Tuesday, June 17, 2014

Legal Contortionists Fight to Save A Tulsa County Campaign

Asst. Tulsa D.A., Steve Kunsweiler
Rep. Fred Jordan
   A key ruling is being sought from Oklahoma's judicial branch regarding the language of the Oklahoma Constitution. At the heart of the issue is a controversy of what the meaning of 'elected' is. Tulsa Asst. District Attorney, Steve Kunsweiler is the petitioner.
   State Representative, Fred Jordan of Tulsa County; has a legal team promoting the idea that the state legislature actually does the electing sometime in next year's legislative session. Most citizens have come to understand that the electing happens over the course of the open polling hours on 'election day'. The state and county election boards certify the results hours and days after the election was held, but they did not do the actual electing.
   About 10 years ago, the Oklahoma legislature remained in office and in official 'special session' even more than a week after some of them were replaced in a November general election, So there is no basis to say that current legislators are done with their elective duties after the spring regular session adjourns sine die.
   A legislator cannot even resign his current office prior to a new election date because the constitutional language says he is not eligible util after "the term for which he was elected".
   A somewhat flimsy precedent ruling happened in the very early years of our state, when a judge ruled that the election of a statewide office gets certified by the new legislative body, in the opening of the next legislative session. But that process does not cover county elections. Currently, county election boards certify results and are accountable to some degree to the state election board.
   When an election is held (whether primary or general), state law calls for the successful candidate  to be certified (declared 'elected') on the following Friday.

"If no contest shall be filed by 5:00 p.m. Friday next following an election, the county election boards and State Election Board shall declare the result of such election and shall issue the appropriate lists or certificates to the successful party as provided by law. Provided, however, that no such lists or certificates shall be issued until the total of all returns has been verified, and a complete tabulation thereof made."

   And if no further general election is needed, a primary election's successful candidate is certified as the new office holder after it is determined that the time for filing to that office has lapsed (in this case, the filings closed on April 11th, 2012).

 "Certificates of Election may be issued to unopposed candidates after 5 p.m. on the second day following the close of the filing period."

Sen. Brian Crain
   The unprecedented situation here, is that 3 candidates were eligible at the time of their filing (in April), but legislative action is deemed to have made 2 of them ineligible on the last day of the legislative session (in May). So no clear controlling administrative authority is in place to make a ruling after the April eligibility contest period. This is why the courts are needed, to rule on the facts and the law.

   A separate legal issue, which has not been challenged, is the legality of an election ballot which offers the choice of a candidate whom everyone assumes is ineligible by constitutional restrictions. Senator Brian Crain took the initiative in recusing himself immediately after his legislative body passed an emolument (pay adjustment), in late May. Had this been a "plurality wins" election, a serious injustice would become very obvious. The election board opted not to order new ballots and Mr. Crain will appear on the ballot despite his withdrawal from the race.

   There are also national implications in this matter. The U.S. Supreme court can intervene, just as they intervened in Florida's 2000 general election for 25 state electors. The SCOTUS ruled that an election's rules and process cannot be changed after the fact. So despite the vague and ambiguous language of our state constitution, we are bound to it's terms during this election term. The only other legal remedy would be for the courts to set aside the election results and call for a new filing period and special election. During that time, the Governor could appoint an acting district attorney, just as Governor Keating did at the untimely death of David L. Moss, in the mid 90's. Tulsa was then served by Bill LaFortune, and later by Chuck Richardson; until Tim Harris was elected in the next term.
David Van Risseghem

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