In a brief filed in district court this week, City of Norman attorneys say several arguments in a lawsuit between a city councilor and the city clerk are unconstitutional.
After the clerk certified a recall petition for Ward 3 Alison Petrone in September, Petrone filed a legal challenge in court alleging insufficient signature gathering practices and the failure of proponents to follow state law for petition procedures.
Petrone’s attorneys accused Unite Norman of fraudulent signature gathering practices. The group formed in June 2020 to recall odd-numbered councilors and the mayor.
These practices, she said in court records, include hiring out of state workers to gather signatures, and leaving signature sheets unattended in businesses. Unite Norman is also accused of failing to verify signatures and failing to warn signers against false signatures.
Petrone’s attorneys also alleged that the clerk did not have sufficient petition forms on file and the signature count was lower than her certification indicated.
Assistant City Attorney Rick Knighton called several of these arguments unconstitutional based on previous higher court determinations in his brief to the court this week. He also claims that the city’s charter supersedes state law in several matters Petrone’s attorneys raised.
“Charter provisions, which have the force of a city’s fundamental law, supersede state law when they affect a subject that is deemed to lie exclusively within municipal (or local) concern,” Knighton wrote. “Matters found to be of local concern in Oklahoma include recall elections of municipal officers.”
Knighton also pointed out that while there have been bans on the use of out-of-state signature gatherers, the U.S. Supreme Court struck down Oklahoma’s law in favor of free speech rights.
“The Tenth Circuit has held that Oklahoma’s ban on non-resident circulators violates the First Amendment to the United States Constitution,” he wrote. “The U.S. Supreme Court has held that a prohibition against paying circulators violates the First Amendment.”
He made the same argument of paid circulators.
“Neither Article XIII of the city’s charter nor Title 34 (state law) include a provision that prohibits signature gatherers from being paid,” Knighton wrote. “The U.S. Supreme Court struck down a Colorado provision that prohibited payment for circulating initiative petitions,” which he said infringed on the right to “political expression.”
Knighton addressed other issues of procedure, such as leaving petitions unattended.
“Article XIII of the City’s Charter recall of elected officers; this Article does not prohibit leaving recall petitions unattended,” he wrote.
Unite Norman provides additional signatures
Knighton also recognized that Unite Norman has submitted 35 additional signatures that were stricken and that the group claims should be tallied for the total count.
The finding comes after Petrone’s attorneys asked the city to strike 12 duplicate signatures in October. City attorneys reviewed the signatures and conceded that eight were indeed duplicates, which placed the signature count below the required minimum count.
Some signatures reveal time lapses in voter registration databases, Robert Wasoski claims. His signature was stricken from the count as a non-registered voter in Ward 3, a letter from Petrone’s attorney reads.
Wasoski told the Norman Transcript that’s because he registered the day before he signed the recall petition. His voter registration card, which he submitted to The Transcript, shows he registered to vote on July 10, 2020.
Knighton told the Transcript there are instances where a person signed their nickname instead of their legal name, which the clerk cannot prove against the voter database.
“I suspect they (Unite Norman) can make an argument for some of them (signatures),” he said. “It’s all really going to depend on how Judge (Lori) Walkley views the evidence in terms of whether those types of signatures should count or not.”
Stice takes over counsel for Unite Norman
A review of court records in the case reveals that Unite Norman is no longer using Glenn Coffee as legal counsel. Retired judge Steven Stice, who successfully helped the group intervene in the case, notified the court that he and Gene Bertman are the attorneys of record for the group.
“Coffee is a genius, but we liked Stice and (Gene) Bertman’s approach better,” said Unite Norman co-founder Russell Smith.
Coffee’s firm is representing the City of Stillwater in a recall lawsuit between the city and petition organizers, according to court records. The organizers claim the city’s clerk violated due process rights and violated the city’s code after the clerk, who initially certified petitions were valid, determined there were not enough valid signatures, the Stillwater News Press reported.
Petrone’s attorney Barrett Powers declined to comment but said he will file a brief by Friday in response.