Oregon Advisory Opinions May 27, 1980: OAG 80-72 (May 27, 1980)

OAG 80-72.

The issues involved in this opinion relate to the timing of verification of signatures on petitions used to implement the referendum power reserved to the people of the State of Oregon.

We first note the longstanding and unchanged rule of statutory construction that election laws should be liberally construed. In Othus v. Kozer, 119 Or 101, 248 P 146 (1926), a case involving the initiative power, the Oregon Supreme Court stated the reasons for the rule:

The Oregon Supreme Court has more recently reaffirmed the rule in Kays v. McCall, 244 Or 361, 373, 418 P2d 511 (1966) (involving an initiative petition), and in Multnomah County v. Mittleman, 275 Or 545, 558, 552 P2d 242 (1976) (involving a referendum petition). ORS 247.005 also gives a similar directive:

"It is the policy of this state that all election laws and procedures shall be established and construed to assist the voter in the exercise of the right of franchise."

As noted below, we have followed this principle of construction in the few instances when any doubt has arisen as to the correct interpretation of a statute or constitutional provision.

In response to the questions presented, we shall discuss statewide, city, county, home rule county, district and mass transit district referendum petition filing and signature validation requirements in light of Or Const art IV, sec 1, and art VI, sec 10, and Oregon election laws.

With the exception of home rule counties discussed later in this opinion, art IV, sec 1(1), (3), (4) and (5) of the Oregon Constitution provides and reserves the referendum power to the people of the state:

"(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.

". . . .

"(3)(a) The people reserve to themselves the referendum power, which is to approve or reject at an election any Act, or part thereof, of the Legislative Assembly that does not become effective earlier than 90 days after the end of the session at which the Act is passed.

"(b) A referendum on an Act or part thereof may be ordered by a petition signed by a number of qualified voters equal to four 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 next preceding the filing of the petition. A referendum petition shall be filed not more than 90 days after the end of the session at which the Act is passed.

"(c) A referendum on an Act may be ordered by the Legislative Assembly by law. Notwithstanding section 15b, Article V of this Constitution, bills ordering a referendum and bills on which a referendum is ordered are not subject to veto by the Governor.

"(4)(a) Petitions or orders for the initiative or referendum shall be filed with the Secretary of State. Signatures of qualified voters on an initiative or referendum petition filed with the Secretary of State that have not been verified before the filing of the petition may be verified thereafter, but signatures not verified within the 15-day period after the last day on which the petition may be filed as provided in paragraph (e) of subsection (2) or paragraph (b) of subsection (3) of this section shall not be counted.

"(b) Initiative and referendum measures shall be submitted to the people as

provided in this section and by law not inconsistent therewith.

"(c) All elections on initiative and referendum measures shall be held at the regular general elections, unless otherwise ordered by the Legislative Assembly.

"(d) Notwithstanding section 1, Article XVII of this Constitution, an initiative or referendum measure becomes effective 30 days after the day on which it is enacted or approved by a majority of the votes cast thereon. A referendum ordered by petition on a part of an Act does not delay the remainder of the Act from becoming effective.

"(5) The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. In a city, not more than 15 percent of the qualified voters may be required to propose legislation by the initiative, and not more than 10 percent of the qualified voters may be required to order a referendum on legislation."

Statewide Referendum Measures

Article IV, sec 1(3)(b), supra, provides for filing of referendum petitions concerning acts of the legislature not more than 90 days after the end of the session at which an act is passed. A petition must be signed by the number of qualified voters equal to four percent of the total votes cast for Governor in the last election. Article IV, sec 1(4)(a) requires petitions to be filed with the Secretary of State and allows a 15-day period after filing to complete verification of signatures. After 15 days, signatures not verified shall not be counted.

Article IV, sec 1(4)(b) requires measures to be submitted to the people as provided in sec 1 and "by law not inconsistent therewith."

ORS 250.005 to 250.035 contain general provisions for referendum petitions. ORS 250.045 to 250.135 provide specific requirements for the procedure for filing referendum petitions for state measures. ORS 250.105 sets forth the requirements for signature verification:

"(1) An initiative or referendum petition relating to a state measure shall be filed with the Secretary of State for signature verification.

"(2) An initiative or referendum petition relating to a state measure shall not be accepted for filing if it contains less than 100 percent of the required number of signatures.

