Opposition Brief — Kucera v. Bradbury, Secretary of State of Oregon

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APR 13

No. 04-872

mt US

2005

1 CLERK

In the Supreme Court

of the United States

SANDRA KUCERA, SARAH THERESE

WINDER, KRISTIN ZUBEL, NATALIE

BOLTON, PHILLIP SALISBURY,

SAMANTHA BERG, TIMOTHY JOHNSON

and GREGORY KAFOURY,

Petitioners,

Vv.

BILL BRADBURY, Secretary of State,

DEMOCRATIC PARTY OF OREGON,

JOHN NEEL PENDER and JAMES

EDMUNSON,

- Respondents.

On Petition for Writ of Certiorari to the

Oregon Supreme Court

RESPONDENT BILL BRADBURY’S

BRIEF IN OPPOSITION

HARDY MYERS

Attorney General of Oregon

PETER SHEPHERD

Deputy Attorney General

*MARY H. WILLIAMS

Solicitor General

KAYE E. MCDONALD

Assistant Attorney General

400 Justice Building

Salem, Oregon 97301-4096

Phone: (503) 378-4402

Counsel for Respondent

*Counsel of Record

————————————————— EE

QUESTIONS PRESENTED

‘:

In the state courts, petitioners made an “as applied” chal-

lenge to the Oregon Secretary of State’s determination that

the Nader campaign had failed to obtain a sufficient number

of signatures to qualify for the 2004 general election. Under-

lying most of those claims were petitioners’ erroneous and/or

disputed factual assertions that the Secretary had applied

' “unwritten rules” to their signature gatherers without notice or

an opportunity to cure circulator certification errors. The

Nader/Kucera ticket was not placed on the 2004 Oregon gen-

eral ballot. After the election, the Secretary adopted new rules

setting forth the review procedures that will be used in future

elections, including rules regarding what constitutes sufficient

and insufficient circulator certification, signature sheet dating

requirements, and procedures for obtaining exemplars of cer-

tain circulators’ signatures after notice from the Secretary of

apparently non-complying signatures.

Are petitioners’ claims based on the Secretary’s applica-

tion of “unwritten rules” and absence of notice during the

Nader campaign moot?

If not, should this Court review the constitutionality of the

new rules without allowing state courts an opportunity to con-

sider the constitutionality of the new rules under state law?

In rejecting petitioners’ various claims, the Oregon Su-

preme Court held as a matter of state law that the Secretary

had not applied “unwritten rules” to the Nader campaign.

Rather, the Secretary had adopted rules, along with plausible

interpretations of those rules, to give effect to elections laws,

including Or. Rev. Stat. § 249.740(4), which requires that cir-

culators certify on each signature sheet that the signer had

signed the sheet in the circulator’s presence, and Or. Rev.

Stat. § 249.009(1)(b), which requires the Secretary to promul-

gate a rule prescribing a system of petition signature sheet

numbering. The Oregon Supreme Court further concluded

that the legislature had authorized the Secretary to employ

internal review measures to ensure uniformity in the applica-

tion, operation and interpretation of the election laws. Accord-

ing to the state court, the Secretary carried out that legal au-

thority in his written instructions to the county clerks.

Should this court review the state court’s factual and legal

determination that the Secretary did not apply “unwritten

rules” to the Nader campaign under state law?

At trial in state court, the Secretary and intervenors pre-

sented evidence and argument showing that sequential num-

bering of signature sheets, a rule specifically authorized by

statute, is necessary in order to prevent fraud in nominating

petitions. The Secretary and intervenors similarly presented

evidence and argument showing that signing and dating re-

quirements for nominating petition circulators, which were

properly applied under the Secretary’s lawful exercise of

delegated authority, advanced the legislature’s objectives of

deterring fraud and promoting orderliness and efficiency in

- the nomination process. The Oregon Supreme Court relied on

Buckley v. American Constitutional Law Found., 525 U.S.

182, 190 (1999), as authority for the proposition that a state

has “considerable leeway to protect the integrity and reliabil-

ity of the initiative process” and that in analogous circum-

stances, a requirement that petition circulators attach an affi-

davit containing particular factual statements to a petition is

one such legitimate safeguard. This Court elsewhere has made

it clear that the conduct of the elections process is a constitu-

tional obligation of the states properly requiring a significant

degree of detailed regulation and that it will uphold reason-

able and nondiscriminatory procedural election regulations

such as those challenged here.

Should this Court grant review to determine whether the

Oregon Supreme Court’s decision upholding the Secretary’s

implementation of requirements concerning the proper pagi-

nation, certification, and dating of signature sheets conflicts

with unspecified decisions of this Court?

In the trial court, petitioners made no claim that the Secre-

tary denied voters equal protection by disqualifying signature

sheets based on circulator error, and neither the trial court nor

the Oregon Supreme Court considered that contention.

Should this Court review that unpreserved claim?

iil

PARTIES TO THE PROCEEDING

All parties to the proceeding are named in the caption.

TABLE OF CONTENTS

Page

Quncstions Presented .......0..cccccsscsscsssscsssescscscecscncsseossscssccsscsesces i

Parties 0p the Preceeingcc.c..ccccccscesescccsncssccscecsescesocsssscesooscoses Vv

EE Ecovamanecasiesiiiescasnaimataelcaenl 1

Reasons thie Writ Should be Demied ...............::ccceseeeeeeeeeeees 10

Ar, PRONTO R, cccerccesctcecsesaccesnscsescsnsnenssesssanenssnansssesecissscen 10

B. The Oregon Supreme Court’s decision..............-.:-:+++++: 11

CC. TER GRID 10 GIDE, ccccccccctineccccseetnsectenncceresnscesenecasesesnnnenes 18

1. Applicable Legal Principles...........::cccssesecereeeeeseeees 18

2. Petitioners’ Due Process C1Qims ...........00.s0ssseeee0es 19

3. Petitioners’ Right to Travel Claim..............:000000+ 20

4. Petitioners’ First Amendment Claims.................000+ 21

D. Petitioner’s Equal Protection Claims Are

Not Properly Before This Coutt................ccccssssseesseees 22

E. The Oregon Supreme Court Applied Settled

Principles of Federal Law to Uphold the

Secretary’s Non-discriminatory and Reasonable

ND ID ctncesscnaesesennnesssnenstcnnpsnicnnedanatzecens 23

1. Petitioners’ claims have been largely resolved

against them under state laW. .............ccsss0sseeeeeees 23

2. This Court reviews the Secretary's regulations

to determine whether they are reasonable and

a iccatcaserttscncrsatiintintnisitentiatentncmien 25

3. The state's interest in holding fair and efficient

elections far outweighs the minimal burdens

that the Secretary's rules place on nominating

TE ccktncictcitinincitpitinnininniinatedapiiciciaiastnnss 26

vii

REP ELIOT RO Tec ME EOI RTT ee at RCE A 30

Supplemental Appendix (bound under separate cover)

