Whitehead v. Clarno
| Citation | 308 Or.App. 268,480 P.3d 974 |
| Decision Date | 30 December 2020 |
| Docket Number | A167087 |
| Parties | Richard Taylor WHITEHEAD; Timothy Grant ; and Citizens in Charge Foundation, a Virginia not-for-profit corporation, Plaintiffs-Appellants, v. Bev CLARNO, Secretary of State of the State of Oregon, Defendant-Respondent. |
| Court | Court of Appeals of Oregon |
Gregory A. Chaimov, Portland, argued the cause for appellants. Also on the briefs were Davis Wright Tremaine LLP and Eric C. Winters.
Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.*
This case poses a question of first impression: Does a qualified voter under Article IV, section 1, of the Oregon Constitution lose the right to sign an initiative petition if his or her voter registration status is designated by the Secretary of State (secretary) to have become inactive? Plaintiffs filed an action in the trial court under ORS 246.9101 to obtain review of a decision by the secretary that disqualified Initiative Petition 50 (IP 50) from the 2016 ballot and under ORS 28.010, seeking a declaration that Article IV, section 1, of the Oregon Constitution grants registered voters, active and inactive alike, the right to sign initiative petitions and have their signatures count. The court denied summary judgment to plaintiffs and granted summary judgment to the secretary. The secretary argued, and the court concluded, that voters with inactive registration status are not "entitled to vote" and, because of that, they are not eligible to sign initiative petitions. Therefore, according to the court, subtraction of those signatures from the petitions submitted in support of IP 50 was proper.
On appeal, plaintiffs assign error to the trial court's granting of summary judgment in favor of the secretary and to its denial of summary judgment in their favor. They argue that a "qualified voter" is entitled to sign initiative petitions under Article IV, section 1, if he or she meets the requirements of a "qualified elector" under Article II, section 2, of the Oregon Constitution. In other words, a United States citizen who has reached the age of majority, has resided in Oregon for the requisite amount of time, and who is registered to vote under Oregon law is qualified to sign an initiative petition. Plaintiffs contend that the secretary may not reject the signatures of registered voters whom she has designated "inactive." As we explain below, we conclude that the trial court erred as a matter of law because the secretary's exclusion of signatures made by registered but inactive voters unconstitutionally deprives those registered voters of their right to participate in the initiative process—a right reserved to the people. We, therefore, reverse and remand for a declaration of rights consistent with this opinion.
The material facts are not in dispute. Plaintiff Whitehead, chief petitioner of IP 50, gathered signatures and submitted them to the secretary for verification and placement on the ballot. Plaintiff Grant's signature was among those submitted. Plaintiff Grant's voter registration had been designated "inactive" after he temporarily relocated out of state to be with his spouse who was serving in the United States Armed Forces. When the secretary subtracted the number of signatures made by inactive voters from the total number of signatures made by otherwise qualified voters, IP 50 did not qualify for the ballot.
In an appeal arising from cross-motions for summary judgment, the granting of one and the denial of the other are both reviewable. Arrowood Indemnity Co. v. Fasching , 304 Or. App. 749, 751, 469 P.3d 271, rev. allowed , 367 Or. 290 (2020). Where, as here, the material facts are not in dispute, the only question is whether either party is entitled to judgment as a matter of law. We thus review for legal error. Bergeron v. Aero Sales, Inc. , 205 Or. App. 257, 261, 134 P.3d 964, rev. den. , 341 Or. 548, 145 P.3d 1109 (2006). In doing so, we are guided by state policy that "election laws and procedures shall be established and construed to assist the elector in the exercise of the right of franchise." ORS 247.005.
