Governing by Initiative
Has the ballot box become Oregon's other branch of government?
By B. Carlton Grew
'I see the initiative as the American civilized form of revolution. We don't resort to swords or guns because we can vent our frustration at the ballot box. When the government ignores us, we can step in.'
[Bill Sizemore, quoted by David Broder, The Oregonian, April 5, 2000]
As this article goes to press, 174 proposed initiative measures, referrals and referenda have been submitted to the secretary of state for the November 2000 Oregon election. Six initiative measures appeared on the ballot in May; 18 measures will appear on the ballot in November. This number of measures is not unprecedented - there were 37 measures on the ballot in 1914, the third election after creation of the initiative. But as one commentator notes, 'In recent years the initiative process has been carving through Oregon's constitutional landscape like the Columbia River first traversing its course to the Pacific Ocean.' Philip Bentley, Note, Armatta v. Kitzhaber: A New Test Safeguarding the Oregon Constitution From Amendment by Initiative, 78 Or L Rev 1139 (1999).
Today, the initiative process has become Oregonians' preferred method of setting the budget and priorities for the state. Initiatives now often concern complex and far-reaching matters regarding the structure and finance of government, the criminal justice system and the power of the legislature and courts. These fundamental decisions are now being made through laws drafted (often poorly) by individuals and small groups of like-minded people rather than through the crucible of the legislative process. Indeed, the legislature itself has increased use of its referral powers to get the verdict of the voters on a growing number of measures.
The initiative process was created to make a fundamental change in the legislative power in Oregon, making the people co-equal to the legislature. The use of that power tapered off in the years after its creation. Though often used, the initiative had became clearly secondary to the legislature. Now initiative proponents have steered Oregon back to the style of government of the first years of the initiative process. Whatever the merits of using the initiative process to make these decisions, the process appears likely to dominate Oregon policymaking for the foreseeable future.1 In short, Oregon is now governed by the executive branch, the legislature and the initiative - and not necessarily in that order.
The impact of the ballot measure process on the legal system has been dramatic. Of the 174 measures referred to above, 166 were filed by petitioners2 - more than twice the number of initiatives submitted for the 1998 election. Although only 18 of those initiatives will actually appear on the ballot, all 166 measures have already had an impact on the courts, attorney general, bar and public.
Our system of government by initiative will increasingly affect the work of attorneys and Oregon's courts. These difficulties and opportunities arise while important changes in the initiative process are already under way. The proliferation of measures burdens the courts and the legal resources of parties potentially affected by a proposed measure. Once enacted, poorly drafted measures can generate confusion, delay and litigation. On the other hand, the initiative process offers new opportunities to create, modify and defeat proposals to change Oregon law.
ON THE COURTS
By statute, all challenges to the ballot title certified by the attorney general are filed directly with the Oregon Supreme Court. The court must expedite the handling of those cases. ORS 250.085(7). According to the 1999-2000 advance sheets, the court issued approximately 51 opinions on ballot titles during the 1999-2000 ballot measure season.3 The pace this spring was similarly brisk: By June 8, some 26 of the court's last 33 decisions concerned ballot titles. In addition, the court may eventually review constitutional and other challenges to many of the measures before and after enactment (such as procedural challenges based on Article IV and XVII of the Oregon Constitution, which are first brought in Marion County Circuit Court).
ON THE ATTORNEY GENERAL
The Office of the Attorney General is responsible for drafting the initial ballot title, considering comments filed in response and redrafting titles as necessary. The attorney general also certifies the ballot titles and, if necessary, defends challenges to the title. After the election, if the measure passes, the attorney general defends the measure against court challenges. It also defends related decisions of the secretary of state (e.g., determining the number of valid signatures gathered, the procedure for purging the rolls of inactive voters and the effect of signature fraud).
Deputy Attorney General David Schuman believes that the ballot measure process is a great burden to the attorney general and the courts. No specific assistant attorneys general are designated to deal with the diverse challenges of the measures, but 'people all over the department spend enormous amounts of time' on them, he says - from advising the secretary of state to drafting and defending titles and briefing and arguing the appeals.