Viii

TABLE OF AUTHORITIES

Page

Cases Cited

Ailes v. Portland Meadows, Inc.,

BE ee Bi, Ee ae POO CEOS vinncsnccanscscssscnaccescccnasnesse 22

Anderson v. Celebrezze,

Rha WII it ines aenseaeninnilainaieannantaianenin 25, 26, 27

Buckley v. American Constitutional Law Found.,

i TTI cssscidinis viatinatncgihaintnnnsntansuiens ii, 17, 18, 30

Burdick v. Takashi,

RE __ RTERIIRR IS ee even eae ee ee on OR ON 26

Illinois State Bd. of Elections v. Socialist Workers Party,

Bs eR MEET TEE acaicanecensansdatconancticdidennaisesicadminbsieciinnnenceintie 19

Kucera v. Bradbury,

DDS. Cy 27 (ROO G) nnsesccsscccsrercssccscescccenccsssscsssnsseosnasesesstece 10

Kucera v. Bradbury,

337 Or. 384, 97 P.3d 1191 (2004) ....... 8, 9, 11, 24, 25

Storer v. Brown,

415 US. 724, 94S. Ct. 1274,

By EB, Be FO Er wan nccancncssintntsarsrnsnescscnsssnaens 25, 26, 27

Timmons v. Twin Cities Area New Party,

SHO US. FSU CUT IT cinssnsccrssrseresserasrrseesessessncce 26, 27, 28, 30

Weinstein v. Bradford,

ie I i iaiitaiachsitcientnnssniniticssarcisnviannniennshennasannens 19

Constitutional and Statutory Provisions

Or. Reov. Beat. § UGS AGO) ...cscrcsscrsracssrcccssscrcssecscecssecscese 21, 22

Gr. Reav. Bhat. § LES AGIA) .accerercrcrensrccrsccssesessrcecscssesscsescceses 21

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Or. Rev. Stat. § 246.120................. siiasticianicictiaapibiunidiercaautnilbnadiie 12

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COE, SRE, TIRE & Be FD icc ncisininmserninsetataninconnninanse i, 14, 15

CE, BR, BE, BBR Orcncevescesenrscistsinssnnenensesnie ladeeuiagsiiatesasiielle 1

es ts I i octane picitiiislnsienaiseaianiectuaiconee 10, 11, 23, 26

ee Ms PII WF cicdresncenacsentaccieereeetiveecores aabies 10, 11, 23

Fre Ms SII, FEI sentiesesisseninicceenaanigtndiecininciacsoannnch 10, 11, 26

Administrative Rules

Ce, PR Th. TU entities vi nscssiotniniinncsiniccreinsoneeie 20

Or. Admin. R. 165-014-0270(5)(a).........ccceecsseseresereeeseeeee 20

Ce, FI: a Fe ei sctirdcctnincnenctadescctnnionensnnnsniicente 19

STATEMENT

Petitioners are supporters of a campaign that unsuccess-

fully sought to place Ralph Nader and Sandra Kucera as

President and Vice President of the United States on the No-

vember 2, 2004, Oregon general election ballot through the

procedure described in Or. Rev. Stat. § 249.740 for nomina-

tion by individual electors. Under that procedure, individual

electors may nominate a candidate for each partisan public

office to be filled at the general election by preparing and fil-

ing a certificate of nomination, as provided in Or. Rev. Stat.

§§ 249.712 to 249.850; Supp. App. 40-50. The chief sponsor

of the certificate must file a signed copy of the prospective

certificate with the Elections Division for approval. Or. Rev.

Stat. § 249.740; Supp. App. 45-47. After receiving approval

of the proposed certificate, the chief sponsor may begin gath-

ering signatures on the approved signature sheets.

Statute requires that each elector that signs a certi.icate of

nomination made by individual electors must include the elec-

tor’s residential mailing address. Or. Rev. Stat. § 249.740(2);

Supp. App. 46. The circulator must certify on each signature

sheet that the individuals signed the sheet in his or her pres-

ence and that the circulator believes that each person is an

elector registered in the electoral district. Or. Rev. Stat. §

249.740(4); Supp. App. 46. To qualify for the ballot based on

a certificate of nomination by individual electors, a certificate

must contain a number of signatures of electors in the elec-

toral district equal to not less than one percent of the total

votes cast in the district for which the nomination is intended

to be made, for all candidates for presidential electors at the

last general election. Or. Rev. Stat. § 249.740(1). Collected

signature sheets for each county must be submitted to the

county clerk for verification of the genuineness-of the signa-

tures before the nominating petition is filed with the Secre-

tary. Or. Rev. Stat. § 249.008(1); Supp. App. 39-40.

Among other things, county officials review the sheets to

verify that each one bears the circulator’s signature. In that

process, county officials follow procedures established by the

Secretary of State. In an affidavit, the Elections Director ex-

plained the procedures that were followed in the November 2,

2004, general election. According to him, if a sheet did not

bear a circulator’s signature, it was disqualified, but if it bore

what appeared to be a signature, it was generally accepted

without more. If a sheet bore a mark that was illegible or ap-

peared to be initials, county officials identified that sheet for

further review by his office. At that time, the elections staff

would try to confirm that, despite appearances, the mark was

the purported circulator’s valid signature. By using the printed

name under the circulator’s signature, they attempted to locate

the circulator’s Oregon voter registration card. If the signature

on the sheet appeared to match the signature on the card, the

signature was accepted; if not, it was disqualified. Those as-

pects of the Secretary’s process were historical and applied to

every type of elections petition. Supp. App. 26—27.

The Secretary further explained that it was also a long-

standing rule that initials could not be used in lieu of a signa-

ture. If the circulator’s signature, as shown on the voter regis-

tration card or on another permissible exemplar, confirmed

that the circulator’s signature simply appeared like initials,

then the signature was accepted. But if the exemplar showed a

different signature, the initialed petition sheet was disquali-

fied. Supp. App. 26-27.

In December, 2002, the Secretary promulgated amend-

ments to the 2002 Candidates Manual (SCMIE), adding an

additional requirement that circulators date the certification

on each sheet. Supp. App. 11, 28. The date is considered a

part of the circulator’s certification, and failure to properly

complete it constitutes failure to certify the petition sheet, re-

sulting in disqualification. Supp. App. 11, 28. In examining

signature sheets for compliance with the date requirement, the

point of the inquiry is whether it is clear from the face of the

sheet that it was completed properly. Supp. App. 28. Accord-

ingly, in past elections, the Secretary has applied these rules,

as outlined by the Elections Director:

11. Similarly, in furtherance of the purpose

to prevent fraud, the Secretary has interpreted

the requirement of a dated signature to disqual-

ify sheets bearing alterations (such as stricken

materials), but has permitted corrections of a

dating error by re-dating and re-signing.

*e eK *

13. Where there is no date, obviously the

sheet is not completed properly. It is disquali-

fied.

14. Where the sheet is dated before the

elector signatures, the sheet itself tells the clear

story of how it was completed, but that clear

story discloses that the sheet was completed

improperly. The circulator cannot properly cer-

tify that the elector signatures on the sheet

were affixed in the circulator’s presence, and

that the circulator believes each signor to be an

eligible voter, until after the elector signatures

have been affixed.

