Mason/Turrill v. Rosenblum

656

On petitions to review ballot title filed January 6, considered and under

advisement February 15; ballot title referred to Attorney General for

modification April 29, 2022

Christy MASON,

Petitioner,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(SC S069163 (Control))

C. Norman TURRILL

and Christopher Cobey,

Petitioners,

v.

Ellen F. ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(SC S069164)

508 P3d 504

The Attorney General certified a ballot title for Initiative Petition 34 (2022)

(IP 34), an initiated measure that, if placed on the ballot and enacted by the peo-

ple, would change Oregon’s process for legislative and congressional redistricting

after each decennial census by (1) repealing Article IV, sections 6 and 7, of the

Oregon Constitution, which (among other things) provide for reapportionment

of the state’s legislative districts after each decennial census by the legislature;

(2) replace the repealed sections of Article IV with new sections 6 and 7, which

would create a new 12-member redistricting commission and assign the task

of reapportioning the state’s legislative and congressional districts after each

decennial census to that commission. IP 34 would also effectively repeal the

redistricting plans for the current decennium that were enacted by the legis-

lature in 2021 and replace them, in 2023, with plans that the new commission

would adopt. Two sets of petitioners challenged the ballot title certified by the

Attorney General for IP 34, arguing that the caption, yes and no result state-

ments, and summary failed to substantially comply with the requirements set

out in ORS 250.035(2) for ballot titles of state measures. Held: The caption and

summary of the certified ballot title do not substantially comply with the require-

ments set out in ORS 250.035(2)(a) and (d) and must be modified.

The ballot title is referred to the Attorney General for modification.

En Banc

Cite as 369 Or 656 (2022) 657

Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter,

P.C., Portland, filed the brief for petitioner Christy Mason.

Daniel W. Meek, Portland, filed the brief for petitioners

C. Norman Turrill and Christopher Cobey.

Benjamin Gutman, Solicitor General, Salem, filed the

brief for respondent. Also on the brief was Ellen F. Rosenblum,

Attorney General.

DeHOOG, J.

The ballot title is referred to the Attorney General for

modification.

658 Mason/Turrill v. Rosenblum

DeHOOG, J.

This proceeding concerns the ballot title certified by

the Attorney General for Initiative Petition 34 (2022) (IP 34).

Two sets of electors who are dissatisfied with the Attorney

General’s ballot title have petitioned this court for review

under ORS 250.085(2). Both petitions argue that the ballot

title does not substantially comply with the requirements

of ORS 250.035. We agree with certain of the arguments

raised in the petitions and, therefore, refer the ballot title to

the Attorney General for modification.

I. BACKGROUND

IP 34 is directed at changing Oregon’s process for

reapportioning legislative and congressional districts after

each decennial census. It would do so, first, by repealing two

sections of Article IV of the Oregon Constitution. Section 6,

the more significant of those two sections, initially assigns

the task of redrawing Oregon’s legislative districts to the

Legislative Assembly, and then, if the Legislative Assembly’s

efforts are unsuccessful, to the Secretary of State. Section 6

also provides for judicial review by this court of the result-

ing reapportionment plan and the filing of a corrected plan

by the Secretary of State if the court determines that the

plan under review does not comply with the applicable stan-

dards.1 Second, IP 34 would replace the repealed sections of

Article IV with new sections 6 and 7, which together would

establish a 12-member “Citizens Redistricting Commission”

and assign all redistricting functions—for both legislative

and congressional districts—to that commission. As a gen-

eral matter, the new sections 6 and 7 require redistricting

processes, including the formation of a redistricting commis-

sion, to occur decennially in years ending in the numbers

zero and one. Notably, however, they set an anomalous date

(2023) for the first application of commission-driven redis-

tricting, with the effect—and for the apparent purpose—of

1

The other provision that IP 34 repeals—Article IV, section 7—provides that

“no county shall be divided” in drawing a state Senate district that is made up

of more than one county. In Hovet v. Myers, 260 Or 152, 155, 489 P2d 684 (1971),

this court concluded that that prohibition could not be applied without violating

the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution—and, thus, is unenforceable. Accordingly, the repeal of the provi-

sion is of little import in the present case.

