Whitehead v. Fagan

112

Argued and submitted September 24; decision of Court of Appeals reversed,

judgment of circuit court affirmed December 30, 2021

Richard Taylor WHITEHEAD;

Timothy Grant; and

Citizens in Charge Foundation,

a Virginia not-for-profit corporation,

Respondents on Review,

v.

Shemia FAGAN,

Secretary of State of the State of Oregon,

Petitioner on Review.

(CC 16CV28212) (CA A167087) (SC S068382)

501 P3d 1027

Plaintiffs submitted an initiative petition to the Secretary of State, who

excluded the signatures of voters with inactive registration. As a result, the peti-

tion did not qualify for the ballot. Plaintiffs challenged the exclusion of those

signatures as unconstitutional. The trial court granted summary judgment in

favor of the secretary, and the Court of Appeals reversed. Held: (1) To have their

signature on an initiative petition counted, a voter must be presently eligible to

vote; (2) requiring petition signers to have active registration by statute does not

violate Article IV, section 1, of the Oregon Constitution; and (3) the secretary

properly excluded the signatures of voters with inactive registration from the

petition submitted by plaintiffs.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

En Banc

On review from the Court of Appeals.*

Christopher A. Perdue, Assistant Attorney General,

Salem, argued the cause and filed the briefs for petitioner on

review. Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Chris Swift, Davis Wright Tremaine LLP, Portland,

argued the cause for respondents on review. Evan R.

Christopher, Portland, filed the brief for respondents on

review. Also on the brief was Gregory A. Chaimov, Portland.

______________

* Appeal from Marion County Circuit Court, J. Channing Bennett, Judge.

308 Or App 268, 480 P3d 974 (2020).

Cite as 369 Or 112 (2021) 113

Greg Wasson filed the brief on behalf of himself as amicus

curiae. Also on the brief was Jesse A. Buss, Willamette Law

Group, Oregon City.

Daniel W. Meek, Portland, filed the brief on behalf of

amici curiae Oregon Progressive Party and Independent

Party of Oregon.

BALMER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

114 Whitehead v. Fagan

BALMER, J.

The question in this case is whether the Secretary

of State is required to count the signatures on an initiative

petition of voters whose registration is deemed “inactive.”

Plaintiffs are supporters of Initiative Petition 50 (2016) (IP

50) who sought to qualify that initiative for the 2016 bal-

lot.1 After the secretary subtracted the signatures of voters

with inactive registration, the petition did not have enough

signatures to be placed on the ballot. Plaintiffs brought

this action challenging the secretary’s exclusion of those

signatures.2

Article IV, section 1(2)(b), of the Oregon Constitution

provides that only the signatures of “qualified voters” count

towards the number required to propose an initiative law.

See Or Const, Art IV, § 1(2)(b), (c) (setting number of sig-

natures of “qualified voters” required to propose an “initia-

tive law” or an “initiative amendment to the Constitution”).

Qualified voters must “[be] registered * * * in the manner

provided by law.” Id. Art II, § 2(1)(c). The legislature has

enacted statutes specifying how voters are to register and

maintain their registration. ORS ch 247. Under those stat-

utes, if a county clerk has evidence that a voter needs to

update their registration or has moved to another county, the

clerk notifies the voter and deems their registration “inac-

tive” until it is updated or cancelled. ORS 247.013(6); ORS

247.563(1). Only voters with active registration may vote;

voters with inactive registration must update their registra-

tion before they are again eligible to vote. ORS 247.013(7).

Plaintiffs argue that voters with inactive registra-

tion may sign initiative petitions because, even if their reg-

istration is inactive, they are still registered, and therefore

remain “qualified voters” within the meaning of Article IV,

section 1. The secretary responds that those voters may

not sign initiative petitions because voters with inactive

1

Plaintiff Whitehead is the chief petitioner for IP 50, and plaintiff Grant is

an Oregon voter who signed the petition while his registration was “inactive.”