15. Similarly, a “post-dated” certification

(a certification bearing a date after submission

of the petition sheets to the Secretary of State),

on its face, tells a clear story of how it was

completed, but it is not completed properly.

Where the certification is post-dated, it appears

that the circulator seeks to defer responsibility

for certification. * * *

16. When information is stricken on the

date line, and other information has been sub-

stituted, the face of the sheet does not tell a

clear story demonstrating that it was filled out

properly. One possible scenario (the “innocent

slip of the pen” scenario) is that the circulator

signed it, dated it erroneously, realized the er-

ror, struck the error, and redated correctly. But

another possibility is that the circulator signed

improperly—perhaps before witnessing the

elector signatures—conveyed the sheets to an-

other person, and that the other person fraudu-

lently altered [his] certification. * * *

17. On the other hand, where a date has

been stricken and another written in, the sheet

is accepted if either date would be proper.

Also, where the date has been expressed as a

range, but it is clear from the face of the sheet

that it was dated all at once, the sheet is ac-

cepted if the last date in the range would be

proper. * * *

Supp. App. 28-30.

After certifying the number of genuine signatures of voters

submitted on each signature sheet, each county elections offi-

cial returns the signature sheets to the chief sponsor of the

certificate of nomination with the total number of valid signa-

tures indicated on each separate sheet. Supp. App. 5. Notably,

the matter examined by county officials is extremely limited:

They simply “compare the signatures of electors on the peti-

tion or minutes with the signatures of the electors on the elec-

tor registration cards.” Or. Rev. Stat. § 249.008; Supp. App.

39. The certification then states the number of signatures be-

lieved to be genuine.

If the petition sheets contain a number of signatures appar-

ently sufficient to qualify for the ballot, the chief sponsor files

the completed nominating petition with the Elections Divi-

sion, along with the original petition sheets. Supp. App. 5.

The Elections Division then reviews the signature sheets for

compliance with state election law requirements. Supp. App.

5. The purpose of that review is to maintain uniformity and

consistency in the interpretation and application of the elec-

tions law. Supp. App. 5, 38. See Or. Rev. Stat. § 246.110.

In the November 2, 2004, election, the Secretary of State

issued instructions to all county clerks to follow for verifying

the signature sheets for the 2004 Nader for President petition.

Supp. App. 4. The instructions directed the counties to screen

and reject signature sheets that had circulator signature and

date problems. They defined what problems to look for re-

garding circulator signatures and dates. In the event of any

question, the clerks were to fax any problem sheet to the Elec-

tions Division for review, prior to verification of signatures,

so that the Secretary could determine whether to reject as in-

valid the entire sheet based on the particular problem.

The Elections Division worked with county election offi-

cials throughout the signature verification process, answering

their questions regarding which signature sheets should be

disqualified. Supp. App. 5. After petitioners received certifi-

cation from the counties indicating that they had in toto more

than the required number of verified signatures, they filed the

completed nominating petition with the Elections Division.

Intervenor Democratic Party of Oregon filed objections to the

signatures on grounds including that a number of signature

sheets had been submitted to the counties without page num-

bers in violation of the state election laws. Service Employees

International Union also filed objections. Supp. App. 6.

The Elections Division then reviewed the signature sheets

submitted. It rejected 718 signatures for failing to comply

with state election law requirements with respect to the circu-

lator’s oath, including sheets that were disqualified by county

clerks on those grounds. An additional 10 signatures were

disqualified because they were duplicates. Supp. App. 5. After

contacting all county clerks to determine the total number of

signature sheets that had been submitted to county clerks

without page numbers, 2292 signatures were disqualified be-

cause they were submitted on unnumbered sheets. Supp. App.

The number of valid signatures that the Nader/Kucera

campaign needed to qualify the candidates for the ballot was

15, 306. The Secretary of State determined that the total num-

ber of qualified signatures submitted was 15,088. That left the

Nader/Kucera campaign 218 short of the number of valid sig-

natures they needed to qualify for the ballot. Supp. App. 7. on

September 2, 2004, the secretary advised Mr. Nader that he

had failed to gain ballot access for the office of President of

the United States.

The next day, petitioners appealed the Secretary’s action in

the Marion County Circuit Court. In their complaint, petition-

ers alleged seven substantive claims, four of which were

based on Oregon statutory and administrative law principles,

one of which was based on the Oregon Constitution, and two

of which (their fifth and seventh claims) presented federal law

issues. Their fourth claim for relief was that the Secretary

cannot lawfully reject signature sheets based on alleged de-

fects in circulator signatures or dates on circulator signatures.

Pet. App. 8-11. With respect to the latter claim, petitioners

argued that they were unable to identify any defect in signa-

tures or dating in many of the rejected sheets and that the Sec-

retary had not explained what defects existed in them. Peti-

tioners also argued, in part, that the Secretary had no authority

to reject signatures as a penalty for circulator error. Pet. App.

The parties disputed whether petitioners were aware of the

Secretary’s rules and requirements. According to an affidavit

of the Elections Director, “[petitioners] obtained a copy of the

instructions which the Secretary sent to all county clerks.”

Pet. App. 4. The instructions to county officials, which were

attached as Exhibit 2 of the affidavit, included these:

Following are procedures we need all counties

to follow when verifying the signature sheets

for the Nader for President petition.

1. Counties will initially screen for potential

problems with circulator signature and dating

of signature sheets.

2. Counties will highlight with a highlighter

the areas of concern on the signature sheet. Do

not verify any signatures on the sheets that

have any potential problems or issues. Once

the Secretary of State’s office makes a deter-

mination on these sheets, the county will be

contacted and advised on whether to verify

these signatures or to reject the sheet.

3. The areas to review for concern are:

The circulator signature line is blank or the

circulator has signed using initials only. (First

name initial with the full last name is suffi-

cient).

There is no date on the circulator date

signed line.

Circulator date has been crossed out or

modified.

The circulator signed and dated before the

dates of some or all of the signers.

Circulator name is a signature stamp.

White out is used on the circulator name or

date area.

There are two different circulator names on

the certification.

The original signature of a circulator has

been crossed out, and a new circulator’s signa-

ture is inserted.

Kucera, 337 Or. at 398-400 (boldface in original).

Additionally, the Elections Director averred that he dis-

cussed candidate petition requirements with Travis Diskin of

the Nader campaign on July 30, 2004. Supp. App. 30. A

memo memorializing that conversation showed that “Mr.

Diskin asked about the requirements for the circulator’s certi-

fication,” and they were explained to him. Diskin was told

that circulators must sign their full legal names, not use ini-

tials, and must date the certification. If the date of the certifi-

cation was wrong, they were simply to resign and redate the

signature sheet, not cross out the circulator name or modify

the date. Supp. App. 30-31. Petitioners provided no evidence

to contradict the Elections Director’s averment. Notably, the

Manual sets forth as a rule the chief sponsor’s responsibility

to “review with the circulators the requirements for circulat-

ing the petition.” See Supp. App. 11. Thus, if petitioners re-

ceived a copy of the above instructions, as the Elections Divi-

sion Director averred, it was their responsibility to convey

those instructions to their circulators.

