Oregon Matters of State: Initiatives, Referendums and Referrals

By | December 15, 2019


[Rich] welcome to the Oregon Matters of State
podcast this is your host Deputy Secretary Rich Vial. I’m here today with
Steve Trout who heads the Elections division here at the office of the
Secretary of State. Steve we’ve been engaged in the last several weeks
particularly in some controversy regarding initiative petitions and what
I wanted to do is sit down and just have a discussion with you about how the
initiative petition process works and why Oregon maybe is a bit unique in that
respect. And then give folks a sense of what it takes to get an initiative on
the ballot so that it can be voted on and made into law by the voters rather
than the legislature. Does that sound like a good way to proceed? [Steve] sounds like a good
way. You know, as you know you know Oregon was pioneer with with direct democracy
and goes back to 1902 when of course the voters decided to give themselves
the initiative and referendum and referral rights. Really it kind of breaks
down into three different categories that citizens can can put measures
forward to to try to change the law. They can either try to get a constitutional
amendment. A statute, you know pretty much equivalent to what would be passed by
the legislature. Or they can file a referendum which would take away or
nullify an action of the the legislature and say no the legislature passed this
but we don’t want this to become law and in effect roll that back and not have
that lot go and take place. [Rich] you know though that it strikes me that the
initiative process though Steve has often been criticized for the fact that
things that make it on the ballot are often confusing. Do we have any thing in
place to try and help us avoid that problem? [Steve] clearly that was one of the
main worries of the original drafters of the
initiative power was if we’re going to turn this over to the people we have to
make these simple and easy for them to know what they’re voting on. And so, you
know, there’s different provisions in the Oregon Constitution. One for example says
that you can’t have more than a single subject. You know, we all know, we see the
voters pamphlet and know that there’s some really long and complex
initiatives that are presented and there’s been a lot of litigation
over the last hundred years. And so really what the courts have looked at is:
ok you can have many different sections but they all have to be closely tied to
to one single subject. And, so you know I think that’s a way to help protect the
voters make sure that you’re not putting three or four good things into an
initiative to cover up one or two bad things and force voters to vote on
an entire package. They call that logrolling. You know that’s something that’s been with us since we had the initiative
process introduced. [Rich] And there have been occasions in the past where the
Secretary of State has had to make a decision that in fact a particular
proposed initiative violated that constitutional requirement of a single
subject. I’ll note that the issue has kind of become conflated with the
legislative single subject rule which is also in the Constitution. [Steve] But a
separate provision and so they they’re separate there in the
Constitution. [Rich] Let’s back up and just talk about, you mentioned there were
three types of proposed initiatives. Constitutional amendments what does it
take to to put one of those on the ballot in terms of the number of
signatures. [Steve] right and all of these in the Constitution are based on a
percentage of votes for governor at the last full election. So these numbers just
increased because we have the increased turnout in the election for
governor, here back in 2018. So constitutional amendments they require
8% signatures of 8% of the votes for governor. And so for the next, you know,
for the next 4 years that number is going to be 149,360 signatures. And so that’s you know that’s
an increase from what it would have been four years ago just because there was a
higher turnout and we have more voters and more registered voters in Oregon. And
so that’s the highest threshold is that 8% just for a statutory
change that’s 6% which for this cycle is going to be a 112,020. A referendum, which again is to roll back an act of
the legislature, that only needs 4% of the votes for governor. And
for this next session, their cycle, that’s 74,680. So you know, different thresholds based on, you know, what issue that
the voters are trying to do. [Rich] One of the, we do have I think at least one
referendum initiative floating around out there during this cycle. Is that
correct? [Steve] So we actually had two of them filed. You have to file those right after
the legislative session and the voters have 90 days to collect signatures. And
so both of those failed to turn in any signatures. But you will remember here a
couple years ago we had a referendum that triggered a January special
election. And so that was, you know, a vote of the people on whether that bill
should become law or not. [Rich] We did have however, recently a statutory proposal
that essentially was like a referendum. This was a group I believe that wanted
to undo the law that had been recently passed in the legislature that would
have allowed unregistered immigrants to get driver’s licenses. And instead of
doing that as a referendum, I think because there was an emergency clause on
that bill and they really didn’t have time, that was brought to us as a
statutory change. I believe it’s still working its way through the process. But
that would mean that they’d have to have a 112,000 votes
versus about 75,000 votes in order to have that become something
on the ballot in front of the voters. [Steve] Right you’re correct. And you know,
there is a provision in the Constitution that says
if a bill has an emergency clause that you can’t do a referendum against that.