2

Under Article IV, section 1(2)(b), of the Oregon Constitution, “[a]n initia-

tive law may be proposed only by a petition signed by a number of qualified vot-

ers equal to six percent of the total number of votes cast for all candidates for

Governor at the election at which a Governor was elected for a term of four years

next preceding the filing of the petition.”

Cite as 369 Or 112 (2021) 115

registration are not “registered * * * in the manner provided

by law,” and they therefore are not “qualified voters” within

the meaning of Article IV, section 1.

We conclude, like the secretary, that because voters

whose registrations are inactive are not eligible to vote, they

are not “qualified voters” within the meaning of Article IV,

section 1. Accordingly, we hold that their signatures on ini-

tiative petitions may not be counted, and that the secretary

properly excluded them when determining the number of

signatures submitted in support of IP 50.

I. FACTS

Plaintiff Whitehead submitted signatures in sup-

port of IP 50 to the secretary. That measure would have pro-

hibited the release of certain voter information, including

ballot status information, some of which currently may be

released as part of the election verification process (for exam-

ple, to allow members of the public to challenge a ballot or

assist a voter in curing a flawed ballot). See ORS 254.415(2);

ORS 254.431(3). The secretary excluded the signatures of

voters with inactive registration from the total number of

signatures. As a result, IP 50 lacked the required number of

signatures to qualify for the ballot. A voters’ registration is

deemed inactive in cases where (1) the county clerk receives

information suggesting that the voter needs to update their

registration or has changed their address to another county,

ORS 247.563, (2) the voter has not voted or updated their

registration in over ten years, OAR 165-005-0180, and

(3) the clerk notifies the voter that their registration is inac-

tive, ORS 247.563(3).

Plaintiffs filed this action against the secretary

under ORS 246.910 and ORS 28.010, seeking review of the

secretary’s decision not to count the signatures of voters

with inactive registration and a declaration that Article IV,

section 1, of the Oregon Constitution grants registered vot-

ers, with active and inactive registration alike, the right to

have their signatures counted on initiative petitions. Both

parties moved for summary judgment.

The trial court granted summary judgment to the

secretary. In a letter opinion, the court emphasized the

116 Whitehead v. Fagan

broad authority of the legislature to enact statutes gov-

erning elections and voter registration and wrote that the

“requirement that electors must be eligible to vote at the

time they sign initiative petitions is long and well estab-

lished.” Even though voters with inactive registrations had

been eligible to vote before their registration became inac-

tive, the court concluded that, because they were not eligible

to vote at the time they signed IP 50, the secretary properly

excluded their signatures.

The Court of Appeals reversed in a split decision,

holding that “[n]either the legislature nor the secretary is

constitutionally authorized to create classes of registration

that effectively disenfranchise registered voters.” Whitehead

v. Clarno, 308 Or App 268, 280, 480 P3d 974 (2020). The

court began by observing that Article IV, section 1, reserves

the power of the initiative to the people and that “qualified

voters,” a term not defined in the constitution, may sign ini-

tiative petitions. Id. at 272. The court then noted that, in

State ex rel Sajo v. Paulus, 297 Or 646, 653-54, 688 P2d 367

(1984), this court explained that “qualified voters” under

Article IV, section 1, must at least meet the requirements

in Article II, section 2, for “qualified electors.” Whitehead,

308 Or App at 272. Among other things, the court added,

Article II, section 2, requires that qualified electors be “reg-

istered * * * in the manner provided by law.” Id.

Putting those provisions together, the Court of

Appeals deduced that, for someone to have their signature

counted on an initiative petition, they must be, as relevant

here, “registered to vote under Oregon law.” Id. at 273. In the

Court of Appeals’ view, once a voter registers, they remain

registered—whether the secretary deems their registration

active or inactive—until their registration is canceled. Id. at

280. Therefore, the court concluded, inactive voters are still

registered and are entitled, under Article IV, section 1, to

have their signatures on initiative petitions count. Id.

