# Whitehead v. Clarno

> Court of Appeals of Oregon · December 30, 2020 · 308 Or. App. 268

URL: https://www.frixlaw.com/law-library/cases/10600487

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** December 30, 2020
- **Citations:** 308 Or. App. 268; 480 P.3d 974
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Mooney
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10600487. Public record. Not legal advice.