Oregon Advisory Opinions September 23, 1966: OAG 66-122 (September 23, 1966)
Collection: Oregon Attorney General Opinions
Docket: OAG 66-122
Date: Sept. 23, 1966
Advisory Opinion Text
OAG 66-122.
The period for circulating initiative petitions proposing constitutional amendments is limited by implication to two years, and begins four months before a general election and ends four months before the next succeeding general election.
When all preliminary steps prior to circulating such a petition have been taken and completed within the four month period preceding a general election, the proponents thereof are not required to wait until after the general election to circulate such petition.
Where all the required steps regarding such a petition have been begun and completed, and the petition has been filed within the four month period prior to a general election, the adequacy of signatures is determined by the vote
cast for Supreme Court Justice in the general election preceding such filing.
Secretary of State
You state that on August 9, 1966, you received and filed pursuant to ORS 254.030 a copy of a petition for an initiative measure to amend the Oregon Constitution, submitted by the Oregon Committee for the 18-Year-Old Vote. A ballot title has been prepared and the period of appeal therefrom has expired. You ask:
"After the 20 day waiting period, may the sponsors of the subject petition begin circulating same or must they wait until after the General Election of 1966, that being the election which will determine the number of signatures required?"
First we shall briefly outline the procedure in Oregon for proposing constitutional amendments by initiative petition. For purposes of clarification we shall use the term "preliminary petition" in referring to the document initially submitted to the Secretary of State.
There are three basic steps:
1. A preliminary petition is delivered to the Secretary of State by the proponents of the measure (ORS 254.030 (1)). The Secretary of State specifies the form for the petition (ORS 254.030 (1)) and immediately transmits copies of it to the Attorney General (ORS 254.060 (1)). Within 10 days thereafter the Attorney General provides a ballot title (ORS 254.060 (2)). The Secretary of State then furnishes to the proponents of the measure his approved form of the petition together with the ballot title, which must be printed on the cover of the petition (ORS 254.070).
2. The petition may then be circulated. The proponents may wish to wait until the 20-day period for appeal from the ballot title has expired, however, because if the ballot title is changed on appeal, signatures already obtained are invalid. Columbia River Salmon & Tuna Packers Association et al. v. Appling et al., (1962) 232 Or. 230, 375 P. (2d) 71. Each sheet containing signatures must include the affidavit of the person circulating the petition, stating that each person who signed the sheet did so in his presence and that he believes each signer stated his correct address and is a registered elector (ORS 254.040 (1)). The signatures must be further certified as those of registered electors by the county clerk (ORS 254.040 (2)) or a notary public (ORS 254.040 (3)) of the county in which the signer resides.
3. The petition including all the signatures must be filed with the Secretary of State not less than four months before the election at which it is to be voted upon (Article IV, § 1, Oregon Constitution). The Secretary of State counts only those signatures certified by a county clerk or notary public as noted above (ORS 254.040 (2)). If the number of valid signatures is equal to 10 percent of the total vote cast for Supreme Court Justice at the election last preceding the filing of the petition (Article IV, § 1, Oregon Constitution), the Secretary of State places the proposed constitutional amendment on the ballot (ORS 254.090).
No legislation or constitutional provision specifies a time within which the preliminary petition shall be initially submitted to the Secretary of State, or a time during which the petition may be circulated.
Thus under the Oregon Constitution and statutes it could be argued that the proponents of a measure could submit a preliminary petition, secure the necessary approval and ballot title, and then circulate the petition for an indefinite number of years until the necessary number of signatures were obtained.
There is some thin support for such argument in the case of State ex rel. Kiehl v. Howell, (1914) 77 Wash. 651, 138 P. 286.
The Washington Constitution provided:
"Initiative petitions shall be filed with the secretary of state not less than four months before the election at which they are to be voted upon. * * * If filed at least four months before the election at which they are to be voted upon, he shall submit the same to the vote of the people at the said election. * * * This section is self-executing, but legislation may be enacted especially to facilitate its operation."
(We note that the first sentence quoted above is identical to that in Article IV, § 1, of the Oregon Constitution, and that the Oregon section also has been held by the Oregon court to be both self-executing and to authorize legislation to facilitate its operation: State ex rel. McPherson et al. v. Snell, (1942) 168 Or. 153, 121 P. (2d) 930.)
