Whitehead v. Fagan ( 2021 )

112
Argued and submitted September 24; decision of Court of Appeals reversed,
judgment of circuit court affirmed December 30, 2021
Richard Taylor WHITEHEAD;
Timothy Grant; and
Citizens in Charge Foundation,
a Virginia not-for-profit corporation,
Respondents on Review,
v.
Shemia FAGAN,
Secretary of State of the State of Oregon,
Petitioner on Review.
(CC 16CV28212) (CA A167087) (SC S068382)
501 P3d 1027
Plaintiffs submitted an initiative petition to the Secretary of State, who
excluded the signatures of voters with inactive registration. As a result, the peti-
tion did not qualify for the ballot. Plaintiffs challenged the exclusion of those
signatures as unconstitutional. The trial court granted summary judgment in
favor of the secretary, and the Court of Appeals reversed. Held: (1) To have their
signature on an initiative petition counted, a voter must be presently eligible to
vote; (2) requiring petition signers to have active registration by statute does not
violate Article IV, section 1, of the Oregon Constitution; and (3) the secretary
properly excluded the signatures of voters with inactive registration from the
petition submitted by plaintiffs.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
En Banc
On review from the Court of Appeals.*
Christopher A. Perdue, Assistant Attorney General,
Salem, argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Chris Swift, Davis Wright Tremaine LLP, Portland,
argued the cause for respondents on review. Evan R.
Christopher, Portland, filed the brief for respondents on
review. Also on the brief was Gregory A. Chaimov, Portland.
______________
* Appeal from Marion County Circuit Court, J. Channing Bennett, Judge.
308 Or App 268, 480 P3d 974 (2020).
Cite as 369 Or 112 (2021) 113
Greg Wasson filed the brief on behalf of himself as amicus
curiae. Also on the brief was Jesse A. Buss, Willamette Law
Group, Oregon City.
Daniel W. Meek, Portland, filed the brief on behalf of
amici curiae Oregon Progressive Party and Independent
Party of Oregon.
BALMER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
114 Whitehead v. Fagan
BALMER, J.
The question in this case is whether the Secretary
of State is required to count the signatures on an initiative
petition of voters whose registration is deemed “inactive.”
Plaintiffs are supporters of Initiative Petition 50 (2016) (IP
50) who sought to qualify that initiative for the 2016 bal-
lot.1 After the secretary subtracted the signatures of voters
with inactive registration, the petition did not have enough
signatures to be placed on the ballot. Plaintiffs brought
this action challenging the secretary’s exclusion of those
signatures.2
Article IV, section 1(2)(b), of the Oregon Constitution
provides that only the signatures of “qualified voters” count
towards the number required to propose an initiative law.
See Or Const, Art IV, § 1(2)(b), (c) (setting number of sig-
natures of “qualified voters” required to propose an “initia-
tive law” or an “initiative amendment to the Constitution”).
Qualified voters must “[be] registered * * * in the manner
provided by law.” Id. Art II, § 2(1)(c). The legislature has
enacted statutes specifying how voters are to register and
maintain their registration. ORS ch 247. Under those stat-
utes, if a county clerk has evidence that a voter needs to
update their registration or has moved to another county, the
clerk notifies the voter and deems their registration “inac-
tive” until it is updated or cancelled. ORS 247.013(6); ORS
247.563(1). Only voters with active registration may vote;
voters with inactive registration must update their registra-
tion before they are again eligible to vote. ORS 247.013(7).
Plaintiffs argue that voters with inactive registra-
tion may sign initiative petitions because, even if their reg-
istration is inactive, they are still registered, and therefore
remain “qualified voters” within the meaning of Article IV,
section 1. The secretary responds that those voters may
not sign initiative petitions because voters with inactive
1
Plaintiff Whitehead is the chief petitioner for IP 50, and plaintiff Grant is
an Oregon voter who signed the petition while his registration was “inactive.”