Cite as 369 Or 656 (2022) 659

immediately repealing and replacing the redistricting plans

that were enacted by the Legislative Assembly for the cur-

rent decennium in 2021, shortly after the release of the

results of the 2020 decennial census.

The proposed Article IV, section 6, sets out a complex

process for choosing members of the Citizens Redistricting

Commission. Registered voters who meet certain residency

and party registration requirements, who are not elected

office holders, campaign staff, or lobbyists, and who are not

closely related to or employed by such individuals, would be

eligible to apply for membership in the committee. A panel

of three administrative law judges chosen by the Chief

Administrative Law Judge of the Office of Administrative

Hearings would select 150 individuals from among the

qualified applicants to form three sub-pools, with one sub-

pool consisting of fifty voters who are registered with the

largest political party in the state, another comprising fifty

voters who are registered with the second-largest political

party in the state, and a third made up of 50 voters whose

registration is not with either of the two largest parties.

Thereafter, the Secretary of State would randomly select six

individuals—two from each of the three sub-pools—to serve

on the redistricting commission. In turn, those six individu-

als would select six more individuals to serve on the commis-

sion, again selecting two from each of the three sub-pools.

The resulting commission would therefore be made up of

12 registered voters who are not professionally or personally

connected to elective politics, four of whom are registered

with the state’s largest party, four of whom are registered

with the state’s second-largest party, and four of whom are

not registered with either of the state’s two largest parties.

The proposed Article IV, section 7, sets out the pro-

cesses and standards that the redistricting commission

would have to follow in drawing new congressional and leg-

islative districts. It includes criteria for redistricting that in

many respects are similar to the criteria that, under cur-

rent statutes,2 the Legislative Assembly must “consider” in

2

Although IP 34 does not expressly repeal any of the statutes that presently

control redistricting along with Article IV, section 6, it would effectively nullify

those statutes.

660 Mason/Turrill v. Rosenblum

congressional and legislative redistricting, though it adds

one entirely new criterion: “To the extent practicable,” the

commission must establish districts that “achieve compet-

itiveness,” meaning that “voting blocs” are “substantially

and similarly able to translate their popular support into

representation in an elected body and that such representa-

tion is substantially and similarly reflective of shifts in the

electorate’s preferences.”3 It provides for public hearings and

3

Specifically, the new constitutional provision would provide:

“(4)(a) The commission shall use a mapping process to establish districts

for the state Senate and House of Representatives and congressional dis-

tricts, using the following criteria, to:

“(A) Comply with provisions of the United States Constitution and the

federal Voting Rights Act (42 U.S.C. 1971 et seq.) or its successor law.

“(B) Achieve population equality as nearly as practicable using the total

population of Oregon as determined by the decennial census preceding the

redistricting process.

“(C) Be geographically contiguous.

“(D) To the extent practicable, and if possible without conflicting with

the criteria set forth in subparagraphs (A), (B) and (C) of this paragraph,

respect the geographic integrity and minimize the division of a city, county,

local neighborhood, government jurisdiction or community of interest or

other contiguous population that shares common social and economic inter-

ests and is cohesive for purposes of its effective and fair representation.

“(E) To the extent practicable, and if possible without conflicting with

the criteria set forth in subparagraphs (A), (B) and (C) of this paragraph,

achieve competitiveness.

“(b) The commission shall determine and adopt a measure or measures

of competitiveness, as defined in paragraph (d) of this subsection, prior to any

vote or discussion regarding any legislative or congressional district plans or

proposals. The commission shall then apply such measure or measures when

adopting legislative or congressional district plans or proposals.

“(c) When establishing districts under this subsection, the commission

may not:

“(A) Consider the place of residence of a holder of or candidate for public

office;

“(B) Favor or discriminate against a holder of or candidate for public

office or a political party; or

“(C) Create a district for the purpose of or with the effect of diluting the

voting strength of any language or ethnic identity group.

