A politically charged case filed near the end of 2007 has received a lot of attention, but mostly for the wrong reasons. The case of Lemons v. Bradbury resulted in the issuance of a preliminary injunction by an Oregon federal judge to delay the implementation of Oregon’s domestic partnership act, upon a finding that Referendum Petition 303 may have been improperly disqualified.*

The case received considerable attention because it involves domestic partnerships for same-sex couples. However, the questions before the court have nothing to do with the substance of the domestic partnership act and everything to do with the integrity of state election procedures.

Particularly, the court is examining whether (a) voter signatures on initiative petitions warrant some degree of federal due process protection, and (b) the safeguards that protect signatures in vote-by-mail elections must be similarly extended to petition signatures to provide equal protection of the laws. Both of those questions underpin the preliminary finding that voter participation in the initiative and referendum processes are on par with the right to vote, a fundamental right of citizenship.

Oregon law permits voters to invoke the “referendum power” to place legislative acts before the voters. But first, voters must circulate petitions to gain enough voter signatures (55,179 during 2007) within 90 days of the end of the session in which an act was passed.

In this case, voters submitted more than 60,000 signatures to the secretary of state’s office for verification on Sept. 26, 2007 (the final day of the 90-day circulation period). The Oregon Constitution charges the secretary of state with responsibility to verify signatures on initiative and referendum petitions within 30 days of that submission deadline.

Under Oregon law, random sampling may be used to determine whether a petition contains sufficient signatures, but no petition can be disqualified unless the size of the sample is at least 5 percent of the total submission. Historically, the justification for this verification process has been to prevent placing an undue burden on elections offices. But it has the counter-effect of making every sampled signature enormously important. When every one sampled signature is worth approximately 20 raw signatures, any verification mistakes by elections workers are magnified 20-fold.

Seven days into the 30-day verification window for Petition 303, the secretary of state informed the county clerks that sampled signatures were en route to county election offices. The clerks were instructed to complete verification five days later by 1:30 p.m. (less than 12 days into 30-day verification window), and on that day the secretary of state announced that Petition 303 had failed to qualify for the ballot by a mere six sampled signatures (this was modified to a five-signature deficit on the final day of the 30-day verification window).

After organizers of Petition 303 obtained a county-by-county breakdown of the sampled and excluded petition signatures, they pored over the information and discovered that 55 of the disqualified signatures were excluded as “not matching” the signature of the registered voter. If even six of those decisions were in error, Petition 303 would have qualified.

Unfortunately, no person whose signature was excluded was given any notice of the decision. Had these signatures been excluded as “non-matching” under the vote by mail process, each voter would have been provided written notice of the decision with an express invitation to correct it in time to have his or her vote counted.

So the volunteers working on the Petition 303 campaign took it upon themselves to provide those 55 voters with notice, contacting as many as they could locate in the following weeks. As it turned out, many of the voters (more than a dozen) remembered signing the petition and recognized their excluded signatures as genuine.

During the last week of the 30-day verification window, the “non-matching” voters began arriving at county election offices to ask to have the verification errors reversed. They wrote letters, and they brought photo ID, affidavits, updated voter registration cards, and, in one case, a television news crew to document their intent. But at every turn the county clerks refused to reconsider their decisions. A few clerks expressed regret but claimed that they could not review their decisions because they needed the secretary of state to instruct them to do so. This belief may have been based on a cryptic memo from State Election Director John Lindback earlier that week to all county clerks:

Supporters of Referendums 303 ... indicate they are beginning to mount a campaign at the counties to try and get counties to change their determinations on signatures that were rejected as invalid.

… One county has been told that the supporters of the petition intend to bring individuals whose signatures were rejected into the county office to tell you that they indeed signed the petition. We have also been told that the group may get individuals whose signature were rejected to sign affidavites [sic] swearing that they signed the petition.

Here is our advice:

1.) Counties have the authority, if they so desire and within the 30 day period we're all given to complete the process, to review the rejected signatures and change determinations. The 30 day period expires on Friday, Oct. 26.

2.) Verbal statements and/or affidavits from alleged signers are not allowed by statute or rule. There is no part of the process that calls for that and, as I'm sure you realize, we would not include a new step in this contentious process without legislative authorization.

This memo provided political cover for county clerks to claim that their hands were tied because they had no “process” for reviewing verification errors prescribed by administrative rule.

Thus county clerks contended that they were unable to conduct a review process that considered evidence outside of the voter registration database — in other words, a living person who identifies himself and his signature is not part of the voter registration database. This was particularly vexing to the excluded Petition 303 signers because the process for identifying vote-by-mail signatures allows exactly that. A voter may provide outside evidence to identify his signature in order to have his vote counted (even after the polls close on Election Day) as long as voters respond within 10 days after notice is mailed.

Even more troubling was that county clerks also refused to conduct a review process based upon their own internal records. Many of the excluded voters officially updated their voter registration cards to remove any doubt as to signature authenticity, which is a permissible method to authenticate signatures in the vote-by-mail process. However, no clerk was willing to consider the updated registration forms during the 30-day verification window. Eventually, the clock ran out and the secretary of state officially declared Petition 303 to have missed the ballot by only five sampled signatures.

This case will present the court with several questions:

1) Is it proper to invalidate a voter’s submitted signature on a state petition on the basis that it does not appear to be genuine, without providing some form of notice to the voter?

2) Do voters with invalidated petition signatures have the right to some type of review process adequate to prevent erroneous signature disqualifications?

3) May government officials create different standards for safeguarding the accuracy of signature verification decisions for vote-by-mail ballots than for state petitions?

These questions involves a key preliminary finding by the court that participation in the initiative petition process is a fundamental right of citizenship on par with the right to vote. Several Ninth Circuit decisions imply that they are functionally equivalent.

Viewed from 10,000 feet, the qualification process for initiative and referendum proposals resembles the nomination systems, or primaries, used for candidates. Both systems allow voters to participate in processes that determine the choices that will be placed on the ballot. Both systems invariably rely on government officials to accurately verify and quantify the will of voters to shape the ballot for a coming election. If voters in a primary contest (where candidates are nominated, but not elected) must be afforded the same level of due process protection as voters in general elections (where candidates are elected), would not the same comparison hold true between voters who sign petitions to “nominate” proposed questions to the ballot and those who vote on those questions?

For the last decade, Oregon initiative activists have decried many of the rules and policies implemented by Secretary of State Bill Bradbury for treating petition signatures as a less- than-respected expression of the voters’ will. In Lemons v. Bradbury, a court may finally determine whether voters who sign petitions may sit at the “grown-up’s table” and share due process with other official voting activities, or whether they will remain “red- headed stepchildren” under Oregon election laws.

*At publication time, the question of whether a permanent injunction would be issued was set for a hearing on Feb. 1, 2008.

Eric Winters is an Oregon attorney with experience in initiative and referendum matters.

BrainstormNW - February 2008