September 4, Ross Day Attorney at Law Sarah Weston Assistant Attorney General

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1 Ross Day Attorney at Law Assistant Attorney General Re: Robert Wolfe v. Kate Brown Case No. 12C18607 Dear Mr. Day and Ms. Weston: This matter was scheduled for hearing on Petitioner s Motion for Temporary Restraining Order on. Attorney Ross Day, Dan Meek and Beau Ellis appeared on behalf of plaintiff Robert Wolfe, chief petitioner. Assistant Attorneys General and Nena Inger appeared on behalf of respondent Kate Brown, Secretary of State. Mr. Day and Ms. Weston argued the motion. No evidence was offered during the proceeding, although the parties filed affidavits and declarations containing pertinent facts. I have carefully reviewed the pleadings, exhibits and the arguments advanced by counsel, together with applicable statutes and case law. Now, being fully advised, this letter sets forth my decision. Summary of Claim and Relief Sought Initiative Petition 24 (2012) is a proposed constitutional amendment. Plaintiff Wolfe is the chief petitioner for IP 24. He challenges the Secretary s determination that IP 24 did not garner sufficient valid signatures to qualify for the ballot. He contends that the signature verification process was unlawful, or that the Secretary failed conduct it properly. Specifically, Plaintiff asserts that the Secretary failed to comply

2 Page 2 with ORS (d)(sic.) 1 which requires that she adopt rules establishing procedures for verifying signatures on an initiative or referendum petition. Nowhere in Plaintiff s Amended Complaint, filed August 16, 2012, does he assert that the Secretary of State violated ORS (1)(d). On August 20, Plaintiff filed a Motion for Preliminary Injunction and Request for Expedited Hearing seeking immediate injunctive relief from the final decision of the Secretary of State not to allow Petition 24 (2012) on the November 2012 General Election ballot. In that motion, plaintiff alleges that the actions of the Secretary are unlawful in one or more of three particulars, not one of which alleges that defendant violated ORS (1)(d), or that she failed to adopt rules establishing procedures for verifying signatures. Only in the body of his legal memorandum does plaintiff raise, for the first time, argument that the Secretary has failed to promulgate rules from which Chief Petitioner can challenge the determinations about the validity of signatures on petitions, thus depriving him of the ability to challenge those determinations in a timely manner. He relies on the case of Dinkins v. Board of Accountancy, 118 Or App 220 (1993), in which the court found that a state agency failed to adopt a rule defining what experience it would consider in certifying an accountant despite language in the statute requiring it to assess experience under its rules. Plaintiff posits that the absence of statutorily-required rules renders void the Secretary s invalidation of individual signatures submitted on IP 24, on the basis that those signatures are illegible, duplicate or triplicate signatures, or that they do not match signatures of active registered voters. His argument is that without such rules, Defendant does not have lawful authority to reject those, or any other signatures. Plaintiff claims that he is entitled to a Court Order requiring the Secretary to accept all Plaintiff s raw signatures as valid, and to place IP 24 on the ballot Relevant timelines The Secretary is constitutionally required to complete signature verification within 30 days of the final turn in deadline. Or. Const. Art. IV, 1(4)(a). That date has passed. The Secretary is currently without constitutional authority to conduct further signature verification. There are a number of other impending deadlines: 1 Plaintiff relies on ORS (1)(d), which provides The secretary shall adopt rules establishing procedures for verifying signatures on an initiative or referendum petition.

