Dixon / Frohnmayer v. Rosenblum
327 P.3d 1160
| Or. | 2014Background
- IP 38 proposes replacing current party-based primary nominations for many partisan offices with a single "common" primary ballot listing all candidates; voters may vote for more than one candidate (but only once per candidate) and the top two advance to the general election.
- The measure would also require party affiliation/endorsement labels on ballots and relax party-affiliation requirements for filling vacancies; it applies only to defined "voter choice offices" (a specified list of partisan offices).
- Attorney General Rosenblum certified a ballot title that described the measure as "Changes general election nominating process: provides one common primary ballot; unlimited votes; top two advance" and included corresponding yes/no result statements and a summary.
- Two sets of electors (Dixon; Mark and David Frohnmayer) challenged the certified ballot title under ORS 250.035(2), raising multiple defects including misleading wording and scope errors.
- The Oregon Supreme Court reviewed for "substantial compliance" with statutory ballot-title requirements and referred the ballot title back to the Attorney General for modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior Measure 65 title controls here | Dixon: Title for Measure 65 should be presumed proper and IP 38 title should track it | Rosenblum: Different standards allow different acceptable titles; prior title not binding | Rejected Dixon; prior approval does not compel same wording; substantial-compliance standard governs |
| Whether caption's phrase "unlimited votes" is accurate | Petitioners: Phrase is misleading and inaccurate — votes are limited by number of candidates; implies unlimited votes per candidate | AG: Phrase won't mislead voters; readers won't think multiple votes per candidate or multiple elections | Caption inaccurate; "unlimited votes" is misleading and must be changed |
| Whether caption is underinclusive by referring only to nomination changes | Dixon: Caption references only nomination changes but measure also alters general-election appearance/process | AG: "General election nominating process" accurately captures measure's main effects | Distinguished Keisling/Lutz; caption here sufficiently captures subject and is not underinclusive under substantial-compliance standard |
| Whether caption overstates scope by not indicating it applies only to partisan offices | Frohnmayers: Caption too broad — fails to state measure applies only to partisan (voter choice) offices | AG: Other ballot-title sections state it applies to "most partisan offices" so caption is adequate | Caption overstates scope because it does not limit to partisan offices; referral required |
| Whether "No" vote result statement is misleading (references "vote limitation") | Dixon: Saying "retain vote limitation" is confusing given caption's reference to "unlimited votes" and is misleading | AG: Maintained the statement complies with law (no specific refutation) | Because "unlimited votes" caption is inaccurate, the contrasting "vote limitation" language in the No statement is misleading and must be remedied |
Key Cases Cited
- Keisling/Lutz v. Myers, 343 Or 379 (addressing underinclusive caption for an open-primary measure)
- Caruthers v. Myers, 343 Or 162 (explaining substantial-compliance standard and deference to Attorney General wording)
- Kain/Waller v. Myers, 337 Or 36 (caption must identify subject accurately and avoid confusion)
- Lavey v. Kroger, 350 Or 559 (caption inaccurate if it misstated or understates subject)
- Towers v. Myers, 341 Or 357 (listing effects in caption risks underinclusiveness)
- Rogers v. Myers, 344 Or 219 (caption must not overstate scope and must give voters notice of principal choices)
- McCormick v. Kroger/Devlin, 347 Or 293 (yes/no result statements must be simple, understandable, and not misleading)