Nearman/Miller v. Rosenblum

818 March 24, 2016 No. 18
IN THE SUPREME COURT OF THE
STATE OF OREGON
Michael J. NEARMAN
and James L. Buchal,
Petitioners,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(SC S063787) (Control)
Andrea MILLER,
Petitioner,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(SC S063789)
En Banc
On petitions to review ballot title filed January 5, 2016;
considered and under advisement February 23, 2016.
James L. Buchal, Murphy & Buchal LLP, Portland, filed
the petition and reply for petitioners Michael J. Nearman
and James L. Buchal.
Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter,
P.C., Portland, filed the petition and reply for petitioner
Andrea Miller.
Denise G. Fjordbeck, Assistant Attorney General, Salem,
filed the answering memorandum for respondent. With her
on the answering memorandum were Ellen F. Rosenblum,
Attorney General, and Paul L. Smith, Deputy Solicitor
General.
Gregory A. Chaimov, Davis Wright Tremaine LLP,
Portland, filed the memorandum for amici curiae David
Rogers, Rev. Joseph Santos-Lyons, and Kayse Jama.
Cite as 358 Or 818 (2016) 819
BREWER, J.
The ballot title is referred to the Attorney General for
modification.
Case Summary: Petitioners challenge the Attorney General’s certified ballot
title for Initiative Petition 51 (IP 51), asserting that it fails to meet the require-
ments of ORS 250.035(2), which establishes content standards for ballot titles.
Among other arguments, petitioners contend that the ballot title’s caption and
summary, as certified, impermissibly limit the scope of IP 51 to state and local
elections, whereas, by its terms, the measure also applies to federal elections.
In response, the Attorney General asserts that the National Voter Registration
Act preempts the subject of the measure; because of that preemption, registra-
tion requirements established by IP 51 are in conflict with, and cannot apply to,
federal elections. Held: (1) the Attorney General has authority to engage in basic
interpretation to identify a measure’s subject or major effect; (2) where, as here,
the lawfulness of a proposed measure is not settled, and its determination would
require extensive legal analysis, ballot title proceedings do not furnish an appro-
priate opportunity for resolution of that issue; (3) in stating that the application
of IP 51 is limited to “state and local” elections, the Attorney General’s caption
does not substantially comply with the requirement in ORS 250.035(2)(a) that
the caption reasonably identify the subject of the proposed measure; and (4) the
summary fails to state a major effect of the measure because it does not state
that, by its terms, the measure applies to federal elections.
The ballot title is referred to the Attorney General for modification.
820 Nearman/Miller v. Rosenblum
BREWER, J.
Petitioners seek review of the Attorney General’s
certified ballot title for Initiative Petition 51 (2016) (IP 51),
arguing that the ballot title does not satisfy the require-
ments of ORS 250.035(2). This court reviews a certified bal-
lot title to determine whether it substantially complies with
the requirements of that statute. ORS 250.085(5). For the
following reasons, we refer the ballot title to the Attorney
General for modification.
IP 51 is a proposed constitutional amendment that,
if adopted by the voters, would change current voter reg-
istration methods for federal, state, and local elections in
Oregon by requiring in-person registration, thereby elimi-
nating “motor-voter,” online, and mail registration options.
Its passage also would result in the expiration within
10 years of all current Oregon voter registrations and estab-
lish other new requirements that must be satisfied in order
for Oregonians to register to vote.
IP 51 has four sections. Section (a) provides that
“[p]roof of United States citizenship shall be required to reg-
ister to vote in all elections in the State of Oregon.” Section
(b) requires a prospective voter to present one or more of an
exclusive list of “documents or records” that constitute proof
of United States citizenship sufficient to register to vote in
Oregon. Id. § (b)(i) - (x). Section (b) further provides that,
if an applicant certifies to the Secretary of State that the
applicant does not have any of the specified documents, the
Secretary of State shall ask the United States Immigration
and Naturalization Service (INS)1 to “verify the applicant’s
citizenship status.” Id. § (b)(xi). The federal agency’s deter-
mination would be controlling. Id. If the federal agency fails
to respond, the applicant may offer evidence of his or her
citizenship status in a contested case hearing before the
Secretary of State. IP 51, § (b)(xi). Section (c) provides that
1
The United States Immigration and Naturalization Service (INS) was a
component of the U.S. Department of Justice from 1933 to 2003. In 2003, many
of that body’s functions were transferred to U.S. Citizenship and Immigration
Services, a then-new component of the United States Department of Homeland
Security. We express no opinion here with respect to the effect, if any, of the mea-
sure’s references to INS.
