Dixon / Frohnmayer v. Rosenblum

364 May 8, 2014 No. 29

29 Or

355

Dixon / Frohnmayer v. Rosenblum

2014 May 8, 2014

IN THE SUPREME COURT OF THE

STATE OF OREGON

Frank DIXON,

Petitioner,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

S062043 (Control)

Mark FROHNMAYER

and David Frohnmayer,

Petitioners,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

S062046

En Banc

On petitions to review ballot title filed February 14, 2014;

considered and under advisement on April 8, 2014.

Roy Pulvers, Holland & Knight, LLP, Portland, filed the

petition and response for petitioner Dixon.

Gregory A. Chaimov, Davis Wright Tremaine, LLP,

Portland, filed the petition and response for petitioners

Frohnmayer.

Matthew J. Lysne, Senior Assistant Attorney General,

Salem, filed the answering memorandum. With him on the

memorandum were Ellen F. Rosenblum, Attorney General,

and Anna M. Joyce, Solicitor General.

LANDAU, J.

Ballot title referred to Attorney General for modification.

Petitioners challenged the proposed ballot title for Initiative Petition 38

(2014), which would alter the Oregon primary election process for certain parti-

san offices. Held: the proposed ballot title does not substantially comply with the

Cite as 355 Or 364 (2014) 365

statutory requirements for, among other things, referring to “unlimited votes”

with regard to the nominating process, for failing to clarify that the proposed

measure affects only certain partisan offices, and for failing to clarify the “no”

vote result with regard to purported, and unexplained, “vote limitation[s].”

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

366 Dixon / Frohnmayer v. Rosenblum

LANDAU, J.

Petitioners seek review of the ballot title for

Initiative Petition 38 (2014) (IP 38), arguing that the ballot

title does not satisfy the requirements of ORS 250.035(2).

We review a certified ballot title to determine whether it

substantially complies with those statutory requirements.

ORS 250.085(5). For the reasons that follow, we refer the

ballot title to the Attorney General for modification.

IP 38, if adopted, would alter the Oregon pri-

mary election process for certain partisan offices, denomi-

nated “voter choice offices.” Those offices are United States

Senator, Congressional Representative, Governor, Secretary

of State, State Treasurer, Attorney General, state Senator,

state Representative, and any state, county, city, or district

partisan office for which the law currently authorizes polit-

ical party nominations to the general election. Under cur-

rent law, major parties nominate candidates to the general

election through party primaries. Minor parties and inde-

pendents nominate their candidates directly to the general

election ballot. Under IP 38, all candidates for affected par-

tisan offices—whether from a major party, a minor party, or

an independent—would appear on a primary ballot. Every

voter then would be authorized to vote for one or more of the

candidates for each office. Specifically, the proposed mea-

sure provides that “[a] voter may vote for as many of the

listed candidates as the voter chooses, and in so doing may

cast votes for more than one candidate for a single * * * office,

provided that the voter may not cast more than one vote for

any individual candidate.” The two candidates who receive

the greatest number of votes for each office would then “be

the sole candidates who advance to the general election.”

IP 38 also would alter the way ballots are to be

printed in primary elections. If passed, the measure would

require election clerks to print on primary and general elec-

tion ballots the name of each candidate, followed by his or

her political affiliation, if any, and the name of any major or

minor party that has officially endorsed the candidate.

In addition, IP 38 would modify the process for

filling vacancies in partisan offices. In particular, it would

Cite as 355 Or 364 (2014) 367

eliminate the current requirement that a person filling a

vacancy be affiliated with the same political party as that of

the person leaving office.

IP 38 would modify the election process in other

less significant ways, as well, by changing the process by

which minor political parties qualify, and setting the dates

for primary and general elections.

The Attorney General certified the following ballot

title for IP 38:

“Changes general election nominating process:

provides one common primary ballot;

unlimited votes; top two advance

“Result of ‘Yes’ Vote:  ‘Yes’ vote replaces current general

election nomination process for most partisan offices; all

candidates listed on common primary ballot; vote one or

more; two advance.

“Result of ‘No’ Vote:  ‘No’ vote retains current general

election nomination processes: party primaries for major

parties; no common primary ballot; vote limitations; multi-

ple candidates on general election ballot.