"(3) The Secretary of State by rule shall designate a statistical sampling technique to verify signatures of an initiative or referendum petition. The secretary may employ professional assistance to determine the sampling technique."

This language read together with art IV, sec 1(3)(b) and (4)(a) clearly permits referendum petitions to be filed so long as the total number of signatures is not less than the total required. Verification of the signatures at the time of filing is not required. However, any signatures not verified within 15 days cannot be counted. Scientific sampling techniques are required to be used by the Secretary of State for verification.

One consequence of the fifteen-day verification period is that between the filing and verification of sufficient signatures or a lack thereof there exists a hiatus during which it is possible that the effectiveness of the Act subject to a referendum petition would be unknown. However, in 35 Op Atty

Gen 836 (1971) we considered this issue in detail and interpreted art IV, sec 4(a) to require that a cigarette tax act would remain suspended until the conclusion of the fifteen-day verification.

The constitutional and statutory provisions described above obviously leave no discretion for the Secretary of State to adopt a rule requiring prefiling verification of signatures to state measures.

City Referendum Measures

Article IV, sec 1(5), set forth above, provides for filing of referendum provisions by the voters of municipalities, including cities. Further, sec 1(5) leaves "the manner of exercising" the referendum power to general laws enacted by the legislature. Cities, however, may provide the "manner of exercising" the referendum power as to their municipal legislation, so long as not more than ten percent of the qualified voters are required to sign a referendum petition.

See 38 Op Atty Gen 387 (1976).

The requirements for time of filing and signature verification set by the legislature may be found in ORS 250.305 and 250.315.

"A petition to refer a city measure must be signed by not less than 10 percent of the electors registered in the city. The petition must be filed with the city elections officer not later than the 30th day after adoption of the city legislation sought to be referred." ORS 250.305.

"(1) An initiative or referendum petition relating to a city measure shall be filed with the city elections officer for signature verification.

"(2) An initiative or referendum petition relating to a city measure shall not be accepted for filing if it contains less than 100 percent of the required number of signatures." ORS 250.315.

We construe this language to permit filing of petitions with "unverified" signatures as long as not less than 100 percent of the required signatures are on the face of the petitions. ORS 250.305 requires that the petitions be filed by the 30th day after adoption of the city legislation in question. ORS 250.315 directs that the filing be "with the city elections officer for signature verification." This necessarily means that verification takes place after the petition is accepted for filing.

The statute is silent on the issue of suspension of the effectiveness of referred measures during postfiling verification, and it may be appropriate for the Secretary of State, as chief election officer of the state, to exercise the rulemaking power granted that office by the legislature in order to provide uniformity and efficiency of administration. See ORS 246.110, 246.120 and ORS 246.150. However, our interpretation of ORS 250.305 and 290.315 leaves no authority for a rule requiring prefiling verification of city referendum petition signatures.

County and District Referendum Measures

Article IV, sec 1(5), grants the referendum power to voters of municipalities and districts (which includes counties) and also leaves "the manner of exercising" the powers to general laws passed by the legislature.

In ORS 250.155 to 250.235 the legislature has set forth requirements for county referendum measures. ORS 250.155 limits applica-

tion of the requirements to non-home rule counties and to home rule counties with no conflicting charter or ordinance provision. ORS 250.205 and 250.215 provide for time of filing (as to non-home rule counties) and for signature verification (for all counties unless a home rule county charter or ordinance provision conflicts):

"(1) This section applies to a county that has not adopted a charter under section 10, Article VI, Oregon Constitution.

"(2) A referendum petition must be filed not later than the 90th day after the adoption of a nonemergency county measure.

"(3) A petition to refer a county measure must contain at least the number of signatures of electors residing in the county that is equal to four percent of the total number of votes cast in the county for all candidates for Governor at the election at which a Governor is elected for a four-year term next preceding the filing of the petition.

"(4) A petition to initiate a county measure must contain at least the number of signatures of electors residing in the county equal to six percent of the total number of votes cast in the county for all candidates for Governor at the election at which a Governor is elected for a four-year term next preceding the filing of the petition." ORS 250.205.

"(1) An initiative or referendum petition relating to a county measure shall be filed with the county clerk for signature verification.

"(2) An initiative or referendum petition relating to a county measure shall not be accepted for filing if it contains less than 100 percent of the required number of signatures." ORS 250.215.