“(d) As used in this subsection:

“(A) Common social and economic interests are those common to an

urban area, a rural area, an industrial area or an agricultural area and

those common to areas in which individuals share similar living standards,

use the same transportation facilities, reside in the same watershed, have

similar work opportunities or have access to the same media of communica-

tion relevant to the election process. Common social and economic interests

Cite as 369 Or 656 (2022) 661

public notice thereof, both before and after a redistricting

plan is proposed. It requires an affirmative vote of seven or

more commission members to adopt each final redistricting

map, with at least one affirmative vote coming from each of

the three subgroups. Finally, it authorizes judicial review

of the resulting maps for substantial compliance with the

above criteria, which any registered voter may obtain by fil-

ing a petition.4

The Attorney General certified the following ballot

title for IP 34:

“Amends Constitution: Repeals redistricting

process by legislature; creates redistricting

commission; equal number Democrats,

Republicans, others; 2023 redistricting

“Result of ‘Yes’ Vote: ‘Yes’ vote repeals constitutional

provisions on state redistricting; creates congressional/

state redistricting commission; equal number of Democrats,

Republicans, others. Repeals, replaces 2021 map in 2023.

“Result of ‘No’ Vote: ‘No’ vote retains current redistrict-

ing process; legislature draws boundaries of congressional

and state legislative districts every ten years. 2021 redis-

tricting remains in force until 2031.

“Summary: Amends Constitution. Oregon Constitution

requires legislature to redraw state legislative districts

every ten years. Legislature also draws congressional

districts. Measure repeals current state constitutional

processes; creates twelve-member commission to draw

do not include relationships with political parties, incumbents or political

candidates.

“(B) Competitiveness means that voting blocs, including partisan and

non-affiliated voters, must be substantially and similarly able to translate

their popular support into representation in an elected body and that such

representation is substantially and similarly reflective of shifts in the elec-

torate’s preferences.”

4

In such a review, if this court were to find that a redistricting plan failed to

comply with those criteria, it would be required to remand to the commission to

make corrections. The process of correction and approval or remand would repeat

until the court approved a corrected plan—meaning that no entity other than

the commission would ever be involved in producing redistricting plans. That

review process would differ from the existing review process, which empowers

the Secretary of State and even this court to produce redistricting plans when

the plans under review are found not to substantially comply with the relevant

criteria.

662 Mason/Turrill v. Rosenblum

congressional and state legislative districts. Commission

membership restricted based on length of residence/party

affiliation, recent political work, political contributions, or

family members who engaged in certain political activ-

ity. Secretary of State randomly selects six members from

applicant group; other members chosen by first six. Four

members must be registered with each of largest two polit-

ical parties, four unaffiliated or from other parties. At

least one Democrat, Republican, and other must agree for

commission to approve map or take other action. Changes

redistricting criteria. Repeals 2021 map; requires redis-

tricting in 2023. Other provisions.”

II. ANALYSIS

Two petitions are under consideration in this

review, one filed by Norman Turrill and Christopher Cobey

(Turrill petition), and one filed by Christy Mason (Mason

petition). The petitions implicate all three sections of the

Attorney General’s certified ballot title—the caption, the

results statements, and the summary.

A. Caption

A ballot title must include a caption of “not more

than 15 words that reasonably identifies the subject mat-

ter of the state measure.”5 ORS 250.035(2)(a). The “subject

matter” of a measure is its “actual major effect.” Parrish v.

Rosenblum, 365 Or 597, 600, 450 P3d 973 (2019). If the mea-

sure has more than one major effect, its “subject matter” is

“all such effects (to the limit of the available words).” Id. To

identify a measure’s “actual major effects,” we consider the

changes it would enact “in the context of existing law,” and

then “examine[ ] the caption to determine whether [it] rea-

sonably identifies those effects.” Rasmussen v. Kroger, 350

Or 281, 285, 253 P3d 1031 (2011). As noted, the Attorney

General’s certified ballot title for IP 34 contains the fol-

lowing caption: “Amends Constitution: Repeals redistrict-

ing process by legislature; creates redistricting commis-

sion; equal number Democrats, Republicans, others; 2023

redistricting.”

5

The 15-word limit does not include the words “Amends Constitution” that

must precede the caption of any initiative measure that would amend the Oregon

Constitution. ORS 250.035(2)(a).