The trial court issued an order and opinion resolving peti-

tioners’ third and fourth claims for relief on September 9,

2004. The court rejected their claim “regarding the manner in

which the Secretary administered the rules related to the se-

quential numbering requirement,” concluding that “[t}hat re-

quirement * * * is specifically authorized by both statute, [Or.

Rev. Stat. §] 249.009, and by an appropriate written adminis-

trative rule * * *.” Pet. App. 42. It agreed with petitioners’

contention, however, that no rule or statute “authorizes the

wholesale rejection of signature sheets for errors other than

signature sheet format violations.” Pet. App. 37. The trial

court also opined that no wnitten rule justifies certain of the

Secretary’s requirements, viz., that “each circulator must sign

the circulation certificate with a full signature * * * verifiable

by comparison with the circulator’s own voter’s registration if

one exists, or with some other exemplar if a voter’s registra-

tion form does not exist{.]” Pet. App. 38. The trial court made

no express or implicit finding as to whether petitioners had

received notice of the challenged rules and procedures before

they submitted their signature sheets.

On September 14, 2004, the Secretary challenged the trial

court’s ruling in the Oregon Supreme Court in a petition for

writ of mandamus, as well as a direct appeal of the judgment

in the Oregon Court of Appeals, accompanied by a request for

certification to the state Supreme Court. The Oregon Supreme

Court granted the petition and request for certification and on

September 22, 2004, issued an opinion, peremptory writ of

mandamus, and appellate judgment requiring the trial court to

withdraw its order and enter judgment in favor of the Secre-

tary of State. Kucera v. Bradbury, 337 Or. 384, 97 P.3d 1191

(2004).

On September 24, 2004, petitioners applied to this Court

for a stay of the Oregon Supreme Court’s order pending certi-

oriari review. The Secretary filed his response to that applica-

tion on September 27, 2004. This Court denied petitioners’

application the next day.’ See Kucera v. Bradbury, 125 S. Ct.

' Justice Breyer would have granted the application for stay.

Pet. App. 45.

27 (2004). Mr. Nader’s and Ms. Kucera’s names were not

placed on the November 2, 2004 general election ballot as

candidates for President and Vice-President of the United

States.

After completing the first election cycle in which circula-

tor dating requirements applied, the Secretary deemed it ad-

visable to tum certain applied interpretations concerning cir-

culator certification into more specific rules. With certain

amendments, and after public comment, he proposed addi-

tional and more specific rules addressing circulator certifica-

tion, which ultimately were adopted on April 8, 2005. See

Supp. App. 52-57. The rules address in detail when a petition

signature sheet will and will not be rejected for insufficient

circulator certification based on defects in dating or circulator

signature. They also set forth procedures for verifying by ex-

emplar what initially is deemed insufficient certification and

for notifying the chief petitioner or his designee of insuffi-

cient certification so that he may provide an alternative exem-

plar, when Oregon voter registration card signatures are not

available for comparison with circulator signatures. Supp.

App. 52-57.

REASONS THE WRIT SHOULD BE DENIED

A. Introduction.

In this case, petitioners contend that the Secretary violated

their rights under the First, Fifth, and Fourteenth Amendments

to the United States Constitution during the November 2,

2004, Oregon general election by applying “unwritten rules”

to disqualify a number of their nominating petition signature

sheets without notice, resulting in their candidates failing to

qualify for placement on the ballot. None of petitioners’

claims warrants this Court’s review. This case is moot. The

doctrine of “capable of repetition but evading review” does

not apply, because the Secretary has adopted new administra-

tive rules that will apply in the next general eléction and are

subject to review in the state courts. Petitioners’ Fourteenth

Amendment claim is not properly before this Court, because

petitioners did not adequately preserve it in the state courts.

Petitioners’ contentions ignore matters that the Oregon Su-

preme Court decided under principles of settled state law. Fi-

nally, the Secretary’s rules and procedures were both duly au-

thorized or mandated by the Oregon Legislature and appropri-

ate. Even should this Court consider the merits of petitioners’

federal claims, the interests served by the Secretary’s rules

and procedures far outweigh the purely procedural burden that

the regulations place on petitioners.

B. The Oregon Supreme Court’s decision

In their complaint in the circuit court, and again before the

Oregon Supreme Court, petitioners alleged two federal

claims. First, they alleged that the Secretary of State’s imple-

mentation of a rule disqualifying voter signatures on a nomi-

nating petition on the basis of alleged or proven errors by pe-

tition circulators in signing, dating, or placing numbers on the

sheets, violated the First and Fifth Amendments to the United

States Constitution. Second, they alleged that the Secretary’s

implementation of a rule disqualifying a circulator’s signature

if it varied from the signature on the circulator’s Oregon voter

registration card discriminated against Oregon voters who are

not registered to vote and violated the First Amendment right

of plaintiffs to travel across state lines into Oregon to engage

in core political speech and to circulate petition sheets. The

Oregon Supreme Court considered all of petitioners’ claims,

including their federal claims, because “if one or more were

correct, it would obviate the necessity of relief in mandamus.”

Kucera, 337 Or. at 405. After carefully considering the facts,

the applicable statutory and constitutional legal principles in-

volved, and the trial court’s reasoning, the state’s highest

court unanimously rejected all of petitioners’ claims against

the Secretary.

The Oregon Supreme Court first considered petitioners’

state law claims. With respect to their fourth claim, it noted

that the trial court had premised its ruling on its conclusion

that “no statute or rule expressly authorized the Secretary of

State to prohibit the counting of otherwise valid signatures of

electors that supported a certificate of nomination simply be-

cause of arguable violations of signature and dating require-

ments respecting circulators.” Jd. at 397. After reviewing the

applicable state elections law, the Court disagreed. Jd. at 397—

400. Specifically, it found that the Oregon Legislature ex-

pressly had delegated to the Secretary authority over the pro-

cedures for nominating candidates by individual electors and

other elections procedures; that it had given the Secretary the

“responsibility to obtain and maintain uniformity in the appli-

cation, operation and interpretation of the election laws”; and

that it had authorized the Secretary to make rules he “consid-

ers necessary to facilitate and assist in achieving and main-

taining a maximum degree of correctness, impartiality and

efficiency in the administration of the election laws.” Jd. at

397-401 (quoting excerpts of Or. Rev. Stat. § 249.009(1), Or.

Rev. Stat. § 246.110, and Or. Rev. Stat. § 246.150). The Court

similarly noted that the legislature had enacted Or. Rev. Stat.

§ 246.120, which mandates that the Secretary “prepare and

distribute to each county clerk detailed and comprehensive

written directives,” and that he “assist, advise and instruct

each county clerk, on registration of electors and election pro-

cedures which are under the direction and control of the

county clerk” which the county clerk “shall comply with.” Jd.

at 397-98.

