364	                                                   May 8, 2014	                   No. 29
29 Or
355
Dixon / Frohnmayer v. Rosenblum
2014                                                                                           May 8, 2014




                                          IN THE SUPREME COURT OF THE
                                                STATE OF OREGON

                                                     Frank DIXON,
                                                        Petitioner,
                                                             v.
                                                  Ellen ROSENBLUM,
                                            Attorney General, State of Oregon,
                                                       Respondent.
                                                    S062043 (Control)
                                                  Mark FROHNMAYER
                                                 and David Frohnmayer,
                                                       Petitioners,
                                                            v.
                                                  Ellen ROSENBLUM,
                                            Attorney General, State of Oregon,
                                                       Respondent.
                                                        S062046

                                  En Banc
   On petitions to review ballot title filed February 14, 2014;
considered and under advisement on April 8, 2014.
   Roy Pulvers, Holland & Knight, LLP, Portland, filed the
petition and response for petitioner Dixon.
  Gregory A. Chaimov, Davis Wright Tremaine, LLP,
Portland, filed the petition and response for petitioners
Frohnmayer.
   Matthew J. Lysne, Senior Assistant Attorney General,
Salem, filed the answering memorandum. With him on the
memorandum were Ellen F. Rosenblum, Attorney General,
and Anna M. Joyce, Solicitor General.
                                  LANDAU, J.
                                  Ballot title referred to Attorney General for modification.
    Petitioners challenged the proposed ballot title for Initiative Petition 38
(2014), which would alter the Oregon primary election process for certain parti-
san offices. Held: the proposed ballot title does not substantially comply with the
Cite as 355 Or 364 (2014)	365

statutory requirements for, among other things, referring to “unlimited votes”
with regard to the nominating process, for failing to clarify that the proposed
measure affects only certain partisan offices, and for failing to clarify the “no”
vote result with regard to purported, and unexplained, “vote limitation[s].”
    The ballot title is referred to the Attorney General for modification.
366	                        Dixon / Frohnmayer v. Rosenblum

	        LANDAU, J.
	         Petitioners seek review of the ballot title for
Initiative Petition 38 (2014) (IP 38), arguing that the ballot
title does not satisfy the requirements of ORS 250.035(2).
We review a certified ballot title to determine whether it
substantially complies with those statutory requirements.
ORS 250.085(5). For the reasons that follow, we refer the
ballot title to the Attorney General for modification.
	        IP 38, if adopted, would alter the Oregon pri-
mary election process for certain partisan offices, denomi-
nated “voter choice offices.” Those offices are United States
Senator, Congressional Representative, Governor, Secretary
of State, State Treasurer, Attorney General, state Senator,
state Representative, and any state, county, city, or district
partisan office for which the law currently authorizes polit-
ical party nominations to the general election. Under cur-
rent law, major parties nominate candidates to the general
election through party primaries. Minor parties and inde-
pendents nominate their candidates directly to the general
election ballot. Under IP 38, all candidates for affected par-
tisan offices—whether from a major party, a minor party, or
an independent—would appear on a primary ballot. Every
voter then would be authorized to vote for one or more of the
candidates for each office. Specifically, the proposed mea-
sure provides that “[a] voter may vote for as many of the
listed candidates as the voter chooses, and in so doing may
cast votes for more than one candidate for a single * * * office,
provided that the voter may not cast more than one vote for
any individual candidate.” The two candidates who receive
the greatest number of votes for each office would then “be
the sole candidates who advance to the general election.”
	        IP 38 also would alter the way ballots are to be
printed in primary elections. If passed, the measure would
require election clerks to print on primary and general elec-
tion ballots the name of each candidate, followed by his or
her political affiliation, if any, and the name of any major or
minor party that has officially endorsed the candidate.
	        In addition, IP 38 would modify the process for
filling vacancies in partisan offices. In particular, it would
Cite as 355 Or 364 (2014)	367

eliminate the current requirement that a person filling a
vacancy be affiliated with the same political party as that of
the person leaving office.
	        IP 38 would modify the election process in other
less significant ways, as well, by changing the process by
which minor political parties qualify, and setting the dates
for primary and general elections.
	         The Attorney General certified the following ballot
title for IP 38:
      “Changes general election nominating process:
          provides one common primary ballot;
            unlimited votes; top two advance
   “Result of ‘Yes’ Vote:  ‘Yes’ vote replaces current general
   election nomination process for most partisan offices; all
   candidates listed on common primary ballot; vote one or
   more; two advance.
   “Result of ‘No’ Vote:  ‘No’ vote retains current general
   election nomination processes: party primaries for major
   parties; no common primary ballot; vote limitations; multi-
   ple candidates on general election ballot.
   “Summary:  Currently, voters are limited to voting for
   one candidate for each office in primary elections; multiple
   candidates may appear for each office on general election
   ballot. Major parties nominate candidates through party
   primaries with separate ballots for each. Measure replaces
   that system for most partisan offices, including many fed-
   eral (not presidential), all state, county, city, district parti-
   san offices, Primary ballot will list all candidates for each
   office. Voters may vote for as many candidates as they like
   for each office, regardless of party affiliation of voter/candi-
   date. Only top two candidates will appear on general elec-
   tion ballot; may be from same party. Primary, general elec-
   tion ballots must contain candidates’ party registration/
   endorsements. Eligible person, regardless of party, may be
   selected to fill vacancy. Other provisions.
	         Two sets of petitioners challenge the certified ballot
title. In case number S062043, petitioner is Frank Dixon,
an elector of the state who timely submitted written com-
ments to the Attorney General’s draft ballot title and is
therefore entitled to seek review of the certified ballot title.
368	                        Dixon / Frohnmayer v. Rosenblum