This cycle often repeats (sometimes two or three times per ballot measure) because of the phenomenon known as 'ballot title shopping.' This is a simple, inexpensive process for proponents, who submit multiple, similar measures so that they can move forward with the version with the most appealing title. Proponents can also redraft measures to evade arguments raised by the opponents' comments. The attorney general's office also spends an 'enormous amount of time on damage control' regarding unconstitutional or poorly drafted measures that pass, according to Schuman.
ON THE BAR
The proliferation of measures and the new primacy of the initiative process also affect attorneys, their clients and other members of the public. The large number of title challenges - combined with the requirement of expeditious supreme court review - affects the court's ability to process other cases to decision. And since no assistant attorneys general are designated to work exclusively on ballot measures, attorneys engaged in litigation against the appellate division can expect delays while the state attorneys are pulled into ballot measure work and related litigation.
The enactment of poorly written measures can have widespread impact.4 A poorly drafted measure on public revenues can put the budgets of numerous public bodies in limbo, affecting those who do business with governments or depend upon government services. Confusing land use changes could put development, urban planning, environmental regulation and land transactions into stasis. Schuman recall that when he first joined the attorney general's office, shortly after Measure 47 had passed, much of state government was paralyzed. 'No one could figure out what [it] meant.'
Recent history suggests that poorly drafted initiatives are hard to fix. Many ballot measures are amendments to the Oregon constitution, ensuring that the legislature cannot change them. As a result, the legislature cannot fix a measure by removing unintended consequences or respond to unforeseen circumstances. The best example of this problem was the incomprehensible Measure 47, the complex fix of Measure 47 (Measure 50) and the subsequent attempt to 'fix the fix' through the more recent Measure 77.5 The failure of Measure 77 is a lesson in the permanence of constitutional error.
BEFORE AND AFTER ENACTMENT
Government by initiative is not a spectator sport. Prompt, aggressive intervention is essential to protect the interests of those affected - whether they are private citizens at risk of losing civil rights, political and civic groups facing a loss of political power or industries facing onerous regulations. The ballot measure process is fast moving and unforgiving.
When a legislator introduces a bill affecting the interests of a client, an attorney representing that client's interests has several opportunities to raise concerns before the bill becomes law. Sometimes these concerns can be addressed in the legislature by a noncontroversial clarifying amendment. Practitioners representing a client's interests on ballot measure matters, however, face a more daunting, and informal, process.
Most people never learn about a proposed measure beforehand, unless the media have reported the measure's filing. Otherwise, only those on the secretary of state's mailing list for proposed measures will hear of it. (Those mailings are frequent - at 166 measures for the 2000 election, the attorney would see more than one measure per week.) Once a measure is filed, one has only 10 business days to file comments on the proposed ballot title on behalf of an elector (not an organization) or object to the measure's compliance with constitutional requirements (such as the single amendment rule).6
Once the review process is complete, an opponent's only recourse is to help fight the measure through an oftenexpensive campaign, and, failing that, through a post-enactment challenge. If the measure amends the Oregon constitution, no other action is possible, except for a new measure or recourse to federal law. If the measure is statutory, the opponent may seek help from the legislature. However, despite the complaints of ballot measure proponents, the legislature has been very reluctant to change measures in the face of opposition from the measure's authors. Former legislator and Secretary of State Phil Keisling notes that, despite the rhetoric of initiative proponents, in our recent history only Lloyd Marbet's measure seeking to close the Trojan nuclear plant and Denny Smith's criminal law revision were changed significantly without the blessing of the proponents.
Another pre-enactment alternative is to contact the sponsor of the measure immediately and ask the sponsor to abandon the measure and file a redrafted version.7 Sponsors need not make any changes, of course, but if they do, time is of the essence. Every day spent in litigation or redrafting is ultimately a day lost in signature gathering.
Government by initiative will soon have an impact on the routine task of interpreting and applying the law. Ballot measures, unlike most legislation, are drafted to be the centerpiece of a political campaign. The measures may have ringing (and sometimes misleading) titles and definitions that obfuscate more than they clarify. Often crafted for sound bites rather than technical accuracy, measures provide ample opportunities for consequences the electorate did not foresee. In addition, the nature of the electoral and political processes creates many potential sources for conflicting interpretations ('legislative history') of enacted measures.