2
Under Article IV, section 1(2)(b), of the Oregon Constitution, “[a]n initia-
tive law may be proposed only by a petition signed by a number of qualified vot-
ers equal to six percent of the total number of votes cast for all candidates for
Governor at the election at which a Governor was elected for a term of four years
next preceding the filing of the petition.”
Cite as 369 Or 112 (2021) 115
registration are not “registered * * * in the manner provided
by law,” and they therefore are not “qualified voters” within
the meaning of Article IV, section 1.
We conclude, like the secretary, that because voters
whose registrations are inactive are not eligible to vote, they
are not “qualified voters” within the meaning of Article IV,
section 1. Accordingly, we hold that their signatures on ini-
tiative petitions may not be counted, and that the secretary
properly excluded them when determining the number of
signatures submitted in support of IP 50.
I. FACTS
Plaintiff Whitehead submitted signatures in sup-
port of IP 50 to the secretary. That measure would have pro-
hibited the release of certain voter information, including
ballot status information, some of which currently may be
released as part of the election verification process (for exam-
ple, to allow members of the public to challenge a ballot or
assist a voter in curing a flawed ballot). See ORS 254.415(2);
ORS 254.431(3). The secretary excluded the signatures of
voters with inactive registration from the total number of
signatures. As a result, IP 50 lacked the required number of
signatures to qualify for the ballot. A voters’ registration is
deemed inactive in cases where (1) the county clerk receives
information suggesting that the voter needs to update their
registration or has changed their address to another county,
ORS 247.563, (2) the voter has not voted or updated their
registration in over ten years, OAR 165-005-0180, and
(3) the clerk notifies the voter that their registration is inac-
tive, ORS 247.563(3).
Plaintiffs filed this action against the secretary
under ORS 246.910 and ORS 28.010, seeking review of the
secretary’s decision not to count the signatures of voters
with inactive registration and a declaration that Article IV,
section 1, of the Oregon Constitution grants registered vot-
ers, with active and inactive registration alike, the right to
have their signatures counted on initiative petitions. Both
parties moved for summary judgment.
The trial court granted summary judgment to the
secretary. In a letter opinion, the court emphasized the
116 Whitehead v. Fagan
broad authority of the legislature to enact statutes gov-
erning elections and voter registration and wrote that the
“requirement that electors must be eligible to vote at the
time they sign initiative petitions is long and well estab-
lished.” Even though voters with inactive registrations had
been eligible to vote before their registration became inac-
tive, the court concluded that, because they were not eligible
to vote at the time they signed IP 50, the secretary properly
excluded their signatures.
The Court of Appeals reversed in a split decision,
holding that “[n]either the legislature nor the secretary is
constitutionally authorized to create classes of registration
that effectively disenfranchise registered voters.” Whitehead
v. Clarno, 308 Or App 268, 280, 480 P3d 974 (2020). The
court began by observing that Article IV, section 1, reserves
the power of the initiative to the people and that “qualified
voters,” a term not defined in the constitution, may sign ini-
tiative petitions. Id. at 272. The court then noted that, in
State ex rel Sajo v. Paulus, 297 Or 646, 653-54, 688 P2d 367(1984), this court explained that “qualified voters” under
Article IV, section 1, must at least meet the requirements
in Article II, section 2, for “qualified electors.” Whitehead,
308 Or App at 272. Among other things, the court added,
Article II, section 2, requires that qualified electors be “reg-
istered * * * in the manner provided by law.” Id.Putting those provisions together, the Court of
Appeals deduced that, for someone to have their signature
counted on an initiative petition, they must be, as relevant
here, “registered to vote under Oregon law.” Id. at 273. In the
Court of Appeals’ view, once a voter registers, they remain
registered—whether the secretary deems their registration
active or inactive—until their registration is canceled. Id. at
280. Therefore, the court concluded, inactive voters are still
registered and are entitled, under Article IV, section 1, to
have their signatures on initiative petitions count. Id.Judge DeHoog dissented, interpreting this court’s
decision in Sajo to establish only a necessary, but not nec-
essarily sufficient, requirement for a person to be a “quali-
fied voter[ ]” entitled to sign a petition. Id. at 281 (DeHoog,
P. J., dissenting). In the dissent’s view, requiring that voters
Cite as 369 Or 112 (2021) 117
maintain an active registration to vote and sign initiative
petitions was within the authority of the legislature to reg-
ulate elections and voter registration. Id.The secretary petitioned this court for review, which
we allowed.