In 1913 the Washington legislature had enacted a law requiring that "Measures to be submitted upon initiative petition [i.e., preliminary petitions] shall be filed within ten months prior to the election * * *." As a result, only a six-month period was to be allowed for the circulation of petitions.
The court, in holding the legislative requirement constitutional, went on to indicate what the effect of the provision in the state Constitution would be in
the absence of such legislation (138 P. at 287):
"* * * It seems clear to us that a limitation upon the time which, prior to the election, a proposed measure may be filed and the procuring of signatures of voters to the petitions commenced is a proper subject of legislation, looking to orderly procedure and fairness to the electors. While the constitutional amendment is declared to be self-executing, it is apparent that its execution would be almost, if not wholly, impracticable without legislation of some such nature as this. It, of course, is necessary that some practical test be provided for determining whether the signers of the petitions are legal voters. It is, of course, but fair that the petitions should, so far as practical, be signed only by those who would be voters at the election. This can be secured with greater certainty by having the petitions signed as near the time of the election as practical. We all know that our electorate is not the same from year to year. * * *" (Emphasis supplied)
We do not, however, agree that such a gloomy state of affairs exists in Oregon "without legislation of some such nature as this," as warned by the Washington court, and that the initiative procedure "would be almost, if not wholly, impracticable" without a statutory limit on the time during which petitions for an initiative measure may be circulated. The Constitution and statutes of Oregon, we believe, have impliedly imposed such a time limit.
Article IV, § 1, of the Oregon Constitution, requires that signers of initiative petitions be "legal voters of the state," and to be a legal voter one must be "registered prior to the election in the manner provided by law * * *." Article II, § 2, Oregon Constitution. As seen by the provisions of ORS 254.040 above noted, the qualification of signers is determined entirely by whether or not they were registered voters in their respective counties.
The circulation of initiative petitions is a time-consuming process, and inevitably there will be some electors certified as registered voters who are no longer legal voters. To allow the circulation of petitions for an unlimited period of time would be to allow a result contrary to the very purpose of the registration laws.
"Registration, within the meaning of election laws, is a method of proof prescribed for ascertaining the electors who are qualified to cast votes * * *." 25 Am. Jur. (2d), Elections, § 95, p. 784.
The constitutional requirements for initiative petitions are obviously intended to require proof that there exists a demonstrated desire for the measure being proposed, among a substantial part of the electorate.
It would be virtually impossible to establish a procedure which would enable the Secretary of State to ascertain that each signer was a legal voter at the exact moment when the petition is filed in his office. But it must not be assumed that the legislature, in enacting the existing procedure, intended for certified signatures to be effective for an unlimited period of time to aid in placing a measure on the ballot.
Under such an interpretation the effect of the registration laws, as applied to initiative petitions, would be reversed. ORS 254.040, instead of insuring that the properly certified signatures represent, as nearly as practicable, qualified voters in the current electorate, would insure that such signatures at the time of filing with the Secretary of State, would include long-outdated signatures of electors long dead or removed from the state, or who for other reasons prior have long ceased to be qualified. We believe the Constitution neither intended nor would allow such a result. In State ex rel. v. Dalles City, (1914) 72 Or. 337, 351, 143 P. 1127, the Oregon court said regarding a city ordinance:
"* * * It is one of the peculiarities of the initiative system that a minority of 15 per cent may thrust upon the electorate any measure, however crude and ill-digested, but this is in pursuance of the voice of the people * * *."
The so-called "peculiarities" would be magnified indeed if the initiative laws were so interpreted.
Nor would it make any difference to contend that such long outdated signatures would not be counted anyway, if properly contested, for we should not assume the legislature intended to establish a system which would invite a contest involving the massive investigation which would be required to determine which certified signatures were still valid.
The California Supreme Court considered a similar problem in the case of Gage v. Jordon, (1944) 23 Cal. (2d) 794, 147 P. (2d) 387. Procedure regarding initiative petitions in California differed from that of Oregon, but the public policy considerations involved in the case were substantially the same, and much of the language of the case is applicable here.