Cite as 358 Or 818 (2016) 821
all existing voter registrations will expire 10 years after the
measure passes, unless a voter registration is “renewed”
in accordance with the proof of citizenship requirement
prescribed by section (a). Section (d) requires the State of
Oregon to provide, without charge, a replacement birth cer-
tificate for the purpose of voter registration to any Oregon
resident born in Oregon.
The Attorney General certified the following ballot
title for IP 51:
“Amends Constitution:  State Election Registration
Requires In-Person Registration, Specific
Citizenship Documents/ Verification/ Hearing;
Voter Registrations Expire
“Result of ‘Yes’ Vote:  ‘Yes’ vote requires registration
for state/local elections in person with specified citizen-
ship documentation or immigration verification/hearing.
Current voter registrations expire after ten years.
“Result of ‘No’ Vote:  ‘No’ vote continues the current sys-
tem allowing in person, online, mailed voter registration
for all elections with attestation of citizenship. Voter regis-
trations do not expire.
“Summary:  Amends Oregon Constitution. Under cur-
rent law, voters may register by submitting registration
card online/ by mail/ in person; voter must attest United
States citizenship. Felony criminal penalties for providing
false attestation. Effective January 1, 2016, Driver and
Motor Vehicle Division (DMV) will submit information
received from customers to Secretary of State; if infor-
mation demonstrates citizenship, customer will be regis-
tered to vote unless opts out. Proposed measure requires
in-person voter registration proving citizenship with spec-
ified documents only; if specified documents are unavail-
able, federal Immigration and Naturalization Service or
an administrative hearing required. Proposed measure
conflicts with federal voter registration laws, applies only
to state/ local elections. Current voter registration expires
ten years after proposed measure passes; to vote, current
voters need to re-register. Other provisions.”
Nearman and Buchal, chief petitioners, and Miller,
a commenter, seek review of the ballot title certified by the
Attorney General. Chief petitioners object to the caption and
822 Nearman/Miller v. Rosenblum
summary for the ballot title. Petitioner Miller objects to the
caption, “yes” result statement, and summary. We begin
with chief petitioners’ related arguments about the caption
and summary.
Chief petitioners object to the caption on the ground
that it does not reasonably identify the subject matter of IP
51, insofar as it purports to limit its scope and effect to state
and local elections. Relatedly, they assert that the summary
incorrectly states that IP 51 conflicts with federal law and
only applies to state and local elections.
The caption for the ballot title of a state measure
must contain no more than 15 words and reasonably iden-
tify the “subject matter” of the measure, which is “the actual
major effect of a measure or, if the measure has more than
one major effect, all such effects (to the limit of the avail-
able words).” McCann/Harmon v. Rosenblum, 354 Or 701,
706, 320 P3d 548 (2014) (internal quotations marks omitted;
citations omitted); see ORS 250.035(2)(a).
ORS 250.035(2)(d) provides that a ballot title
summary shall be “[a] concise and impartial statement
of not more than 125 words summarizing the state mea-
sure and its major effect.” The function of the summary is
“to provide voters with enough information to understand
what will happen if the measure is approved.” Caruthers v.
Kroger, 347 Or 660, 670, 227 P3d 723 (2010). The informa-
tion must pertain to an identified, actual “effect” of enact-
ing or adopting the proposed measure; it is not permissible
to “speculate about the possible effects of a proposed mea-
sure.” Pelikan/Tauman v. Myers, 342 Or 383, 389, 153 P3d
117 (2007).