II. ANALYSIS
The material facts here are undisputed, and we are
presented with the legal question of whether a voter with
an inactive registration may sign an initiative petition—
without first updating their registration—and have their
signature counted. Noting that the constitution limits the
group of persons who are authorized to sign initiative peti-
tions to “qualified voters,” Or Const, Art IV, § 1, plaintiffs
argue that the constitutional requirement that qualified
voters be “registered,” id. Article II, section 2, does not dis-
tinguish between active and inactive voters. In plaintiffs’
view, that requirement is satisfied whether the voter’s reg-
istration is active or inactive. Thus, plaintiffs argue, exclud-
ing the signature of a voter whose registration is inactive
violates Article IV, section 1.
The secretary, in contrast, emphasizes that, under
Article II, section 2(1)(c), a voter must be registered “in the
manner provided by law.” In the secretary’s view, the legis-
lative branch therefore has broad authority to define regis-
tration, and it may constitutionally exclude the signatures
of voters with inactive registrations.
A. Legal Background
Whether voters with inactive registrations may
sign initiative petitions depends on the meaning of “quali-
fied voters” in Article IV, section 1, and the meaning of “reg-
istered” in Article II, section 2. Before interpreting those
key provisions, we provide some background on relevant
laws governing voter registration and initiatives.
The initiative power of the people of Oregon dates to
1902, when Oregon voters amended the constitution to adopt
the initiative and referendum processes. Ballot Measure 1
(1902); see Or Const, Art IV, § 1 (1910). Article IV, section
1, allows voters to “propose laws and amendments to the
118 Whitehead v. Fagan
Constitution and enact or reject them at an election inde-
pendently of the Legislative Assembly.” Or Const, Art IV,
§ 1(2)(a). The initiative provision has been amended since
1902; as amended, Article IV, section 1, provides that initia-
tive laws may be proposed by petitions signed by a certain
number of “qualified voters.” Id. § 1(2)(b). Those petitions
are submitted to the Secretary of State, and the legislature
is directed to “provide by law for the manner in which the
Secretary of State shall determine whether a petition con-
tains the required number of signatures of qualified voters.”
Id. § 1(4)(a). Article IV, section 1, does not define “qualified
voters.”
Eligibility to vote in elections is defined in Article II,
section 2. Among other things, voters must be “registered
not less than 20 calendar days immediately preceding any
election in the manner provided by law.” Id. Art II, § 2(1)(c)
(emphasis added). Thus, taking the two constitutional provi-
sions together, to be a qualified voter eligible to sign an ini-
tiative petition, one must be “registered * * * in the manner
provided by law.” Id.
As directed by Article IV, section 1, and Article II,
section 2, the legislature has enacted multiple statutes gov-
erning voter registration and initiative petitions. When
a voter first registers, their registration is “active.” ORS
247.013(5).3 The county clerk designates a voter’s regis-
tration as “inactive” if “(a) [t]he county clerk has received
evidence that there has been a change in the information
3
ORS 247.013 reads:
“(1) A qualified person shall be considered registered to vote in a county
when the person’s first registration in the county occurs as described in ORS
247.012.
“(2) An elector who changes residence address from the county in which
the elector is registered to a different county within the state, in order to vote
in an election, must be an elector registered in the county in which the new
residence address of the elector is located.
“(3) If there is a change in any information required for registration
under this chapter, and the elector has not changed residence address to
another county, the registration of the elector may be updated as provided in
this chapter.
“(4) Notwithstanding subsections (2) and (3) of this section, if an elector
changes residence address from the county in which the elector is registered
to a different county within the state, the elector need not register again if
the registration of the elector is updated.
