Whitehead v. Clarno

268

Argued and submitted August 21, 2019, reversed and remanded

December 30, 2020, petition for review allowed May 20, 2021 (368 Or 168)

See later issue Oregon Reports

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.

Marion County Circuit Court

16CV28212; A167087

480 P3d 974

Plaintiffs brought this action under ORS 246.910 to obtain review of a deci-

sion by the Secretary of State, which disqualified Initiative Petition 50 (IP 50)

from the 2016 ballot. The secretary determined that IP 50 lacked a sufficient

number of valid signatures after subtracting the signatures of registered but

“inactive” voters, whom she found were not “qualified voters” for the purposes of

counting signatures on initiative petitions. Plaintiffs sought a declaration under

ORS 28.010 that Article IV, section 1, of the Oregon Constitution grants both

active and inactive registered voters the right to sign initiative petitions and have

their signatures count toward the qualification of those initiatives. The secretary

argued that voters with inactive registrations are not “entitled to vote” and are

therefore not eligible to sign the petitions. The trial court denied summary judg-

ment for plaintiffs and granted the secretary’s motion for summary judgment.

On appeal, plaintiffs 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. And,

because a person may be a “qualified elector” without being actively registered to

vote, that person is qualified to sign an initiative petition. Held: The trial court

erred by granting the secretary’s motion for summary judgment. The secretary’s

exclusion of signatures of registered but inactive voters deprives those voters of

their constitutional right to participate in the initiative process. The Court of

Appeals reversed and remanded the judgment for a declaration of rights consis-

tent with its opinion.

Reversed and remanded.

J. Channing Bennett, Judge.

Gregory A. Chaimov argued the cause for appellants.

Also on the briefs were Davis Wright Tremaine LLP and

Eric C. Winters.

Cite as 308 Or App 268 (2020) 269

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.*

MOONEY, J.

Reversed and remanded.

DeHoog, P. J., dissenting.

______________

* Egan, C. J., vice Hadlock, J. pro tempore.

270 Whitehead v. Clarno

MOONEY, J.

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 con-

cluded, 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 require-

ments 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 regis-

tered to vote under Oregon law is qualified to sign an initia-

tive petition. Plaintiffs contend that the secretary may not

reject the signatures of registered voters whom she has des-

ignated “inactive.” As we explain below, we conclude that the

1

ORS 246.910(1) provides that

“[a] person adversely affected by any act or failure to act by the Secretary

of State, a county clerk, a city elections officer or any other county, city or dis-

trict official under any election law, or by any order, rule, directive or instruc-

tion made by the Secretary of State, a county clerk, a city elections officer or

any other county, city or district official under any election law, may appeal

therefrom to the circuit court for the county in which the act or failure to act

occurred or in which the order, rule, directive or instruction was made.”

Cite as 308 Or App 268 (2020) 271

trial court erred as a matter of law because the secretary’s

exclusion of signatures made by registered but inactive vot-

ers 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 relo-

cated 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 vot-

ers 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 sum-

mary 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 P3d 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 P3d 964, rev den, 341 Or 548 (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 legisla-

tively 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

272 Whitehead v. Clarno

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 initia-

tive and referendum powers reserved to the people.” And,

in Article IV, section 1(2)(a), “[t]he people reserve to them-

selves 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 con-

stitutional 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

P2d 367 (1984).2 Article II, section 2, currently provides:

“Qualifications of electors. (1) Every citizen of the United

States is entitled to vote in all elections not otherwise pro-

vided 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, except that provision

may be made by law to permit a person who has resided

in this state less than 30 days immediately preceding the

election, but who is otherwise qualified under this subsec-

tion, to vote in the election for candidates for nomination or

election for President or Vice President of the United States

or elector of President and Vice President of the United

States; and

“(c) Is registered not less than 20 calendar days immedi-

ately preceding any election in the manner provided by law.

2

At the time Sajo was decided, Article II, section 2(1)(c), did not include the

language requiring registration be completed “not less than 20 calendar days”

immediately prior to an election. That change in language does not materially

impact this decision.