In this case, chief petitioners argue that the caption
and summary fail to meet those standards because, by its
terms, IP 51 applies to federal elections as well as state and
local elections, and the caption and summary fail to state
that it applies to federal elections. According to chief petition-
ers, the Elections Clause of the United States Constitution
allows the states to specify who is qualified to vote in federal
elections, the measure falls within the ambit of that author-
ity and, thus, the measure does not conflict with federal law.
Cite as 358 Or 818 (2016) 823
See US Const, Art I, § 4, cl 1 (stating responsibility for times,
places and manner of elections).2
The Attorney General defends the caption and sum-
mary on the ground that “the requirements of the proposed
measure conflict with, and are preempted by, the National
Voter Registration Act (NVRA), as construed by the United
States Supreme Court.” According to the Attorney General,
the Elections Clause authorizes the State of Oregon to
specify—as it has done—that only United States citizens
may vote. See Or Const, Art II, § 2 (so describing qualifi-
cation of electors). However, the Attorney General notes,
because Congress may specify the “[t]imes, [p]laces and
[m]anner of holding [e]lections,” US Const, Art I, § 4, cl 1, the
substantive scope of those words is broad enough to encom-
pass “authority to provide a complete code for congressional
elections, including* * * regulations relating to registration.”
Arizona v. Inter Tribal Council of Ariz., Inc., ___ US ___, 133
S. Ct. 2247, 2253, 186 L. Ed. 2d 239 (2013) (Inter Tribal) (ellip-
sis added; internal quotation marks and citations omitted).
Because, under Inter Tribal, the Elections Clause invests
the states with authority over federal elections “only so far
as Congress declines to pre-empt state legislative choices,”
id., the Attorney General opines that IP 51 is inconsistent
with—and therefore preempted by—the NVRA.
The thread of the Attorney General’s argument is
more detailed. She notes that, in the NVRA, Congress has
chosen to allow citizenship to be shown by attestation, rather
than by documentary proof. See 52 USC § 20508(b)(2)(B).
The stated Congressional purposes of the NVRA are to
protect the integrity of the electoral process and enhance
and increase voter participation in federal elections, which
includes discouraging unfair or discriminatory registra-
tion laws and procedures that have a damaging effect on
voter participation. 52 USC § 20501(a)(2) - (3), (b)(1) - (3).
The NVRA requires each state to establish a procedure for
2
Article I, section 4, clause 1 provides:
“The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof;
but the Congress may at any time by Law make or alter such Regulations,
except as to the Places of [choosing] Senators.”
824 Nearman/Miller v. Rosenblum
federal elections that allows applications to be made by driver
license application, mail application, or in-person applica-
tion. 52 USC § 20503(a). To accomplish those objectives, the
federal Election Assistance Commission (EAC) is required
to develop, in conjunction with the states, a “federal mail
voter registration application form.” 52 USC § 20508(a)(2).
Each state is required to “accept and use” the federal form.
52 USC § 20505(a)(1). The NVRA allows a state to request
that the EAC approve instructions for the federal form to
comport with the state’s voter qualification requirements,
but at least one federal court of appeals has held that the
EAC is under no obligation to approve the use of such
instructions. See Kobach v. U.S. Election Assistance Com’n,
772 F3d 1183, 1194-96 (10th Cir 2014), cert den, __ US __,
135 S. Ct. 2891 (2015). The court in Kobach held that, absent
evidence that attestation is insufficient to ensure that non-
citizens do not vote, the EAC lawfully may deny a state’s
request that requires documentary proof of citizenship. Id. at
1196-97.
Based on the foregoing authorities and reasoning,
the Attorney General asserts that
“in the absence of EAC approval of state-specific instruc-
tions for the federal form, IP 51 will create a dual system of
voter registration: Registration for federal elections using
the federal form requiring attestation of citizenship, and
registration for state elections requiring in-person presen-
tation of specific documentation of citizenship, or, absent
such documentation, INS verification or a contested case
hearing before the Oregon Secretary of State.”