3 Page 3 Voter pamphlet arguments for and against ballot measures are due August 28. The Secretary must certify the state measures to the counties not later than the 61st day before the election (September 6, 2012). ORS ; OAR (pg. 24 of the 2012 State Initiative and Referendum Manual). Counties must begin mailing military and long-term absentee ballots not later than the 45th day before the election (September 22, 2012). ORS A. Signature gathering on initiative petitions The Oregon constitution provides that an initiative amendment to the constitution may be proposed only by a petition signed by a number of qualified voters equal to eight percent of the total number of votes cast for all candidates for governor at the election at which a governor was elected for a term of four years. Or. Const. Art. IV, 1 (2)(c). Constitutional and Case History of Secretary of State s Role in Elections As early as 1924, the Supreme Court has addressed the responsibility of Oregon s Secretary of State under the Oregon Constitution to review elector signatures for validity in elections. In Kellaher v. Kozer, 112 Or. 149 (1924), the Court said the Oregon Constitution specifically contemplated that the Secretary of State would have a role in determining whether submitted petitions contained the required number of valid signatures to qualify for the ballot. Because the Constitution itself failed to provide the process for making that determination, it fell upon the legislature to prescribe an appropriate process. In the Court s words, the Constitution had: conferred on the legislative assembly the power, and made it the duty of the legislature, to determine what evidence should be required to establish the qualifications of the signers to initiative petitions and the genuineness of the signatures appearing thereon. The Constitution itself provided no means by which those facts could be determined and consequently the duty necessarily devolved upon the legislature to provide a way by which those facts could be determined. Id. Accordingly, the Supreme Court upheld the statutory requirement that signatures be authenticated or suffer automatic rejection, without verification. Id.

4 Page 4 The Legislative Assembly has, over the years, enacted a comprehensive scheme directing the manner in which the Secretary of State is to carry out her constitutional functions in connection with the various petition processes. These include provisions such as ORS , which specifically prohibit the Secretary from counting signatures on any signature sheet that has not been certified in accordance with law. The legislature has also given the Secretary broad authority to establish appropriate procedures regarding the verification process. Kucera v. Bradbury, 337 Or. 384 (2004) marks a recent case in which the Supreme Court recognized the Secretary of State s authority to reject signature sheets that fail to comply with applicable statutes and regulations. Plaintiff asks this court to disregard the holding in Kucera as wholly irrelevant, since it concerns candidate elections, not initiative petitions, but the statutes and rules at issue in the case, governing candidate nomination petitions, closely parallel the legal framework that governs initiative petitions. The plaintiffs in Kucera alleged in part that the Secretary of State acted unlawfully by rejecting petition sheets that were erroneously certified or dated, that were not sequentially numbered in accordance with the Secretary s rules, or that suffered some other defect identified by the Secretary. Id. at In that case, as here, for any signature sheets that did not comply with the applicable legal requirements, the Secretary declined to count the elector signatures on the noncomplying signature sheets in determining whether sufficient valid elector signatures supported the certificate of nomination. Id. at 390. The trial court in Kucera rejected the plaintiffs claim that the Secretary of State had exceeded his authority by rejecting entire signature sheets simply because they were not sequentially numbered in violation of the Secretary s rules. Id. at 395. However, the trial court agreed with the plaintiffs that the Secretary had no authority to prohibit the counting of otherwise valid signatures due to defects in the circulators signatures or dates of signing. Id. at 394, 397. The Supreme Court, however, disagreed. Id. at The Supreme Court began by identifying some of the numerous ways in which the Legislative Assembly had empowered the Secretary of State to regulate the petition process. Id. at 397. The Court evaluated the procedures the Secretary s office used in its preverification review of petition sheets that counties had submitted and held that the rules involved in that case were nonetheless lawful. As the Court reasoned, the Secretary s rules were the methodology by which the Secretary of State enforced existing legal standards. Id. at 401. The Court noted that sufficient authority could be found elsewhere in statute,