Thus far, the Oregon Supreme Court has ruled that the court would apply the same analysis to ballot measures as legislative enactments. In 1994, Justice Graber wrote for the court:
[T]he best evidence of the voter's intent is the text of the provision itself. The context of the language of the ballot measure may also be considered; however, if the intent is clear based on the text and context of the constitutional provision, the court does not look further. Ecumenical Ministries of Oregon v. Oregon State Lottery Com'n, 318 Or 551, 599, 871 P2d 106 (1994) (footnote omitted), quoting Roseburg School District v. City of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993).
The difficulty with applying traditional statutory interpretation to ballot measures is that, unlike the legislature - which can be fairly assumed to have reviewed the measure through legislative counsel, the committee structure and the scrutiny of opponents - the voters are rarely presented with substantive, definitive arguments about the meaning of a measure. Instead, the most visible information is the ballot title and caption, along with poll- and focus-group-driven campaigns for and against the measure. Although the legislature can certainly err, it has access to more reliable tools to prevent error than the public at large. Some justices have expressed these concerns, in particular former legislator Justice Fadeley. In a dissent to the majority opinion in Ecumenical Ministries, supra, Fadeley noted that:
In determining the voters' intent, I cannot join the lead opinion in relegating to a secondary status the one thing that all voters are most likely to read before voting to amend the constitution. I think the scheme chosen by the lead opinion, which fails to give primary status to the ballot title along with the text of the amendment to which it relates, fails to reflect our common knowledge about the phenomenon of voting on an initiative measure. * * * * * * [E]ven the Voter's Pamphlet section for any initiated measure begins with the ballot title caption and question, only thereafter printing the words of the measure. Many voters, including absentee voters, may not have the opportunity to read the text of the measure, but all must see the caption and question printed on the ballot that they cast. I believe that, in determining voter intent, the caption and question are of at least equal value with a measure's text that many voters do not in fact read. Ecumenical Ministries, supra, 318 Or at 575-6 (Fadeley, J., concurring in part and specially concurring in part).
Justice Unis also argued that at least the ballot title presented to the voters should be considered. 318 Or at 577-8 (Unis, J., concurring in part, specially concurring in part).
This debate is not over. Poorly drafted measures, and struggles over their method of construction, will likely be a headache for many practitioners for years to come.
CHANGES OR REFORMS IN THE PROCESS
There have been significant changes in the initiative process in the last few years. To date, the most significant changes have come from the courts. The courts have reined in the 'Christmas tree' approach used by petitioners to amend the constitution, eliminated the use of the most productive locations for signature gathering and may provide the impetus for significant changes in the ballot title process. There is also pressure to change the process through legislation or ballot measure, to tighten the standards for constitutional amendments or to add another step in the process.
The Oregon Supreme Court and Oregon Court of Appeals have given teeth to the single amendment requirements of Article XVII, section 1, of the Oregon Constitution.8 That provision states:
When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.
The supreme court, in Armatta v. Kitzhaber, 327 Or 250, 275, 959 P2d 49 (1998), noted that a major concern of the provision was to prevent 'log-rolling,' e.g., to 'ensure that voters will not be compelled to vote upon multiple … constitutional changes in a single vote.' The court held that a measure violates the provision if 'the proposal would make  two or more changes to the constitution that are  substantive and that are  not closely related.' 327 Or at 277. Since most constitutional amendments are substantive, the critical issue is whether the measure would make two or more changes that are closely related. Applying the test to strike down Measure 40, the court stated:
[T]he right of all people to be free from unreasonable searches and seizures under Article I, section9, has virtually nothing to do with the right of the criminally accused to have a unanimous verdict rendered in a murder case under Article I, section 11. The two provisions involve separate constitutional rights, granted to different groups of persons. Similarly, the right of the criminally accused to bail by sufficient sureties under Article I, section 14, bears no relation to legislation concerning the qualification of jurors in criminal cases under Article VII (Amended), section 5(1)(a). Id. at 283-84.