The Attorney General asserts that “[i]t is not only entirely
speculative, but also wholly unlikely, that the EAC will
approve Oregon-specific instructions that are contrary to
the NVRA’s purpose and language.” It follows, the Attorney
General urges, that the certified ballot title correctly states
that, if adopted, IP 51 would apply to only state and local
elections.
Chief petitioners dispute the Attorney General’s
arguments. Among other arguments, they assert that the
Attorney General has misinterpreted the United States
Supreme Court’s decision in Inter Tribal. Chief petitioners
Cite as 358 Or 818 (2016) 825
point out that the majority in that case “noted that there
would be ‘serious constitutional doubts’ as to the lawful-
ness of the NVRA if it ‘precluded a state from obtaining
information necessary to enforce its voter qualifications’
and * * * that the ‘power to establish voting requirements
is of little value without the power to enforce those require-
ments.’ “ (Quoting Inter Tribal, 133 S. Ct. at 2258-59.) To
reinforce the point, chief petitioners rely on a recent letter
from the Executive Director of the EAC reporting that the
EAC accepted a request from the State of Kansas that
the national voter registration form be modified to add
instructions that an application must “have provided a
document, or copy thereof, demonstrating United States
citizenship within 90 days of filing the application with
the secretary of state or applicable county election officer.”
According to chief petitioners, that letter demonstrates
that there is “no inherent inconsistency” between IP 51
and federal law.
The parties’ disagreement about the effect of federal
election law on IP 51 is an interesting one, but we ultimately
conclude that it is not a matter that is properly before us at
this stage of the measure’s life cycle. To explain why, it is
helpful to consider several of this court’s previous decisions
that have addressed similar issues.
In the past, this court often stated that determina-
tions of the constitutionality of a proposed measure are not
within the scope of the ballot title certification process.3 In
Kane v. Kulongoski, 320 Or 273, 277-78, 882 P2d 588 (1994),
this court applied that principle to a ballot title challenge
that was based on the asserted preemption of the subject of
the measure by federal law. The petitioner there asserted
that the measure was “unconstitutional because, if passed,
it would purport to allow Oregonians to grow, process, and
sell marijuana, while federal law specifically criminalize[d]
such conduct.” Id. at 277. It followed, the petitioner argued,
that the measure violated the Supremacy Clause of the
United States Constitution.
3
See, e.g., Dunagan v. Thornton, 237 Or 379, 380, 391 P2d 783 (1964) (so
holding under former ORS 254.080 (1963), under which this court was responsi-
ble for certifying ballot titles to the Secretary of State); Johnson v. City of Astoria,
227 Or 585, 591, 363 P2d 571 (1961) (same).
826 Nearman/Miller v. Rosenblum
This court rejected that challenge:
“Whether or not petitioner’s argument in this regard is well
founded in law, our precedents make clear that this court
will not address it at this stage in the initiative process.
See, e.g., Hand v. Roberts, 309 Or 430, 436, 788 P2d 446
(1990) (court not authorized to assess ‘legality’ of proposed
ballot measure in the context of a ballot title review).
“Although petitioner makes the foregoing argument
under the heading, ‘The Measure is Unconstitutional,’ peti-
tioner argues another proposition, as well. Petitioner says:
‘The measure is in direct conflict with federal law * * *[, y]et
no part of the challenged ballot title refers to the conflict
between the measure and federal law.’ Enactment of the
proposed measure, petitioner argues, would ‘expose’ those
who acted in conformance with it ‘to prosecution under fed-
eral law.’ A ballot title, petitioner asserts, ‘should disclose
an obvious conflict between an initiative measure and fed-
eral law.’
“That argument, although dressed up slightly differ-
ently, does not really differ from the unconstitutionality
argument: It is an attempt to have inserted into the bal-
lot title a warning to the effect that the proposed measure
creates serious legal difficulties and questions. So under-
stood, petitioner’s argument offends both the rule that this
court does not address the legality of a proposed measure
in these proceedings, Hand v. Roberts, supra, and also the
requirement that a ballot title not take sides for or against
a proposed measure. Id. at 433 (ballot title ‘should pro-
vide accurate and neutral information to the voters, not
an additional opportunity for proponents or opponents to
persuade’).”