And so in this case you know those proponents, you know, didn’t have a choice
to use the referendum. And so they had to go forward with that statutory proposal
that again it’s going to need 112,000 plus signatures
to get on that November 2020 ballot [Rich] And as I recall there was a
little bit of confusion because that statutory initiative process requires
you to essentially specifically state the provisions in statute that you’re
proposing to change word for word in your initiative. And the folks that wanted to
just simply repeal it hadn’t done that initially, but as I understand it have
now refiled with the new language. [Steve] That’s right, cuz you know, referendum you just
say this bill passed we want these sections not to take effect. But we
couldn’t do that again because of the emergency clause and so I think the
proponents for that measure their first time around really treated as if
it was a referendum. And one of those constitutional rules that we talked
about earlier is that you have the full text of the measure is presented
so that the voters know you know what they’re voting on. And so they failed in
that. The secretary had to reject that petition because it didn’t meet that
requirement of full text. And they have since resubmitted with text. [Rich] We’ve
got a deadline coming up this summer for anything that
people want to show up on the 2020 election. Now the 2020 election meaning the November election for 2020? [Steve] Right and that’s, you know, all initiatives go on the November
even-numbered year ballot. You know, you wouldn’t see them on a primary unless
the legislature were to call a special election or to change that statute to
say that something should go on that that primary ballot. [Rich] Now that’s with the
exception of referendums that can go. [Steve] correct. The normal process
there would be for the referendum to go on the November even year. But lately
when that’s happened the legislature has called a special election to to get that
address sooner. [Rich] The deadline of July 2nd is the deadline for signatures to be
submitted. Does the Secretary of State’s office have to have them counted by July
2nd or is that just the date the petitioners have to turn them in by? [Steve] so July 2nd’s the date that all the signatures have to be turned in to us
and then we have 30 days, that’s actually said in the Constitution, to verify those
signatures and determine which ones have qualified. So, we get 30 days whether
there’s two initiatives turned in by July 2nd or 20. You know that can be a real challenge if we get a number of initiatives filed at that late date.
But that’s in the Constitution and so we’ll do what we need to do to make that
happen. But that’s why there’s a lot of news and interest in initiatives right
now because you know we’re about 7 months out from from that deadline.
People are going through the initial steps of preparing what they want to
present for that November 2020 ballot. And so we’re in those early
phases right now of getting ballot titles and starting the petition
process so that they’ll have a few months to be able to gather signatures
and submit them by that July 2nd deadline. [Rich] Does the law limit the amount
of time that petitioners have to collect signatures once their petition has been
approved? [Steve] So there’s no limit there and so the earlier you start the more time
you have. We’ve even got some people that have already filed initiatives for the
2022 ballot that are going through the initial steps to try to start the
process so that they’ll have extra time to be able to gather those signatures. [Rich] And I’m sure listeners are probably somewhat curious about the idea that the
Secretary of State’s office would literally look at every one of upwards
of a 150,000 signatures to match them up with voter
registration document we have. Do we actually count every
single signature? [Steve] We will count how many people have signed and we go through and
a lot of times you’ll see that the petitions have ten lines on them so
we’ll go through and order them and you know these pages have seven these pages
have five signatures these have ten and kind of organized them that way. And then
we’ve got a statistical formula that’s been in place for over 20 years that was
developed after some lawsuits back in the in the 90s and early 2000s that
allows… to take a step back further it used to be that that all of these
petitions were verified at each of the counties. So if you lived in Washington
County all the signatures collected in Washington County would have to be
checked by Washington County. If you lived in Deschutes County Deschutes
County election of folks would do that. And so after some of these court cases
looking at wanting to make sure that we were uniform, all of that was brought in
to to our office. And so now all of these state petitions are verified at the
state level. And we have this formula that we use that does sampling, so that
we’re not looking at every single one of those. But it’s been proven in court
and by academic statisticians that it’s got some buffers in there to
make sure that based on that sample we can guarantee that there would be more
than the required number of signatures. And so that’s one of those things that
through court cases and looking at uniformity that we’ve been able to do.
Also recognizing that you know checking 150,000 and you know really if you need
150,000 signatures usually people are turning in over 200,000. On multiple
signatures that that would be a nightmare to finish within 30 days. It’s
proven effective and if anybody wants, is having trouble sleeping, you can
go on our website and download the formula and all of the math and the
statistics behind it. It will explain the process but also likely make you go to
sleep. [Rich] Can anyone be a chief petitioner? [Steve] Any registered voter that wants to
change the process can come and file, can initiate a measure. And you can have
up to three different chief petitioners to sponsor an initiative. [Rich] Why would you
want to have more than one petitioner? [Steve] Sometimes it’s geographic balance.