Judge DeHoog dissented, interpreting this court’s

decision in Sajo to establish only a necessary, but not nec-

essarily sufficient, requirement for a person to be a “quali-

fied voter[ ]” entitled to sign a petition. Id. at 281 (DeHoog,

P. J., dissenting). In the dissent’s view, requiring that voters

Cite as 369 Or 112 (2021) 117

maintain an active registration to vote and sign initiative

petitions was within the authority of the legislature to reg-

ulate elections and voter registration. Id.

The secretary petitioned this court for review, which

we allowed.

II. ANALYSIS

The material facts here are undisputed, and we are

presented with the legal question of whether a voter with

an inactive registration may sign an initiative petition—

without first updating their registration—and have their

signature counted. Noting that the constitution limits the

group of persons who are authorized to sign initiative peti-

tions to “qualified voters,” Or Const, Art IV, § 1, plaintiffs

argue that the constitutional requirement that qualified

voters be “registered,” id. Article II, section 2, does not dis-

tinguish between active and inactive voters. In plaintiffs’

view, that requirement is satisfied whether the voter’s reg-

istration is active or inactive. Thus, plaintiffs argue, exclud-

ing the signature of a voter whose registration is inactive

violates Article IV, section 1.

The secretary, in contrast, emphasizes that, under

Article II, section 2(1)(c), a voter must be registered “in the

manner provided by law.” In the secretary’s view, the legis-

lative branch therefore has broad authority to define regis-

tration, and it may constitutionally exclude the signatures

of voters with inactive registrations.

A. Legal Background

Whether voters with inactive registrations may

sign initiative petitions depends on the meaning of “quali-

fied voters” in Article IV, section 1, and the meaning of “reg-

istered” in Article II, section 2. Before interpreting those

key provisions, we provide some background on relevant

laws governing voter registration and initiatives.

The initiative power of the people of Oregon dates to

1902, when Oregon voters amended the constitution to adopt

the initiative and referendum processes. Ballot Measure 1

(1902); see Or Const, Art IV, § 1 (1910). Article IV, section

1, allows voters to “propose laws and amendments to the

118 Whitehead v. Fagan

Constitution and enact or reject them at an election inde-

pendently of the Legislative Assembly.” Or Const, Art IV,

§ 1(2)(a). The initiative provision has been amended since

1902; as amended, Article IV, section 1, provides that initia-

tive laws may be proposed by petitions signed by a certain

number of “qualified voters.” Id. § 1(2)(b). Those petitions

are submitted to the Secretary of State, and the legislature

is directed to “provide by law for the manner in which the

Secretary of State shall determine whether a petition con-

tains the required number of signatures of qualified voters.”

Id. § 1(4)(a). Article IV, section 1, does not define “qualified

voters.”

Eligibility to vote in elections is defined in Article II,

section 2. Among other things, voters must be “registered

not less than 20 calendar days immediately preceding any

election in the manner provided by law.” Id. Art II, § 2(1)(c)

(emphasis added). Thus, taking the two constitutional provi-

sions together, to be a qualified voter eligible to sign an ini-

tiative petition, one must be “registered * * * in the manner

provided by law.” Id.

As directed by Article IV, section 1, and Article II,

section 2, the legislature has enacted multiple statutes gov-

erning voter registration and initiative petitions. When

a voter first registers, their registration is “active.” ORS

247.013(5).3 The county clerk designates a voter’s regis-

tration as “inactive” if “(a) [t]he county clerk has received

evidence that there has been a change in the information

3

ORS 247.013 reads:

“(1) A qualified person shall be considered registered to vote in a county

when the person’s first registration in the county occurs as described in ORS

247.012.

“(2) An elector who changes residence address from the county in which

the elector is registered to a different county within the state, in order to vote

in an election, must be an elector registered in the county in which the new

residence address of the elector is located.

“(3) If there is a change in any information required for registration

under this chapter, and the elector has not changed residence address to

another county, the registration of the elector may be updated as provided in

this chapter.

“(4) Notwithstanding subsections (2) and (3) of this section, if an elector

changes residence address from the county in which the elector is registered

to a different county within the state, the elector need not register again if

the registration of the elector is updated.