Kane, 320 Or at 277-78 (ellipsis and first alteration in origi-
nal; footnote omitted).
More recently, this court has refined and, indeed,
retreated from the seemingly categorical stance that it took
in Kane and earlier cases. We have recognized, for exam-
ple, that the Attorney General has authority to engage in
basic interpretation of a measure to identify its subject or
determine its major effect and, in so doing, to consider the
“changes that the proposed measure would enact in the con-
text of existing law.” Rasmussen v. Kroger, 350 Or 281, 285,
Cite as 358 Or 818 (2016) 827
253 P3d 1031 (2011). As this court stated in Christ/Tauman
v. Myers, 339 Or 494, 500, 123 P3d 271 (2005),
“[t]he statutory framework in which the Attorney General
performs the ballot title preparation function may deny the
Attorney General the right to speculate as to a proposed ini-
tiative measure’s meaning, where two or more reasonable
interpretations are possible. But the statutory standards
in ORS 250.035(2)(a) (requiring Attorney General to pre-
pare caption ‘that reasonably identifies the subject matter’
of the proposed measure); (2)(b) (requiring a ‘simple and
understandable statement * * * that describes the result
if the state measure is approved’); (2)(c) (requiring a ‘sim-
ple and understandable statement * * * that describes the
result if the state measure is rejected’); and (2)(d) (requir-
ing a statement ‘summarizing the state measure and its
major effect’) all require a degree of interpretive effort by
the Attorney General. See, e.g., Kain/Waller v. Myers, 337
Or 36, 93 P3d 62 (2004) (interpreting ORS 250.035(2)(a)
and (b), and illustrating proposition). The Attorney General
should not in the future rely on apparently contrary state-
ments from our older decisions. Instead, the Attorney
General must recognize that his or her statutory obligation
includes a certain amount of basic interpretation including,
in this case, an independent assessment of what the pro-
posed initiative measure in this case is—statutory enact-
ment or constitutional amendment. He or she must make
that identification in order to inform potential signers of
the initiative petition as to what the ‘practical effect’ of the
proposed measure will be if it is adopted.”4
(Emphases in original).
Christ/Tauman did not involve an assertion that
a proposed measure was unconstitutional, that it was pre-
empted by federal law, or that it otherwise was unlawful.
Instead, the question there was whether the Attorney General
should have interpreted a ballot title so as to determine and
4
The older cases to which the court referred in Christ/Tauman were “Kouns
v. Paulus, 296 Or 826, 828, 680 P2d 385 (1984) (not Attorney General’s role in
ballot title process to interpret words of proposed measure); Hand v. Roberts, 309
Or 430, 438, 788 P2d 446 (1990) (‘[t]his court * * * assiduously attempts to avoid
deciding questions of the practical effect of initiative * * * measures in its review
of a certified ballot title’); and ACLU v. Paulus, 282 Or 539, 544, 580 P2d 168
(1978) (inappropriate for Attorney General to speculate on meaning of wording of
the proposed measure).” Christ/Tauman, 339 Or at 500 n 3.
828 Nearman/Miller v. Rosenblum
indicate whether the proposed measure would amend the
Oregon Constitution or have the force of a statute. The court
concluded that making that determination was part of the
Attorney General’s obligation to reasonably identify the sub-
ject of the measure. Id. That conclusion was not, itself, at
odds with the holding in Kane. As this court later explained,
Christ/Tauman
“underscores the obvious point that, although neither this
court nor the Attorney General may speculate about the
possible secondary effects of a proposed measure or adopt
one of several plausible interpretations of the measure for
purposes of the ballot title, the preparation of a ballot title
necessarily requires some level of interpretation of the
measure.”
Wolf v. Myers, 343 Or 494, 501, 173 P3d 812 (2007).
However, this court went further in Caruthers v.