Oregon's initiative and referendum process goes back to the beginning of the twentieth century when, in 1902, Oregon voters overwhelmingly approved a legislatively referred ballot measure that created that process. The system of empowering people to propose new laws or to change the Oregon Constitution became nationally known as "direct democracy" and was commonly referred to as "the Oregon System." Oregon Blue Book , Initiative, Referendum and Recall Introduction, 2020; David Schuman, The Origin of State Constitutional Direct Democracy: William Simon U'Ren and "The Oregon System," 67 Temple L. Rev. 947, 948 n. 7 (1994). The initiative process is deeply ingrained in Oregon's history and culture, and it remains firmly rooted in the Oregon Constitution.
Article IV, section 1, vests the legislative power of the state in the legislative assembly "except for the initiative and referendum powers reserved to the people." And, in Article IV, section 1(2)(a), "[t]he people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly." Article IV, sections 1(2)(b) and (c) provide for the proposal of initiatives by petition signed by a number of "qualified voters" equal to 6 percent (for laws) or 8 percent (for constitutional amendments) of votes cast at certain preceding gubernatorial elections.
The term "qualified voters" is not defined in the constitution, but the Supreme Court has said "qualified voters"—those entitled to sign initiative petitions—must meet the Article II, section 2, requirements for "qualified electors." State ex rel Sajo v. Paulus , 297 Or. 646, 653-54, 688 P.2d 367 (1984).2 Article II, section 2, currently provides:
Thus, United States citizens who meet the age and residency requirements and who are registered to vote under Oregon law are "qualified electors" who (1) may vote in an election and (2) may sign initiative or referendum petitions. While the basic qualifying criteria to exercise each right of the franchise are the same, the franchise consists of two independent rights—the right to join with others to bring matters before the voters and the right to cast a vote on any matter that is before the voters.3
The Supreme Court has said that, in order to be eligible to vote on election day, " Article II, section 2, neither requires nor defines registration of otherwise ‘qualified voters[.]’ " Sajo , 297 Or. at 654, 688 P.2d 367. Nevertheless, Article II, section 2, contemplates that the legislature will provide the method by which voter registration is accomplished ("in the manner provided by law") and the legislature has, in turn, created a comprehensive voter registration process in ORS chapter 247.
ORS 247.012(3) sets forth the manner by which a person may register to vote, and ORS 247.012(8) states that, once a registration card is received and accepted, it "shall be considered an active registration." So long as the county clerk "does not have evidence of a change in any information required for registration," the elector's registration "shall be considered active."4 ORS 247.013(5).
A registration is deemed "inactive" where the county clerk receives evidence that there has been such a change and, in compliance with ORS 247.563, mails notice to the elector of the need to update his or her registration. The registration remains inactive "until the elector updates the information" or "the registration is canceled." ORS 247.563(3). The registration will be canceled if the elector "neither votes nor updates the registration before two general elections have been held." ORS 247.563(2)(c). An elector's registration "shall not be considered inactive" until "[t]he voter has neither voted nor updated their registration for a period of ten years[,]" and notice pursuant to ORS 247.563 has been sent. OAR 165-005-0180.
To vote in any given election, an elector's registration card must be received, postmarked, or electronically delivered—depending on the selected transmittal method—at least 20 days before the election. ORS 247.025. Any "inactive" registration must be updated, ORS 247.013(7),5 at any time up to 8:00 p.m. on election day, ORS 247.303.
Article IV, section 1(2), provides that "qualified voters" may sign initiative petitions." The Supreme Court has said that "qualified voters" must meet the criteria of "qualified electors" under Article II, section 2. ORS 250.025(1) provides that "[a ]ny elector may sign an initiative or referendum petition for any measure on which the elector is entitled to vote ." (Emphases added.) ORS chapter 250, concerning the initiative and referendum process, does not refer to...
To continue reading
Request your trial
- State v. Alapai
-
Whitehead v. Fagan
...constitutionally authorized to create classes of registration that effectively disenfranchise registered voters." Whitehead v. Clarno, 308 Or.App. 268, 280, 480 P.3d 974 (2020). The court began by observing that Article IV, section 1, reserves the power of the initiative to the people and t......