Cite as 369 Or 112 (2021) 119

required for registration * * *; and (b) [t]he county clerk has

mailed the notice described in ORS 247.563 [notifying the

voter of their inactive status and describing how to update

the registration].” ORS 247.013(6). An inactive registration

may be updated to become active at any time, including

on election day. ORS 247.012(9). Regarding petitions, ORS

250.025(1) states that “[a]ny elector may sign an initiative or

referendum petition for any measure on which the elector is

entitled to vote.” To be entitled to vote, a voter’s registration

must be active. ORS 247.013(7).4

B. Constitutional Interpretation

With that general background in mind, we turn

to the constitutional provisions that contain the wording

at issue in this case—“qualified voters” in Article IV, sec-

tion 1(2)(b), and “registered * * * in the manner provided by

law” in Article II, section 2(1)(c). This court determines the

meaning of constitutional provisions by considering their

text, historical context, and relevant case law. Couey v.

Atkins, 357 Or 460, 490, 355 P3d 866 (2015).

1. Article IV, section 1: the initiative power

We begin with Article IV, section 1, which currently

reads, as relevant here:

“(1) The legislative power of the state, except for the

initiative and referendum powers reserved to the people,

“(5) If the county clerk does not have evidence of a change in any infor-

mation required for registration under this chapter for an elector, the regis-

tration of the elector shall be considered active.

“(6) The registration of an elector shall be considered inactive if:

“(a) The county clerk has received evidence that there has been a change

in the information required for registration under this chapter; and

“(b) The county clerk has mailed the notice described in ORS 247.563.

“(7) The inactive registration of an elector must be updated before the

elector may vote in an election.”

ORS 247.013 has been amended since IP 50 was submitted, Or Laws 2019, ch 675,

§ 1; however, because that amendment does not affect our analysis, we refer to

the current version of the statute in this opinion.

4

A voter’s registration is subject to cancellation at the request of the voter,

upon the voter’s death, if the county clerk receives information that the voter is

registered in another county or state, or if, after having been sent a notice under

ORS 247.563 that their registration is inactive, the voter does not vote or update

their registration within a certain time. ORS 247.555(1).

120 Whitehead v. Fagan

is vested in a Legislative Assembly, consisting of a Senate

and a House of Representatives.

“(2)(a) The people reserve to themselves the initiative

power, which is to propose laws and amendments to the

Constitution and enact or reject them at an election inde-

pendently of the Legislative Assembly.

“(b) An initiative law may be proposed only by a peti-

tion signed by a number of qualified voters equal to six per-

cent of the total number of votes cast for all candidates for

Governor at the election at which a Governor was elected

for a term of four years next preceding the filing of the

petition.

“* * * * *

“(4)(a) Petitions or orders for the initiative or ref-

erendum shall be filed with the Secretary of State. The

Legislative Assembly shall provide by law for the manner in

which the Secretary of State shall determine whether a peti-

tion contains the required number of signatures of qualified

voters.”

(Emphases added.)5 The phrase “qualified voters” was

adopted in 1968, and, as noted, is not defined in the con-

stitution. Ballot Measure 2 (1968) (Primary Election). The

parties agree that qualified voters are those who meet the

eligibility requirements in Article II, section 2, as this court

has previously explained. Sajo, 297 Or at 653. Plaintiffs,

however, argue that voters who meet the eligibility require-

ment of being “registered,” but who are nevertheless ineligi-

ble to vote because their registration is inactive, are consti-

tutionally entitled to sign initiative petitions and have their

signatures counted. For the reasons set out below, we dis-

agree and instead hold that “qualified voters,” for purposes

of signing an initiative petition under Article IV, section 1,

are those who, by virtue of meeting the requirements of

Article II, section 2, are presently eligible to vote. Therefore,

a voter must be presently eligible to vote to have their sig-

nature on an initiative petition counted. As explained below,

that interpretation aligns with the text and historical con-

text of Article IV, section 1.

5

Except as specifically noted below, previous amendments to both Article IV,

section 1, and Article II, section 2, do not affect our analysis. We therefore refer

to the current version of the constitution except where otherwise noted.