Myers, 344 Or 596, 189 P3d 1 (2008). In that case, we con-
sidered whether the Attorney General could go beyond the
words of a measure to interpret and describe its subject mat-
ter or its effects, where the measure undisputedly conflicted
with federal law. Id. at 601-03. The proposed measure in
Caruthers would have changed Oregon law to provide, among
other things, that “no union shall be required to represent
or bargain for an employee who chooses not to be a member
of the union.” Id. at 598 (internal quotation marks omitted).
However, the petitioner argued, and this court agreed, that
“settled federal law requires a private sector union to rep-
resent all the employees in a bargaining unit and that that
federal requirement will continue to apply notwithstanding
any changes that the proposed measure might make to state
law.” Id. at 599. The court concluded:
“Not only is the law settled but its application here is clear.
Under settled law, the proposed measure would have no
effect on a private sector union’s federal obligation to repre-
sent all the employees in a bargaining unit.”
Id. at 601.
Based on that interpretation, the court concluded
that the ballot title improperly failed to place the pro-
posed measure “in the context of existing law.” Id. (internal
Cite as 358 Or 818 (2016) 829
quotation marks and citations omitted). In doing so, the
court distinguished an earlier decision:
“In Sizemore [v. Myers, 326 Or 220, 953 P2d 360 (1997)],
this court held that the ballot title in that case need not dis-
cuss the effect that a proposed constitutional amendment
to prohibit regional governments would have on Oregon’s
constitutional home rule provisions. 326 Or at 231. The
court reasoned that discussion of that issue ‘would require
extensive legal interpretation, not only of the proposed ini-
tiative measure, but also of the interaction of the initiative
measure with other constitutional provisions.’ Id.
“This aspect of the case does not present the same prob-
lem that concerned the court in Sizemore. In Sizemore, the
relationship between the proposed measure and existing
law was complex and unresolved. Here, the relationship
between the proposed measure and existing federal law is
straightforward and settled. When petitioners objected to
the Attorney General’s proposed ballot title on the ground
that, under settled federal law, the effect of the measure
would be more limited than the ballot title explained,
Sizemore provided no basis for avoiding the Attorney
General’s obligation to describe the proposed measure
accurately.”
Caruthers, 344 Or at 601-02.
This case is not as clear-cut as Caruthers. Although
the Attorney General’s federal preemption analysis has
force, it is neither undisputed nor—in light of the parties’
competing arguments and submissions—a settled issue.
The question whether the State of Oregon could succeed in
obtaining permission from the EAC to use a federal election
registration form that requires documentation of citizenship
rather than attestation by an applicant is sufficiently com-
plex and uncertain that we conclude that this ballot title
proceeding does not furnish an appropriate opportunity to
answer it. See McCann v. Rosenblum, 355 Or 256, 264, 323
P3d 955 (2014) (holding that, where constitutionality of bal-
lot title provision was uncertain, Attorney General appropri-
ately declined “to factor those complex legal determinations
into her description of the measure’s effects,” and comparing
Sizemore, 326 Or at 231 (declining to engage in extensive
contextual legal interpretation), with Caruthers, 344 Or at
830 Nearman/Miller v. Rosenblum
601 (referring for modification when the legal effect was
undisputed)).
We therefore conclude that, in stating that the appli-
cation of IP 51 is limited to “state and local” elections, the
Attorney General’s caption does not substantially comply
with the requirement in ORS 250.035(2)(a) that the caption
reasonably identify the subject of the proposed measure. In
addition, the summary fails to state a major effect of the
measure because it does not state that, by its terms, the
measure applies to federal elections. Accordingly, both the
caption and the summary must be modified to identify that
subject and major effect.
We turn to petitioner Miller’s challenge to the “yes”
result statement. She asserts that the reference in that
statement to “immigration verification” is inaccurate and
misleading. Petitioner Miller argues that “immigration” is
immaterial to IP 51 and that the word therefore should not
appear in the ballot title, because “[o]nly United States citi-
zens who are Oregon residents can vote in Oregon elections.”
See Or Const, Art II, § 2, cl 1. As explained below, we agree.