5 Page 5 in rule, and in the Secretary of State s written instructions to the county clerks. Id. It concluded that the Secretary s rules were merely a means to carry out the Secretary of State s duty under ORS to obtain and maintain uniformity in the application, operation and interpretation of the election laws. Id. at 405. More recently, in Caruthers v. Kroger, 347 Or 660, 664 (2010), a ballot title case, the Supreme Court described as a matter of course how the constitution empowers the legislature with the authority and responsibility of fleshing out the [initiative and referendum] process. The Court further acknowledged that the Secretary of State has in turn been charged with related duties over that process, and has promulgated an extensive set of rules relating to signature gathering, signature counting, and other parts of the process. OAR ch. 165, div. 14. Id. at 665. This history demonstrates that as valuable as Oregon s electors constitutional right to sign initiative petitions is, a right that Oregon courts respect, it is a right that is subject to responsible regulation by another constitutional officer, the Secretary of State. However, the Court may not reach those merits, if both the challenges petitioners make and the emergency relief they request are moot the Secretary has concluded that their measure will fail to qualify for the ballot even if she counts every one of the signatures they claim were wrongfully excluded from the signature verification process. Accordingly, the court must address petitioners Motion for a Temporary Restraining Order. Standard for Temporary Restraining Orders The standards for a preliminary injunctions and TROs are the same. ORCP 79A. Oregon courts apply the federal standards when deciding whether to grant preliminary injunctive relief. There are four requirements for a preliminary injunction. Petitioners must show that: (1) petitioners are likely to succeed on the merits, (2) petitioners are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in [their] favor, and (4) an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S., 129 S. Ct. 365, 374 (2008). Under Winter, petitioners must establish each of the four required elements, and the failure to establish one of them is fatal to their motion. Id. at As Winter explains, a preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Id. at Oregon courts also recognize that injunctive relief is an extraordinary remedy that should be granted sparingly. Jewett v. Deerhorn Enterprises Inc., 281 Or. 469, 473 (1978). The Oregon decisions also apply the same

6 Page 6 basic four requirements used in the federal decisions. First, clear and convincing proof on the merits is required. Jewett, 281 Or. at 473; Wilson v. Parent, 228 Or. 354, 370 (1961) ( extraordinary relief by injunction is a remedy which should be exercised sparingly and cautiously and should be awarded only in clear cases reasonably free from doubt. ). Second, an injunction is to be granted only on clear and convincing proof of irreparable harm when there is no adequate legal remedy. Gildow v. Smith, 153 Or. App. 648, 653 (1998). Third and fourth, the Court should consider the relative hardship likely to result to the defendant if the injunction is granted and to the plaintiff if it is denied, as well as the impact of an injunction on the public interest. York v. Stallings, 217 Or. 13, (1959). Signature verification 1. Secretary s authority to conduct signature verification The Oregon Constitution requires the Secretary of State to complete the verification process, i.e., to verify whether the petition contains the required number of signatures, of qualified voters within 30 after the deadline for submitting initiative petitions. Or. Const. Art. IV, 1(4)(a). The Constitution directs the legislature to determine how the verification process should proceed. Id. ( The Legislative Assembly shall provide by law for the manner in which the Secretary of State shall determine whether a petition contains the required number of signatures of qualified voters. ). The legislature has complied with this directive to set forth through a series of statutes. First, the legislature has defined by statute what it means to be a qualified voter entitled to sign initiative petitions. ORS provides that [a]ny elector may sign an initiative petition for any measure on which the elector is entitled to vote. Second, in ORS , the legislature has set out how the Secretary will go about determining whether an initiative petition contains sufficient signatures of these qualified voters to qualify for the ballot. The statute also delegates substantial authority to the Secretary to designate the process for signature verification sets out, in general terms, the procedure for signature verification, and requires the Secretary to, within the parameters set out in the statute, adopt rules establishing procedures for verifying signatures and to designate a statistical sampling technique to verify whether a petition contains the required number of signatures of electors. ORS (1)(d); ORS (5). In addition to the legislature s specific delegation of authority to the Secretary to develop rules for signature verification, the Secretary of State