“Summary:  Currently, voters are limited to voting for

one candidate for each office in primary elections; multiple

candidates may appear for each office on general election

ballot. Major parties nominate candidates through party

primaries with separate ballots for each. Measure replaces

that system for most partisan offices, including many fed-

eral (not presidential), all state, county, city, district parti-

san offices, Primary ballot will list all candidates for each

office. Voters may vote for as many candidates as they like

for each office, regardless of party affiliation of voter/candi-

date. Only top two candidates will appear on general elec-

tion ballot; may be from same party. Primary, general elec-

tion ballots must contain candidates’ party registration/

endorsements. Eligible person, regardless of party, may be

selected to fill vacancy. Other provisions.

Two sets of petitioners challenge the certified ballot

title. In case number S062043, petitioner is Frank Dixon,

an elector of the state who timely submitted written com-

ments to the Attorney General’s draft ballot title and is

therefore entitled to seek review of the certified ballot title.

368 Dixon / Frohnmayer v. Rosenblum

See ORS 250.085(2) (stating that requirement). In case

number S062046, petitioners Mark Frohnmayer and David

Frohnmayer are likewise electors of the state who timely

submitted written comments to the Attorney General’s draft

ballot title and are entitled to seek review, as well. Id. Those

petitioners collectively advance a number of challenges to

the certified ballot title for IP 38. We write to address five of

those challenges.

First, petitioner Dixon contends generally that,

because IP 38 is similar to Ballot Measure 65 (2008), a pre-

vious ballot measure concerning so-called “open primaries,”

and because this court certified a ballot title for Measure 65

in Keisling/Lutz v. Myers, 343 Or 379, 171 P3d 345 (2007),

the ballot title for that previous measure should be “pre-

sumed to be proper.” Accordingly, Dixon argues, the ballot

title for IP 38 “should track the ballot title for Measure 65

(2008) to the extent practicable.”

We reject that contention. ORS 250.035(2) sets out

various requirements for a ballot title’s caption, “yes” and

“no” vote result statements, and summary. Under ORS

250.085(5), we review an Attorney General’s certified ballot

title for “substantial compliance” with those requirements.

Any number of different ballot titles for the same measure

could satisfy that statutory standard. And a ballot title

that is not necessarily the “best,” in terms of meeting the

requirements of ORS 250.035(2), still may substantially

comply with those requirements. As this court explained

in Caruthers v. Myers, 343 Or 162, 166 P3d 514 (2007), the

fact that the Attorney General could have produced a better

ballot title is beside the point. Id. at 168. “[T]here has to be

some play in the joints of the ballot title writing process,” the

court explained, “if this court is to maintain its status as a

law-enforcing court, rather than an editorial board.” Id. As

a result, merely because this court may have concluded that

a given certified ballot title met the substantial compliance

standard does not mean that a subsequent ballot title for a

similar measure is required to “track” the one previously

approved.

Second, both sets of petitioners contend that

the caption does not comply with the requirements of

Cite as 355 Or 364 (2014) 369

ORS 250.035(2)(a) because it refers to “unlimited votes.”

According to petitioners, that phrase is confusing and mis-

leading, if not outright incorrect. It implies that, under the

current nomination system, votes are in some unexplained

sense “limited.” Moreover, it states that, under IP 38, votes

in primary elections will be in some unexplained sense

“unlimited,” when, in fact, the number of votes that an elec-

tor may cast is limited by the number of candidates.

The Attorney General responds that the use of the

phrase “unlimited votes” is neither inaccurate nor mis-

leading. According to the Attorney General, “[v]oters are

unlikely to conclude from reading the caption that they may

vote an unlimited number of times for any one candidate, or

that there will be multiple elections[.]”

ORS 250.035(2)(a) requires the caption of a certified

ballot title to “identify[y] the subject matter of the * * * mea-

sure.” To comply with that standard, case law requires that

the caption “state or describe the proposed measure’s sub-

ject matter ‘accurately, and in terms that will not confuse or

mislead potential petition signers and voters.’ ” Kain/Waller

v. Myers, 337 Or 36, 40, 93 P3d 62 (2004) (citation omitted).

A caption that misstates or inaccurately describes the sub-

ject of a measure does not substantially comply with that

standard. Lavey v. Kroger, 350 Or 559, 564, 258 P3d 1194

(2011).

In this case, the caption states that the subject mat-

ter of IP 38 is changes to the “general election nominating

process” and that those changes include “unlimited votes.”

The problem with that part of the caption is that nothing

in IP 38 refers to “unlimited votes.” To the contrary, IP

38 would afford each elector a limited number of votes for

each office, depending on the number of candidates run-

ning for that office. As we have noted, the proposed measure

expressly states that “the voter may not cast more than one

vote for any individual candidate.” The caption is inaccurate.

As a result, the ballot title must be referred to the Attorney

General for modification.

