Ascher v. KULONGOSKI (ELECTIONS DIV. 47)

909 P.2d 1223, 322 Or. 531, 1996 Ore. LEXIS 9
CourtOregon Supreme Court
DecidedFebruary 1, 1996
DocketSC S42630
StatusPublished
Cited by9 cases

This text of 909 P.2d 1223 (Ascher v. KULONGOSKI (ELECTIONS DIV. 47)) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ascher v. KULONGOSKI (ELECTIONS DIV. 47), 909 P.2d 1223, 322 Or. 531, 1996 Ore. LEXIS 9 (Or. 1996).

Opinions

[533]*533DURHAM, J.

This is an original proceeding in which petitioners challenge the Attorney General’s ballot title for a proposed initiative measure that the Secretary of State’s office has designated as “Elections Division #47.” Petitioners are electors who, in a timely manner, submitted written comments about the Attorney General’s draft ballot title, pursuant to ORS 250.067(1). Accordingly, they are entitled to seek a different title in this court. ORS 250.085(2). We modify the ballot title in certain respects and, as modified, certify it to the Secretary of State.

At the outset, we note that the context for our discussion in this case includes our treatment of petitioners’ challenges to the Attorney General’s ballot titles in Ascher v. Kulongoski (Elections Division #46), 322 Or 516, 909 P2d 1216 (1996), and Nakamoto v. Kulongoski, 322 Or 181, 904 P2d 165 (1995). Elections Division #47 differs from the measure discussed in Nakamoto only in that it adds an explanatory “summary,” and a new section 4. Apart from the text in section 4, the only difference between Elections Division #46 and #47 is that the latter contains a relating clause and the former does not.1

The Attorney General certified the following ballot title to the Secretary of State for Elections Division #47:

“FORBIDS GOVERNMENT PREFERENCES BASED ON RACE, RELIGION, SEX, NATIONAL ORIGIN
“RESULT OF YES’ VOTE: Yes’ vote adopts statute forbidding government preferences based on listed factors, in employment, other areas.
“RESULT OF ‘NO’ VOTE: No’ vote rejects statute forbidding government preferences based on listed factors, in employment, other areas.
“SUMMARY: Adopts statute. Oregon law now forbids government discrimination based on race, religion, color, sex, national origin. Law also provides for government [534]*534affirmative action programs to provide fair and equal opportunity in employment, public contracting, to cure past and present discrimination. Measure forbids state, local government discrimination against, preference for citizens based on race, religion, color, sex, national origin. Applies in education, employment, contracting, public services. Requires review of any government affirmative action program unaffected by measure every 2 years. Limits such programs to 10 years.”

Pursuant to ORS 250.085(5), we review the Attorney General’s certified ballot title for substantial compliance with the requirements of ORS 250.035.

Petitioners initially restate the same challenges that they made with respect to the Attorney General’s certified ballot title for Elections Division #46. See Ascher (Elections Division #46), 322 Or at 520-24 (discussing petitioners’ challenges). Their challenges to the caption and result statements have no greater validity in the context of this measure than they had with respect to Elections Division #46. For the reasons stated in. Ascher (Elections Division #46), 322 Or at 520-22, we conclude that the Attorney General’s certified caption and result statements comply substantially with the requirements of ORS 250.035(2)(a) to (c).

However, we agree with petitioners that the Attorney General’s summary does not comply substantially with ORS 250.035(2)(d), because it does not inform voters that a major effect of the measure, if voters approve it, would be to limit government affirmative action programs in Oregon. See Ascher v. Kulongoski (Elections Division #46), 322 Or at 522 (discussing petitioners’ same challenge to the Attorney General’s certified summary for Elections Division #46); Nakamoto, 322 Or at 188 (measure’s limitation of state and local affirmative action programs is a “major effect” that the summary should state explicitly). Accordingly, we modify the Attorney General’s summaiy to correct that deficiency.

Petitioners’ remaining challenges relate to how the Attorney General’s certified summary treats section 4 of the measure. Section 4 provides:

“(1) Any state or local affirmative action program not affected by this amendment shall be reviewed every 2 years.
[535]*535“(2) Any state or local affirmative action program not affected by this amendment shall have a sunset provision not to last longer than 10 years.”

The Attorney General devotes the last two sentences of the certified summary to section 4. Those two sentences read:

“Requires review of any government affirmative action program unaffected by measure every 2 years. Limits such programs to 10 years.”

Petitioners argue that the provisions of section 4 warrant no mention in the summary, because they would not have a “major effect” if voters approve the measure. See ORS 250.035(2)(d) (ballot title shall contain a summary describing “the measure and its major effect”). In support, they argue that, because section 1 of the measure would abolish virtually all affirmative action programs, few, if any, programs would be unaffected by the measure and thus be subject to the provisions of section 4.

For the reasons stated in Nakamoto, 322 Or at 186-88, we disagree with petitioners’ premise that section 1 of the measure would abolish all, or almost all, state and local affirmative action programs. Moreover, the measure’s operative terms

“would not abolish all forms of affirmative action which, under ORS 243.205(2) and other statutes that define the phrase, include programs aimed at ensuring equal opportunities in matters of education, employment, contracting, and the provision of public services.” Id. at 186.

For those reasons, the reference to programs “not affected by this amendment” in section 4 is not meaningless, as petitioners contend.

Petitioners next argue that any effect section 4 might have is purely speculative, because it does not specify what programs “shall be reviewed,” nor does it indicate the nature of the required “review,” or who will conduct that “review.” In the alternative, they argue that, if the provisions of section 4 do deserve mention in the summary, the Attorney General’s description of those provisions should be shortened to permit a more complete discussion, within the 85-word limit, of the measure’s other major effects.

[536]

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Related

Ascher v. KULONGOSKI (ELECTIONS DIV. 49)
909 P.2d 1228 (Oregon Supreme Court, 1996)
Ascher v. Kulongoski
910 P.2d 372 (Oregon Supreme Court, 1996)
Ascher v. KULONGOSKI (ELECTIONS DIV. 46)
909 P.2d 1216 (Oregon Supreme Court, 1996)
Ascher v. KULONGOSKI (ELECTIONS DIV. 47)
909 P.2d 1223 (Oregon Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
909 P.2d 1223, 322 Or. 531, 1996 Ore. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ascher-v-kulongoski-elections-div-47-or-1996.