The Oregon Supreme Court found that “the Secretary of

State exercised his authority under [Or. Rev. Stat. § ] 246.120

by issuing written instructions to all county clerks regarding

the verification of elector signature sheets from the Nader

campaign, including directions for addressing potential prob-

lems with the signature and dating of signature sheets by cir-

culators.” Jd. at 398-99. The Court set forth those written in-

structions and accepted the state Elections Director’s aver-

ment that the Secretary’s “practice is to accept a purported

circulator’s signature if there is any reasonable wz y to do so.”

Id. at 400). It summarized the Secretary’s practice:

In general, state officials rejected signature

sheets containing no date or alterations in the

date, such as stricken materials, but accepted

signature sheets that the circulator had redated

and re-signed or sheets that told a “clear story”

about their completion and whose circulators

apparently had completed the certification

properly.

Id. at 400.

The Oregon Supreme Court specifically rejected the trial

court’s theories that “the signature and date review procedures

that the Elections Director had followed in his office were

‘unwritten rules,’” It explained:

It is true that the review procedures that

[the Elections Director] described were not

themselves written, but that does not render

them unlawful. On the contrary, the review

procedures are nothing more than the step-by-

step process by which the Secretary of State

carried out legal authority found elsewhere in

statute, in rule, and in the Secretary of State’s

written instructions to the county clerks. The

review procedures were not, as the trial

court's comments appear to suggest, yet an-

other layer of unannounced legal barriers.

They were, instead, the methodology by which

the Secretary of State enforced existing legal

standards. The necessity for the review proce-

dures arose in this case because the Secretary

of State gave written instructions to the county

clerk to return to the Secretary of State for fur-

ther review all signature sheets “that have any

potential problems or issues,” and gave them a

list of those potential problems. The review

procedures that [the Elections Director] de-

scribed did not enlarge upon the written list;

rather, they merely effectuated it with the goals

of insuring that review by his office was a uni-

form process.

Id. at 401 (emphasis added). The Court recalled that “{Or.

Rev. Stat. §] 249.740(4) requires each circulator to certify on

each signature sheet that the signer had signed the sheet in the

circulator’s presence and that the circulator believed that the

signer was an elector registered in the electoral district.” Jd. at

402; emphasis in original). The dictionary definition of “cer-

tify,” it noted, shows that that “means ‘to attest esp. authorita-

tively or formally * * * to present in formal communication,

esp. in a document under hand or seal * * *.”” Pursuant to that

legislative directive of a formal attestation, the Secretary

adopted an administrative rule requiring circulators to “sign”

the signature sheet. /d.; Supp. App. 23. Because a “signature

is ‘the name of a person written with his own hand to signify

that the writing which precedes accords with his wishes or

intentions,” the Secretary plausibly could interpret the re-

quirement of a signature to mean that the circulator must sign

his name in full, rather than simply use initials, and so instruct

the county clerks. Thus, citing settled state administrative law

principles, the Court held that what the Secretary did was

clearly authorized and appropriate:

In adopting the rules set out in the SCMIE

[2004 State Candidate’s Manual: Individual Elec-

tors], in issuing written instructions to the county

clerks, and in utilizing the circulator signature and

date review procedures, the Secretary of State was

obtaining and maintaining uniformity in the opera-

tion of an election law, i.e., the certification re-

quirement in [Or. Rev. Stat. §] 249.740(4), as [Or.

Rev. Stat. §] 246.110 required. The Secretary of

State thus may conclude, and clearly has so con-

cluded, that a circulator’s failure to comply with

the Secretary of State’s requirements for circula-

tors certification means that the purported certifi-

cation is invalid and the signature sheet does not

comply with [Or. Rev. Stat. §] 249.740(4).

Id. at 402-03; emphasis added.

Having reached that conclusion, the Oregon Supreme

Court dispensed with the trial court’s reasoning quickly. It

noted that, because Or. Rev. Stat. § 249.740(4) requires the

circulator to certify that the individual signed the sheet in the

presence of the circulator, an elector’s signature, without

more, does not show compliance with that requirement. /d. at

403; Pet. App. 23; emphasis in original. It explained, “The

certification requirement serves to discourage fraud in the

execution of signature sheets. The Secretary of State’s choice

to invalidate a signature sheet if the circulator violates the cer-

tification requirement promotes that objective.” Jd. The Court

further noted that when several counties failed to comply with

the Secretary of State’s written instructions, that “threatened a

violation of the uniform application of the Secretary of State’s

requirements for circulator certification.” Jd. at 405; Pet. App.

26. As a matter of state law, then, the Court concluded,

“(faced with that potential violation of uniformity, the Secre-

tary of State’s choice to engage in a post-verification review

of signature sheets from noncomplying counties was a per-

missible one.” Jd. at 405.

Petitioners’ other statutory claims also failed. Their first

claim failed, because Oregon law does not require the Secre-

tary to include with his decision findings of fact, conclusions

of law, or reasons for notifying Nader that his campaign had

filed insufficient signatures, as petitioners alleged Jd. at 406—

07; Pet. App. 28. Their second claim—that the Secretary

could not lawfully refuse to recognize verified elector signa-

tures on signature sheets containing errors by circulators of

the Nader campaign—failed for the same reasons that their

fourth claim failed. Jd. Their third claim—that the Secretary

of State should be estopped from refusing to count signature

sheets that were not sequentially numbered, because the

Nader campaign followed the instruction of elections officials

in numbering submitted signature sheets—failed because the

campaign’s reliance on any such statement would not have

been reasonable, in light of published rules. Jd. at 407-08;

Pet. App. 29. In terms of substantive claims, that left only pe-

titioners’ state and federal constitutional claims.

The Secretary quotes that portion of the Oregon Supreme

Court’s opinion in full, because it correctly frames the re-

maining legal issues before it:

[Petitioners’] fifth, sixth, and seventh

claims for relief assert various constitutional

challenges, which we summarized above, to

the Secretary of State’s disqualification of sig-

nature sheets due to errors by circulators in

signing and dating the sheets. [Petitioners]

contend that a compelling justification must

support the state’s enforcement of any rule that

results in the disqualification of the signatures

of registered voters.

We do not dispute that the statutory proce-

dure for nomination by individual electors im-

plicates important aspects of the political lib-

erty and associational freedom of Oregon’s

electors. However, [petitioners’] claim that the

Secretary of State’s action effectivcly compels

them to collect thousands of signatures in ad-

dition to the number required by Oregon stat-

ute or the state constitution is illusory. [Peti-

tioners], like all political participants, must

collect only the number of signatures, and

comply with the pertinent signature gathering

procedures, that Oregon law requires. Thus,

contrary to [petitioners’] argument, the Secre-

tary of State has not imposed an undue burden

on [petitioners’] political freedoms under the

state or federal constitutions.

The United States Supreme Court has

noted, in an analogous context, that a state

(there, Colorado) “retains an arsenal of safe-

guards” to protect the integrity of a ballot-

initiative process, to deter fraud, and to dimin-

ish corruption. Buckley v. American Constitu-

tional Law Foundation, Inc., 525 U.S. 182,

204-05, 119 S. Ct. 636, 142 L. Ed. 2d 599

(1999). The Court in Buckley specifically cited

a state statute that invalidated an initiative “if

[the] circulator has violated any provision of

laws governing circulation” as one example of

a legitimate state safeguard. Id. at 205. The

Court also noted that states “have considerable

leeway to protect the integrity and reliability of

the initiative process, as they have with respect

to election processes generally,” id. at 191, cit-

ing as an example Colorado’s requirement that

petition circulators attach to each petition sec-

tion an affidavit containing particular factual

statements.