Cite as 369 Or 656 (2022) 663

Petitioner Mason argues that that caption fails

to reasonably identify a highly significant and immediate

effect of IP 34: If adopted, it would nullify the legislative

and congressional reapportionment plans that the legisla-

ture enacted in 2021 for the current decennium and replace

them with whatever plans the newly established redis-

tricting commission adopts in 2023. The Attorney General

agrees that that change is a major effect of IP 34 that must

be included in the ballot-title caption but purports to have

done so by including the two-word phrase “2023 redistrict-

ing” in the caption. Petitioner Mason argues that that two-

word phrase does not explain the effect and might actually

mislead voters by, for example, inducing them to believe that

IP 34 itself contains redistricting plans that would become

effective in 2023. Petitioner Mason also argues that the cap-

tion is deficient because it fails to distinguish between leg-

islative and congressional redistricting. She reasons that,

because the Oregon Constitution addresses legislative—

but not congressional—redistricting, the words “Amends

Constitution: Repeals redistricting process by legislature” in

the caption could incorrectly suggest to a reader that IP 34

affects only legislative redistricting. To prevent such a

misunderstanding, petitioner Mason contends, the caption

must distinguish between congressional and state legisla-

tive redistricting. Finally, petitioner Mason argues that the

phrase “Creates redistricting commission” in the caption is

“impermissibly vague” because it does not inform readers

that IP 34 actually directs the newly created commission

to draw new congressional and legislative districts, leav-

ing open the possibility that the commission’s role is merely

advisory.

With respect to petitioner Mason’s first point, the

Attorney General responds that, ideally, the caption would

explain with greater clarity and precision that, under IP 34,

the legislature’s recently enacted redistricting plans for the

current decennium would immediately be replaced. But she

argues that doing so is impossible within the applicable

15-word limit when, in addition to addressing IP 34’s repeal

of the current redistricting processes and its creation of a

commission that would take on the task of redistricting, the

caption also must address the composition of the commission,

664 Mason/Turrill v. Rosenblum

as it does here with the phrase “equal number Democrats,

Republicans, others.” In that regard, the Attorney General

relies on Fletchall v. Rosenblum, 365 Or 98, 108, 442 P3d 193

(2019) (Fletchall I), in which this court held that the ballot-

title caption for Initiative Petition 5 (2020)—a measure that

also sought to replace the current Legislative Assembly-

based process for redistricting with a commission-based

process—was required to convey that the membership for-

mula for the proposed commission would give disproportion-

ate representation to residents of rural areas.

Petitioner Mason replies, however, that, in this con-

text, the composition of the commission is less significant

than other effects of IP 34 and that, therefore, the phrase

“equal number Democrats, Republicans, others” should be

removed to leave room to address those more significant

effects. In so arguing, petitioner Mason does not deny that

the composition of the commission that would take over

the legislature’s primary role in redistricting if IP 34 were

adopted is an “actual major effect” of the measure, as that

term is used in our ballot-title cases. And, indeed, insofar as

voters would view the change to a decision-making body that

purports to equalize membership (and thus power) based on

party affiliation (or lack thereof) as having great political

significance, that change is a “major effect” of IP 34 that

should be included in the ballot title caption. See Fletchall I,

365 Or at 108 (in ballot measure providing for redistrict-

ing by newly created commission, composition of proposed

commission in ballot measure was “perhaps the most politi-

cally consequential feature” of the measure, in that it effec-

tively inverted the population-based composition of the body

that historically had been charged with redistricting (the

legislature)—and therefore was a “major effect” of the mea-

sure that must be included in the caption).6

Similarly, there is little question that the effect of

IP 34 that petitioner Mason highlights is a “major effect” that

6

Petitioner Mason argues that the composition of the redistricting com-

mission in IP 34 is less important than the composition of the redistricting

commission in Fletchall I, because it does not involve the same kind of explicit

“anti-democratic, disproportionate representation favoring rural areas.” But that

argument only goes to the relative importance of the composition of the IP 34

commission, not to whether it constitutes an “actual major effect” at all.

Cite as 369 Or 656 (2022) 665

belongs in the ballot title. If enacted, IP 34 would effectively

repeal the redistricting plans for the current decennium

that the legislature recently enacted following an extensive

public participation process and require their replacement

with plans devised by the proposed commission—a change

that, again, the voters would likely view as politically signif-

icant. Moreover, legislatively enacted plans have the status

of law, the repeal of which we have consistently described as

a major effect when discussing proposed initiatives.

As to whether the description of the commission’s

composition must give way to allow room to address that

other major effect, this court has often said that a ballot-title

caption must identify all actual major effects of a measure

“to the limit of the available words.” Parrish, 365 Or at 600.

