The Kingfisher Times & Free Press

Court rejects
Medicaid petition
challenge
By Ray Carter, Pres.,
Independent Journalism
Making an apparent
about-face from a similar
ruling issued just a year
ago, the Oklahoma Su-
preme Court found Tues-
Jun day that an initiative pe-
tition could proceed, even

30 though its gist contained

material several justices
conceded was misleading
to voters.
The ruling was issued
within hours of hearing
2019 oral arguments on the case.
During Tuesday’s oral
arguments, members of the
Oklahoma Supreme Court
were urged to reject an ini-
Page tiative petition that would
place Medicaid expansion

0004 before Oklahoma voters

because the petition’s gist
is inaccurate.
“This would be a mas-
Clip sive policy change for the
state of Oklahoma, and
resized the people have a right to
know what they’re signing
26% e
and the gist needs to be
accurate,” said Travis Jett,
s
an attorney with the Ga-
s
bleGotwals law firm rep-
resenting the Oklahoma
-
Council of Public Affairs
d
(OCPA) in the petition
challenge.
y
Officials supporting ex-
-
pansion of Medicaid filed
t
paperwork in April to be-
-
gin an initiative petition
r
process. If enough signa-
tures are gathered and the
t
measure is approved by
l
voters, the petition would
t
make Medicaid benefits
l
a constitutional right for
up to 628,000 able-bodied
-
adults.
-
While the gist, a summa-
e
ry statement presented to
t
potential petition signers,
t
says Medicaid would be
expanded to adults earning
n
up to 133 percent of the
-
federal poverty level (FPL),
s
the text of the petition con-
g
cedes expansion would
e
include people earning up
t
to 138 percent of the FPL
because federal law allows
-
for a “disregard” of up to 5
-
percent of income.
d
The impact of that dis-
e
crepancy is substantial.
y
Based on Census data, it
d
is estimated the differ-
ence between 133 per-
s
cent of FPL and 138 per-
t
cent would translate into
-
around 18,000 more peo-
ple being added to state
e
welfare rolls at a total
additional taxpayer cost
of $109 million annually,
with $10.9 million of that
total coming from Oklaho-
ma state government.
Jett noted that when
Medicaid expansion was
e put on the ballot via initia-
t tive petitions in Maine and
g Nebraska, those efforts
g were “explicit” in noting
expansion covered people
earning up to 138 percent
t of FPL.
t “The fact that the gist
a does not match the peti-
e tion should render this pe-
- tition invalid because it’s
e inaccurate,” Jett said. “The
e petition can be resubmit-
o ted accurately, but it can’t
t go for signatures as it’s cur-
a rently written.”
d In 2018, the Oklaho-
- ma Supreme Court tossed
- an initiative petition that
e was challenged on simi-
s lar grounds. That petition
- would have allowed vot-
s ers to reject a host of just-
u passed tax increases. The
h court ruled the tax refer-
s endum’s gist was legally
n insufficient. While that
t petition said voters would
e have the chance to repeal
- tax increases on motor fu-
y els, cigarettes, and oil and
a gas production, the court
y noted the gist failed to list
- a tax increase on little ci-
- gars that would also face
w repeal and failed to list an
d already-repealed hotel/mo-
o tel tax.
I “These flaws leave no
t doubt that signatories are
d not being put on notice of
- the changes being made,”
t the court’s 2018 decision
d read.
n The court’s 2018 ruling
was prominently cited as a
t factor in the state attorney
d general’s decision to side
e with OCPA in arguing that
r the Medicaid-petition gist
- was similarly flawed.
a When asked if the prob-
n lem with the gist would be
r solved if a signer also read
the accompanying peti-
tion, Oklahoma Solicitor
[See Challenge, Page 5]