Cite as 308 Or App 268 (2020) 273

“(2) Provision may be made by law to require that per-

sons who vote upon questions of levying special taxes or

issuing public bonds shall be taxpayers.”

Thus, United States citizens who meet the age and resi-

dency 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 vot-

ers[.]’ ” Sajo, 297 Or at 654. 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).

3

Our review concerns the right to sign initiative petitions. The parties do not

challenge, and we do not decide, the constitutionality of ORS 247.013(7), which

requires an inactive registrant to update his or her registration before casting a

ballot in an election.

4

The legislature introduced the concept of active and inactive registration

in 1993 in order to comply with the National Voter Registration Act (NVRA), 55

USC §§ 20501 to 20511. See Staff Measure Summary, Majority Report, House

Committee on General Government, HB 2280-A (June 24, 1993). The NVRA

effectively required states to maintain a system for removing ineligible voters for

federal offices but limited the ability of states to cancel voter registrations. See

Husted v. A. Philip Randolph Inst., ___ US ___, 138 S Ct 1833, 1838-40, 201 L Ed

2d 141 (2018) (describing the NVRA). To avoid confusion, Oregon created uniform

rules for state and federal voter registration and maintains a single registration

system.

274 Whitehead v. Clarno

A registration is deemed “inactive” where the count

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 gen-

eral 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 registra-

tion 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 “inac-

tive” 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 vot-

ers” may sign initiative petitions.” The Supreme Court has

said that “qualified voters” must meet the criteria of “qual-

ified electors” under Article II, section 2. ORS 250.025(1)

provides that “[a]ny elector may sign an initiative or ref-

erendum petition for any measure on which the elector is

entitled to vote.” (Emphases added.) ORS chapter 250, con-

cerning the initiative and referendum process, does not

refer to active or inactive registration. The only statutory

reference that directly addresses the impact of inactive reg-

istration status is ORS 247.013(7), which requires inactive

registrations to be updated “before the elector may vote in

an election.” The prefiling verification procedure for peti-

tion signatures requires a mechanism for verification and

Article IV, section 1(4)(a), requires the legislature to pro-

vide “the manner in which” the secretary will verify those

signatures. It has done that with ORS 250.105 in which

the word “registration” appears only once and then only

5

ORS 247.013 was amended in 2019, resulting in renumbering subsection 8

as subsection 7. Or Laws 2019, ch 675, § 1. All references in this opinion are to the

current statutory provision, ORS 247.013(7).

Cite as 308 Or App 268 (2020) 275

to define one possible place for the secretary to identify

that an elector signed a specific initiative or referendum

petition. Nevertheless, the secretary has included instruc-

tion in the State Initiative and Referendum Manual that

“each petition signer * * * be an active registered voter at

the time of signing the petition.” Elections Division, Oregon

Secretary of State, State Initiative & Referendum Manual,

25 (2020), available at https://sos.oregon.gov/elections/

documents/stateir.pdf (accessed Dec 17, 2020).

Plaintiffs argue that rejecting the signatures of vot-

ers with inactive registration status impermissibly narrows

the class of voters who may sign petitions as “qualified vot-

ers” under Article IV, section 1(2)(c), by treating registered

voters deemed “inactive” as if they were not registered. The

secretary responds that a person may sign a petition if that

person is “entitled to vote,” which, in turn, requires that the

person meet the requirements of Article II, section 2, includ-

ing the registration requirement. She reasons that, because

an elector must update the elector’s registration before vot-

ing in an election, ORS 247.013(7), that elector is not “enti-

tled to vote” until the elector has completed the update. The

secretary argues that the “key moment for eligibility is the

moment of signing” the petition, and that the signatures

of registered voters whose registration status is “inactive”

when they sign are not valid because the signer is not “enti-

tled to vote” at that moment. Plaintiffs and the secretary

rely upon Sajo in support of their respective arguments, nec-

essarily drawing different conclusions from that case.