Thus, one could argue that we have tacitly acknowledged

that, at times, the 15 words that ORS 250.035(2)(a) allows

will not accommodate all the major changes that a measure

would cause to the existing legal landscape. Although such

an acknowledgment might in turn suggest that it is some-

times permissible to omit one or more of a measure’s actual

major effects from its ballot-title caption, that approach

could certainly not be justified if it were possible to identify

all the recognized major effects within the applicable limit.

And, of course, reliance on such an option would have to

take into account that what is required by ORS 250.035(2)(a)

is that all major effects of a measure—i.e., its “subject

matter”—be “reasonably identified” in the caption. See also

Greene v. Kulongoski, 322 Or 169, 174-75, 903 P2d 366 (1995)

(caption must describe measure’s subject matter “accurately,

and in terms that will not confuse or mislead potential peti-

tion signers and voters”).

Accordingly, to answer petitioner Mason’s argument

that the “equal numbers Democrat, Republicans, others”

portion of IP 34’s caption should be excluded to make room

for a more informative and less confusing description of the

fact that IP 34 would require almost immediate redistrict-

ing to replace the plans that the legislature enacted in 2021

for the current decennium, we consider two questions: First,

does the present wording “2023 redistricting” reasonably

identify that major effect? Second, if not, is it possible to

craft a caption that reasonably identifies both that major

666 Mason/Turrill v. Rosenblum

effect and the composition of the new commission (along

with other major effects whose placement in the caption is

not disputed)? Only if the answer to both questions is “no”

would we need to consider whether it would be appropriate

to remove wording describing the composition of the com-

mission from the caption.

In response to the first question, we agree with

petitioner Mason that the phrase “2023 redistricting” does

not reasonably identify the effect it purports to address.

Without any indication that some action will occur respect-

ing “2023 redistricting,” it is impossible to say what “effect”

those words are attempting to describe.

Turning to the second question, we believe that all

the major effects of IP 34 that we have recognized here can

reasonably be identified in a 15-word caption. We say that

with a caveat: We recognize that a complete explanation—

such as petitioner Mason advocates—of the effect she

emphasizes would not fit in such a caption, given the other

major effects that must also be identified. But, as we have

indicated, the statutory requirement that a ballot title cap-

tion “reasonably identif[y]” the “subject matter” (that is, the

major effects) of a measure, ORS 250.035(2)(a), does not mean

that each effect must be completely explained. Contrary

to petitioner Mason’s view, our opinion in Rasmussen, does

not require the caption here to explain that, in addition to

mandating new redistricting in 2023, IP 34 would also nul-

lify redistricting plans recently adopted by the legislature.

Rasmussen involved a measure that was similar to IP 34 in

that it would have adopted a new redistricting process and

required that the new process be applied on a given, out-of-

cycle, date to replace the existing redistricting plan. 350 Or

at 284-86. The flaw in the ballot-title caption at issue there

was that, in light of certain wording (“starting 2013”), it

could be read, incorrectly, to require that the new redistrict-

ing process would apply prospectively, starting on the given

date. Id. at 286. That sort of flaw can be avoided here without

including the full explanation that petitioner Mason seeks.7

7

Though we leave it to the Attorney General to come up with the word-

ing that best accomplishes the required objectives, we offer by way of example

only the following wording: “Repeals legislature’s redistricting process; Creates

Cite as 369 Or 656 (2022) 667

That leaves us to consider the other flaws that peti-

tioner Mason purports to find in the ballot-title caption—

its failure to separately identify the measure’s effects on

congressional and legislative redistricting and its failure to

clearly convey that the proposed commission’s role in redis-

tricting would be actual and not merely advisory. Petitioner

Mason argues that both of those purported flaws would

confuse or mislead voters, but we are not persuaded. With

respect to petitioner’s first point, we acknowledge that IP 34

would repeal a constitutional provision that governs only

legislative redistricting and would replace it with provi-

sions directed at both legislative and congressional redis-

tricting. We conclude, however, that voters would not need

those details to understand that the existing constitutional

and statutory scheme for redistricting would effectively

be repealed, and a new scheme for redistricting by a com-

mission would take its place. As to the second point, which

relies on the fact that the phrase “creates redistricting com-

mission” does not expressly state that the proposed commis-

sion would have actual redistricting authority, we note that

that phrase is directly preceded in the caption by “Repeals

redistricting process by legislature” (or words to that effect).

