Unger v. Rosenblum

401 P.3d 789, 361 Or. 814, 2017 WL 4053893, 2017 Ore. LEXIS 637
Oregon Supreme Court·Decided September 14, 2017·No. S064987·Published·Cited by 3 cases

Opinion

KISTLER, J.

Petitioner seeks review of the Attorney General’s certified ballot title for Initiative Petition 2 (2018) (IP 2). See ORS 250.085(2) (specifying requirements for seeking review of certified ballot titles). We review ballot titles for substantial compliance with ORS 250.035. See ORS 250.085(5) (stating standard of review). For the reasons explained below, we refer the ballot title to the Attorney General for modification.

IP 2, if enacted, would change the way that signatures are gathered to put an initiative measure or a referendum on the ballot. Currently, once the Secretary of State determines that an initiative or referendum petition meets certain minimum requirements, the chief petitioners or petition circulators must collect signatures from registered voters on signature sheets prepared in accordance with the Secretary of State’s rules. See ORS 250.045 (describing procedures for qualifying measures and referenda and signature sheet requirements); Elections Division, Oregon Secretary of State, State Initiative & Referendum Manual 8,21 (Jan 2016), http://sos.oregon.gov/elections/Documents/stateIR.pdf (accessed Aug 16,2017). For example, to put a measure enacting or amending a statute on the 2018 ballot, the chief petitioners would have to secure 88,184 valid, handwritten signatures on signature sheets that conform to the Secretary of State’s requirements. State Initiative & Referendum Manual at 5.

IP 2 would make two major changes to those requirements. First, it would require the Secretary of State to adopt rules permitting registered voters to sign initiative and referendum petitions digitally. IP 2 § 1(d) (permitting digital signatures). Second, it would require the Secretary of State to create and administer a website where registered voters could sign petitions digitally. IP 2 § 1(f). The measure contemplates that registered voters would sign petitions digitally on the website created and administered by the Secretary of State. However, IP 2 does not expressly require the use of only that website. 1

The Attorney General certified the following ballot title:

“Secretary of State must enable and accept digital signatures for state initiative and referendum petitions
“Result of ‘Yes’ Vote: ‘Yes’ vote requires Secretary of State to manage website for submission of digital signatures for state initiative/referendum petitions; most/all signatures may be digital.
“Result of ‘No’ Vote: ‘No’ vote maintains existing law under which only written signatures on state initiative and referendum petitions are authorized.
“Summary: Oregon Constitution requires signatures by specified number of electors before a state initiative or referendum petition will appear on the ballot. Existing law requires Secretary of State to establish procedures for verifying signatures and only original, written signatures are accepted. Measure would require Secretary of State to adopt rules allowing for no less than nine-tenths of required signatures to be ‘gathered from electors digitally using the-internet and computers.’ Measure also requires the Secretary of State to create and administer a website allowing electors to sign initiative and referendum petitions digitally using any type of internet connection, including smartphones, laptops, desktops, and tablets.”

Petitioner challenges the caption, the “yes” vote result statement, and the summary. We begin with petitioner’s challenge to the caption. ORS 250.035(2)(a) provides that a ballot title must contain a “caption of not more than 15 words that reasonably identifies the subject matter of the state measure.” The “subject matter” of a ballot title is “its ‘actual major effect’ or, if more than one major effect, all effects that can be described within the available word limit.” Blosser/Romain v. Rosenblum (IP 45), 358 Or 295, 300, 365 P3d 525 (2015) (quoting Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194 (2011)). To identify the “actual major effect” of a measure, we consider the “changes that the proposed measure would enact in the context of existing law.” Rasmussen v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). When the Attorney General chooses to describe a measure by listing the changes that the proposed measure would enact, some changes may be of “sufficient significance” that they must be included in the description. Brady/Berman v. Kroger, 347 Or 518, 523, 225 P3d 36 (2009); see also Greenberg v. Myers, 340 Or 65, 69, 127 P3d 1192 (2006) (“What the Attorney General cannot do is select and identify in a caption only one out of multiple subjects and thus understate the scope of the proposed measure’s subject matter.”).

The certified caption provides:

“Secretary of State must enable and accept digital signatures for state initiative and referendum petitions.”

Petitioner contends that the caption does not substantially comply with the statutory requirements for two reasons. He argues initially that the caption omits one of the measure’s two major effects. He agrees that the measure identifies one major effect—permitting digital signatures. However, he argues that the caption omits a second major effect— requiring the Secretary of State to “create and administer a website” where petitions can be signed digitally. The Attorney General, for her part, acknowledges that creating and administering a website is a major effect that the caption must mention. She contends, however, that the caption adequately identifies that effect, given the 15-word limit on the caption.

We agree with the Attorney General that requiring the Secretary to create and administer a website is a major effect of adopting IP 2. Creating a state-administered website that is user-friendly, reliable, and secure and that works on any type of personal computer is neither simple nor inexpensive. We disagree, however, with the Attorney General that the phrase “enable and accept digital signatures” reasonably communicates that major effect. Saying that the Secretary must “accept digital signatures” does not imply that the Secretary must create and administer a website to do so. Nor does the term “enable” communicate the time and effort required to create and administer a website. Rather, “enable” implies that the software for the website already exists and that the Secretary merely needs to press a button or flip a switch to “enable” a preexisting site. The terms of the measure, however, provide that the Secretary must create a website, not merely enable a preexisting one.

Moreover, to the extent that the Attorney General argues that the 15-word limit prevents a more accurate or complete description of the measure, we disagree.

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Unger v. Rosenblum, 401 P.3d 789, 361 Or. 814, 2017 WL 4053893, 2017 Ore. LEXIS 637 (Or. 2017).

401 P.3d 789 (Unger v. Rosenblum) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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