An initiative petition for a constitutional amendment had been circulated in 1940, but not enough signatures of "qualified electors" were obtained to equal eight percent of the votes cast for Governor in 1938, as required by the California Constitution. In 1942 a lesser vote was cast for Governor, with the result that the signatures obtained in 1940 equaled eight percent of the 1942 vote. Additional signatures were ob-
tained in 1943, but not enough to be sufficient without the earlier ones.
Article IV, § 1, of the California Constitution, provided that:
"* * * Upon the presentation to the Secretary of State of a petition certified * * * to have been signed by qualified electors, equal in number to eight per cent of all the votes cast for all candidates for Governor at the last preceding general election, * * * the Secretary of State shall submit [the measure] * * * to the electors at the next succeeding general election occurring subsequent to 130 days after the presentation aforesaid of said petition * * *."
The section further provided:
"* * * a petition shall be demed to be filed with the Secretary of State upon the date of the receipt by him of a certificate or certificates showing said petition to be signed by the requisite number of electors of the State."
The court was thus required to determine "whether an initiative petition received by the Secretary of State and continuing to be circulated is not to be regarded as finally 'presented' to or 'filed' by him until it has sufficient signatures to qualify for the ballot, regardless of how many years this may take" (147 P. (2d) at 389).
Noting that no case in point could be found from any state, the court said (147 P. (2d) at 390) that the Constitution:
"* * * sets forth a complete plan or scheme and when read in its entirety, together with statutes enacted pursuant to it, it clearly connotes an intention that insufficient petitions shall lapse and become functus officio; * * *
"There is, it is true, no prohibition against circulation of sections of petitions in any county indefinitely, and no specific time provision for completion of the entire process other than the period between general elections prescribed by [Article IV, § 1, California Constitution] or, more specifically, between a period commencing 130 days before a general election and 130 days before the second succeeding election. * * *"
The court went on to say (147 P. (2d) at 392):
"* * * it is intended that the signers of the petition shall be qualified electors at the time of signing and that the measure shall be submitted at the next general election, at which they are qualified to vote. As electors change each year, through death, coming of age, removal, neglect to qualify, and the like, any construction of [Article IV, § 1, California Constitution] which would permit the qualified electors of one year to largely determine the measures liable to go on the ballot in a subsequent year would lead to confusion and uncertainty, and would be contrary to public policy."
The court spoke of a situation where "the accumulative total of signatures of electors, past, present, living, dead, or removed from the state, shall equal the required eight percent" necessary, and said that "such a construction is too unreasonable to contemplate. Present day electors are not interested in initiating legislation to be finally adopted by their children or children's children." (147 P. (2d) at 392-393)
Similarly, we conclude that Article IV, § 1, of the Oregon Constitution, does not contemplate that the procedure for initiating a measure to be voted on, once begun, could go on for an indefinite number of years. Essentially it establishes a period for circulating petitions which is the two years prior to any given general election.
For reasons of administrative convenience and necessity "to make the necessary preparation for putting the issue on the ballot," the period for circulating petitions terminates four months prior to the election at which the measure is to be voted on. Kays et al. v. McCall, (1966) 244 Or. 361, 418 P. (2d) 511. We must also conclude that such period begins four months prior to the preceding general election. It could not begin earlier for reasons cited in the Gage case. We could not conclude that it begins at a later time, such as the forthcoming general election as suggested in your question, because to so conclude would be to say that there exists a period of time during which the people do not have the right to circulate petitions in exercise of the power of the initiative. No provision of the Oregon Constitution or statutes so indicate, and none should be implied in the absence of such legislation as cited in the Keihl case, supra.
Therefore we conclude that the sponsors of the subject petition do not need to wait until the 1966 general election to begin its circulation.
We must, however, disagree with your assumption that the number of signatures required for the initiative proposal here discussed will necessarily be determined by the votes cast for Supreme Court Justice in the forthcoming 1966 general election.
Article IV, § 1, Oregon Constitution, provides:
"* * * The whole number of votes cast for justice of the Supreme Court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. * * *"
If the completed petition is filed in your office prior to the 1966 election, the required number of signatures would still be calculated on the basis of the 1964 election because the same will still be the "regular election last preceding the filing" as designated in the Consti-
tution. See State ex rel. Ilg v. Myers, (1933) 127 Ohio St. 171, 187 N.E. 301.