Sometimes there’s, you know, it’s a group that’s been working on this
multiple years and they’re working on it together. Sometimes there’s
different filing requirements that you have to have one of the chief
petitioners to do that. And so it gives them flexibility to have more than one
person to come in and sign a paper or fill out forms with our office and you
know we’ve had some times because again a lot of this happens during the summer
the deadlines and you know people were off fighting fires or you know on
vacations or you know traveling somewhere else and so having more than
one gives them a fail-safe. [Rich] So let’s say I’ve got a number of friends that come
to me and they say “you know we’ve been talking about trying to get this law
changed with our legislators for ten years and nobody will listen to us. Jim
you’re a smart guy would you go file an initiative petition?” And I looked at them
and I say “I’m not a lawyer. I don’t know how to do this. I don’t know what the
right language would be.” So I call elections. What would you tell them Steve? [Steve] And we get that often and you know, we want this to be an easy process but
really you know the initiative process is changing and writing law. It’s not
really well-known, but there’s a statutory provision that says that the
Legislative Council here in the legislature will help any
chief petitioner to write the text of measure. So you could sit down with them
and you know, have a discussion of what you’re trying to change. And if you show
just a little bit of support, I think it’s if 50 people request it
that there’s help and Legislative Council figures that “hey you know this
is a real issue” then under current state law Legislative Council can help you to
to draft the actual text of that initiative. [Rich] to put it in sort of
colloquial jargon, if I go in with an idea on the back of a napkin
and I’ve got 50 people supporting me in doing that Legislative Council should
help me draft the language necessary to actually file a petition. [Steve] Yep [Rich] Well that’s
very interesting. So after you after your office receives a petition what do you
do next? [Steve] So we you know, we’ll go through and check all the boxes make sure all
the legal requirements are met and then we’re going to give them templates of
those petition sheets. We usually turn that around within 2 or 3
days. And we call those sponsorship templates. And so then the we’ll give
those to chief petitioners and they’ll go out and start to gather signatures. And
this first step, you know, they’re really looking to gain at least a thousand and
no more than 2000 valid signatures that then they would come
back and turn in to us to say, “hey there’s a base line of support here for
this initiative we want to go through the full process and go to the next step.”
So it’s kind of it’s kind of like the the first gateway that you have to get
through is to gather those initial sponsorship petitions and get that
initial thousand signatures [Rich] so I guess it makes sense that we wouldn’t want to
waste our time as the agency overseeing this unless at least a thousand people
agreed with the idea that the proposed petitioner had. And so that that
sponsorship signature is like you say a first step. When people are out gathering
those sponsorship signatures we hear all the time about paid petition gatherers
and all that you know there’s always problems with, are they you know doing it
right etc. Can you pay a petition gathering at the sponsorship level? [Steve] Yeah. So really throughout any step of this process you can either have volunteer
circulators or paid circulators. And if you’re out and you see somebody with
a petition, if it’s on white paper those are the ones that are by volunteers. If
you see any color of paper, different initiatives have different colors that
they get assigned, you can know that if it’s a colored sheet of paper that’s
being circulated by a paid petition circulator. I you’re using paid
circulators there’s additional steps. They have to get background checks. They have to be approved by our office. They have to receive training and they
also have to submit the payment accounts to make sure that they’re not
being paid based on signatures, and it’s more based on time. [Rich] So now I am, I went to Legislative Council. I’ve got my idea drafted in legal terms, I got 1,500
signatures and you’ve looked at it and with your fancy formula figured out that
I’ve got at least a thousand signatures. What do you do next? [Steve] Once you’ve met that
threshold then the real next step starts. So once we’ve determined that you have
at least a thousand signatures we’re gonna send that over to the Attorney
General. Once we send it to the Attorney General
they draft what’s called a ballot title. And that’s 15 words describing
the measure. That’s what you’ll find printed on your ballot. That’s what
you’ll find in the voters pamphlet. And so it’s an important piece of this
because again some of these are 15 and 20 page documents and so really it’s
a it’s a concise summary of what the measure does. And so we’ll send it over
and say “okay Attorney General this one looks like it’s got or this one has at
least a thousand signatures and so we’d like you to draft this ballot title.” And
so then they’ve got 5 business days to draft that ballot title. And then
that’s publicized and then we invite public comment on that. [Rich] Let’s talk about
this a little bit more for a moment. It’s the Attorney General’s Office that
drafts a ballot title. But it’s the Secretary of State that decides whether
or not the initiative language itself meets the constitutional requirements of
single-subject or properly placing the full text of the proposed statute
whatever it might. Either one of those processes could derail an initiative
petition. Do they happen simultaneously? [Steve] That’s all going on at the same time. And so really that’s the first check on these processes.