The court of appeals recently applied this test to strike proposed Measures 2000-12 and 15, which would have replaced all revenue sources for all public bodies with a single 'gross receipts tax,' eliminated bonding authority for public bodies and changed the ability of the public bodies to modify tax rates, among other things. The court held that the multiple changes in the constitution included a measure were 'closely related' if 'a vote in favor of one necessarily implies a vote in favor of the others.' Sager v. Keisling, 167 Or App 405, 411, 999 P2d 135 (2000), citing Dale v. Keisling, 167 Or App 394, 401, 999 P2d 1229 (2000). On the other hand, 'if a vote in favor of one amendment does not necessarily imply a vote in favor of another, then the danger of 'log-rolling' is present, and such changes would not be closely related * * *.' Sager, 167 Or App at 412. The supreme court dismissed the attorney general's appeal from Dale and Sager as moot, but, surprisingly, denied the request to vacate the decisions of court of appeals.9 The decisions in Armatta, Dale and Sager should make future constitutional amendments simpler and narrower in focus.10
A STEP TO THE PROCESS
Several supreme court justices have signaled that they believe the court should not rewrite defective ballot titles, something it now does routinely. In 1995, Justices Durham and Unis issued dissenting opinions arguing that judicial modification of ballot titles was barred by Article III, section 1 of the Oregon Constitution. Rooney v. Kulongoski (Elections Division #13), 332 Or 15, 55, 902 P2d 1143 (1995) (Unis, J., dissenting); Sizemore v. Kulongoski, 322 Or 229, 237-8, 905 P2d 1145 (1995) (Durham, J., concurring). The supreme court recently stated that it would addres the issue in the next appropriate case. Dudley and Hill v. Jenks, Meek and Davis, __ Or __, __ P2d __ (Sept. 8, 2000). Speaking for himself, Schuman of the attorney general's office worries about the consequences of a unilateral decision by the supreme court to decline rewriting measures. 'We would all be worse off.' If the court sustains an objection to the title, he says, 'everyone would scramble to fix the title, and then most likely we'd have to go back to court.' Under the current system, at least, the court appeal takes place 'once and we're done.'11
THROUGH LEGISLATION OR BALLOT MEASURE
Examination of the numerous proposals for reform and the wide variety of mechanisms employed by other states are beyond the scope of this article. The fate of recent attempts at reform is worth mentioning, however.
Although the public supports the ballot measure process, there appears to be substantial support for modest reform. The Oregonian recently reported that many signature gatherers have shifted their efforts away from Portland because of increasing difficulty in getting those voters to sign petitions. 'Petitioners face voter backlash,' Oregonian, June 19, 2000. A radio commentator and an author of a letter to Willamette Week urged the public to obstruct signature-gathering efforts by signing multiple times with fake names. (These people were apparently unaware that those actions are illegal. See ORS 260.555(3).) 'Bad Sign for Sizemore' and 'I Regret, Therefore I Am,' Letters, Willamette Week, June 28 and July 12, 2000; 'Talk radio host misinforms listeners on initiative process,' Oregonian, June 28, 2000. In addition, the successful Measure 62 from 1998 requires that signature gatherers be registered voters and that employers of signature gatherers report the names of the gatherers. Those provisions are likely to be held to be unconstitutional under recent U.S. Supreme Court decisions, Buckley v. American Constitutional Law Foundation, 525 US 182, 199 SCt 636, __ LEd 2d __ (1999) (striking down Colorado's requirements that (1) initiative petition circulators be registered voters and wear identification badges with their names and (2) that measure proponents report the names, addresses and initiative income of all paid signature gatherers) and Meyer v. Grant, 486 US 414, 100 LEd 2d 425, 108 SCt 1886 (1988) (striking down state laws barring paid signature gathering for initiatives).
Proponents of changing the process were discouraged by the May 2000 failure of Measure 79, which would have increased the number of signatures required to place a constitutional amendment on the ballot.12 It is difficult to evaluate the significance of that failure. Many public supporters of reform opposed the measure, fearing it would burden volunteer signature gatherers while imposing minimal costs upon paid signature gatherers. Other efforts at reform have also failed. According to Schuman, at least 75 bills proposing reform were introduced in the 1997 legislature; none passed. A number of bills were introduced in the 1999 legislature, but only Measure 79 was referred to the voters.
Keisling, a former legislator and secretary of state, thinks that reforms are likely to win popular acceptance as long as they treat the legislative power of the people and the legislature equally. In other words, making the constitution more difficult to amend should apply to both initiative amendments and referrals by the legislature. Steve Novick, director of the Center for Constructive Citizen Action,13 and Schuman think that efforts should be made to prevent ballot title shopping. And Novick thinks that the public would support requirements that ballot titles include more information about the effects of the measures.