We recognize, of course, that functional

differences exist between the initiative process

scrutinized in Buckley and the candidate

nomination procedure under consideration

here. But, as noted, the underlying signature

collection and circulator certification proce-

dures are analogous. For that reason, we con-

clude that, according to the principles dis-

cussed in Buckley, Oregon's circulator certifi-

cation procedure, and the other procedures

discussed above that protect the electoral

process from fraud, withstand federal constitu-

tional scrutiny.

Id. at 408-09; Pet. App. 30-32; emphasis added. Accordingly,

the Oregon Supreme Court held that “the Secretary of State’s

disqualification of signature sheets in this case is not uncon-

stitutional for the reasons asserted by [petitioners].” Jd.

C. This case is moot.

As discussed above, petitioners’ aim in challenging the

Secretary’s actions in state courts was to obtain an order re-

quiring the Secretary to place the Nader/Kucera ticket on the

November 2, 2004, general election ballot. Petitioners’ main

theory under the federal constitution was that the Secretary

had violated their constitutional rights by applying “unwritten

rules” to them without prior notice. Without regard to the

merits of those factual assertions (which the Secretary dis-

putes), petitioners’ “as applied” challenge to the Secretary’s

actions was specific to the November 2, 2004, general elec-

tion. That election is over, and the issues presented by the pe-

tition in this case are therefore moot.

1. Applicable Legal Principles

Recognizing the mootness problem they face, petitioners

cite, without analysis, a number of elections cases in which

this Court held that the issues presented were not moot be-

cause they were “capable of repetition yet evading review.”

Pet. Cert. 4. That doctrine applies “when ‘(1) the challenged

action was in its duration too short to be fully litigated prior to

its cessation or expiration, and (2) there was a reasonable ex-

pectation that the same complaining party would be subjected

to the same action again.’” J/linois State Bd. of Elections v.

Socialist Workers Party, 449 U.S. 173, 187 (1979) (quoting

Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Those

requirements must be met in elections cases, as well as in

other contexts. See, e.g., Illinois State Bd. of Elections (“as

applied” equal protection claim challenging Illinois law that

effectively required new party or independent candidates to

obtain substantially more signatures in mayoral elections than

in a statewide election was moot, because the appellant had

“presented no evidence creating a reasonable expectation that

the Chicago Board [would] repeat its purportedly unauthor-

ized actions in subsequent elections.”). Both prongs must be

satisfied before this Court will consider the merits of an oth-

erwise mooted claim. See id.

2. Petitioners’ Due Process Claims

In this case, neither of the requirements for application of

the doctrine is met. First, the due process issues in this case

are not capable of repetition. As a factual matter, if the Nader

campaign was not aware of the Secretary’s interpretation of

elections law rules in the last presidential election, it certainly

is now. There can be no further misunderstanding concerning

what is required to properly certify a nominating petition sig-

nature sheet. More importantly, after the last election, the Sec-

retary adopted written rules that spell out how elections offi-

cials should determine whether the dates and circulator signa-

tures on a signature sheet comply with statutory certification

requirements. See Or. Admin. R. 165-014-0270; Supp. App.

53-57. Chief petitioners for nominating petitions will have no

viable claims of lack of notice of certification standards in

future elections.

Nor has the propriety of the Secretary’s past actions

evaded review. On or about September 3, 2004, petitioners

challenged the Secretary’s decision not to place their ticket on

the ballot in the Marion County Circuit Court. That court’s

decision, rendered September 9, 2004, was reviewed by the

Oregon Supreme Court, which issued a judgment resolving

the case on September 22, 2004. Petitioner had time to request

a decision from this Court asking for a stay of the state court’s

issuance of a peremptory writ of mandamus, which this Court

denied on September 28, 2004. Because petitioners had suffi-

cient time to fully litigate the challenged procedures of the

Secretary before the November 2, 2004, Oregon general elec-

tion ballot was printed, it cannot be said that this case evaded

review.

3. Petitioners’ Right to Travel Claim

The new rules specifically address petitioners’ challenge to

the Secretary’s procedures for verifying out-of-state circula-

tors’ signatures. Under the new procedures, if a preliminary

determination is made that a certification is insufficient for

reasons related to the manner in which a circulator signed the

signature sheet, the Elections Division first will compare the

signature to the circulator’s current Oregon voter registration

card signature, if available, and will accept matching signa-

tures. Or. Admin. R. 165-014-0270(5)(a); Supp. App. 55.

However, if an Oregon voter registration card bearing the cir-

culator’s signature is not available, the Elections Division will

compare the certification signature to an alternative exemplar

filed with the Elections Division or, if no alternative exemplar

has been filed, it will notify the chief petitioner or his repre-

sentative of the problem, and that person will have an oppor-

tunity to submit an alternative exemplar of the circulator’s

signature. Or. Admin. R. 165-014-0270(5); Supp. App. 55-

56. The new rules thus effectively moot petitioners’ claim that

the Secretary rejects signatures of out-of-state circulators

based on the unavailability of an Oregon voters registration

card exemplar, thereby creating a “freedom of travel” viola-

tion. Their current complaint is not “capable of repetition.”

Additionally, for reasons set forth above, it has not “evaded

review.”

4. Petitioners’ First Amendment Claims

The adoption of new administrative rules also moots peti-

tioners’ claims that the Secretary’s rules and procedures un-

duly burden the rights of voters and campaigners to place

their candidates on the ballot. There is no reason to conclude

that the “circulator error” problems that petitioners allege they

experienced during the last election will reoccur in the next

one. Petitioners’ claims are not “capable of repetition” within

the meaning of the doctrine on which they rely.

Further, a challenge to the Secretary’s new rules obviously

would not evade review. Under Oregon’s Administrative Pro-

cedures Act, “(t]he validity of any rule may be determined

upon a petition by any person to the Court of Appeals in the

manner provided for review of orders in contested cases.” Or.

Rev. Stat. § 183.400(1). Supp. App. 37-38. “The validity of

any applicable rule may also be determined by a court, upon

review of an order in any manner provided by law or pursuant

to [Or. Rev. Stat. §] 183.480 or upon enforcement of such rule

or order in the manner provided by law.” Or. Rev. Stat. §

183.400(2). “The court shall declare the rule invalid * * * if it

finds that the rule * * * [vJiolates constitutional provisions[.]”

Or. Rev. Stat. § 183.400(4)(a). Thus, there exists a state court

procedure through which petitioners may challenge the con-

stitutional validity of the rules without fear that their conten-

tions cannot be fully litigated before the next presidential

election, three and one-half years away.