Once the attorney-general publicizes this draft ballot title then there’s 10
business days for the public to comment. And so they can comment on the contents
of that ballot title. Whether you know, they think it’s you know accurate or not
or make suggestions for the Attorney General to determine before they issue
the final one. They can also make comments about whether they believe that
the initiative has followed the constitutionally required process. During
that 10 days the public can submit comments. Any registered voter can
submit comments. And then those are reviewed. The ballot title comments are
reviewed by the Attorney General before her office issues the final ballot title.
And the comments about the constitutional process are reviewed by
the Secretary before she makes the final determination on whether the
constitutional process has been followed. So those those are happening
simultaneously. [Rich] Pretty quick process now. [Steve] It is. And I think you know, is
designed that way so that the initiatives can move forward because you
know the the biggest amount of time is to go out and gather those signatures.
And we don’t want we don’t want to slow down the process and keep the voters and
the people from being able to circulate those petitions. [Rich] So once the Attorney General issues a final ballot title and the Secretary of State has
signed off on the constitutional requirements. We’re ready to go get the
rest of our signatures right? [Steve] Not yet. There’s still one more, there’s still one
more barrier you could say, one more hurdle that you have to get over. So
once that final ballot title has been issued anyone that made comments about
the ballot title during that public comment window has another 10
business days now to say “I still don’t like it I want to go to court and
challenge this.” And so there’s a direct appeal to the Oregon Supreme Court that
any one of those registered voters that made a comment on that ballot title
can do and appeal that ballot title straight to the to the Oregon
Supreme Court. They will hear that on an expedited basis but it seems like lately
more and more the ballot titles are being appealed to the to the Supreme
Court and you know it can take anywhere from
from a few weeks to to six months. And some of that’s dependent on the
courts calendar. On how many are there. And so we can’t approve any petition to
circulate, to go out and start gathering signatures until that either the
the 10-day period to appeal to the Supreme Court has expired and nobody
Appeals or the Supreme Court has given a final determination. [Rich] So if somebody files
an appeal during that 10 days that essentially puts brakes on the whole
thing. [Steve] Right. And so, and that’s why you’re seeing a lot of initiative activity
right now because if you were to wait and come in with your initial thousand
signatures in March or April and then somebody appeals this to the Supreme
Court it could end up in the court all the way until July 2nd and you wouldn’t
ever have an opportunity to be able to gather those signatures because it could
get stuck in court arguing over that ballot title [Rich] The Secretary of State’s
rejection of a ballot title’s a little different though isn’t it? It doesn’t
automatically go immediately to the Supreme Court if somebody challenges
that decision? [Steve] Right. So again, it’s not the ballot title that we challenge it’s
that constitutional process single-subject as you mentioned the full
text. And it actually happens quite often. I think in looking back at our records
since 1994 there’s been over a 180 initiatives that the
Secretary has ruled did not follow that constitutional process and have
been have been stopped. Ad so at that point, that initiative is dead unless and
until a court comes back and says, “well no Secretary you messed up and you need
to reinstate it.” [Rich] Since 1994 a 180 initiatives have been denied or
rejected for violating constitutional process. That’s amazing. Now Steve you
actually worked for a number of Secretary of State’s both Democrat and
Republican. Have all of them had at one time or another had to reject a petition
for one reason or another? [Steve] Yeah it’s pretty common. And I think people don’t realize how many initiatives are introduced every session. So just you
know, we’re kind of here in the early phases of the 2020 cycle and
we’ve already got 59 initiatives that have been introduced. And so you know, I’m sure we’re gonna have many more here in the coming weeks. There’s a lot of them
out there. And then some of them there testing you know kind of testing the
limits of how far they can go. Others just haven’t been educated and
haven’t had the support of lawyers or Legislative Council or anyone else and
so… I don’t want to say it happens a lot, but it happens consistently. And
over time you know there’s always a couple any cycle. [Rich] You’ve been doing this long enough I’m gonna make you tell us what you
think. How many ballots titles,
how many initiatives do you think will actually make it to the 2020 ballot? [Steve] It’s hard to know right now. You know, there’s so many different moving parts that
impact these and people are looking at well who’s gonna turn out in 2020 if I
save this for 2022 will it be a different turnout of voters? Will turn
out be higher or lower and what will that do for my measure? And so I’m
looking at this through a totally a- political lens and you know. But I’ve
been doing it long enough to know that and hear different people say it’s like
“well why did you withdraw that it looked like you you know had good momentum” and
it’s like “yeah we didn’t want to put it on this ballot.” There’s still a number of
things that are out there circulating. We’re not having nearly as many as we
did you know in the early 2000s where I think we had 18 or 20 initiatives on a
single ballot back then. We’ve been averaging 5 to 7 and so I would
expect it’s probably going to be in that range for the for the 2020 ballot. [Rich] Even with nearly 60 filed already, you don’t think that there’ll be that many that
make it all the way. [Steve] Right. You can look on our website at oregonvotes.gov under
the initiative page and see all of the initiatives that have been listed. And some of the chief petitioners will introduce 3, 4, or 5, you know,
kind of on the same topic with just a little bit different language.