Third, petitioner Dixon contends that the caption

does not comply with ORS 250.035(2)(a) for the additional

370 Dixon / Frohnmayer v. Rosenblum

reason that it refers only to changes to the general election

nominating process. According to Dixon, by referring only

to changes to the nominating process, the caption is fatally

underinclusive, as IP 38 would require significant changes

to the general election process, as well. In support of that

argument, petitioner Dixon relies on this court’s decision in

Keisling/Lutz, in which he contends the court found a sim-

ilar flaw in the ballot title for Measure 65. The Attorney

General contests petitioner Dixon’s reading of Keisling/

Lutz, arguing that the decision found the ballot title at issue

flawed for an entirely different reason.

As we have noted, ORS 250.053(2)(a) requires a

ballot title caption to identify the “subject matter” of a mea-

sure, and case law explains that the identification of that

subject matter must be accurate. Lavey, 350 Or at 564. One

way that a caption may be “inaccurate” for the purposes of

ORS 250.035(2)(a) is by being “underinclusive.” A caption

is underinclusive when it identifies the subject matter of a

measure by mentioning only some of its aspects, while leav-

ing other, “major aspects” of the measure unmentioned.

Kain v. Myers, 336 Or 116, 121, 79 P3d 864 (2003). As this

court explained in Towers v. Myers, 341 Or 357, 361, 142

P3d 1062 (2006), “[w]hen the Attorney General chooses to

describe the subject matter of a proposed measure by listing

some of its effects, he [or she] runs the risk that the caption

will be underinclusive and thus inaccurate.”

In Keisling/Lutz, this court addressed that problem

in the context of a challenge to a ballot title for Measure

65. Because the parties’ arguments in this case turn on the

interpretation and application of that decision, we describe

it in some detail. The court summarized the effect of the

measure at issue in Keisling/Lutz as follows:

“If adopted, the proposed measure would change the

Oregon primary election process, replacing the system

now in use with one in which all candidates for a particu-

lar office appear on a single primary ballot. All voters then

would choose whomever they favor for the office (rather

than whomever they favor as a candidate of their party for

the office) from that single primary ballot. Thereafter, the

two persons who receive the highest number of votes in the

Cite as 355 Or 364 (2014) 371

primary voting would move on to the general election bal-

lot, without regard to the party affiliation (or lack of affili-

ation) of either.”

343 Or at 382 (emphasis in original). The Attorney General

certified a ballot title that included the caption: “Changes

partisan primaries: Primary ballots contain all candidates;

top two candidates proceed to general election.” Id. at 383.

The petitioners challenged the ballot title caption.

According to the petitioners, the measure applied not only

to partisan primaries, but also to nominations of minor par-

ties and independent candidates. By describing the mea-

sure solely in terms of changes to “partisan primaries,” they

argued, the caption was underinclusive and, thus, inaccu-

rate. Id. at 384-85.

This court agreed. The court explained that, under

the existing election scheme, candidates for minor parties

and independent candidates do not participate in parti-

san primary elections. The ballot measure, however, would

change that. Yet, the court observed, the ballot title caption

stated only that the measure “changes partisan primaries.”

The court noted that, “[t]here is neither any direct reference

to minor parties and independent candidates in that phrase,

nor—in our reading of it—any suggestion that the proposed

measure extends to those topics.” Id. at 385. Because of

that omission, the court concluded, the ballot title had to

be referred to the Attorney General for modification. Id. at

385-86.

The court went on to identify “one other shortcom-

ing” of the certified ballot title. The court explained that,

while the ballot title caption mentioned only changes to

“partisan primaries,”

“[t]he change that would be wrought by the proposed mea-

sure would significantly alter the appearance of the general

election ballot—and, necessarily, any election held under it.

The current system permits many candidates for a posi-

tion to appear on the general election ballot, in addition to

the two candidates of the major political parties. The tradi-

tional Oregon election lists the candidacy of minority party

and independent candidates who have achieved a place on

the ballot through an alternative nomination process. If

372 Dixon / Frohnmayer v. Rosenblum

the proposed measure is adopted, the general election will

offer two candidates only.”

Id. at 386 (citations omitted).

In this case, petitioner Dixon contends that the cer-

tified ballot title caption for IP 38 suffers a similar defect,

given that it mentions only changes to the “general elec-

tion nomination process,” in the singular, when it actually

would affect multiple processes, viz., “the existing process

for political parties, and the existing nominating process for

minor parties and nonaffiliated voters, and the general elec-

tion itself.” (Emphasis in original.) According to petitioner

Dixon, the caption would meet the statutory standard if it

stated that IP 38 “[c]hanges both general election and nom-

ination processes.”