Cite as 369 Or 112 (2021) 119
required for registration * * *; and (b) [t]he county clerk has
mailed the notice described in ORS 247.563 [notifying the
voter of their inactive status and describing how to update
the registration].” ORS 247.013(6). An inactive registration
may be updated to become active at any time, including
on election day. ORS 247.012(9). Regarding petitions, ORS
250.025(1) states that “[a]ny elector may sign an initiative or
referendum petition for any measure on which the elector is
entitled to vote.” To be entitled to vote, a voter’s registration
must be active. ORS 247.013(7).4
B. Constitutional Interpretation
With that general background in mind, we turn
to the constitutional provisions that contain the wording
at issue in this case—“qualified voters” in Article IV, sec-
tion 1(2)(b), and “registered * * * in the manner provided by
law” in Article II, section 2(1)(c). This court determines the
meaning of constitutional provisions by considering their
text, historical context, and relevant case law. Couey v.
Atkins, 357 Or 460, 490, 355 P3d 866 (2015).
1. Article IV, section 1: the initiative power
We begin with Article IV, section 1, which currently
reads, as relevant here:
“(1) The legislative power of the state, except for the
initiative and referendum powers reserved to the people,
“(5) If the county clerk does not have evidence of a change in any infor-
mation required for registration under this chapter for an elector, the regis-
tration of the elector shall be considered active.
“(6) The registration of an elector shall be considered inactive if:
“(a) The county clerk has received evidence that there has been a change
in the information required for registration under this chapter; and
“(b) The county clerk has mailed the notice described in ORS 247.563.
“(7) The inactive registration of an elector must be updated before the
elector may vote in an election.”
ORS 247.013 has been amended since IP 50 was submitted, Or Laws 2019, ch 675,
§ 1; however, because that amendment does not affect our analysis, we refer to
the current version of the statute in this opinion.
4
A voter’s registration is subject to cancellation at the request of the voter,
upon the voter’s death, if the county clerk receives information that the voter is
registered in another county or state, or if, after having been sent a notice under
ORS 247.563 that their registration is inactive, the voter does not vote or update
their registration within a certain time. ORS 247.555(1).
120 Whitehead v. Fagan
is vested in a Legislative Assembly, consisting of a Senate
and a House of Representatives.
“(2)(a) The 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 inde-
pendently of the Legislative Assembly.
“(b) An initiative law may be proposed only by a peti-
tion signed by a number of qualified voters equal to six per-
cent of the total number of votes cast for all candidates for
Governor at the election at which a Governor was elected
for a term of four years next preceding the filing of the
petition.
“* * * * *
“(4)(a) Petitions or orders for the initiative or ref-
erendum shall be filed with the Secretary of State. The
Legislative Assembly shall provide by law for the manner in
which the Secretary of State shall determine whether a peti-
tion contains the required number of signatures of qualified
voters.”
(Emphases added.)5 The phrase “qualified voters” was
adopted in 1968, and, as noted, is not defined in the con-
stitution. Ballot Measure 2 (1968) (Primary Election). The
parties agree that qualified voters are those who meet the
eligibility requirements in Article II, section 2, as this court
has previously explained. Sajo, 297 Or at 653. Plaintiffs,
however, argue that voters who meet the eligibility require-
ment of being “registered,” but who are nevertheless ineligi-
ble to vote because their registration is inactive, are consti-
tutionally entitled to sign initiative petitions and have their
signatures counted. For the reasons set out below, we dis-
agree and instead hold that “qualified voters,” for purposes
of signing an initiative petition under Article IV, section 1,
are those who, by virtue of meeting the requirements of
Article II, section 2, are presently eligible to vote. Therefore,
a voter must be presently eligible to vote to have their sig-
nature on an initiative petition counted. As explained below,
that interpretation aligns with the text and historical con-
text of Article IV, section 1.
5
Except as specifically noted below, previous amendments to both Article IV,
section 1, and Article II, section 2, do not affect our analysis. We therefore refer
to the current version of the constitution except where otherwise noted.
