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Unger v. Rosenblum

Supreme Court of Oregon, En Banc

September 14, 2017

Ben UNGER, Petitioner,
v.
Ellen ROSENBLUM, Attorney General, State of Oregon, Respondent.

         On petition to review ballot title fled May 30, 2017, considered and under advisement July 25, 2017.

          Harry B. Wilson, Markowitz Herbold PC, Portland, fled the petition and reply for petitioner.

          Shannon Reel, Assistant Attorney General, Salem, fled the answering memorandum for respondent. Also on the answering memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         Case Summary:

         The Attorney General certified the ballot title for an initiative petition. If placed on the ballot and enacted by the people, the initiative would amend ORS 250.105, a statute relating to the procedural requirements for placing initiatives and referenda on the ballot. The amended statute would require the Secretary of State both to permit initiative and referendum petitions to be signed digitally and to create and administer a website for digital signatures. Petitioner obtained judicial review of the certified ballot title in the Supreme Court under ORS 250.085(2). Petitioner contended that the certified ballot title's caption, "yes" vote result statement, and summary did not appropriately communicate the effects of the initiative.

         Held:

         The caption and "yes" vote result statement do not adequately inform voters that the initiative would impose responsibilities on the Secretary of State for creating and administering a website to accept digital signatures on initiative and referendum petitions.

         The certified ballot title is referred to the Attorney General for modification.

         [361 Or. 815] 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]

         [361 Or. 816] The Attorney General certified the following ballot title:

"Secretary of State must enable and accept digital signatures for state initiative and referendum ...

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