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Challenge Jett that then you’re trying to justices there was disagree-
[Continued From Page 4] restrict the role of the Legisla- ment over what constituted
General Mithun Mansinghani ture?” said Chief Justice Noma reasonable expectation of voter
replied, “Not according to Gurich. engagement. When one justice
this court’s decision last year In arguing that the 133-per- suggested Oklahoma’s initia-
in the referendum petition, cent figure in the gist was more tive petition process contem-
which omitted the little-cigar accurate than 138 percent, plates that petition signers will
tax but it was in the petition. Rughani said the associated read both the gist and the full
Jun And the little-cigar tax, re- federal formula, which will petition, the comment drew
30 member, was a 0.2 percent
effect to that petition. This is
partially dictate how much
Oklahoma’s expansion pro-
open skepticism from a col-
league.
obviously much greater, the gram costs state taxpayers, has “I don’t think it’s contem-
difference between 133 and already been altered more than plated they read them at all,”
2019 138. So if this court were to once. Justice Yvonne Kauger said. “I
remain consistent, I think that “The additional 5 percent mean, how many times does
doesn’t quite cure it.” comes from a federal formula that happen?”
Page OCPA also argued that the
gist is legally flawed because
that’s provided across many
sections of the federal code that
In a brief, two-page ruling,
a six-judge majority ruled the
0005 it does not explain that plac- adds an additional 5-percent gist “is clear” and “informs
ing Medicaid expansion in income disregard,” Rughani signers of what the proposed
Clip the Oklahoma Constitution said. “It’s kind of like the stan- amendment is intended to do,”
resized would effectively strip state dard deduction in income tax- which is expand Medicaid. The
lawmakers of spending au- es. That disregard is part of a court majority stressed that
43% thority over the Medicaid ex- very complex formula, none of the gist includes the phrase
pansion program and that as- which is really possible to ex- “as permitted under the fed-
From sociated state spending would plain here, much less the gist. eral Medicaid laws.” During
0004 be effectively dictated by the But that formula can and has oral arguments, some justices
federal government. already changed. It’s changed suggested that phrase should
That’s in contrast to Okla- twice since the advent of the notify petition signers that el-
homa’s existing Medicaid pro- Affordable Care Act.” igibility could be expanded to a
gram, which serves the aged, At one point in the hearing, larger group than what is indi-
blind, disabled, and certain one justice noted a gist should cated by the 133-percent figure
pregnant women. Jett noted be written so someone reading in the gist.
state lawmakers can cut fund- at an eighth-grade level can The majority also rejected
ing for that program, or even understand it. But at another constitutional challenges to the
withdraw from it, options not point Rughani argued justices petition.
allowed for the expansion pro- should assume a far higher lev- A dissent, signed by three
gram under the proposed con- el of voter education and famil- members of the court, said the
stitutional amendment. iarity with what she conceded gist’s use of the 133-percent fig-
OCPA also argued the are “complex” federal regula- ure “rather than the more ac-
shift of state spending power tions. curate 138 percent is mislead-
to federal control effectively “If someone reasonably fa- ing to signatories and therefore
violates state constitutional miliar with Medicaid reads a the petition should be stricken
provisions. gist that has the number 138 in on that basis alone.”
“Placing this right in the it, they might think that, as per [Editor’s note: The Okla-
constitution transfers power every other Medicaid law, that homa Council of Public Affairs
from the state of Oklahoma to actually it means 138 plus five, is the parent organization of the
the federal government,” Jett or 143 percent,” Rughani said. Center for Independent Journal-
said. “And the reason for that It appeared even among ism.]
is the federal government gets
to choose who is actually eligi-
ble for this program by setting
the federal poverty level. Also,
Congress dictates how much
the state of Oklahoma actual-
ly pays by setting the federal
matching level. So it is a dis-
tinction because the Legisla-
ture is cut out of the process
here.”
While more than 30 states
have expanded their Medicaid
program under the Affordable
Care Act, those expansions
occurred through statutory
changes and not through state
constitutional amendments.
Melanie Rughani, an attor-
ney with the Crowe and Dun-
levy firm representing petition
filers, argued the petition’s in-
tent was clear enough to pass
legal muster.
“This is not a question
about whether the gist is accu-
rate,” Rughani said. “I think
it’s very clearly accurate.
The question for the court is
whether the gist is sufficient,
because it doesn’t include one
detail about the very complex
income-calculation formula
provided in the federal Medic-
aid laws.”
Yet, even as she defended
the petition, Rughani effec- ROTHER BROS., INC.
tively conceded points raised
by critics in several instances. 26015 HWY. 81 NORTH
When asked why petition KINGFISHER, OK 405-375-5349
supporters did not address
Medicaid expansion through
statutory change rather than
constitutional amendment,
Rughani responded, “That
doesn’t give any protection
from a Legislature that may
be hostile to the initiative pe-
tition.”
“So you agree with Mr.

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