The trial court concluded that

“[t]he inactive voter statute is clearly within the legisla-

tive authority granted by the Constitution. * * * Under ORS

247.013(8), an inactive registration of an elector must be

updated before the elector will be eligible to vote in an elec-

tion. An elector, who has been determined to be inactive

must update his/her registration in order to be eligible to

vote.

“The requirement that electors must be eligible to vote

at the time they sign initiative petitions is long and well

established. [See] Sajo, 297 Or [at] 660. The fact that the

legislature enacted the inactive vote statute after Sajo does

not change the analysis.”

276 Whitehead v. Clarno

The court granted summary judgment to the secretary,

finding that the signatures of registered but inactive voters

were properly excluded in the signature verification process.

Therefore, the legal question before us is whether registered

voters with inactive registration status may sign initiative

petitions as qualified electors and whether the court erred

in concluding that the secretary was entitled to judgment as

a matter of law.

Sajo was an original mandamus proceeding con-

cerning the post-filing procedure for verifying signatures

submitted in support of a marijuana initiative. Sajo, 297

Or at 648. The petitioners alleged that the secretary and

28 county clerks failed to follow proper signature verifica-

tion procedures that, in turn, led to the improper disqual-

ification of a number of petition signers and the refusal to

place the initiative on the ballot. Id. In particular, the Sajo

petitioners challenged six categories of signatures that the

secretary had ruled invalid. Id. The Supreme Court con-

cluded that improper legal standards were applied in five of

those categories and issued an alternative writ ordering the

defendants to recount and verify the signatures. Id. at 661.

The significance of Sajo for our purposes is most

particularly in the court’s discussion of the sixth category

of signatures by persons who, at the time of signing the

petitions, were not registered to vote.6 The court explained

that ORS 250.025 and Article IV, section 1(2)(b), “contem-

plate that petition signers will be qualified voters at the

time they sign the petition.” Id. at 660. It went on to state

6

Sajo also concerned the disqualification of signers who signed petitions in

counties other than where they resided; where there were variances between the

address placed on the petition and that on the signer’s voter registration card;

signers who changed their names between the time of signing and verification;

and persons who were registered to vote at the time they signed the petition

but whose names had subsequently been removed “from the active voter file.”

297 Or at 655-59. The court directed the secretary to recount and verify those

signatures. As to those signers whose names had been purged from the “active

voter file,” the Supreme Court rejected the secretary’s argument that the work

involved in determining the timing of removal would unduly delay the verifica-

tion process, noting that the constitutional and statutory requirements could not

“be avoided for the sake of speed and efficiency.” Id. at 659. As discussed below,

given that Sajo was decided almost 10 years before the legislature added the

statutory requirement that inactive registrations be updated prior to voting, we

attach no particular significance to the court’s reference to “active voter file[s].”

Cite as 308 Or App 268 (2020) 277

that “eligibility to vote is a requirement that must exist at

the time a voter signs a petition.” Id. Noting that a voter is

not registered until that voter’s registration card is received

and accepted by the county clerk, the court held that it was

not legal error to disqualify the signatures of persons whose

registration cards were filled out, but not yet received, at the

time they signed the petition. Id.

The secretary argues that, like the “qualified but

not-yet-registered voters in Sajo, inactive voters must com-

plete some additional act to be entitled to vote on Election

Day. Until they complete that act, they are not entitled to

vote and, under ORS 250.025(1), may not sign initiative

petitions.”7 Plaintiffs argue that applying Sajo to render

registered voters who must update their registration infor-

mation before voting ineligible to sign initiative petitions

is wrong because all registered voters are entitled to vote

under Article II, section 2(1). They argue that the people did

not authorize the legislature to create different categories of

registered voters—some who may sign petitions and some

who may not.