Trying to see how will that impact what the Attorney General puts on the
ballot title and not really sure exactly which, you know, which direction that they
want to go at this point. And they’re still doing some research and so it’s
it’s not uncommon to see 4 or 5 of very similar initiatives introduced by
the same chief petitioners. And in fact some of them, you know, this cycle they
introduced a couple back in the late summer and now they’ve withdrawn
those and, or you know, have tweaked them and they’re coming forward with new
replacement ones. So it’s really a fluid process and again, yeah it’s
all driven by the chief petitioners. They could go out and gather
250,000 signatures and then decide that they don’t want to turn them in. So they
have full control and power over that process those chief petitioners. [Rich] Recently in the press we’ve seen some articles about the PERS rollback and there have
been petitions withdrawn that were actually I think brought forward by some
fairly well-known chief petitioners. Must be that sort of political calculus that
you’re talking about has entered into whether or not they think this is the
right time for those to go forward I assume. [Steve] You know, I don’t know what
motivates people to do that. If somebody brings us a petition we’re gonna go
through the process whether it looks like it’s got wheels or not and
whatever is motivating them. And so you know, oftentimes my staff will get calls
especially as we get closer to Election Day it’s like “well tell me about this
initiative” and it’s like “we know that by number, we couldn’t even tell you
what the text or what they really do” because it’s just it’s just
part of what we’re doing to make sure they get on the ballot. That we verify
those petitions and they get on the voters pamphlet. Content-wise the
politics behind it, I really don’t know on a lot of it. You know, I read some
stuff in the in the media just like everyone else but it has no impact on
how we approach these. [Rich] Another great example of how the Secretary of State’s
office really should be and I think for the most part is, nonpartisan in the way we do our business. Well Steve this has been very helpful. I hope that
folks that are interested in the initiative process take the opportunity
to listen in and again look at the website because there’s a lot of good
information on the website. Is there anything we haven’t talked about today
that you think is important for our listeners to know? [Steve] So once we go through
the Supreme Court process or there’s no appeal filed, then we will issue those
templates for the official petitions. And so those have the ballot title printed
on them. Again the cheif petitioners can decide you know, do they want 10
signatures on the paper? Do they want five do they want one? I think the
statute says you can go up to 20. And so most people use 10 because that’s
kind of easy to administer and has enough room for signatures. That’s really where
most of the work takes place and that can take quite a while to gather
200,000 signatures. [Rich] And you do require that if they’re going to use paid
signature gatherers they put it on colored paper so that the person signing
knows that they’re being solicited by a paid gatherer. [Steve] Yeah that’s right. And I mean I
think that’s the, you know, the purpose of having those colored sheets so that the
public can know hey you know this is a this is somebody that’s getting paid to
circulate this versus if it doesn’t have color then it’s a volunteer
circulator. And most people know that but hopefully people that are listening to
this podcast can know that going forward. [Rich] Alright Steve thank you very much. We really appreciate you being here today. This has been the Oregon Matters of
State podcast. This edition was recorded on December 5th 2019. Today’s guest has
been Steve Trout the director of the Elections division here at the Secretary
of State’s office. You can hear all of the Oregon Matters of State podcasts on
your favorite podcast app or by accessing them directly on the Oregon
Secretary of State webpage. This is Deputy Secretary Rich Vial. Thank you for
listening and until next time good day.

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