That placement would, in our view, indicate to the average

voter that the new commission would replace the legislature

in its redistricting role and not merely be advisory.

We next turn to the Turrill petition, which raises

three objections to the certified ballot title’s caption. The

Turrill petitioners first argue that, because it is impossible

to include all of IP 34’s major effects in the allotted word

count, it should dispense with the separate references to

“repeal[ing] redistricting process by legislature” and “cre-

at[ing] redistricting commission,” and simply state that the

measure would “replace” redistricting by the legislature

with redistricting by a commission. Because we ultimately

conclude that there is sufficient space in a 15-word caption

to reasonably identify all of IP 34’s major effects, we need

redistricting commission; Equal number Democrats, Republicans, others;

Requires 2023 redistricting.” By separating the 2023 redistricting requirement

from the description of repealing and replacing the existing redistricting process,

that wording avoids the implication in Rasmussen that the new redistricting pro-

cess would apply only prospectively after the given “starting” date.

668 Mason/Turrill v. Rosenblum

not further consider whether the Turrill petitioners’ pro-

posed solution is a viable one.

The Turrill petitioners next argue that the caption

fails to communicate that IP 34 would “replac[e] a redis-

tricting process performed by individuals who are directly

affected by the outcome”—that is, by members of the legis-

lature, whose ability to be reelected may be affected by the

results of redistricting—with a redistricting process per-

formed by individuals “with no direct stake in the outcome”

(because any person with a professional or financial interest

in elective politics is excluded from membership in the pro-

posed redistricting commission). They recommend that the

point be conveyed by describing the proposed commission

as an “independent voter commission.” We agree with the

Attorney General, however, that, in this context, describ-

ing the commission as an “independent voter commission”

is vague (“independent” from what?) and likely to confuse

voters, given that, among other things, there is a political

party called the “Independent Party of Oregon.”

The Turrill petitioners argue, finally, that the cap-

tion should not refer to “Democrats” and “Republicans” in

the phrase “equal numbers Democrats, Republicans, oth-

ers,” because IP 34 does not use those terms but rather

refers to the “largest” and “second largest” party. We are

persuaded, however, that naming the parties that are pres-

ently the largest and second largest is not inaccurate or

confusing, and that the phrase “equal number Democrats,

Republicans, others” thus reasonably identifies the intended

major effect.

B. “Yes” Vote Result Statement

We turn to the petitioners’ challenges to the results

statements, starting with the “yes” statement. A ballot

title must include a “simple and understandable statement

of not more than 25 words that describes the result if the

state measure is approved.” ORS 250.035(2)(b). That state-

ment, known as a “yes” vote result statement, should “notify

petition signers and voters of the result or results of enact-

ment [of the measure] that would have the greatest impor-

tance to the people of Oregon.” Novick v. Myers, 337 Or 568,

574, 100 P3d 1064 (2004). The “yes” vote result statement

Cite as 369 Or 656 (2022) 669

in the certified ballot title for IP 34 states: “ ‘Yes’ vote repeals

constitutional provisions on state redistricting; creates

congressional/state redistricting commission; equal number

of Democrats, Republicans, others. Repeals, replaces 2021

map in 2023.”

Petitioner Mason argues that the phrase “repeals

constitutional provisions on redistricting” in the quoted

statement is problematic because it does not describe the

substance of the provision that would be repealed.8 We do

not agree. The entire “substance” of the current constitu-

tional redistricting provisions is too complex to be described

within the applicable word limit, given that the redistricting

process it describes involves not just the legislature, but also

the Secretary of State and this court. Although the Attorney

General reasonably could have chosen to highlight the leg-

islature’s primary role in the redistricting process set out in

the constitutional provisions that IP 34 would repeal, her

decision to refer to the repeal of “provisions on redistricting”

sufficiently conveys one of the results of the measure that

would be most significant to Oregon’s citizenry.

Petitioner Mason also takes issue with the phrase

“creates congressional/state redistricting commission.” Much

like her challenge to the phrase “creates redistricting com-

mission” in the certified ballot-title caption, she argues that

the phrase in the “yes” statement is potentially misleading

because it does not convey that the new commission would

be charged with drawing new congressional and legisla-

tive districts rather than merely serving an advisory role.