That argument presents a closer question. Certainly,

the caption that petitioner Dixon proposes is accurate

and perhaps in some sense “better” than the one that the

Attorney General certified. But that is not the standard that

we apply. As we have explained, under ORS 250.085(5), our

task is to review the certified ballot title for “substantial

compliance” with statutory requirements.

In this case, on the one hand, it is true that IP 38

would affect multiple processes, as petitioner Dixon describes

them. But, on the other hand, it also is entirely accurate

to refer to all of those multiple processes collectively as the

“general election nominating process.” In that sense, there

is nothing inaccurate or underinclusive about the certified

ballot title caption in using that phrase.

In that regard, Keisling/Lutz is distinguishable. In

that case, the ballot title caption referred only to changes

to “partisan primaries,” which failed completely to describe

a number of the measure’s significant effects. In this case,

the ballot title caption refers to changes to the “general elec-

tion nominating process,” which captures all of the proposed

measure’s most significant effects as to the partisan offices

to which it applies. Given our standard of review—and the

applicable word limit, ORS 250.035(2)(a) (15-word limit for

ballot title caption)—we cannot say that the phrasing of

the ballot title caption does not substantially comply with

Cite as 355 Or 364 (2014) 373

the statutory requirement to identify accurately the subject

matter of the proposed measure.

Fourth, in a related vein, petitioners Mark and

David Frohnmayer argue that the caption fails to meet the

requirements of ORS 250.035(2)(a) because it overstates the

effects of IP 38 by failing to state that it applies only to parti-

san elections. The Attorney General replies that the caption

substantially complies with the statute because other parts

of the ballot title inform voters that the proposed measure

applies only to “most partisan offices.”

Just as a ballot title caption can fail for understat-

ing the major effect of a measure, so also can it fail for over-

stating the measure’s major effects. Kain/Waller, 337 Or at

40 (caption should identify the proposed measure’s subject

matter in a way that “do[es] not understate or overstate the

scope of the legal changes that the proposed measure would

enact”). A ballot title caption that phrases the subject mat-

ter of a measure in too-sweeping terms “fails to disclose the

subject matter of the proposed measure in terms that give

notice to the voters of the principal substantive choice or

choices that the measure presents.” Rogers v. Myers, 344 Or

219, 224, 179 P3d 627 (2008).

In this case, the Attorney General’s certified bal-

lot title caption broadly states that IP 38, if adopted, would

change the “general election nominating process.” The pro-

posed measure, however, would not change the general elec-

tion nominating process for nonpartisan offices. Indeed,

the proposed measure would not change the general elec-

tion nominating process for all partisan offices, either. By

its terms, the measure would apply only to “voter choice

offices,” which the measure defines as meaning a specified

list of partisan political offices. The ballot title caption thus

overstates the effect of the measure and requires referral for

that reason, as well.

Fifth, and finally, petitioner Dixon argues that

the “no” vote result statement is defective because, among

other things, it states that a “no” vote would retain “vote

limitation.” The Attorney General does not respond to that

374 Dixon / Frohnmayer v. Rosenblum

argument beyond the general assertion that the “no” vote

result statement complies with the law.

ORS 250.035(2)(c) requires ballot titles to contain

“yes” and “no” vote result statements that consist of “sim-

ple and understandable statement[s]” that “describe[  the

]

result if the measure is rejected.” The description of the

result must not be inaccurate or misleading. McCormick v.

Kroger/Devlin, 347 Or 293, 300, 220 P3d 412 (2009).

In this case, the “no” vote result statement’s refer-

ence to “vote limitation” presumably is intended to contrast

with the statement in the caption that, under IP 38, vot-

ers are permitted “unlimited votes.” As we have concluded,

however, the reference to “unlimited votes” in the caption is

inaccurate and misleading. If the reference in the caption to

unlimiting voting is eliminated, then the later reference to

a “vote limitation” that would be retained if the measure is

rejected has no point of reference and becomes, at best, con-

fusing, if not misleading. We conclude that this aspect of the

“no” vote result statement must be remedied on referral.

In that regard, we note that petitioners advance

other arguments about the “yes” and “no” vote result state-

ments and the summary that, in essence, complain that

the foregoing errors in the caption have been repeated in

the other portions of the ballot title. We assume that the

Attorney General “is quite capable of identifying the ways

in which the other sections of the certified ballot title are

affected” by our decision and will modify the ballot title

accordingly on referral. Keisling/Lutz, 343 Or at 385-86 n 2.

Ballot title referred to Attorney General for

modification.