Moreover, the fact that the state courts have never passed

on the new rules’ validity under either state or federal law

presents a significant institutional reason for denying review

in this case. Petitioners have available to them a legal mecha-

nism in state court to challenge the facial validity of the new

rules, at which time state courts can decide whether they vio-

late state statutes or the Oregon or United States Constitu-

tions. Or. Rev. Stat. § 183.400(1); Supp. App. 37. It would be

speculative to conclude that the state courts will uphold the

rules against all potential challenges. This Court should de-

cline to review the validity of the new rules in order to give

state courts the initial opportunity to consider their validity.

D. Petitioner’s Equal Protection Claims Are Not Properly

Before This Court.

In this Court, petitioners argue that the Secretary’s applica-

tion of state statutes, rules, and internal review procedures

violates the equal protection rights of voters who wish to cast

votes for independent candidates for federal office. (Pet. Cert.

28-29). That is so in part, petitioners contend, because “state

law does not allow write-in votes for such a candidate to be

counted except in the extraordinary circumstance where the

total write-in vote exceeds the vote for any candidate listed on

the ballot[.]” (Pet. Cert. iii). However, petitioners do not dem-

onstrate that they presented their equal protection claim to the

trial court. Undoubtedly for that reason, the Oregon Supreme

Court did not address it. Under state law, appellate courts may

not review claims not preserved in the trial court, unless those

claims involve errors apparent on the face of the record. Ailes

v. Portland Mecdows, Inc., 312 Or. 376, 380-81, 823 P.2d

956 (1991). Because petitioners failed to present an equal

protection claim to the state courts in a posture in which it

could be reviewed under state law, this Court should not con-

sider such a claim now.

In any event, such a claim would fail, because it is prem-

ised on the erroneous understanding that voters have an un-

qualified right to have their signatures counted towards the

nominating total required, even if circulators do not certify

them properly. As the Oregon Supreme Court concluded, any

interest that voters have in having their signatures counted

must be balanced against all voters’ interests in having fair

and impartial elections, absent of fraudulent conduct. And, in

fact, a given campaign need not turn in signature sheets at all.

Clearly, disqualifying signature sheets that are not in compli-

ance with rules promulgated to protect Oregon voters’ interest

in having fair and impartial elections does not offend equal

protection principles.

E. The Oregon Supreme Court Applied Settled Principles

of Federal Law to Uphold the Secretary’s Non-

discriminatory and Reasonable Elections Regulations.

As suggested above, petitioners may contend that their

challenges to the Secretary’s actions are not moot, because

they have challenged the justification for them under federal

constitutional principles. Even assuming for the purpose of

argument that that is correct, this Court still should not grant

review. Petitioners’ claim that the requirements for certifying

nominating petition signature sheets violate the rights of pro-

spective candidates and voters under the First and Fifth

Amendments to the United States Constitution is meritless.

1. Petitioners’ claims have been largely resolved against

them under state law.

As a preliminary matter, petitioners ignore that major fac-

tual and legal predicates of their federal claims were decided

against them under principles of settled state law. Petitioners

ask, for example, “What is the state interest in applying un-

written rules to reject signature sheets because the Defendant

does not like the look of the circulator’s signature or because

the date is corrected in any way?” (Pet. Cert. 20). The answer

is that under state law, the Secretary did not apply “unwritten

rules” but, rather, properly reviewed petitioners’ signature

sheets for compliance with existing statutory and rule re-

quirements for certification. Similarly, petitioners complain

that the Secretary’s “policies deprive the signor of any assur-

ance that her valid signature will be counted, because he is

disqualifying entire sheets of elector signatures on bases that

have nothing to do with their validity.” (Pet. Cert. 22). As a

matter of state law, however, improperly certified signature

sheets are not valid, because they do not demonstrate that the

individual has signed the sheet in the presence of the circula-

tor, an Oregon statutory requirement aimed at discouraging

fraud in the execution of signature sheets. Kucera, 337 Or. at

402. Throughout their analysis, petitioners’ assessment of the

burden placed on them compared with the Secretary’s

justification for his rules is skewed, at times dramatically, by

their reliance on factual and legal assertions that have been

rejected under state law. The issues they present are

essentially fact-bound or represent mere disagreement with

the Oregon Supreme Court’s legal conclusions about the

Secretary’s authority and the responsibilities of his office.

Petitioners’ contention that there is “no compelling or even

important or even plausible state interest that is achieved by

rejecting signature sheets that are not sequentially numbered”

exemplifies that problem. Pet. Cert. 25. Petitioners first argue

that the Secretary’s staff advised them to submit their signa-

ture sheets with no initial numbering on them. Pet. Cert. 24.

The Oregon Supreme Court specifically rejected the notion

that that negated the Secretary’s authority not to count such

signature sheets, observing that Or. Rev. Stat. § 249.009(1)(b)

directs the Secretary to prescribe a system of numbering,

which the Secretary did, by rule. Kucera, 337 Or. at 407. Un-

der state law, in light of published statute and rule, it was not

reasonable for the Nader campaign to rely on alleged misad-

vice by the Secretary’s staff. Id. at 407-08; Pet. App. 29-30.

Similarly, petitioners assert that “[t]here is nothing in stat-

ute or rules applicable to nominating petitioners that failing to

number the sheets disqualifies all signatures on those sheets.”

Pet. Cert. 26. The Oregon Supreme Court expressly con-

cluded that Oregon law authorizes precisely that. Kucera, 337

Or. at 401-03; Pet. App. 23-25. In short, most of petitioners’

contentions have been resolved under state law. This Court

should not reexamine them here.

2. This Court reviews the Secretary’s regulations to de-

termine whether they are reasonable and non-

discriminatory.

A second flaw in petitioners’ arguments on the merits is

that petitioners misstate the level of scrutiny applicable to rea-

sonable and nondiscriminatory procedural election regulations

such as the ones at issue here. This Court starts from the

premise that the conduct of the elections process, even in the

presidential context, is a constitutional obligation of the states

and that the process commonly and properly requires a sig-

nificant degree of detailed regulation:

We have recognized that, “as a practical mat-

ter, there must be a substantial regulatica of

elections if they are to be fair and honest and if

some sort of order, rather than chaos, is to ac-

company the democratic process.” Storer v.

Brown, 415 U.S. 724, 730, 94 S. Ct. 1274,

1279, 39 L. Ed. 2d 714 (1974). To achieve

these necessary objectives, States have enacted

comprehensive and sometimes complex elec-

tion codes.

Anderson v. Celebrezze, 460 U.S. 780, 788 and n. 9 (1983).

While recognizing that such regulations inevitably affect “at

least to some degree” voting and associational rights, the

Court has made absolutely clear that decisions that affect bal-

lot access are not to be given the same strict level of constitu-

tional scrutiny applied to expressive claims in other contexts

because to do so “would undermine the ability of the States to

operate elections fairly and efficiently” and “tie the hands of

States seeking to assure that elections are operated equitably

and efficiently.” Anderson, 460 U.S. at 788; Storer, 415 U.S.

at 730; Burdick v. Takashi, 504 U.S. 428, 433, 438 (1992).