In rejecting that argument as to the ballot-title caption, we

reasoned that, in light of the words that preceded the phrase

“creates redistricting commission,” it could be inferred that

the newly created redistricting commission would assume

the legislature’s existing role in redistricting. We recognize

that the phrase “creates congressional/state redistricting

8

Petitioner Mason also argues that the phrase “repeals constitutional pro-

visions on redistricting” is insufficiently specific because it does not convey that

IP 34 would repeal two constitution provisions, i.e., sections 6 and 7 of Article IV.

We agree with the Attorney General, however, that the precise number of consti-

tutional provisions that the measure would repeal is not something that would

have great importance to the people of Oregon and need not be included in the

statement.

670 Mason/Turrill v. Rosenblum

commission” in the “yes” vote result statement is not sim-

ilarly preceded by a reference to redistricting by the legis-

lature. Nonetheless, given its parallel construction and its

proximity to similar phrasing in the caption, readers of the

“yes” statement are likewise inclined to infer that the com-

mission would succeed the legislature in its redistricting

role.

Finally, petitioner Mason argues that the sentence

“Repeals, replaces 2021 map in 2023” is potentially mislead-

ing, in part because it could be read to mean that IP 34 itself

contains a replacement plan (or “map”) that will take effect

in 2023, rather than—as is the case—a process for adopting

redistricting plans in 2023. The Attorney General responds

that petitioner Mason cannot complain about that wording

because she “suggested” it herself in her comments on the

draft ballot title. Specifically, petitioner Mason stated there

that the “yes” vote result statement “must inform readers

that if IP 34 is approved, a result would be to repeal and

replace the recently adopted 2021 legislative redistricting

and congressional reapportionment plans.” Although we do

not necessarily understand petitioner Mason’s comment on

the draft to have suggested the wording that she now chal-

lenges (so as to preclude our consideration of her present

point), we do not find the point itself compelling. What the

voters are likely to find most important about this partic-

ular result of a “yes” vote is that the legislature’s recently

enacted redistricting plans—which were intended to apply

for the current decennium—will almost immediately be

repealed and replaced. Considering the strict word limit

that applies to this “yes” vote result statement, any poten-

tial uncertainty as to the source of the new plans that might

result from the statement’s failure to specify that source

does not render the “yes” vote result statement deficient.

With regard to the same sentence in the “yes” vote

statement, petitioner Mason objects to the use of “map”

(singular) rather than “maps” (plural), because the legis-

lature enacted both legislative and congressional maps in

2021. Although the Attorney General insists that “map” is

a fair way to describe what IP 34 would repeal and replace,

because congressional and state legislative districts can

be depicted on a single map, the fact remains that the

Cite as 369 Or 656 (2022) 671

legislature enacted separate congressional and state legis-

lative redistricting maps in two separate statutes. When the

Attorney General makes the modifications to the ballot title

that are required by this opinion, she may wish to consider

using the plural form—“maps”—in that sentence.

C. “No” Vote Result Statement

A “no” vote result statement must be a “simple and

understandable statement of not more than 25 words that

describes the result if the state measure is rejected.” ORS

250.035(2)(c). The “no” vote result statement in the Attorney

General’s certified ballot title states: “ ‘No’ vote retains cur-

rent redistricting process; legislature draws boundaries of

congressional and state legislative districts every ten years.

2021 redistricting remains in force until 2031.”

Only the Turrill petitioners challenge the “no” state-

ment. They argue that the statement fails to adequately

describe the result of a “no” vote because it does not convey

that, under current law, the legislature draws the legisla-

tive districts from which its own membership is elected. We

conclude otherwise. There is no requirement that the “no”

vote result statement for a measure reflect any individual’s

particular concerns. The statement that a “no” vote “retains

current redistricting process” in which the “legislature

draws boundaries of congressional and state legislative dis-

tricts” adequately and fairly conveys the necessary informa-

tion about the legislature’s present role in redistricting.9

D. Summary

We turn finally to the petitioners’ challenges to the

summary section of the ballot title certified by the Attorney

General for IP 34. A summary consists of a “concise and

impartial statement of not more than 125 words summarizing

the state measure and its major effects.” ORS 250.035(2)(d).

