Deconstructing Lemons
Lemons vs Bradbury will be heard in Oregon district court tomorrow at 10 am. This is the case that will decide whether opponents of domestic parterships will be allowed to put their referral on the ballot in the November election.
District Court Judge Michael Mosman had previously placed an injunction on Oregon's new domestic partnerships laws, blocking them from taking effect until he makes a ruling. Attorneys close to the case have intimated that this could not have happened unless the judge believed that the plaintiffs have a likelihood of success.
At issue is whether the State of Oregon, which uses a statisical sampling model for counting signatures of initiative petitions, is violating the civil rights of people whose signatures were wrongly thrown out by elections officials from several counties around Oregon.
A number of people whose signatures were excluded provided written affidavits that the signatures that were excluded were theirs. The state has argued that there is no remedy for being excluded under Oregon law, and that the broad latitude afforded the SOS under federal law precludes a due process or equal protection claim.
The 9th Circuit Court of Appeals, which is the controlling court in this case, has previously ruled that signing an initiative petition is a basic instrument of democracy and as such, is a right on par with voting.
The brief submitted by Attorney General Hardy Myers asserts that because Oregon law only concerns itself with whether a signature matches the signer's voter registration card, it is irrelevant whether or not the signer of the petition did, in fact, sign. Because it is not relevant, no protected interest is being touched.
As a matter of Oregon law, the only pertinent question when verifying a petition signature is whether it matches the purported signer's signature on the relevant voter registration card. Whether the purported signer in fact did sign the petition is of no moment under Oregon law.
The plaintiff's response is that the defendants argument are "unbelievable". The State's job is to ensure that the signatures are "valid" and/or "genuine", and that the State is violating the rights of petition signers if they exclude valid signatures with no opportunity for remedy.
Stay tuned.
((HT to NW Republican)
I think the analysis is
I think the analysis is off-base here (no wonder, if you're getting it from Coyote at NWR!) There is no SPECIFIC remedy for an excluded signature, but as this case would seem to demonstrate it is up to the county clerk's discretion to approve a signature or not. Washington County's clerk did; Marion's did not. Thus, I believe, are the plaintiffs arguing unequal treatment of their signatures under the 14th Amendment.
Two problems with that, though: first, it would seem that the alleged discrimination must be systematic and statutory for it to violate the 14th Amendment, otherwise the states are granted wide latitude to direct the manner of their elections. If the rule is no rule, and clerks may exercise their discretion, every Oregon voter has a generally random chance to have their signatures validated, depending on their county of residence and the clerk presiding at that time. As strange as it sounds, we do NOT have the right to have our vote count. We merely have the right not to have our vote treated unfairly with respect to others in that situation.
Secondly, the 9th Circuit case being cited as the basis for plaintiffs' argument, Bears United v Cenarrusa, refers to the WEIGHT of one's signature with respect to signature threshholds for balloting. Idaho tried to have initiatives make the ballot only if 6% of voters in EACH COUNTY signed it. Because of the wide demographic differences across counties, the Court determined that 75% of voters statwide could conceivably sign the petition, but it would fail if only 5% in a tiny county signed the measure--and that's not fair. The smaller counties' voters would be given more weight for their signatures.
That's really not what we're dealing with here, which is criticism of a uniform method for handling signatures for judgement pre-decision, and a similarly uniform method--no stated method--for handling them post-decision.
I think ultimately the suit will fail, but I'm not optimistic about the trial judge's ruling in that vein.
Actually, I read the legal
Actually, I read the legal briefs. I can send them if you'd like.