Cite as 369 Or 112 (2021) 121
“Qualified,” as used here, means “having complied
with the specific requirements or precedent conditions (as
for an office or employment) : eligible, certified,” or “fitted
(as by endowments or accomplishments) for a given purpose
: competent, fit.” Webster’s Third New Int’l Dictionary 1858
(unabridged ed 1961). Our initial understanding, then, is
that “qualified voters” are those who have “complied with
the specific requirements or precedent conditions” for vot-
ing, or who are, in other words, “eligible” to vote. Id.6
To confirm that understanding, we look to the pro-
vision’s context, which includes preexisting constitutional
provisions, case law, and the statutory framework against
which the law was enacted. See State v. Pipkin, 354 Or
513, 526, 316 P3d 255 (2013). When the initiative power
was added to the constitution in 1902, initiative petitions
required the signatures of a certain portion of the “legal vot-
ers” of the state. Or Const, Art IV, § 1 (1910). At that time,
there was no constitutional voter registration requirement
(there was a statutory registration requirement). Instead,
the constitution restricted voting to white males, 21 years
of age or older, who lived in Oregon, and who either were or
intended to become American citizens. Id. Art II, § 2 (1910).7
Thus, the restriction on who could sign an initiative petition
was not related to registration, but rather to whether the
person signing was eligible to vote, and that eligibility was
defined by Article II, section 2.
The current term “qualified voters” was substituted
for “legal voters” in 1968 by a constitutional amendment
that repealed and replaced the existing Article IV, section 1.
Ballot Measure 2 (1968) (Primary Election). There is no
indication that the change in wording from “legal” to “qual-
ified” was significant. According to the explanation of that
1968 measure, drafted by committee pursuant to former
ORS 254.210 (1968), renumbered as ORS 251.205 (1979),
6
We cite the 1961 edition of Webster’s because the term “qualified” was added
to the constitution in 1968. Ballot Measure 2 (1968) (Primary Election). The
applicable definitions in the most recent (2002) edition of Webster’s are identical.
7
Of course, the Civil War amendments to the United States Constitution
prevented Oregon from enforcing its restrictions against voting by nonwhite cit-
izens, Wood v. Fitzgerald, 3 Or 568, 580 (1870), although racial restrictions on
voting remained in the Oregon Constitution until 1927.
122 Whitehead v. Fagan
and included in the voters’ pamphlet, the stated purpose of
the measure was to “change the basis for determining the
number of signatures required for initiative and referendum
petitions,” to provide additional time to certify signatures,
and to “repeal several obsolete sections * * * and remove
archaic and redundant language.” Official Voters’ Pamphlet,
Primary Election, May 28, 1968, 8. The explanation empha-
sized that the “repealed sections [were] purely ‘clean-up’ of
the wording and in no way do they diminish the power of the
people to initiate or refer measures.” Id. That context sug-
gests that the substitution of “qualified voters” did not alter
the meaning of Article IV, section 1. The historical context
of Article IV, section 1, therefore suggests that the power to
sign initiative petitions is reserved to eligible voters.
We turn next to relevant case law interpreting
Article IV, section 1. The key case is Sajo. Sajo was an orig-
inal mandamus proceeding in this court in which the peti-
tioners argued that the secretary and county clerks had
improperly disqualified signatures from an initiative peti-
tion. 297 Or at 648. The petitioners identified six catego-
ries of signatures that, they alleged, had been wrongly dis-
qualified or otherwise improperly treated. Id. at 656. One
category of signatures that the court considered in Sajo is
relevant here: signatures of persons who were not registered
at the time of signing, but who had registered before the
petition was filed. This court wrote:
“Article IV, section 1(2)(b) refers to ‘qualified voters,’ which
certainly makes eligibility under article II, section 2 a nec-
essary condition for validly signing a petition. But this eli-
gibility to vote on election day may not necessarily be a suf-
ficient condition for signing a petition, because article IV,
section 1(4)(a) clearly contemplates that eligibility as a
‘qualified voter’ can be verified before the petition is filed.”
297 Or at 654. Along with a statute setting out the quali-
fications of petition signers, the court reasoned, those con-
stitutional provisions “contemplate that petition signers
will be qualified voters at the time they sign the petition.”
