August 17, 2000
 

MULTNOMAH CIRCUIT COURT RULES SECRETARY OF STATE IS VIOLATING CONSTITUTIONAL RIGHTS OF 100,000'S OF REGISTERED VOTERS WHO HAVE MOVED SINCE FILING A REGISTRATION CARD ("INACTIVE" REGISTERED VOTERS)

Multnomah County Circuit Court Judge Michael Marcus at the close of August 16 issued an extensive Opinion and Order [available at http://www.files.net/cir/mcccop.wpd], concluding that plaintiffs Don McIntire, Lloyd Marbet, and others had proven that the current actions of Secretary of State Bill Bradbury and the county elections officials in Oregon are violating the constitutional rights of Oregon voters to due process of law:

Due Process: Nothing the defendants have provided has changed my analysis that initiative rights here in question are sufficient in their protected status that due process is offended when the state sends a notice to inactive voters that says in essence that they will lose rights to vote in the future if they do not respond without alerting the voter to the immediate loss of rights to sign initiative petitions.

The Court concluded that "defendants' implementation of Oregon's statutory scheme for inactive voters violates federal due process whenever a notice sent under ORS 247.563 does not on its face disclose to an actual recipient that the elector is ineligible to sign an initiative petition until and unless the elector updates the elector's registration." The Court ordered:

In the absence of an adequate notice, defendants may not constitutionally reject a signature on grounds that the elector is "inactive."

"This restores the constitutional rights of several hundred thousand registered voters in Oregon," said attorney Daniel Meek. "The Secretary of State should not be trying to take away the rights of theseregistered voters to sign petitions, especially without ever notifying them that this is being done to them."

Recent signature verification on statewide initiative petitions showed that about 4% of all signatures submitted were rejected, because the signors had been placed in the "inactive" registered voter category. County elections officials place registered voters into the "inactive" category when they receive information indicating that the voter has moved without notifying the elections office. The notices they send out do not notify the voter that her right to sign petitions has been or will be in any way affected. The only county which does so is Malheur County, and the Court found that notice to be unlawful for other reasons.

"We believe that all currently registered voters in Oregon, including those placed in the "inactive" category, are entitled to sign initiative, referendum, recall, and candidate petitions," said attorney Daniel Meek. "We have previously called upon Secretary Bradbury to stop violating the constitutional rights of Oregon voters, but instead we expect he will appeal this decision. In the meantime, he is under Court order to stop violating our rights."

Background

Voters can be put into the "inactive" category, and therefore have their signatures on initiative and referendum petitions invalidated, without ever receiving notice from the government. The statute requires only that the county elections official mail to the voter's last address a card stating that the voter needs to update her registration sometime in the future in order to keep her right to vote (sooner than 20 days before the next general election). The notice says absolutely nothing about losing the right to sign petitions, which the Secretary of State claims is lost at the very instant that the postcard is mailed.

The Multnomah County Circuit Court had earlier issued an opinion indicating that this "notice" was glaringly defective:

As to the right to exercise the franchise by those who would sign petitions, the notice has three major and glaring defects. First, it fails to notify any recipient that the ability effectively to sign petitions is in jeopardy. Second, it is effective to deprive an elector of the ability effectively to sign petitions upon mailing (ORS 247.013(6)(b)), and therefore gives the recipient no opportunity to prevent the threatened disenfranchisement before it occurs. Third, it affirmatively misleads a reasonable reader by suggesting that any cure is required to be accomplish at any time "21 days before an election."

* * *

Even if people are "presumed to know the law," they are not presumed to know that an elections official has made an immediately effective determination based on facts rightfully or wrongfully attributed to the elector that the elector has lost the franchise to the extent of being excluded from the right to sign a petition. People are also not presumed to know that the notice an official [has] sent them is misleading with respect to a fundamental right of citizenship.

Plaintiffs have demonstrated a high likelihood of success on their procedural due process claims.

The Court has now ordered Oregon elections officials, including the Secretary of State, to stop violating the constitutional rights of Oregon voters on this basis.

"The Secretary of State and Attorney General of Oregon are claiming that your signature on any petition is invalid, if you have moved since the last time you sent in a voter registration card," said Lloyd Marbet, one of the plaintiffs and the Pacific Green Party candidate for Oregon Secretary of State. "Under Oregon statutes and federal law, each of these people is still a registered voter, until the completion of a 3-year process for notice and cancellation of registration. The State is ignoring these laws. Even more important is that the Oregon Constitution allows anyone who is a registered voter to validly sign a petition. All of the people in the new `inactives' category are still registered voters and are still entitled to sign petitions. It is utterly shocking that two of the highest officials of the state government are trying to take away from Oregon citizens their fundamental right to sign initiative, referendum, and recall petitions."

Memoranda filed by Lloyd K. Marbet in this case are available at:

http://www.files.net/cir/marbsjr.wpd
http://www.files.net/cir/marbsjr.doc
http://www.files.net/cir/marbsjr.pdf

http://www.files.net/cir/marbsj.wpd
http://www.files.net/cir/marbsj.doc
http://www.files.net/cir/marbsj.pdf

http://www.files.net/cir/preinj.wpd
http://www.files.net/cir/preinj.doc
http://www.files.net/cir/preinj.pdf

http://www.files.net/cir/uscons.wpd
http://www.files.net/cir/uscons.doc
http://www.files.net/cir/uscons.pdf

http://www.files.net/cir/marbaut2.wpd
http://www.files.net/cir/marbaut2.doc
http://www.files.net/cir/marbaut2.pdf

http://www.files.net/cir/mareply.wpd
http://www.files.net/cir/mareply.doc
http://www.files.net/cir/mareply.pdf