Filed: May 5, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

GAIL RASMUSSEN
and BETHANNE DARBY,

Petitioners,

v.

JOHN R. KROGER,
Attorney General,
State of Oregon,

Respondent.

(SC S059264)

En Banc

On petition to review ballot title filed March 11, 2011; considered and under advisement April 13, 2011.

Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan LLP, Portland, filed the petition and the reply memorandum for petitioners on review.

Douglas F. Zier, Senior Assistant Attorney General, Salem, filed the answering memorandum for respondent on review. With him on the memorandum were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

DURHAM, J.

The ballot title is referred to the Attorney General for modification.

DURHAM, J.

Petitioners seek review of the certified ballot title for Initiative Petition 12 (2012). The proposed measure, if approved by the voters, would amend the state constitution to require elections officials to count every qualified voter's signature on an initiative or referendum petition. Additionally, it would prevent the application of laws intended to prevent forgery or fraud in the circulation of petitions to block such signatures from being counted toward the required number of signatures on a petition.(1)

Petitioners are Oregon electors who submitted comments regarding the Attorney General's draft ballot title. For that reason, petitioners are entitled to seek review of the certified ballot title. ORS 250.085(2).

The Attorney General certified the following ballot title for Initiative Petition 12:

"Amends Constitution: Prohibits election laws from excluding qualified voters' signatures on initiative/referendum petitions; creates enforceable right

"Result of 'Yes' Vote: 'Yes' vote prevents enforcement or enactment of many controls on initiative/referendum signature collection and verification. Allows private lawsuits to compel counting qualified voters' signatures.

"Result of 'No' Vote: 'No' vote retains existing laws and regulations that control the initiative and referendum signature collection and verification process for determining if measure qualifies for ballot.

"Summary: Amends constitution. Initiative and referendum petitions qualify for the ballot based on the number of qualified registered voters' signatures. Currently, constitutional provisions, statutes, and administrative rules regulate signature collection, verification, and counting to prevent fraud, forgery, and improper signature-gathering. Measure prohibits excluding from the count a qualified voter's signature on an initiative/referendum petition, even if the signature was obtained in violation of election laws. Measure does not bar enactment of future laws to prevent forgery or fraud in petition circulation, but prohibits such laws from resulting in the exclusion of a qualified voter's signature. Provides any qualified voter who signed petition with right to sue, on behalf of self or any other qualified signing voter, to require counting qualified voters' signatures. Other provisions."

Petitioners challenge each part of the certified ballot title. For the reasons that follow, we agree in part with petitioners' arguments and refer the ballot title to the Attorney General for modification.

This court reviews the certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035. ORS 250.085(5). Before addressing those requirements, we summarize the legal context in which Initiative Petition 12, if approved, would apply. See Caruthers v. Kroger, 347 Or 660, 663, 227 P3d 723 (2010) (Caruthers I) (following that approach in reviewing the ballot title for a similar measure, Initiative Petition 43 (2010)).(2)

The Oregon Constitution reserves to the people the powers of initiative and referendum. Or Const, Art IV,