We do not read Sajo to hold that voters who must

update their registration information before voting may

not sign initiative petitions. The Sajo court concluded that

the signatures of those signers who were registered at the

time they signed the petition but whose names were later

removed from the “active voter files should not have been

invalidated for that reason.” 297 Or App at 659. It referred

to this category of signatures as “[p]urged [r]egistrations”

and required the secretary to determine when the signers’

names had been purged. Id. If purged before the voter signed

the petition, then the signature would not be counted. If

purged after the voter signed the petition, then the signa-

ture would be counted. Because the concepts of active and

inactive registration were not a part of Oregon’s election

7

The secretary’s argument that an elector with inactive registration status

is not entitled to vote until his or her registration is updated, and therefore may

not sign an initiative petition until then, misses the point. As we explain, the sec-

retary’s registration system assigns inactive registration status as a step in the

process of maintaining current voter lists that may or may not lead to removal

(purging) from the list. But, until an elector is no longer registered, the elector is

registered.

278 Whitehead v. Clarno

laws until 1993, nearly 10 years after Sajo was decided, we

do not understand the court’s use of the phrase “active voter

files” to reflect anything other than the files of registered

(nonpurged) voters. The relevant distinction in Sajo was

between purged and nonpurged registrations. That distinc-

tion is not at issue in the case before us. Petitioners do not

argue, and we do not hold, that voters whose registrations

have been canceled and whose names have been purged

from the voter lists are entitled to sign initiative petitions.

Plaintiffs do not argue that the secretary’s pro-

cess for removing voter names and otherwise maintaining

the state’s voter registration lists is improper or flawed.

Plaintiffs do not assert that the state improperly designated

the invalidated signers as inactive. The question instead is

whether a registered voter whose registration is designated

inactive is still a qualified elector under Article II, section 2,

and, therefore, a voter who may sign an initiative petition.

Unlike those petitioners in Sajo whose registration cards

had not been received by the state at the time they signed

the petition, the state here had received and accepted the

registration cards of the signers. The requirement that they

update their registration information before voting did not

cancel the signers’ registrations and it did not otherwise ren-

der them not registered. Article II, section 2(1)(c), requires

that the person be “registered.” Characterizing registration

status as active or inactive is an administrative requirement

undertaken by the secretary as part of the process of main-

taining current voter lists. It is a step taken that may—or

may not—eventually lead to cancelation of registration, but

it is not the same as cancelation. In Sajo, the sixth cate-

gory of signers were not yet registered when they signed the

petition and, here, the signers were registered when they

signed the petition. Those are very different circumstances.8

Plaintiffs’ registration cards were received and on file and,

because of that, the secretary was able to verify the sig-

natures. That is different than persons for whom registra-

tion cards have not yet been received, making verification

8

Plaintiffs note that Sajo was decided almost 10 years before the legislature

added the statutory requirement that inactive registrations be updated prior

to voting. But, for our purposes, the timing is not critically important. Sajo is

instructive because of the facts that distinguish it from the case before us.

Cite as 308 Or App 268 (2020) 279

impossible. It is also different than voters whose registra-

tion cards have been purged from the voter files.

The secretary argues that use of the phrase “[r]egis-

tered * * * in the manner provided by law[ ]” in Article II,

section 2(1)(c), should be read broadly as granting the legis-

lature authority not only to “determine the ‘how’ ” but also

to “determine the ‘what’ ” of the voter registration require-

ment. That is to say, the secretary may determine both the

process for registration and what registration means. In

support of that argument, she relies on State ex rel. v. Clark,

143 Or 482, 22 P2d 900 (1933), which held that the signa-

tures of voters removed from the register of electors should

not count on a petition to recall the then-mayor of Baker

City. Clark concerned Article II, section 18, of the Oregon

Constitution, which provided that every public officer was

subject to “recall by the legal voters” of the “electoral district

from which he is elected.”9 143 Or at 485. At that time, vot-

ers who did not vote in any given biennium had their names

removed from the register of electors. Unless the voter

appeared at the county clerk’s office to sign a statement con-

firming the accuracy of the voter registration information,

their names were not put back on the register of electors.