Cite as 369 Or 112 (2021) 121

“Qualified,” as used here, means “having complied

with the specific requirements or precedent conditions (as

for an office or employment) : eligible, certified,” or “fitted

(as by endowments or accomplishments) for a given purpose

: competent, fit.” Webster’s Third New Int’l Dictionary 1858

(unabridged ed 1961). Our initial understanding, then, is

that “qualified voters” are those who have “complied with

the specific requirements or precedent conditions” for vot-

ing, or who are, in other words, “eligible” to vote. Id.6

To confirm that understanding, we look to the pro-

vision’s context, which includes preexisting constitutional

provisions, case law, and the statutory framework against

which the law was enacted. See State v. Pipkin, 354 Or

513, 526, 316 P3d 255 (2013). When the initiative power

was added to the constitution in 1902, initiative petitions

required the signatures of a certain portion of the “legal vot-

ers” of the state. Or Const, Art IV, § 1 (1910). At that time,

there was no constitutional voter registration requirement

(there was a statutory registration requirement). Instead,

the constitution restricted voting to white males, 21 years

of age or older, who lived in Oregon, and who either were or

intended to become American citizens. Id. Art II, § 2 (1910).7

Thus, the restriction on who could sign an initiative petition

was not related to registration, but rather to whether the

person signing was eligible to vote, and that eligibility was

defined by Article II, section 2.

The current term “qualified voters” was substituted

for “legal voters” in 1968 by a constitutional amendment

that repealed and replaced the existing Article IV, section 1.

Ballot Measure 2 (1968) (Primary Election). There is no

indication that the change in wording from “legal” to “qual-

ified” was significant. According to the explanation of that

1968 measure, drafted by committee pursuant to former

ORS 254.210 (1968), renumbered as ORS 251.205 (1979),

6

We cite the 1961 edition of Webster’s because the term “qualified” was added

to the constitution in 1968. Ballot Measure 2 (1968) (Primary Election). The

applicable definitions in the most recent (2002) edition of Webster’s are identical.

7

Of course, the Civil War amendments to the United States Constitution

prevented Oregon from enforcing its restrictions against voting by nonwhite cit-

izens, Wood v. Fitzgerald, 3 Or 568, 580 (1870), although racial restrictions on

voting remained in the Oregon Constitution until 1927.

122 Whitehead v. Fagan

and included in the voters’ pamphlet, the stated purpose of

the measure was to “change the basis for determining the

number of signatures required for initiative and referendum

petitions,” to provide additional time to certify signatures,

and to “repeal several obsolete sections * * * and remove

archaic and redundant language.” Official Voters’ Pamphlet,

Primary Election, May 28, 1968, 8. The explanation empha-

sized that the “repealed sections [were] purely ‘clean-up’ of

the wording and in no way do they diminish the power of the

people to initiate or refer measures.” Id. That context sug-

gests that the substitution of “qualified voters” did not alter

the meaning of Article IV, section 1. The historical context

of Article IV, section 1, therefore suggests that the power to

sign initiative petitions is reserved to eligible voters.

We turn next to relevant case law interpreting

Article IV, section 1. The key case is Sajo. Sajo was an orig-

inal mandamus proceeding in this court in which the peti-

tioners argued that the secretary and county clerks had

improperly disqualified signatures from an initiative peti-

tion. 297 Or at 648. The petitioners identified six catego-

ries of signatures that, they alleged, had been wrongly dis-

qualified or otherwise improperly treated. Id. at 656. One

category of signatures that the court considered in Sajo is

relevant here: signatures of persons who were not registered

at the time of signing, but who had registered before the

petition was filed. This court wrote:

“Article IV, section 1(2)(b) refers to ‘qualified voters,’ which

certainly makes eligibility under article II, section 2 a nec-

essary condition for validly signing a petition. But this eli-

gibility to vote on election day may not necessarily be a suf-

ficient condition for signing a petition, because article IV,

section 1(4)(a) clearly contemplates that eligibility as a

‘qualified voter’ can be verified before the petition is filed.”