The “yes” and “no” result statements are required
to describe the results of approving and rejecting a proposed
measure. The statements are limited to 25 words. ORS
250.035(2)(b) - (c). A “yes” vote result statement must accu-
rately describe “in simple and understandable terms * * * the
result if a proposed measure is approved.” Mabon v. Myers,
332 Or 633, 639, 33 P3d 988 (2001); see ORS 250.035(2)(b).
As noted, the “yes” vote result statement prepared
by the Attorney General states:
‘ “Yes’ vote requires registration for state/ local elections in
person with specified citizenship documentation or immi-
gration verification/ hearing. Current voter registrations
expire after ten years.”
(Emphasis added). Nothing in IP 51 establishes require-
ments for immigrants or involves an inquiry as to whether
an immigrant is properly documented for residency in
Oregon. The measure addresses only the documentation that
a United States citizen must provide to register to vote or
how an applicant’s citizenship otherwise must be verified for
Cite as 358 Or 818 (2016) 831
registration purposes. Accordingly, the reference to “immi-
gration verification” is inaccurate and misleading, and the
“yes” vote result statement must be modified to remove it.
Chief petitioners Nearman and Buchal and peti-
tioner Miller also make related objections to the summary
that require brief discussion. In particular, they each object
to the description of current law in the fourth sentence of the
summary on the ground that it is confusing and inaccurate.
That sentence begins: “Effective January 1, 2016, Driver
and Motor Vehicle Division (DMV) will submit information
received from customers to Secretary of State; if information
demonstrates citizenship, customer will be registered to vote
unless opts out.” (Emphasis added). The quoted reference
is to the January 2016 effective date of the newest “motor-
voter” enactment, Or Laws 2015, ch 8. Under that provision,
the Secretary of State is required by rule to supply a sched-
ule for the Department of Transportation to provide elec-
tronic records, including “citizenship information,” for “each
person who meets qualifications identified by the secretary
by rule.” Or Laws 2015, ch 8, § 1(1) (creating amended ORS
247.017(1)).
Petitioner Miller correctly observes that IP 51 could
not be circulated for signatures, much less submitted to vot-
ers, until sometime after January 1, 2016. She asserts that
the prospective wording is misleading and would be confus-
ing to potential petition signers and voters. Chief petitioners
object to the prospective description of current law because
they assert that the Secretary of State has no procedure in
place to comply with Or Laws 2015, ch 8, and that the refer-
ence to its enactment incorrectly suggests that current law
provides adequate means of assuring elector citizenship,
whereas chief petitioners think that it does not.
We agree that petitioner Miller’s objection is well
taken, and, to the extent that chief petitioners’ objec-
tion has merit, it is for the same reason: The “[e]ffective
January 1, 2016, * * * (DMV) will submit” wording in the
summary is misleading; the potential for confusion can be
remedied without adding to the length of the summary by
changing “will submit” to “must submit.” We agree with the
Attorney General, however, that the summary appropriately
832 Nearman/Miller v. Rosenblum
cross-references Or Laws 2015, ch 8, because that accurate
reference to that law permits a voter to assess a major effect
of IP 51—its in-person voter registration requirement—on
current law. See Berman v. Kroger, 347 Or 509, 514, 225
P3d 32 (2009) (summary may include description of effect of
measure on other laws, so long as description is accurate).
Petitioner Miller also objects to the phrase in the
summary that, “if specified documents are unavailable, fed-
eral Immigration and Naturalization Service or an adminis-
trative hearing required.” Petitioner Miller asserts that that
phrase is confusing and misstates the scope of section (b)(xi)
of the measure. We agree. A voter or potential petition signer
reading the phrase “federal Immigration and Naturalization
Service or an administrative hearing required” reasonably
would infer that IP 51 requires some form of hearing before
a federal agency when, in fact, the measure contains no such
requirement. Similarly, that phrase fails to inform voters
and potential petition signers that the measure requires the
Secretary of State to conduct a contested case hearing only
if the applicant pursues the matter. For that additional rea-
son, the summary must be revised.
Chief petitioners and petitioner Miller advance
other arguments, which we reject without discussion.
The ballot title is referred to the Attorney General
for modification.