Similarly, ORS 255.115 to 255.205 provide procedural requirements for district referendum petitions. ORS 255.165 and 255.175 contain requirements for filing:

"(1) A petition to refer a district measure must be signed by not less than 10 percent of the electors registered in the district. The petition must be filed with the elections officer not later than the 30th day after adoption of the district ordinance sought to be referred.

"(2) A petition to initiate a district measure must be signed by not less than 15 percent of the electors registered in the district." ORS 255.165.

"(1) An initiative or referendum petition relating to a district measure shall be filed with the election officer for signature verification.

"(2) An initiative or referendum petition relating to a district measure shall not be accepted for filing if it contains less than 100 percent of the required number of signatures." ORS 255.175.

With the exception of the title of the person with whom the petition should be filed, the language in both ORS 250.215 and 255.175 is that used by the legislature as to cities in ORS 250.315, discussed above. We therefore and for the same reasons also conclude that signatures on district and county referendum petitions do not have to be verified before filing.

It is possible, however, that a home rule county charter or ordinance provision made under the separate provisions of art VI, sec 10 of the Oregon Constitution would provide a different result. The Constitution is silent on this issue and in ORS 250.155, as noted above, the legislature has clearly deferred to conflicting home rule county charters and ordinances, if any.

Also, as we concluded in relation to city referendum petition signature verification, there are no provisions in the Constitution or the election laws relating to the speed or method of signature verifi-

cation or to the impact of delayed verification on an ordinance subject to a filed but unverified referendum petition. Therefore, it may also be appropriate for the Secretary of State to provide uniformity and direction by adopting rules for methods and speed of verification of county and district petition signatures. Our interpretation again leaves no authority for a rule requiring prefiling verification of signatures.

Mass Transit District Referendum Measures

Voters in mass transit districts are also provided referendum powers in art IV, sec 1(5) and by ORS ch 255. However, our conclusions above must be reexamined as to mass transit districts in light of a special statute, ORS 267.170, relating to filing of mass transit district referendum provisions:

"(1) The voters of a district may exercise the powers of the initiative and referendum, with reference to legislation of the district board, in accordance with ORS 255.005 to 255.355.

"(2) Notwithstanding ORS 198.570, 198.580 and 255.005 to 255.355:

"(a) An initiative ordinance may be proposed only by a petition signed by a number of registered voters of the district equal to six percent of the total number of votes cast in the district for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.

"(b)(A) A referendum on an ordinance may be ordered by a petition signed by a number of registered voters of the district equal to four percent of the total number of votes cast in the district for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition. Subject to subparagraph (B) of this paragraph, a referendum petition shall be filed not more than 30 days after the date the ordinance is adopted.

"(B) If a proper referral petition containing the appropriate number of valid signatures is filed, within 60 days after the adoption of any ordinance relating to taxation by the district board, the tax-related ordinance shall become inoperative and its effective date shall be suspended. An ordinance referred by action of the voters shall become effective when approved by a majority of the voters." (Emphasis supplied.)

The language of subparagraphs (b)(A) and (B), emphasized above, sets the time for filing of a referendum petition on a tax ordinance "containing the appropriate number of valid signatures." This could be construed to mean that the signatures must be verified prior to filing. The use of the word "valid" contrasts significantly with the language in the various other filing provisions of the election laws discussed above, and particularly ORS 255.175 relating to districts, which refers to filing for "verification." In addition, we note that subparagraph (B) provides an additional 30 days for filing of petitions on tax ordinances. In contrast, on non-tax ordinances the statute does not contain the word "valid," and it is clear that the same answer is required as under ORS 255.175.

But a "valid" signature is valid whether or not it has yet been verified. And in other cases although the statute refers merely to the filing of sufficient signatures, if it turns out upon later verification that not enough of the signatures were valid, the referendum fails. The word "valid" thus exists by implication in ORS 250.205, 250.215, 250.305 and 250.315. We conclude, especially in view of the mandate of ORS 247.005 that "all election laws . . . shall be . . .

construed to assist the voter in the exercise of the right of franchise," that no significance is to be attributed to inclusion of the word "valid" in ORS 267.170(2)(b)(B), in contrast to its omission from other statutes. And the extra time allowed for filing by that subparagraph may readily be explained as intending to allow extra time for circulation of petitions where a tax measure is concerned.

Consistent with our earlier conclusions, we suggest that it may be appropriate for the Secretary of State to provide by rule uniform requirements for the speed and methods of verification.