are not facially unconstitutional merely because ballots display party registration alongside a disclaimer.
• Gist adequacy turns on practical disclosure, and ballot-title challenges are statutorily deferred until after circulation, consistent with the post-2015 framework.

In the broader context, the opinion positions Oklahoma firmly within the U.S. Supreme Court’s nomination/non-nomination distinction and underscores that much of the hardest constitutional and practical debate over election-system redesign will occur either after implementation (as-applied) or in the later, post-circulation ballot-title phase—not at the initial signature-gathering gateway.