A handful of Oregon attorneys play a critical role in the state's initiative process by ensuring that significant measures meet the standards for ballot titles and constitutional amendments. There is, however, much more that attorneys can do to make the process work better.
Schuman believes assistance during the drafting of measures would avoid substantial problems afterwards. 'It's hard to imagine that an attorney said Measure 47 was okay,' he says. At present, measure drafters have access to the legislative counsel at no cost, but few, if any, proponents take advantage of that service. Since the ideology of many ballot measure proponents is rooted in distrust of the legislature, it is unlikely this resource will be used more in the future.
For the same reason, Schuman believes attempts to formalize or require drafting assistance will depend on whether the function is separate from government, or, if government-funded, out of the reach of retaliation of the legislature. Gregory W. Byrne, an attorney who represents Bill Sizemore and other measure proponents, thinks, however, that the nature of the process makes traditional, legally oriented drafting unlikely. 'Most of the petitioners are concerned with drafting a measure that will pass,' he says. Sizemore has rarely given a measure to him before it was submitted, Byrne notes. Novick agrees that mandatory review by attorneys is likely to be unpalatable to proponents, and he adds that 'forcing people into a process where they have to have their measures rewritten by a bunch of lawyers is inconsistent with the democratic nature of the process.'
More fundamentally, government by initiative makes every Oregon voter a legislator and every Oregonian a lobbyist. It may be that the most important contribution attorneys can make is simply vocal participation in the debate on a measure. Some ballot measures are complex or misleading, but campaigns are not good vehicles for explaining the meaning of a measure. Nor is the ballot title. The voter's pamphlet can be helpful, but it too can contain more rhetoric than analysis. Providing your analysis of a measure to your mailing list of clients, to the media, to public informational organizations or to a campaign might provide critical information to voters in an important election. Members of the Oregon House and Senate have access to legislative counsel; citizen legislators should have access to comparable information. This is all the more true given the chronically amateur status of some ballot measure proponents, for whom drafting measures appears to have more to do with the campaign than the implementation.
This year Oregon once again faces measures seeking to substantially reduce government resources, restrain the political activity of labor unions and regulate government conduct regarding homosexuality. Whether one believes that the measures will inflict permanent damage on Oregon's public services, political balance and civil rights or allow an extraordinary flowering of business opportunity and traditional morality, the stakes are high. And that's just this election. The primacy of the ballot measure process will be a fact of Oregon politics for some time to come. Many Oregon attorneys will be called upon to participate in the process or deal with its effects.
As a 1914 commentator noted, however, it is vital for all Oregon citizens to participate fully in the process. He would have made voting mandatory: 'Every elector in the state of Oregon is now a member of the legislative department. The legislature and the people are each equal in legislative matters. Being a member of the popular assembly, a voter should not be permitted to shirk his duty and refuse to vote. The state should exact this duty from its citizens.' Gilbert L. Hedges, Where the People Rule, Or The Initiative and Referendum, Direct Primary Law and the Recall In Use in the State of Oregon (Bender-Moss Co., 1914) at 113-4.
Or, as Novick puts it: 'Unless the best and most responsible citizens of Oregon step up and fully participate in the process, we are finished.' +
1. Although, as noted below, some changes in the process may have an impact on the number and types of measures, history suggests that the active use of the ballot measure process will continue for several election cycles. After creation of the process in 1902, the number of measures reached a record of 37 in 1914. After that, the number of measures dropped to 11 in 1916 and four in 1917-18. That brief decline ended in 1919-20 (29 measures). After 20 measures in 1927-28, and 17 measures in 1933-34, the number remained below 15 until 1952 (18 measures). As of August 21, 2000, there were 13 measures filed for the 2002 election.
2. Of the 166 measures, at least 46 were filed by Sizemore and his associates, and approximately 28 were filed by Sizemore's public employee union opponents. Many of those measures concern government revenue or the rights of public employee unions. Don McIntyre filed 12 measures.
3. According to the appellate court staff, ballot measure cases represented 46 of the 1,102 original actions and appeals filed in the Oregon Supreme Court in 1999; 44 of the 613 actions and appeals filed with the court through July 31, 2000 were ballot measure cases.