297 Or at 654. Along with a statute setting out the quali-

fications of petition signers, the court reasoned, those con-

stitutional provisions “contemplate that petition signers

will be qualified voters at the time they sign the petition.”

Id. at 660. Therefore, we concluded, the secretary properly

excluded the signatures of those voters, emphasizing that

Cite as 369 Or 112 (2021) 123

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

time a voter signs a petition.” Id.

Thus, both the current text of Article IV, section 1,

and the historical context of that section and its amend-

ments reinforce our understanding, expressed in Sajo, that,

to be a “qualified voter[ ]” and have one’s signature on an

initiative petition count, the voter must at least be eligible

to vote.

2. Article II, section 2: qualifications of voters

To understand what eligibility to vote entails, we

turn to Article II, section 2, which we interpret by the same

methodology applied to Article IV, section 1, above.

First, the text. Article II, section 2, as relevant here,

currently reads:

“(1) Every citizen of the United States is entitled

to vote in all elections not otherwise provided for by this

Constitution if such citizen:

“(a) Is 18 years of age or older;

“(b) Has resided in this state during the six months

immediately preceding the election [(with an exception for

presidential elections)] * * *; and

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

diately preceding any election in the manner provided by

law.”

Or Const, Art II, § 2(1) (emphases added). The key phrases

are “is registered” and “in the manner provided by law.”

Plaintiffs argue that “whether a voter is ‘registered’ is the

essential attribute of a ‘qualified voter[ ]’ and not whether

the voter is able to vote without taking any additional steps.”

Thus, in plaintiffs’ view, any voter who has once registered

and whose registration has not been cancelled is a “qualified

voter[ ],” even if, under applicable Oregon law, they may not

vote. The secretary, on the other hand, argues, based on the

emphasized text above, that the legislature is authorized to

define “registration” and create registration maintenance

requirements. In the secretary’s view, if the legislature

has enacted laws barring voters with inactive registration

from voting, then those voters are not “registered * * * in the

124 Whitehead v. Fagan

manner provided by law” as the constitution requires, and

they are not eligible to vote. Because those once-registered

voters are not eligible to vote, the secretary concludes, they

may not sign initiative petitions.

“Register,” as used in 1927 when the registration

requirement was adopted into Article II, section 2, generally

meant “[t]o enroll one’s name in a register.” Webster’s 1796

(1921). That definition by itself, however, does not resolve

the meaning of the word “register” here, because simply

enrolling one’s name in a register of some kind—even a

register related to voting—does not necessarily qualify one

to vote. The constitution itself does not state what more, if

anything, is required for a “registered” voter to be able to

vote. Instead, the constitution expressly delegates that task

to the legislature through the phrase “in the manner pro-

vided by law.” Or Const, Art II, § 2(1)(c). “Manner,” as used

here, means “[a] way of acting ; a mode of procedure ; the

mode or methods in which something is done or in which

anything happens ; way ; mode.” Webster’s at 1313 (1921).

The phrase “provided by law” as used in the constitution

means, as previously explained by this court, “ ‘provided by

enactment of the legislative branch of the state.’ ” State v.

Sagdal, 356 Or 639, 650, 343 P3d 226 (2015) (quoting Jory

v. Martin, 153 Or 278, 314, 56 P2d 1093 (1936) (Kelly, J.,

dissenting)). Thus, “registered * * * in the manner provided

by law” means enrolled in a register of voters through the

procedures enacted by the legislative branch.

The choice of the phrase “[i]s registered” is also

meaningful here. Or Const, Art II, § 2(1)(c) (emphasis added).

That phrase, added to the constitution in 1960, Ballot

Measure 7 (1960), and its previous version, “shall be duly

registered,” Or Const, Art II, § 2 (1930) (emphasis added),

both describe a status that a voter must have at a certain

time: “be” and its present tense form “is,” as used here, mean

“[t]o hold or obtain as true with respect to some condition,

thing, or quality ; to have or enter into a real relation with a

specified object or idea.” Webster’s at 195 (1921). Thus, being

“registered,” as contemplated by Article II, section 2, is a

“condition” or “quality” that a voter must presently have to

be eligible to vote. It is not, by contrast, a discrete act that

a voter performs. Were this provision meant to refer to the

Cite as 369 Or 112 (2021) 125

discrete act of “registering,” as opposed to the condition or

status of “being registered,” the drafters likely would have

used the phrase “shall have registered” or “has registered.”

