On December 3, 2021, the Oregon Supreme Court delivered a unanimous opinion in Whitehead v. Fagan.[1] In an opinion written by Justice Thomas A. Balmer, the court interpreted the state constitution to determine who is a “qualified” voter for purposes of initiative petitions. The court also considered whether Oregon’s constitution permits the state legislature to limit voter qualification criteria beyond the list of voter qualifications already listed in the state’s constitution. The court held that “voters with inactive registration, who statutorily may not vote, may not have their signatures counted on initiative petitions.”[2] The analysis by the Oregon Supreme Court in Whitehead v. Fagan used textualist interpretative methods, such as original public meaning and contemporary dictionary definitions, to interpret provisions concerning state constitutional voting rights and qualifications.

In Whitehead v. Fagan, petition circulators and inactive voters sued the Oregon Secretary of State for not counting certain signatures in an initiative petition. The secretary of state did not count the signatures because the voters were inactive on the voter rolls under statutes and administrative rules on voter registration.[3] While the circuit court granted summary judgment to the secretary, the court of appeals reversed in a 2-1 decision, holding that the legislature and secretary did not have the constitutional authority to limit the qualifications of voters beyond those expressly listed in the constitution. The Oregon Supreme Court reversed.[4]

Whitehead v. Fagan required the legal interpretation of two separate articles of the Oregon Constitution—the “qualifications of electors” clause in Article II and the “initiative power” in Article IV—and state election statutes. Article II of the state constitution expressly lists age, residency, citizenship, and registration as “qualifications of electors.”[5] With regard to registration, the Oregon Legislative Assembly has passed multiple laws distinguishing between active and inactive registration.[6] The Article IV “initiative power” recognizes the power of the people of Oregon to propose and vote on initiatives to amend the state constitution without the involvement of the state legislature.[7] Article IV of the Oregon Constitution provides that only “qualified voters . . . registered . . . in the manner provided by law”[8] may petition for an initiative.[9] Articles II and IV both use the term “qualified” to describe voter eligibility.[10] In the 1984 decision in State ex rel Sajo v. Paulus, the Oregon Supreme Court interpreted Article II in conjunction with Article IV.[11]

The court examined each term in Article II’s provision stating “[e]very citizen of the United States is entitled to vote in all elections . . . if such citizen . . . is registered . . . in the manner provided by law.”[12] It found that at the time the term “registered” was added to the constitution, dictionaries defined “registered” as meaning “enrolled,” and they defined “manner” as “the mode or methods in which something is done or in which anything happens.”[13] The court pointed out that “provided by law” in the state constitution had previously been interpreted to mean “provided by the state legislature.”[14] Putting these definitions together, the court reasoned that the “manner” under the constitution meant “enroll[ment] in a register of voters through the procedures enacted by the legislative branch.”[15]

The court interpreted language in Article IV stating that “[t]he Legislative Assembly shall provide by law for the manner in which the Secretary of State shall determine whether a petition contains the required number of signatures of qualified voters”[16] as delegating to the Oregon legislature a statutory power over the required signatures. The court noted that when the word “register” was added to Article IV, the amendment expressly “ratified, adopted and confirmed” preexisting statutory voting laws.[17] The court reasoned that prior voter verification laws that had been approved were similar to the current active/inactive voter registration laws which limited voting rights if the person had not voted in previous elections.[18] Furthermore, in the 1933 case State ex rel. v. Clark, the supreme court had found that the state constitution allowed the rejection of petition signatures of individuals who had not satisfied the requirement to have voted in the past two years.[19] In addition, the court relied on interpretive principles such as plain language and presumption of constitutionality to defer to the state legislature’s enactments on registration: the court reasoned that the drafters of the state constitutional provision would have used plain language if they intended to restrict legislative power,[20] and that where the constitution is silent, the court presumes the constitutionality of legislative action.[21]

The court of appeals had held that registered voters are qualified to sign petitions regardless of whether the secretary deemed them active or inactive, and therefore that inactive voters need not reactivate their registrations to sign petitions.[22] The supreme court disagreed, relying on its prior opinion in Sajo, which had excluded signatures if the individuals were ineligible to vote at the time they signed the petition. The court said that case “contemplate[s] that petition signers will be qualified voters at the time they sign the petition.” The phrase “at the time” led the court to conclude that a voter must be qualified under statute when signing.[23] The court also considered the language of Article II, section 1—“[e]very citizen of the United States is entitled to vote . . . if such citizen . . . is registered . . . in the manner provided by law”[24]—to suggest a contemporaneous registration condition.[25] It reasoned that if any individual who once registered to vote and did not cancel that registration is qualified to sign a petition regardless of whether that individual may vote by statute, the text of Article II should have been “has” or “have” instead of “is.”[26] Because the provision requires current registration, registration must be active at the same time the petition is signed.

Using methods of interpretation consistent with textualism, the Oregon Supreme Court concluded that the court below had erred in deciding that inactive voters’ signatures must be counted on initiative petitions.

 

[1] 369 Or. 112 (Or. 2021).
[2] Id. at 128.
[3] Id.
[4] Id. at 115.
[5] Or. Const. art. II, § 1.
[6] Or. Rev. Stat. § 247.563(3).
[7] Or. Const. art. II, § 1.
[8] Or. Const. art. IV, § 1(2)(c).
[9] Or. Const. art. IV, § 1(2)(b).
[10] Fagan, 369 Or. at 120-23.
[11] 297 Or. 646 (1984).
[12] Or. Const. art. II, § 2(1)(c).
[13] Fagan, 369 Or. at 124
[14] Id. at 134.
[15] Id. at 124.
[16] Or. Const. art. IV, § 1(4)(a).
[17] Fagan, 369 Or. at 124-25.
[18] See, e.g., Or. Laws tit. XXVIII, ch. XI (1920); Or. Admin. Rule 165-005-0180 (2016).
[19] State ex rel. v. Clark, 143 Or. 482, 22 P.2d 900, reh’g den. (1933).
[20] Fagan, 369 Or. at 125.
[21] Id. at 127.
[22] Clarno, 308 Or. App. at 273.
[23] Fagan, 369 Or. at 116, 123.
[24] Or. Const. art. II, § 2(1)(c).
[25] Fagan, 369 Or. at 124-25.
[26] Id.

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