4. Attorney Margaret Olney, who often represents labor unions regarding ballot measures, calls the complexity and poor draftsmanship of measures 'a blessing and a curse.' It is a blessing when a measure you oppose has an unpopular unintended consequence. For example, a key part of the campaign against Measure 59, designed to defund the political programs of public employee unions, was that the measure would also eliminate the voter's pamphlet. Ironically, if the measure had been legislation, the drafters might have simply added language preserving the voter's guide; instead the drafters were stuck, and the measure went down to defeat. A measure's flaws can become a curse, however, if it passes.
5. Measure 50 placed Linn and Deschutes counties, and the city of Sweet Home, in a substantially worse position than the other taxing bodies in Oregon. The voters rejected an attempt to fix the problem through Measure 77. No statements in opposition to the measure appeared in the voter's pamphlet, but the caption and statement of results on the ballot did not state that the measure was simply a repair job. The measure failed.
6. The secretary of state and attorney general cannot grant extensions in the process; the courts rarely do, if ever. See ORS 250.067, 250.085. If the party files no comments, he or she cannot appeal the title later. ORS 250.085(2). Comments do not change the text of the measure, but they can result in an unfavorable ballot title. In that case the sponsor might abandon the measure or file a modified version. A party can appeal the ballot title on grounds that it fails to meet the statutory standards or challenge the decision to certify the title as violating constitutional requirements. An unduly favorable ballot title can substantially increase the costs of defeating the measure, or even assure its passage; an unfavorable title can doom a measure. The ballot title is likely to have caused Measure 77 to fail. See footnote 4 above.
7. The petitioner may also amend a proposed measure if the attorney general certifies that the amendment will not substantially change the substance of the measure and the deadline for comments has not passed. But given the short timelines and ease of simply filing a new measure, this procedure is unlikely to be used. ORS 250.045(2).
8. Statutory measures are subject to the 'single subject rule' of Article IV, section 1 of the Oregon Constitution. But as the court of appeals states, 'it is well-established that the courts tend to be fairly generous in ascertaining the extent to which the provisions of a statute are embraced by a single subject.' Dale v. Keisling, 167 Or App 394, 400, 999 P2d 1229 (2000).
9. The attorney general and secretary of state have, despite the Dale and Sager opinions, approved virtually identical ballot measures for the 2002 election, proposed Measures 2002-12 and 13.
10. On Sept. 14, 2000, the supreme court overruled its historic opinion in Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II), and held that signature gatherers did not have a constitutional right to gather signatures in shopping malls. Stranahan v. Fred Meyer, Inc., ___Or ___, ___ P2d ___ (Sept. 14, 2000). Petitioners view the decision as a serious blow to the signature-gathering process, and one that will affect low-budget campaigns the most. 'Stores win battle against signature gatherers,' Oregonian, Sept. 15, 2000.
11. Placekeeping legislation to eliminate the court's pre-signature role in the redrafting process is expected to be introduced next session in the senate. The bill would create a neutral committee to review and redraft the titles with no appeal until after signatures are collected. Only then could the parties seek judicial review. Proponents would then have to either gamble on the viability of the new title or actually gather signatures on multiple versions of the same measure. Other proposed legislation would require the ballot title of a revenue measure to list the three government services that would be most affected by its passage.
12. Signatures required to place a measure on the ballot are a percentage of the number of votes for all candidates for governor in the last such election, six percent for statutory measures and eight percent for amendments to the constitution. Measure 79, on the May primary ballot, would have increased the requirements to eight percent and 12 percent, respectively. In addition to division among reformers as to its impact, the measure had no significant public education campaign explaining why the measure would improve the initiative process, and opponents (including Ralph Nader) mounted a vigorous campaign against it.
13. The Center for Constructive Citizen Action is a nonprofit corporation funded primarily by Oregon labor unions. +
ABOUT THE AUTHOR
B. Carlton Grew is an attorney who has helped write ballot measures, challenged and defended their titles and worked on post-enactment challenges, most recently for the Oregon Public Employees Union. He was counsel for the plaintiff in Dale v. Myers, supra. He is a contract attorney and is also an administrative law judge for the state of Oregon.