7 Page 7 has broad authority to adopt rules she considers necessary to facilitate and assist in achieving and maintaining a maximum degree of correctness, impartiality and efficiency in administration of election laws. ORS Furthermore, as Oregon s chief elections officer, it is the secretary s responsibility to obtain and maintain uniformity in the application, operation and interpretation of the election laws. ORS The secretary has promulgated a series of administrative rules that govern among other things, the signature verification process. These include: OAR (Statistical Sampling Procedures for State Petitions) (Appendix A) OAR (Circulator certification) (Appendix B) OAR (Completion of optional info. on petition sheets) (Appendix C) In addition, the Secretary has developed (and provided to plaintiff) written, step-by-step internal procedure for staff persons who are involved in the signature verification process. (Davis Dec, 6, Exs. 1 and 2.) The 2012 Initiative & Referendum Manual, adopted by OAR (Exhibit 1 to the declaration of Brenda Bayes) 2. Signature verification process Signature verification process for statewide initiative petitions involves four basic steps, each of which is tightly controlled by detailed statutes, administrative rules, and written procedures: (1) signature sheet compliance review; (2) data entry; (3) Statistical sampling and modeling; and (4) verification of sampled signatures using the Oregon Centralized Voter Registration (OCVR) database. The Secretary of State conducts signature verification for statewide initiative petitions like IP 24. Signature Sheet Compliance Review: First, the elections division staff review each signature sheet submitted by the petition to ensure that it satisfies relevant statutes and administrative rules. These requirements include: The sheet be the approved form The sheet have an approved cover sheet (if required) The circulator certification be sufficient as defined in OAR

8 Page 8 If the circulator was paid, the circulator have been registered as required by law at the time the certification was executed. The sheets are sequentially numbered by the chief petitioner Entirety of optional information (signer s address) was not completed by the same person. OAR (16). Only sheets that meet these requirements are accepted for verification and included in the pool for statistical sampling. No signature sheet is rejected before it is given a second review by a senior elections division staff person. (Davis Dec., 4, 12F.) Data entry: Elections division staff then inputs the signor information from the remaining sheets into a computer program. Some signatures are rejected (not accepted for verification) during the data entry process, if they fail to comply with circulation rules. OAR (4)(a-b), (17)(a-b); (Davis Dec, 15C.) For example, if on a particular signature sheet the circulator s certification is dated before some of the signatures on a sheet, but after others, signatures that were added after the certification (and thus not properly certified) are not entered into the computer program, while the signatures that are properly certified are entered. OAR (4)(a), OAR (17)(a). Statistical sampling: Once data entry is complete, the data is proofed, and the size of the pool (number of signatures accepted for verification) is calculated. A sample, or series of samples (depending on which submittal it is sponsorship petition, first submittal or second submittal). Attachment process : during this part of the process, members of the elections division staff match sampled signatures with corresponding voter records in the OCVR database, and determines whether each sampled signature will be accepted or rejected. OAR (6), (7), (20), (21) and (22); (Davis Dec., 12A). Signatures are rejected if The signature and printed name are illegible. No voter record can be found for an individual, or the voter s registration has been cancelled The signature on the petition is more dissimilar than similar to the signature(s) that appear in the signer s OCVR record OCVR shows that the signer was not an active, voter eligible to vote on the day he or she signed the petition.

9 Page 9 (Davis Dec., 12A, 12B, 12C, 12E). Before any signature can be rejected, the rejection decision must be reviewed for a second time by a supervising elections division staff member. (Davis Dec., 12F). Also during this attachment process, duplicate and triplicate signatures in the sample are recorded. Duplicates and triplicates occur when a person signs a petition more than once and both those signatures are randomly selected. To be counted as a duplicate or triplicate, both signatures need to be valid. (Emphasis added). A signature cannot be recorded as a duplicate or triplicate signature (and accounted for as such in the statistical formula) until the duplicate or triplicate designation is reviewed for a second time by a supervising elections division staff member. Duplicates and triplicates are later accounted for in the statistical model. Statistical formula: The next step is applying the statistical formula to determine whether the petition contains the required number of signatures. See ORS (5) ( The secretary by rule shall designate a statistical sampling technique to verify whether a petition contains the required number of signatures of electors. ); OAR , Appendix 1-3 (rule setting out statistical sampling procedure). 2 Because plaintiff did not take issue with the statistical formula applied by the secretary or challenge whether the secretary complied with ORS (5), the Court declines to include the detailed explanation of the statistical sampling formula, or its outcomes, aside from the specific categories plaintiff relied upon in his effort to demonstrate that enough valid signatures (or invalid ones that but for a rule being promulgated, the secretary could have rejected) could get him to the number of signatures needed to qualify IP 24 for the ballot. Likelihood of Success on the Merits In order for the Court to have jurisdiction, plaintiff must allege and prove that his challenge, if successful, will result in the reversal the Secretary s determination that IP 24 does not qualify for the 2012 ballot. Presently, IP 24 is more than 25,500 signatures short of what it needs to qualify for the ballot. (Davis Dec., 19.) Thus, in order to allege a justiciable controversy, plaintiff would need to allege facts establishing that they are challenging sufficient signatures such that IP 24 can, as a practical matter, overcome that deficit. Plaintiff has not done so. Although eligibility to vote is, of course, a fluid state that may change throughout an election cycle, the Oregon Supreme Court has held that, for purposes of being a valid signature on an initiative petition, eligibility to 2 Copies of these appendixes are attached as Exhibit 3 to the Declaration of Summer Davis.