The drafters did not do so here.

In sum, the text shows that Article II, section 2,

requires that voters, at the time they vote, be currently

enrolled in a register of voters who are eligible to vote

according to the procedure established by the legislative

branch. That text suggests that the legislature may regu-

late voter registration as it sees fit, consistent with constitu-

tional requirements. As this court has stated before, if the

drafters of a constitutional provision intended to limit the

legislature, “they would have said so in plain and unmistak-

able language and not have left the matter in doubt.” Jory,

153 Or at 284.

Next, the historical context. The constitutional

registration requirement was adopted by Oregon voters

in 1927. Ballot Measure 5 (1927) (Special Election). Before

that, registration was required by statute. Oregon Laws,

title XXVIII, ch XI (1920). As originally adopted, the con-

stitutional registration requirement expressly “ratified,

adopted and confirmed” the previously existing registration

laws “as if enacted after the adoption of this amendment.”

Or Const, Art II, § 2 (1930). Those previously existing laws

included a registration-verification law, which directed

county clerks before an election to confirm that registered

voters had voted at least once in the last two years. Oregon

Laws, title XXVIII, ch XI, § 4065 (1920). If a voter had not

voted in the last two years, the clerk was to remove their

registration card from the register. Id. That registration

card would be retained for a year, during which the voter

could go to the county clerk’s office and sign a statement

on the card attesting that they were still a legal voter and

have the card replaced in the register. Id. If the voter did not

appear within that year, the registration was to be “perma-

nently cancel[led]” and the card “destroyed.” Id.

That registration-verification law resembles in some

ways the active/inactive system in effect today. Although the

laws use different terminology and somewhat different pro-

cedures, both laws essentially provide for a system by which

126 Whitehead v. Fagan

the county clerk may, in particular circumstances, tempo-

rarily disallow a person from voting without permanently

cancelling their voter registration. In the earlier law, a vot-

er’s registration card was “remove[d] * * * from the register”

until the voter confirmed or updated their registration. Id.

Their registration card was retained during that time, but

they could not vote. Id. Similarly, under current law, a voter’s

registration is designated “inactive” until they update their

registration. ORS 247.013(7). They are not unregistered, nor

has their registration been fully canceled, but they may not

vote. Id. When the constitutional registration requirement

was adopted in 1927, the voters at the same time expressly

approved the existing registration system, which operated

much like the active/inactive system now in place.

Those systems are not identical, but, as we have

noted before, this court’s purpose in interpreting the consti-

tution “is not to freeze the meaning of the state constitution

to the time of its adoption, but is instead ‘to identify, in light

of the meaning understood by the framers, relevant under-

lying principles that may inform our application of the con-

stitutional text to modern circumstances.’ ” Couey, 357 Or at

490 (quoting State v. Davis, 350 Or 440, 446, 256 P3d 1075

(2011)). The historical context of the 1927 constitutional reg-

istration requirement—that it was intended to be consistent

with the then-existing registration-verification statute—

supports the conclusion that the present statutory scheme

of “active” and “inactive” registration is consistent with

the current constitutional registration requirement. It also

reinforces the legislature’s authority to regulate voter reg-

istration, including to create a system that allows a county

clerk to temporarily place a person in an “inactive” status

and not permit them to vote in circumstances established by

statute.

