WHITSETT VS. KROGER

  The Oregon Supreme Court ruled April 29, 2010 that the ballot language proposed in SJR 48 was inadequate and directed the Attorney General to correct the deficiencies. 

Oregon law allows the legislative assembly to write the ballot title of a measure referred by the Legislature for the voters to decide.  Those statutes require the ballot titles, explanatory statements and summaries to be written in language that clearly describes the measure in fair and neutral terms. Oregon law also allows any citizen to directly challenge the fairness of the language to the Oregon Supreme Court.

 The Legislature has the ability to not abide by an existing law in crafting new legislation by simply including the language notwithstanding the statute. The Oregon Legislative Assembly has been circumventing the requirement for ballot measure titles, explanations, and summaries to be written in fair and unbiased terms using the notwithstanding language for many years. The Legislative Assembly has also used that method to prohibit the right of a citizen to challenge the fairness of the language in the Oregon Supreme Court.

 For many years the Oregon legislature has been writing their own titles, explanatory statements and summaries in terms that often appear to be biased in favor of the ballot measures. In recent years legislators have actually used polling and focus groups to select the specific wording that is most likely to convince a voter to support the measure. This apparent electioneering has occurred while the Legislature has been under the control of both parties.

Every citizen and each legislator has every right to argue for or against any measure that is on the ballot. But the argument for or against the measure should not be included in the title, explanatory statements and summaries.

I considered the ballot title, explanatory statements and summary of SJR 48 written by legislative leadership and passed during the 2010 legislative session to be especially onerous.

For that reason I personally paid for the costs of a challenge to the Oregon Supreme Court in Whitsett vs. Kroger.

The Oregon Supreme Court unanimously agreed that parts of the ballot title, explanatory statements and the summary did not fairly reflect the meaning of that proposed constitutional amendment. The Court referred the measure to the Attorney General to rewrite the language in direct and unbiased terms to reflect what the constitutional amendment created by the measure would actually accomplish.

Article XI, section 7 of the Oregon Constitution prohibits the state from pledging the full faith and credit of the state to secure indebtedness incurred by the state in excess of $50,000. Over the years the voters have amended that Article a total of 17 times to permit the state to pledge its full faith and credit in support of particular purposes. SJR 48 would create yet another amendment to permit the Legislative Assembly to incur even more debt backed by the full faith and credit of the state. That new indebtedness cannot exceed one percent of all of the real market value of the property in the state.

The measure would authorize about a five billion dollar increase in full faith and credit state debt. That debt could be used for financing or refinancing the costs of acquiring, construction, remodeling, repairing, equipping, or furnishing real property that is or will be owned or operated by the state. The indebtedness must be paid from income tax revenue because the measure forbids repaying the debt from property tax revenue.

The proposed ballot title that reads:

Amends Constitution: Authorizes Lowest-Cost Borrowing for State’s Real and Personal Property Projects”.

In my opinion the title does not adequately describe the intent of the proposed constitutional amendment. Specifically, it the caption fails to mention that the proposed amendment increases the amount of money that the legislature is authorized to borrow.

The “no” vote caption as written simply asserts that a no vote rejects a yes vote.

In my opinion it must at least include the fact that a no vote maintains the current limit on state borrowing under Article XI. In fact, a no vote rejects legislative authority to borrow more money.

Finally, the summary must provide a concise and impartial statement summarizing the measure and its major effect. Once again, the summary as written does not inform the voter that the proposed amendment will authorize the Legislative Assembly to borrow as much as five billion additional dollars backed by the full faith and credit of the Oregon taxpayers.

As a direct result of the directions included in the Oregon Supreme Court decision we expect that the Attorney General will change the language to better reflect the actual effects of the proposed constitutional amendment.

In my opinion, the solution to this ongoing problem of ballot measure manipulation by the Legislative Assembly is another constitutional amendment that would require all ballot title, explanatory statement and summary language to be written by the Attorney General. Any language written by the Attorney General that is not considered acceptable could be challenged by any citizen directly to the Oregon Supreme Court. Such an amendment would end decades of ballot measure electioneering by the Legislative Assembly.

Remember, if you do not stand up for rural Oregon no one will

Best regards,

Doug