10 Page 10 vote is a requirement that must exist at the time a voter signs a petition. Sajo v. Paulus, 297 Or. 646, 660 (1984) (emphasis added). A person is eligible to vote in Oregon if she is (1) a US citizen, (2) 18 years of age or older, (3) has resided in Oregon for a certain period of time, and, most importantly for purposes of this case (4) registered to vote in the manner provided by law. Or. Const. Art. II, 2. Oregon s voter registration system is set out primarily in ORS chapter 247. Under the voter registration system, only those voters who are both registered and active are eligible to vote. The Secretary s 2012 State Initiative and Referendum Manual (Manual), which has been adopted as an administrative rule, expressly provides that [e]ach petition signer must be an active registered voter in the State of Oregon at the time of signing the petition or the person s signature will not be counted State Initiative and Referendum Manual, at 39 (emphasis added). 3 Plaintiff asks the court to include 94 illegible signatures, 308 signatures that do not match any registered active voter, and thousands and thousands of duplicate and triplicate petition signatures. The Secretary properly invalidated signatures where they could not be matched up to a corresponding record in the OCVR database ( mismatched signatures ). The focus of plaintiff s claim regarding signature verification and matching signatures is his argument that [d]efendant has failed to adopt any rules which specify any reasons for the invalidation of any voter signature on any initiative petition and that the absence of such statutorily required rules renders void her invalidation of individual signatures submitted on IP 24. (Pl. Mem. at 12); See also Pl. Mem at 14, n. 6 ( [n]owhere in the rules does it state when and how the Defendant will determine when a signature is to be counted, and when the signature will be rejected ). This claim is incorrect, both factually and legally. First, the Secretary has satisfied her statutory obligation to adopt rules establishing procedures for verifying signatures on an initiative or referendum petition. ORS (1)(d). She has adopted numerous rules to govern the signature verification process. See, e.g., OAR ; OAR ; OAR ; OAR (1) (adopting 2012 State Initiative and Referendum Manual). The Secretary s rules cover the various stages of the verification process, including the portion of the process plaintiffs are concerned with in their third and fourth claims for relief, the invalidation of individual voter signatures that end up in the sample. For example, OAR The manual is adopted through rulemaking as the procedures and forms to be used for the state initiative and referendum process OAR (1). A copy of the Manual is attached as Exhibit 1 to the declaration of Brenda Bayes.