Notice was not required. Setting aside the fact that the stat-

utory provisions at issue in Clark have been repealed, we

note first that the secretary does not argue that failure to

vote alone would withstand constitutional scrutiny today

as grounds for cancelation of one’s voter registration. We

understand her reliance on Clark to be solely for the prop-

osition that the term “registration” includes the obligation

to register and also to “maintain” that registration. She

thus argues that the phrase “registered * * * in the manner

provided by law” contemplates both initial registration and

registration maintenance. But the question before us is not

whether it was proper for the secretary to exclude the sig-

natures of persons whose names had been removed from the

list of registered voters. The question is whether registered

and otherwise qualified voters who have been assigned

the status of inactive but whose registration has not been

9

The current text of Article II, section 18, uses the term “electors” rather

than “legal voters.”

280 Whitehead v. Clarno

canceled are nonetheless “registered” as provided by law. We

determine that the answer to that question is yes.

An elector may sign an initiative petition if that elec-

tor meets the requirements of Article II, section 2: United

States citizenship, age, Oregon residency, and voter regis-

tration as provided by law. While the statutes regulating

voter registration indeed distinguish between “active” and

“inactive” registration, that distinction does not compel the

conclusion that a voter whose registration is inactive is not

registered. In Clark, by contrast, the voters were removed

from the register of electors, rendering them no longer reg-

istered. Neither the legislature nor the secretary is consti-

tutionally authorized to create classes of registration that

effectively disenfranchise registered voters. The franchise

includes both the right to vote and the right to sign initia-

tive and referendum petitions. Election procedures should

not create substantive barriers to the exercise of the fran-

chise, and they should not discourage private citizens from

participating in governance and carrying out their civic

right—and duty—to do so. Instead, election procedures

should encourage citizens to exercise their constitutional

right to participate in the democratic process so that the

will of the people can be determined.

We conclude that the secretary’s exclusion of signa-

tures made by registered but inactive voters unconstitution-

ally deprived those electors of their right to participate in

the initiative process. The trial court erred when it granted

summary judgment to the secretary and denied summary

judgment to plaintiffs.

Reversed and remanded.

DeHOOG, P. J., dissenting.

I strongly agree with the principles that the major-

ity opinion articulates, including its observations that the

right to sign initiative and referendum petitions, like the

right to vote, is critical to our democracy and that the exer-

cise of that right should be encouraged, not substantively

impaired. 308 Or App at 280. I do not agree, however, that

the Secretary of State’s understanding and application of

the statutory and regulatory framework governing that

Cite as 308 Or App 268 (2020) 281

exercise substantively impairs that right. Notably, the pro-

cess for deeming an otherwise lawfully registered voter

“inactive” requires both (1) statutorily compliant notice to

the voter by forwardable mail and (2) that the voter has nei-

ther voted nor updated the voter’s registration for a period

of 10 years. ORS 247.563(3) (requirements of notice); ORS

247.013(6) (permitting inactive designation only if notice

satisfying ORS 247.563(3) has been mailed to voter); OAR

165-005-0180 (prohibiting inactive designation unless voter

has not voted or updated registration for 10 years). And, in

this case, no plaintiff contends that the secretary did not

comply with any aspect of that process.

In my view, the majority opinion bases its conclu-

sion—that, notwithstanding the secretary’s compliance with

those provisions, she violated the constitution—on an erro-

neous understanding of the applicable constitutional provi-

sions and the statutes implementing them. In that regard,

my view largely tracks the arguments that the secretary

advances on appeal and that the trial court relied on in its

own decision. Without belaboring the matter, I will observe

that, as I read the Supreme Court’s opinion in State ex rel

Sajo v. Paulus, 297 Or 646, 653-54, 688 P2d 367 (1984), that

decision established only a necessary, but not invariably

sufficient, requirement for a person to be a “qualified voter”

entitled to sign a petition under Article IV, section 1(2), of the

Oregon Constitution. I further believe that, given the major-

ity opinion’s analysis in this case, it inescapably follows that

ORS 247.013(7)—which prohibits inactive registrants from

voting without updating their registrations—is unconstitu-

tional, and that a footnote disavowing any decision regard-

ing that statute cannot avoid that conclusion. See 308 Or

App at 273 n 3. Accordingly, I respectfully dissent.