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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1242%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 1056

## Text

Z aes
APR 13

No. 04-872

mt US
Dd

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?

y

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

i

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?

3.

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-

il

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
Ce, BE: SB a rctctrcincicessstonincsnncsensessciccterneness 21
ix

Ges Ts NRE Ee UE iicksatncsebisncincincilistcetinsimnnsannstnsaiasaecedals 21

ees es et needa snecsccnrcnatiaadennsntibesinonan 5, 12, 28
Or. Rev. Stat. § 246.120................. siiasticianicictiaapibiunidiercaautnilbnadiie 12
i Fats Oe isa teasncancsslaicadincisatvtaneicanens 12, 28
Sa Ne a Oe er iieiiclencieidtinsddpasisclaaicticrsainbadosiainnisatiniads 4
|__| Se ae EN Re NONE 1
I Ue PIE i chicectncsicvicsicsascdlichdciacanerrbundaicentarintmumieneaen 9
Ses Ss Gn Oe PIII OU citchenisscrcalnisieiipricccecacssbcababeidaeiiiins 12
CO, HRW. TIME, © DO I IP ceenestnssncnenasstssrinacnaniisnninansie li, 24
ee ee Oe SG Fe tcsoicntenvcitenam endless l
ny ec OF Ps Bi caneaisarisheiaoisbetitsdshsasdadsnebiaptionnbsahicnipapennis 1
a a” AA Se PEO Bien crete tiiviiciotentactditcensnacnemncumipninsinns l
ne bh | ; nee Pa ees 1
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.

2

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

3

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. * * *

4

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.

5

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

ee

6

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.
6.

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.
9.

7

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.

8

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-

9

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.

10

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-

11

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

12

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

13

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

14

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-

15

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.

16

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-

17

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.

18

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

19

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

20

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-

21

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.

22

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.

i

23

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

24

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

25

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

,

26

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

27

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. §

28

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-

29

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

.
:
:

30

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,

HARDY MYERS
Attorney General of Oregon
PETER SHEPHERD
Deputy Attorney General
MARY H. WILLIAMS
Solicitor General
KAYE E. MCDONALD
Assistant Attorney General
Counsel for Respondent
April 20, 2005

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1242%3A2. Public record. Not legal advice.