Caruthers/Syrett v. KrogerCaruthers/Syrett v. Kroger
These two ballot title proceedings, which we consolidated for opinion and disposition, seek review of the Attorney General’s certified ballot title for Initiative Petition 52 (2010).
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Initiative Petition 52, if enacted, would amend Oregon law in two different respects. First, it would provide that neither the state, nor any political subdivision of the state, may adopt a statute, regulation, or order that would “prohibit or limit any public official or public employee from cooperating with federal agencies or officials in the enforcement of federal immigration law.” Second, it would direct state election officials to “require satisfactory evidence of United States citizenship from any applicant who is registering to vote for the first time as an Oregon voter” and would specify the documents that would constitute such evidence of citizenship.
The Attorney General certified the following ballot title for Initiative Petition 52:
“Allows state/local cooperation with immigration enforcement; requires certain documentation of citizenship for voter registration
“Result of “Yes’ Vote: Yes’ vote allows state/local cooperation and resources for immigration enforcement; voter registration requires documentation of citizenship: driver license; birth certificate; passport; naturalization documents; other.
“Result of ‘No’ Vote: ‘No’ vote retains current state/ local limits on cooperation and resources to enforce federal immigration laws; voter registration requirements: indication of citizenship; attestation of qualifications.
“Summary: Current law prohibits expenditure of state/local law enforcement resources solely to enforce federal immigration laws; allows only United States citizens to *415 vote, and requires Oregon voter registrants to attest to, but not to document, voter qualifications. Measure prohibits laws limiting government officials’/employees’ cooperation with federal officials enforcing immigration law; requires first-time Oregon voter registrant to provide proof of citizenship consisting of any one of the following: an Oregon driver license/non-operating identification license issued after October 1, 1996 or from another state indicating that the person has provided proof of citizenship; birth certificate; United States passport; naturalization documents or confirmed number of naturalization certificate; other documents or method of proof established under federal immigration law; specified types of proof of tribal membership.”
The Caruthers petitioners and the Syrett petitioners are electors who timely submitted written comments to the Secretary of State concerning the content of the Attorney General’s draft ballot title and who therefore are entitled to seek review of the resulting certified ballot title in this court.
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As background, we briefly describe current law with respect to the “cooperation” of state and local governments with federal immigration enforcement. The only statute that now addresses that subject specifically is
A ballot title must contain a caption “that reasonably identifies the subject matter” of the proposed measure.
The Attorney General responds that, although the “cooperation” provision of the proposed measure is phrased as a prohibition, the “net effect” of the measure would be to “allow[ ]” public officials and public employees to cooperate with federal immigration enforcement. The Attorney General notes that the measure would lift existing restrictions on cooperation — such as
*417 Initiative Petition 52 uses a double negative— “[n]o statute, regulation or order * * * shall prohibit * * *” —because it seeks to prevent certain kinds of formal government actions or policies. Rather than using an admittedly awkward double negative in the caption — such as “prohibits limitations” or “bans restrictions” — the Attorney General chose to describe the subject of the measure using the permissive term “allows.” However, the measure does not purport to “allow” anything, including cooperation between state and federal officials regarding immigration enforcement— and, in fact, such cooperation is not a necessary outcome of the proposed measure. Instead, the proposed measure prohibits certain kinds of laws. And that is all that it does. More importantly, use of the term “allows” in this context suggests, inaccurately, that cooperation is not allowed now and also implies that, were the measure to pass, state and local governments would cooperate with federal immigration enforcement. We thus agree with petitioners that the caption does not accurately identify the subject matter of the measure. The caption must be modified to reflect what the measure would do, which is to bar state and local laws that prohibit public employees from cooperating in federal immigration enforcement.
Petitioners also challenge the “yes” and “no” vote result statement on various grounds. For the reasons set out above with respect to the caption, we agree with petitioners that the “yes” vote result statement does not adequately describe the “result if the state measure is approved,”
Petitioners raise the same arguments with respect to the summary that they raise regarding the other parts of the ballot title, as well as raising other objections. The Attorney General’s certified summary, however, does not suffer from the defects that we have discussed above. The summary does not use the term “allows” to describe the effect of the measure, but instead states that the measure “prohibits
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laws limiting government officials’/employees’ cooperation with federal officials enforcing immigration law.” That is an accurate description of the measure. Petitioners have not demonstrated that the summary, either with respect to the “cooperation” provision of the measure or in any other way, fails to substantially comply with the statutory requirement that it provide an accurate, concise, and impartial summary of the “measure and its major effect.”
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The ballot title is referred to the Attorney General for modification.