This Court has declined to apply a test of strict scrutiny,

except in cases where the content of the regulation itself

places a “severe” restriction on ballot access. Burdick, 584

U.S. at 438; Timmons v. Twin Cities Area New Party, 520

U.S. 351, 358 (1997). The Court instead has adopted a test for

ordinary procedural election rules and applications that will

uphold reasonable and non-discriminatory restrictions:

When a state election law provision imposes.

only “reasonable, nondiscriminatory restric-

tions” upon the First and Fourteenth Amend-

ment rights of voters, “the State’s important

regulatory interests are generally sufficient to

justify” the restrictions.

Burdick, 504 U.S. at 434 (quoting and citing Anderson, 460

U.S. at 788-89 and n. 9); Timmons, 520 U.S. at 354. As dis-

cussed below, under that standard, the regulations in this case

pass constitutional review easily.

3. The state's interest in holding fair and efficient elec-

tions far outweighs the minimal burdens that the Secre-

tary’s rules place on nominating petition gatherers.

Finally, petitioners contend that in the November 2, 2004,

election, the Secretary provided no compelling or even impor-

tant justification to justify his refusal to count signature sheets

that did not comply with certification and pagination rules.

According to petitioners, “[t]he implementation of a rule

which disqualifies voter signatures on the basis of alleged (or

proven) errors by circulators (in signing, dating, or placing

numbers upon the sheets) significantly burdens the collection

of signatures by precluding from the verification process,

without an exacting standard—of—compelling justification,

thousands of signatures.” (Pet. Cert. 19-23). Without identify-

ing any precedent to support their position, petitioners con-

clude that, because the rules impair voters’ franchise rights,

the Oregon Supreme Court must have incorrectly applied the

federal constitution to their case. (Pet. Cert. 29-30).

Petitioners’ existing as applied challenge, or potential fa-

cial challenge, to the newly-adopted administrative rules sim-

ply fails. Petitioners complain bitterly about circumstances

that they allege occurred during the recent Oregon presiden-

tial election. Interestingly, even in the November 2, 2004,

general election, petitioners were successful in properly certi-

fying and numbering signature sheets containing 15,088 valid

signatures, just 218 short of the number needed to place their

candidates on the Oregon ballot. Those facts strongly support

the inference the Secretary’s rules did not, and in the future

will not, unfairly impair petitioners’ ability to have properly

certified and numbered signature sheets counted toward the

number needed. Petitioners do not identify any particular bur-

den that complying with published certification and sequential

numbering rules would impose on them in future elections.

Petitioners also have failed to recognize the important in-

terests justifying the certification, dating, and numbering rules

challenged here. Again, this Court has recognized the state’s

“important regulatory interests” in this context to include the

prevention of fraud, the maintenance of integrity, fairness,

and efficiency, and the need for order and trustworthy results.

E.g., Timmons, 520 U.S. at 354; Anderson, 460 U.S. at 788;

Storer, 415 U.S. at 730. Those are precisely the interests that

the Oregon legislature has articulated in Or. Rev. Stat. §

246.110 and Or. Rev. Stat. § 246.150 in charging the Secre-

tary of State, as the state’s chief elections officer, with the re-

sponsibility of interpreting and administering Oregon’s elec-

tion laws. This Court also has made it clear that it does “not

require elaborate, empirical verification of the weightiness of

the State’s asserted justifications” for reasonable procedural

or administrative burdens on ballot access. Timmons, 520 U.S.

at 364. Nevertheless, there was ample evidence in this case to

support the Oregon Supreme Court’s conclusion that the

state’s interests in preventing fraud and running an fair, or-

derly, and efficient election were sufficient to justify the

minimal burden placed on petitioners by the Secretary’s rules

and internal review procedures.

In the state courts, the Secretary introduced several affida-

vits and testimony from persons involved in the elections

process, including the Elections Director, explaining the rea-

_ sons for his rules and policies. With respect to the sequential |

numbering requirement, the Elections Director averred:

The purpose * * * is twofold: it allows of-

ficials to readily locate any sheet or page of the

petition to which objections may be made or

filed, and second, to avoid the possibility of

fraud which may occur by tampering with

sheets after county verification. The numbers

are necessary to allow the counties to create a

database in order to check for duplicates. Re-

quiring numbered pages prior to submittal also

shows that all pages have been submitted by

the chief sponsor of the petition, and it pre- —

vents tampering by insertion of additional sig-

natures after a petition has been filed.

Supp. App. 6-7. (Emphasis in original). Similarly, the affida-

vit of Jeannie Berg,.the Election Protection Coordinator for

America Coming Together, has averred that the prior sequen-

tial numbering rule serves to make the Chief Sponsor ac-

countable for his submissions to the county; shows that the

signatures were gathered lawfully and that the signature

sheets comply with the applicable standards; and requires the

Chief Sponsor to exercise control, thereby increasing ac-

countability and helping to deter fraud. Supp. App. 334. In

short, the requirement helps ensure the integrity and effi-

ciency of Oregon’s nominating process. And the benefit to the

system from these rules runs both directions. For example, it

helps protect nominating signature gatherers themselves by

ensuring that the county returns all of the sheets they submit-

ted to it. It also helps to prevent one campaign from discredit-

ing another by adding frauduleiit sheets.

The Secretary’s certification and dating requirements also

serve important purposes. As the Elections Director stated:

[T]he certification requirement and signature

verification process do help disclose suspicious

signatures and likely fraud. For example, in

2000 Kelly Highley was convicted of signature

fraud, after Yamhill County personnel examin-

ing the signatures suspected forgeries on sheets

certified by Ms. Highley. Even in the most re-

cent initiative cycle we have observed several

potential cases of criminal signature fraud[.]

Supp. App. 27-28. In Berg’s affidavit, she stated that in her

experience, circulators had been able to deny responsibility

for obvious fraud by claiming that they did not collect a sig-

nature. They also had given inaccurate information about their

addresses, in order to avoid being held responsible. In her

opinion, “any rule that strengthens the Secretary’s ability to

accurately identify the circulator and eliminate circulator ex-

cuses deters fraud.” Supp. App. 35. Berg also explained that

she recommended the dating requirement to the Elections Di-

rector in 2002 to “help hold circulators more accountable” in

investigating fraud. She gave a specific example of how the

absence of a dating requirement allowed a particular circula-

tor to argue it was not he who submitted a forged signature.

Supp. App. 33-34.

That and other evidence provided the Oregon Supreme

Court ample evidence from which to conclude that the chal-

lenged procedures were justified as non-burdensome means of

ensuring that Oregon’s elections are fair, orderly, and effi-

cient. The rules on prior sequential numbering, circulator sig-

natures, and circulator dating of signature sheets, derive from

and implement the Secretary’s lawful authority. None burdens

expression; the rules are garden-variety regulatory procedures

of the sort recognized as legitimate in Timmons and Buckley.

They are part of an overall electoral mechanism that imposes

limited procedural obligations on the candidate and support-

ers, and they exist to prevent fraud and to insure the account-

able, uniform, fair and efficient operation of the electoral

process. They are reasonable, nondiscriminatory procedural

requirements, and the Oregon Supreme Court, in its unani-

mous decision, merely applied principles previously approved

by this Court to uphold them.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,