We next turn to the relevant case law, which sup-

ports the authority of the legislature to define “regist[ra-

tion].” In State ex rel. v. Clark, 143 Or 482, 22 P2d 900, reh’g

den (1933), voters in Baker City petitioned to recall their

mayor. Id. at 483. After their petition was filed, the local

clerk delayed calling the election to investigate whether the

signatures on the petition were valid. Id. at 483-84. Several

signatures on the petition, it turned out, were of voters

Cite as 369 Or 112 (2021) 127

who had registered but had not voted in the last two years,

id. at 484, and so they were ineligible to vote under the

registration-verification law discussed above, recodified at

Oregon Code, title XXXVI, ch I, § 36-110 (1930). This court,

after considering the text of Article II, section 2, which

at that time required voters to “be duly registered * * * in

the manner provided by law,” Or Const, Art II, § 2 (1930),

concluded that the clerk had correctly excluded the signa-

tures of those who had not maintained their registration.

Clark, 143 Or at 492. Thus, this court did not consider the

registration-verification requirement to be at odds with

Article II, section 2, and implicitly upheld the legislature’s

authority to regulate voter registration. That decision fur-

ther suggests that the phrase “[i]s registered” in Article II,

section 2, refers to being presently compliant with voter reg-

istration statutes, and not to having “enroll[ed] one’s name

in a register” once. Webster’s at 1796 (1921). Other cases

upholding statutes that regulate voting eligibility include

Sajo, 297 Or at 654 (“Article II, section 2 neither requires

nor defines registration of otherwise qualified voters; it

leaves this to be provided by law. * * * And article IV, section

1(4)(b) authorizes the submission of initiative and referen-

dum measures to be regulated by laws consistent with this

contemplated verification [of voter eligibility].”), Ivie v. City

of Oceanlake, 208 Or 417, 427-28, 302 P2d 221 (1956) (uphold-

ing requirement that voters be registered at least 30 days

before a special election), and Wright v. Blue Mt. Hospital

Dist., 214 Or 141, 149, 328 P2d 314 (1958) (upholding a res-

idency requirement and stating, “even though the constitu-

tion prescribes the qualification of a voter, there is a wide

field for legislative action in determining how such qualifi-

cations shall be ascertained and in prescribing regulations

for the prevention of fraud and abuses”).

Finally, we note that, even if the text, historical

context, and relevant case law did not unambiguously show

that the active registration requirement was within the con-

stitutional authority of the legislature, it is a longstanding

principle that, when the constitution does not expressly limit

the legislature’s authority, there is a strong presumption

that the legislature’s actions are constitutionally permitted.

Jory, 153 Or at 285 (“Plenary power in the Legislature, for

128 Whitehead v. Fagan

all purposes of civil government, is the rule, and a prohibi-

tion to exercise a particular power is an exception.”). Here,

were there any doubt based on the text that the active regis-

tration requirement was within the constitutional authority

of the legislature, “we should be compelled to dissolve that

doubt in favor of the constitutionality of the mode which the

legislature had adopted.” Cline & Newsome v. Greenwood &

Smith, 10 Or 230, 241, 1882 WL 1434 (1882).

To summarize, when the initiative power was first

added to the constitution, there was no registration require-

ment, only a requirement that signers be “legal voters”—the

equivalent of “qualified voters” in the present constitutional

provision—meaning someone eligible to vote. Oregon voters

later added a constitutional registration requirement to be

eligible to vote, and in doing so ratified the previously exist-

ing statutory registration-verification requirement. At no

point did the constitution purport to define or delimit “regis-

tration” or set up a strict dichotomy of “registered” and “not

registered” for purposes of Article IV, section 1, as plaintiffs

suggest. Instead, defining and regulating voter registration

and verification of registrations has been within the purview

of the legislative branch. And this court has issued several

decisions squarely holding that voters may sign initiative

petitions only if they could legally vote in an election at the

time of signing. We conclude that voters with inactive reg-

istration, who statutorily may not vote, may not have their

signatures counted on initiative petitions either.8

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

8

We note that a voter may easily determine whether their registration is

inactive, including by visiting the secretary’s website. Elections Division, Oregon

Secretary of State, My Vote, https://sos.oregon.gov/voting/pages/myvote.aspx

(accessed Dec 23, 2021). Making a voter’s registration active again requires only

updating the registration, which can be done online if the voter has an Oregon

DMV number, through the state Department of Transportation, or by signing

and mailing or delivering a paper form to the local county elections office. ORS

247.012(1).