Id. at 660. Therefore, we concluded, the secretary properly
excluded the signatures of those voters, emphasizing that
Cite as 369 Or 112 (2021) 123
“eligibility to vote is a requirement that must exist at the
time a voter signs a petition.” Id.Thus, both the current text of Article IV, section 1,
and the historical context of that section and its amend-
ments reinforce our understanding, expressed in Sajo, that,
to be a “qualified voter[ ]” and have one’s signature on an
initiative petition count, the voter must at least be eligible
to vote.
2. Article II, section 2: qualifications of voters
To understand what eligibility to vote entails, we
turn to Article II, section 2, which we interpret by the same
methodology applied to Article IV, section 1, above.
First, the text. Article II, section 2, as relevant here,
currently reads:
“(1) Every citizen of the United States is entitled
to vote in all elections not otherwise provided for by this
Constitution if such citizen:
“(a) Is 18 years of age or older;
“(b) Has resided in this state during the six months
immediately preceding the election [(with an exception for
presidential elections)] * * *; and
“(c) Is registered not less than 20 calendar days imme-
diately preceding any election in the manner provided by
law.”
Or Const, Art II, § 2(1) (emphases added). The key phrases
are “is registered” and “in the manner provided by law.”
Plaintiffs argue that “whether a voter is ‘registered’ is the
essential attribute of a ‘qualified voter[ ]’ and not whether
the voter is able to vote without taking any additional steps.”
Thus, in plaintiffs’ view, any voter who has once registered
and whose registration has not been cancelled is a “qualified
voter[ ],” even if, under applicable Oregon law, they may not
vote. The secretary, on the other hand, argues, based on the
emphasized text above, that the legislature is authorized to
define “registration” and create registration maintenance
requirements. In the secretary’s view, if the legislature
has enacted laws barring voters with inactive registration
from voting, then those voters are not “registered * * * in the
124 Whitehead v. Fagan
manner provided by law” as the constitution requires, and
they are not eligible to vote. Because those once-registered
voters are not eligible to vote, the secretary concludes, they
may not sign initiative petitions.
“Register,” as used in 1927 when the registration
requirement was adopted into Article II, section 2, generally
meant “[t]o enroll one’s name in a register.” Webster’s 1796
(1921). That definition by itself, however, does not resolve
the meaning of the word “register” here, because simply
enrolling one’s name in a register of some kind—even a
register related to voting—does not necessarily qualify one
to vote. The constitution itself does not state what more, if
anything, is required for a “registered” voter to be able to
vote. Instead, the constitution expressly delegates that task
to the legislature through the phrase “in the manner pro-
vided by law.” Or Const, Art II, § 2(1)(c). “Manner,” as used
here, means “[a] way of acting ; a mode of procedure ; the
mode or methods in which something is done or in which
anything happens ; way ; mode.” Webster’s at 1313 (1921).
The phrase “provided by law” as used in the constitution
means, as previously explained by this court, “ ‘provided by
enactment of the legislative branch of the state.’ ” State v.
Sagdal, 356 Or 639, 650, 343 P3d 226 (2015) (quoting Jory
v. Martin, 153 Or 278, 314, 56 P2d 1093 (1936) (Kelly, J.,
dissenting)). Thus, “registered * * * in the manner provided
by law” means enrolled in a register of voters through the
procedures enacted by the legislative branch.
The choice of the phrase “[i]s registered” is also
meaningful here. Or Const, Art II, § 2(1)(c) (emphasis added).
That phrase, added to the constitution in 1960, Ballot
Measure 7 (1960), and its previous version, “shall be duly
registered,” Or Const, Art II, § 2 (1930) (emphasis added),
both describe a status that a voter must have at a certain
time: “be” and its present tense form “is,” as used here, mean
“[t]o hold or obtain as true with respect to some condition,
thing, or quality ; to have or enter into a real relation with a
specified object or idea.” Webster’s at 195 (1921). Thus, being
“registered,” as contemplated by Article II, section 2, is a
“condition” or “quality” that a voter must presently have to
be eligible to vote. It is not, by contrast, a discrete act that
a voter performs. Were this provision meant to refer to the
Cite as 369 Or 112 (2021) 125
discrete act of “registering,” as opposed to the condition or
status of “being registered,” the drafters likely would have
used the phrase “shall have registered” or “has registered.”
