Unger v. Rosenblum , 361 Or. 814 ( 2017 )

814 September 14, 2017 No. 46
IN THE SUPREME COURT OF THE
STATE OF OREGON
Ben UNGER,
Petitioner,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(S064987)
En Banc
On petition to review ballot title filed May 30, 2017, con-
sidered and under advisement July 25, 2017.
Harry B. Wilson, Markowitz Herbold PC, Portland, filed
the petition and reply for petitioner.
Shannon Reel, Assistant Attorney General, Salem, filed
the answering memorandum for respondent. Also on the
answering memorandum were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
KISTLER, J.
Ballot title referred to Attorney General for modification.
Case Summary: The Attorney General certified the ballot title for an ini-
tiative 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 peti-
tions 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 appropri-
ately 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 web-
site to accept digital signatures on initiative and referendum petitions.
The certified ballot title is referred to the Attorney General for modification.
Cite as 361 Or 814 (2017) 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 substan-
tial 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 signa-
tures are gathered to put an initiative measure or a refer-
endum 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 (describ-
ing 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 bal-
lot, 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
1
The measure, if enacted, would amend one paragraph in ORS 250.105(1)
and add another. The first paragraph would provide for digital signatures. IP 2
816 Unger v. Rosenblum
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 signa-
tures for state initiative/referendum petitions; most/all sig-
natures 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 signa-
tures 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 digi-
tally 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 peti-
tioner’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
§ 1(d). The second would require the Secretary to create and administer a website
where voters can sign petitions digitally. IP 2 § 1(f). It is possible to read the text
of the measure as requiring that all digital signatures be collected on the website
created and maintained by the Secretary of State. However, it is also possible to
read paragraph (1)(d) as permitting all digital signatures collected in compliance
with the Secretary of State’s rules and paragraph (1)(f) as identifying one but not
the exclusive place where petitions may be signed digitally. We note the possible
ambiguity without attempting to resolve it.
Cite as 361 Or 814 (2017) 817
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 mea-
sure 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 signa-
tures 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 adminis-
ter 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 cap-
tion 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 web-
site that is user-friendly, reliable, and secure and that works
on any type of personal computer is neither simple nor inex-
pensive. We disagree, however, with the Attorney General
that the phrase “enable and accept digital signatures” rea-
sonably 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
818 Unger v. Rosenblum
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 cre-
ate 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. For exam-
ple, the caption could have said, “Permits signing initiative/
referendum petitions digitally on website created and
administered by Secretary of State.” Given the omission of
that major effect in the caption, we refer the caption to the
Attorney General for modification.
Petitioner raises a second objection to the caption.
He argues that it fails to tell voters that IP 2 would make
the Secretary of State, not the chief petitioners, responsi-
ble for gathering digital signatures on initiative and ref-
erendum petitions. Specifically, in his opening brief, peti-
tioner argues that the measure would place the “onus” on
the Secretary of State to gather digital signatures. To the
extent that is his argument, it fails. IP 2 would only make
the Secretary of State responsible for creating and admin-
istering a website where voters can sign initiative and ref-
erendum petitions digitally. The Secretary of State would
not have to do anything beyond that. Chief petitioners and
their circulators would still be responsible for informing
voters of initiative and referendum petitions and getting
them to go to the Secretary of State’s website and sign the
petitions.
In his reply brief in this court, petitioner shifts his
focus and raises a different argument. He contends that the
caption inaccurately implies that the Secretary of State could
accept digital signatures that chief petitioners collected on
their own websites or websites run by third parties. That
argument fails for two reasons. First, it is unpreserved.
Petitioner did not raise that argument in his written com-
ments to the Secretary of State. See ORS 250.085(6) (stat-
ing that the Supreme Court “shall not consider arguments
Cite as 361 Or 814 (2017) 819
concerning the ballot title not presented in writing to the
Secretary of State,” except in circumstances not present
here). Second, as explained above, to the extent that the cap-
tion permits that inference, it reflects and does not attempt
to resolve an ambiguity inherent in the text of the measure.
See note 1 supra.
Petitioner also challenges the “yes” vote result
statement. ORS 250.035(2)(b) provides that a ballot title
must contain a “simple and understandable statement of not
more than 25 words that describes the result if the state
measure is approved.” A “yes” vote result statement “should
describe ‘the most significant and immediate’ effects of the
ballot initiative for ‘the general public.’ ” McCann/Harmon
v. Rosenblum, 354 Or 701, 707, 320 P3d 548 (2014) (quot-
ing Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064
(2004)).
The Attorney General certified the following “yes”
vote result statement:
“ ‘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.”
Petitioner argues that the statement suffers from the same
deficiencies as the caption. He argues that the phrase “man-
age website” fails to inform voters that IP 2 requires that
the Secretary “create” a website, as well as manage it. We
agree. The “yes” vote statement is an improvement on the
caption because it specifies that the Secretary of State must
manage a website that accepts digital signatures on initia-
tive and referendum petitions. But it neglects to disclose the
significant effect that IP 2 would have, which is that it would
require the Secretary of State to create a website in the first
place. We accordingly refer the “yes” vote result statement to
the Attorney General for modification.
Petitioner also argues that the “yes” vote result state-
ment fails to inform voters that IP 2 makes the Secretary of
State, not chief petitioners, responsible for gathering digital
signatures on initiative and referendum petitions. For the
reasons discussed above regarding the caption, that argu-
ment fails.
820 Unger v. Rosenblum
We turn finally to petitioner’s challenge to the sum-
mary. ORS 250.035(2)(d) requires that the ballot title con-
tain a “concise and impartial statement of not more than 125
words summarizing the state measure and its major effect.”
Petitioner advances the same argument that the summary
fails to inform voters that IP 2 makes the Secretary of State
responsible for gathering digital signatures. For the reasons
discussed above, we disagree with that argument.
Ballot title referred to Attorney General for
modification.