11 Page (19) requires that signature verification be conducted using the actual petition sheets (rather than relying on the data from the sheets as entered into the computer program). OAR (21) provides that the Oregon Centralized Voter Registration System (OCVR) will be used to conduct signature verification, as opposed to some other method, such as individual phone calls or mailings to persons who signed the petition. Plaintiffs argument that there are no rules, and that this renders all of the Secretary s disqualifications void, fails. The Secretary of State is required to use the OCVR for verification of signatures. OAR (21). Moreover, ORS (7) requires the Secretary to while verifying signatures for a state initiative... petition,...[to] identify on an electors voter registration record... that the elector signed the specific initiative or referendum petition. In other words, in order to verify a signature, the Secretary must be able to match each signature with a record in the OCVR that corresponds. In service of and to implement these two obligations, the Secretary has developed written procedures for signature verification, as part of her obligation to obtain and maintain uniformity in the application, operation and interpretation of the election laws. ORS Copies of these procedures are attached as exhibits 1 and 2 to the declaration of Summer Davis. These procedures explain, step by step, how the original signatures are compared to the OCVR record to ensure that the signature on the petition is being linked to the appropriate record for verification. These directives provide that a signature can be deemed invalid and marked signatures do not match if the staff person makes a determination that there are more dissimilarities between the signature on the petition and the signatures contained in the voter registration record if the person reviews all signatures in the voter s registration record to ensure that the signature should be rejected (Davis Dec., Ex. 1). The procedures also require that a lead worker review every rejected signature, including those rejected as not matching, 4 to ensure that the signature must be rejected. (Davis Dec., Ex.2). In Kucera v. Bradbury, supra, the Court made clear that the Secretary need not write down every single detail of the signature verification process. 5 As part of her obligation to verify signatures, and to match 4 The lead worker is required to Review each non matching signature to ensure that there are really more dissimilarities than similarities between it and all signatures contained within the voter s registration record. When in doubt ask the Deputy Director or Director to make the final determination. Davis Dec., Ex To the extent that plaintiff challenges the procedures and directives on the basis that they are written, but not codified in rule, the claim fails. The Court in Kucera rejected a challenge to

12 Page 12 signatures to OCVR records, the Secretary was authorized to invalidate signatures if she was unable to verify that the signature matched the OCVR record, because there were more dissimilarities than similarities between the signature on the petition and the signatures in the voter record. The State has a strong interest in ensuring the accuracy and legitimacy of each signature, to avoid fraud and mistake, and to ensure that only ballot measures that actually have sufficient signatures of qualified voters reach the ballot. Plaintiffs claim that the Secretary lacks the authority to discard signatures that do not match the voter record fails as a matter of law. As the state pointed out, the duplicate and triplicate signatures are registered voters who, in essence, voted early and often, and were only permitted by law to register approval for the initiative s placement on the ballot one time. Their elimination from the count does not ride on whether an administrative rule exists to say One person, one vote. An illegible signature is just that one that does not match up to any signature on file within the OCVR. The combined categories of signatures that Plaintiff says are not comprehensible for purposes of challenge of the determination of their validity are in fact identifiable, capable of review and challenge, as Plaintiff s own witnesses have attempted to establish in these proceedings. The Secretary is not obligated to achieve complete specificity through rule making when she has exercised her statutory responsibility to make rules, implement step-by-step procedures and carry out legal authority found everywhere else, to validate signatures pursuant to ORS (1)(d). Conclusion Under ORCP 79A, petitioner must satisfy all four elements of the Winter case to warrant injunctive relief; the failure of any one deprives this court from granting him relief. The failure to demonstrate likelihood of success rules on the basis of unwritten rules. The Court held that that, even if review procedures were not themselves written,... that does not render them unlawful. Id. at 400. 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 another layer of unannounced legal barriers. They were, instead, the methodology by which the Secretary of State enforced existing legal standards. Specifically, [the Director of the Elections Division for the office of Secretary of State] designed the review procedures as a means to carry out the Secretary of State's duty under ORS to obtain and maintain uniformity in the application, operation and interpretation of the election laws. The review procedures that [the Director of the Elections Division for the office of Secretary of State] merely effectuated the goal of insuring that review by his office was a uniform process. Id.

13 Page 13 on the merits requires denial of petitioner s motion. Only if petitioner could show that IP 24 will gain access to the ballot using some of the rejected signature sheets would this requirement be satisfied. On this record, he have not made that showing. Petitioner s request for emergency relief is denied. The Court is mindful of the perception that denying petitioner relief may be viewed by some as muffling the voice of otherwise well-intentioned electors who signed these petitions. That discomfort does not relieve the Secretary of State or the court for that matter, from the responsibility to apply the proper standard of review. Because petitioner s Motion for Temporary Restraining Order is denied, the court makes no findings as to the remaining claims at this time. Will Ms. Weston please prepare the Order? MMJ/sas cc: File Very truly yours, Mary M. James Mary Mertens James Circuit Court Judge