The drafters did not do so here.
In sum, the text shows that Article II, section 2,
requires that voters, at the time they vote, be currently
enrolled in a register of voters who are eligible to vote
according to the procedure established by the legislative
branch. That text suggests that the legislature may regu-
late voter registration as it sees fit, consistent with constitu-
tional requirements. As this court has stated before, if the
drafters of a constitutional provision intended to limit the
legislature, “they would have said so in plain and unmistak-
able language and not have left the matter in doubt.” Jory,
153 Or at 284.
Next, the historical context. The constitutional
registration requirement was adopted by Oregon voters
in 1927. Ballot Measure 5 (1927) (Special Election). Before
that, registration was required by statute. Oregon Laws,
title XXVIII, ch XI (1920). As originally adopted, the con-
stitutional registration requirement expressly “ratified,
adopted and confirmed” the previously existing registration
laws “as if enacted after the adoption of this amendment.”
Or Const, Art II, § 2 (1930). Those previously existing laws
included a registration-verification law, which directed
county clerks before an election to confirm that registered
voters had voted at least once in the last two years. Oregon
Laws, title XXVIII, ch XI, § 4065 (1920). If a voter had not
voted in the last two years, the clerk was to remove their
registration card from the register. Id. That registration
card would be retained for a year, during which the voter
could go to the county clerk’s office and sign a statement
on the card attesting that they were still a legal voter and
have the card replaced in the register. Id. If the voter did not
appear within that year, the registration was to be “perma-
nently cancel[led]” and the card “destroyed.” Id.
That registration-verification law resembles in some
ways the active/inactive system in effect today. Although the
laws use different terminology and somewhat different pro-
cedures, both laws essentially provide for a system by which
126 Whitehead v. Fagan
the county clerk may, in particular circumstances, tempo-
rarily disallow a person from voting without permanently
cancelling their voter registration. In the earlier law, a vot-
er’s registration card was “remove[d] * * * from the register”
until the voter confirmed or updated their registration. Id.
Their registration card was retained during that time, but
they could not vote. Id. Similarly, under current law, a voter’s
registration is designated “inactive” until they update their
registration. ORS 247.013(7). They are not unregistered, nor
has their registration been fully canceled, but they may not
vote. Id. When the constitutional registration requirement
was adopted in 1927, the voters at the same time expressly
approved the existing registration system, which operated
much like the active/inactive system now in place.
Those systems are not identical, but, as we have
noted before, this court’s purpose in interpreting the consti-
tution “is not to freeze the meaning of the state constitution
to the time of its adoption, but is instead ‘to identify, in light
of the meaning understood by the framers, relevant under-
lying principles that may inform our application of the con-
stitutional text to modern circumstances.’ ” Couey, 357 Or at
490 (quoting State v. Davis, 350 Or 440, 446, 256 P3d 1075
(2011)). The historical context of the 1927 constitutional reg-
istration requirement—that it was intended to be consistent
with the then-existing registration-verification statute—
supports the conclusion that the present statutory scheme
of “active” and “inactive” registration is consistent with
the current constitutional registration requirement. It also
reinforces the legislature’s authority to regulate voter reg-
istration, including to create a system that allows a county
clerk to temporarily place a person in an “inactive” status
and not permit them to vote in circumstances established by
statute.