9

The Turrill petitioners also argue that the statement is inadequate because

it “understate[s IP 34’s] major effect of eliminating personal and professional con-

flicts of interest.” The Turrill petitioners presumably offer “eliminating personal

and professional conflicts” as a “major effect” of adopting IP 34. But effects of that

sort do not belong in the “no” vote result statement. Rather, the “no” vote result

statement is supposed to “describe[ ] the result if the state measure is rejected.”

ORS 250.035(2)(c) (emphasis added).

672 Mason/Turrill v. Rosenblum

Petitioner Mason’s primary objection to the sum-

mary section of the certified ballot title is that it obscures

one of the most significant effects of IP 34, by reducing it

to a seven-word “sentence”—in truth, a mere coupling of

telegraphic phrases—that is relegated to the end of the

summary. She argues that the fact that IP 34 would nullify

and replace the redistricting plans for the current decen-

nium that were enacted by the legislature in 2021 requires

a more expansive explanation and a more prominent place

in the summary.

Ordinarily, the question of whether a ballot-title

summary substantially complies with the applicable stan-

dard does not depend on where in the summary a particular

major effect is placed or how many words are devoted to each

effect. But, in this case, we agree with petitioner Mason that

the Attorney General’s summary unduly obscures, rather

than explains, the effect that is at issue. The seven-word

statement that the Attorney General has used to describe

the effect—“Repeals 2021 maps; requires redistricting

in 2023”—is cryptic in a way that might be necessary in

a caption or result statement, where far fewer words are

permitted, but is unacceptable in a summary, where the

125-word limit provides a greater opportunity to explain the

measure’s most important effects. Moreover, the placement

of the statement at the very end of the summary, where

less important aspects of a measure are often listed in sim-

ilarly compressed form separated by semicolons, could be

viewed as signaling that it, too, addresses a comparatively

unimportant effect. As we have indicated, the fact that

IP 34 would effectively repeal and replace the state legis-

lative and congressional redistricting plans for the current

decennium, which the democratically elected legislature

recently enacted and shepherded through court challenges,

is a highly significant effect of the measure. That effect and

its significance should not be obscured—as it presently is—

in the summary.

The Turrill petitioners also have objections to the

summary. Their objections focus on a common theme—that

the summary does not emphasize IP 34’s purpose and major

effect—to take redistricting out of the hands of legislators

Cite as 369 Or 656 (2022) 673

who have professional and financial interests in the config-

uration of legislative districts and place it in the hands of

a commission whose membership is limited to persons who

have no such interests. They argue that, to highlight that

effect, the commission should be identified as “indepen-

dent.” But, as we already have stated, the phrase “indepen-

dent voter commission” is vague and likely to confuse vot-

ers. Rather than describing the commission in those terms,

the summary should accurately and objectively describe the

specific limitations on commission membership that IP 34

imposes.

The Attorney General believes that the limita-

tions on commission membership that IP 34 imposes are

accurately and objectively described in the following state-

ment in the certified ballot title’s summary: “Commission

membership restricted based on length of residence/party

affiliation, recent political work, political contributions, or

family members who engaged in certain political activity.”

The Turrill petitioners argue, however, that that sentence

is unhelpful because it could be erroneously interpreted as

requiring, rather than prohibiting, the conflicts of interest

that are listed. Although we think it unlikely, given the over-

all context, that many readers would misread the sentence

in that manner, we cannot deny that it confusingly mixes

characteristics that are required (“length of residence/

party affiliation”) with characteristics that are prohibited

(“recent political work, political contributions, or family

members who engaged in certain political activity”). When

the Attorney General makes the modifications to the ballot

title that are required by this opinion, she may wish to con-

sider modifying the sentence to avoid any possibility of such

confusion.

III. CONCLUSION

Having considered the points raised in each of the

petitions that are before us, we conclude that two parts of

the Attorney General’s certified ballot title for IP 34 must be

modified because they do not substantially comply with the

applicable subsections of ORS 250.035(2). The caption must

be modified to more clearly convey that IP 34 would repeal

and replace the legislature’s plan for the current decennium.

674 Mason/Turrill v. Rosenblum

And the ballot-title summary must be modified to more fully

and prominently explain the fact that IP 34 would repeal

and replace the legislature’s recently enacted redistricting

plans for the current decennium.

The ballot title is referred to the Attorney General

for modification.