We next turn to the relevant case law, which sup-
ports the authority of the legislature to define “regist[ra-
tion].” In State ex rel. v. Clark, 143 Or 482, 22 P2d 900, reh’g
den (1933), voters in Baker City petitioned to recall their
mayor. Id. at 483. After their petition was filed, the local
clerk delayed calling the election to investigate whether the
signatures on the petition were valid. Id. at 483-84. Several
signatures on the petition, it turned out, were of voters
Cite as 369 Or 112 (2021) 127
who had registered but had not voted in the last two years,
id. at 484, and so they were ineligible to vote under the
registration-verification law discussed above, recodified at
Oregon Code, title XXXVI, ch I, § 36-110 (1930). This court,
after considering the text of Article II, section 2, which
at that time required voters to “be duly registered * * * in
the manner provided by law,” Or Const, Art II, § 2 (1930),
concluded that the clerk had correctly excluded the signa-
tures of those who had not maintained their registration.
Clark, 143 Or at 492. Thus, this court did not consider the
registration-verification requirement to be at odds with
Article II, section 2, and implicitly upheld the legislature’s
authority to regulate voter registration. That decision fur-
ther suggests that the phrase “[i]s registered” in Article II,
section 2, refers to being presently compliant with voter reg-
istration statutes, and not to having “enroll[ed] one’s name
in a register” once. Webster’s at 1796 (1921). Other cases
upholding statutes that regulate voting eligibility include
Sajo, 297 Or at 654 (“Article II, section 2 neither requires
nor defines registration of otherwise qualified voters; it
leaves this to be provided by law. * * * And article IV, section
1(4)(b) authorizes the submission of initiative and referen-
dum measures to be regulated by laws consistent with this
contemplated verification [of voter eligibility].”), Ivie v. City
of Oceanlake, 208 Or 417, 427-28, 302 P2d 221 (1956) (uphold-
ing requirement that voters be registered at least 30 days
before a special election), and Wright v. Blue Mt. Hospital
Dist., 214 Or 141, 149, 328 P2d 314 (1958) (upholding a res-
idency requirement and stating, “even though the constitu-
tion prescribes the qualification of a voter, there is a wide
field for legislative action in determining how such qualifi-
cations shall be ascertained and in prescribing regulations
for the prevention of fraud and abuses”).
Finally, we note that, even if the text, historical
context, and relevant case law did not unambiguously show
that the active registration requirement was within the con-
stitutional authority of the legislature, it is a longstanding
principle that, when the constitution does not expressly limit
the legislature’s authority, there is a strong presumption
that the legislature’s actions are constitutionally permitted.
Jory, 153 Or at 285 (“Plenary power in the Legislature, for
128 Whitehead v. Fagan
all purposes of civil government, is the rule, and a prohibi-
tion to exercise a particular power is an exception.”). Here,
were there any doubt based on the text that the active regis-
tration requirement was within the constitutional authority
of the legislature, “we should be compelled to dissolve that
doubt in favor of the constitutionality of the mode which the
legislature had adopted.” Cline & Newsome v. Greenwood &
Smith, 10 Or 230, 241, 1882 WL 1434 (1882).
To summarize, when the initiative power was first
added to the constitution, there was no registration require-
ment, only a requirement that signers be “legal voters”—the
equivalent of “qualified voters” in the present constitutional
provision—meaning someone eligible to vote. Oregon voters
later added a constitutional registration requirement to be
eligible to vote, and in doing so ratified the previously exist-
ing statutory registration-verification requirement. At no
point did the constitution purport to define or delimit “regis-
tration” or set up a strict dichotomy of “registered” and “not
registered” for purposes of Article IV, section 1, as plaintiffs
suggest. Instead, defining and regulating voter registration
and verification of registrations has been within the purview
of the legislative branch. And this court has issued several
decisions squarely holding that voters may sign initiative
petitions only if they could legally vote in an election at the
time of signing. We conclude that voters with inactive reg-
istration, who statutorily may not vote, may not have their
signatures counted on initiative petitions either.8
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
8
We note that a voter may easily determine whether their registration is
inactive, including by visiting the secretary’s website. Elections Division, Oregon
Secretary of State, My Vote, https://sos.oregon.gov/voting/pages/myvote.aspx
(accessed Dec 23, 2021). Making a voter’s registration active again requires only
updating the registration, which can be done online if the voter has an Oregon
DMV number, through the state Department of Transportation, or by signing
and mailing or delivering a paper form to the local county elections office. ORS
247.012(1).