See ORS 250.085(2) (stating that requirement). In case
number S062046, petitioners Mark Frohnmayer and David
Frohnmayer are likewise electors of the state who timely
submitted written comments to the Attorney General’s draft
ballot title and are entitled to seek review, as well. Id. Those
petitioners collectively advance a number of challenges to
the certified ballot title for IP 38. We write to address five of
those challenges.
	         First, petitioner Dixon contends generally that,
because IP 38 is similar to Ballot Measure 65 (2008), a pre-
vious ballot measure concerning so-called “open primaries,”
and because this court certified a ballot title for Measure 65
in Keisling/Lutz v. Myers, 343 Or 379, 171 P3d 345 (2007),
the ballot title for that previous measure should be “pre-
sumed to be proper.” Accordingly, Dixon argues, the ballot
title for IP 38 “should track the ballot title for Measure 65
(2008) to the extent practicable.”
	         We reject that contention. ORS 250.035(2) sets out
various requirements for a ballot title’s caption, “yes” and
“no” vote result statements, and summary. Under ORS
250.085(5), we review an Attorney General’s certified ballot
title for “substantial compliance” with those requirements.
Any number of different ballot titles for the same measure
could satisfy that statutory standard. And a ballot title
that is not necessarily the “best,” in terms of meeting the
requirements of ORS 250.035(2), still may substantially
comply with those requirements. As this court explained
in Caruthers v. Myers, 343 Or 162, 166 P3d 514 (2007), the
fact that the Attorney General could have produced a better
ballot title is beside the point. Id. at 168. “[T]here has to be
some play in the joints of the ballot title writing process,” the
court explained, “if this court is to maintain its status as a
law-enforcing court, rather than an editorial board.” Id. As
a result, merely because this court may have concluded that
a given certified ballot title met the substantial compliance
standard does not mean that a subsequent ballot title for a
similar measure is required to “track” the one previously
approved.
	      Second, both sets of petitioners contend that
the caption does not comply with the requirements of
Cite as 355 Or 364 (2014)	369

ORS 250.035(2)(a) because it refers to “unlimited votes.”
According to petitioners, that phrase is confusing and mis-
leading, if not outright incorrect. It implies that, under the
current nomination system, votes are in some unexplained
sense “limited.” Moreover, it states that, under IP 38, votes
in primary elections will be in some unexplained sense
“unlimited,” when, in fact, the number of votes that an elec-
tor may cast is limited by the number of candidates.
	       The Attorney General responds that the use of the
phrase “unlimited votes” is neither inaccurate nor mis-
leading. According to the Attorney General, “[v]oters are
unlikely to conclude from reading the caption that they may
vote an unlimited number of times for any one candidate, or
that there will be multiple elections[.]”
	         ORS 250.035(2)(a) requires the caption of a certified
ballot title to “identify[y] the subject matter of the * * * mea-
sure.” To comply with that standard, case law requires that
the caption “state or describe the proposed measure’s sub-
ject matter ‘accurately, and in terms that will not confuse or
mislead potential petition signers and voters.’ ” Kain/Waller
v. Myers, 337 Or 36, 40, 93 P3d 62 (2004) (citation omitted).
A caption that misstates or inaccurately describes the sub-
ject of a measure does not substantially comply with that
standard. Lavey v. Kroger, 350 Or 559, 564, 258 P3d 1194
(2011).
	        In this case, the caption states that the subject mat-
ter of IP 38 is changes to the “general election nominating
process” and that those changes include “unlimited votes.”
The problem with that part of the caption is that nothing
in IP 38 refers to “unlimited votes.” To the contrary, IP
38 would afford each elector a limited number of votes for
each office, depending on the number of candidates run-
ning for that office. As we have noted, the proposed measure
expressly states that “the voter may not cast more than one
vote for any individual candidate.” The caption is inaccurate.
As a result, the ballot title must be referred to the Attorney
General for modification.
	       Third, petitioner Dixon contends that the caption
does not comply with ORS 250.035(2)(a) for the additional
370	                        Dixon / Frohnmayer v. Rosenblum

reason that it refers only to changes to the general election
nominating process. According to Dixon, by referring only
to changes to the nominating process, the caption is fatally
underinclusive, as IP 38 would require significant changes
to the general election process, as well. In support of that
argument, petitioner Dixon relies on this court’s decision in
Keisling/Lutz, in which he contends the court found a sim-
ilar flaw in the ballot title for Measure 65. The Attorney
General contests petitioner Dixon’s reading of Keisling/
Lutz, arguing that the decision found the ballot title at issue
flawed for an entirely different reason.
	         As we have noted, ORS 250.053(2)(a) requires a
ballot title caption to identify the “subject matter” of a mea-
sure, and case law explains that the identification of that
subject matter must be accurate. Lavey, 350 Or at 564. One
way that a caption may be “inaccurate” for the purposes of
ORS 250.035(2)(a) is by being “underinclusive.” A caption
is underinclusive when it identifies the subject matter of a
measure by mentioning only some of its aspects, while leav-
ing other, “major aspects” of the measure unmentioned.
Kain v. Myers, 336 Or 116, 121, 79 P3d 864 (2003). As this
court explained in Towers v. Myers, 341 Or 357, 361, 142
P3d 1062 (2006), “[w]hen the Attorney General chooses to
describe the subject matter of a proposed measure by listing
some of its effects, he [or she] runs the risk that the caption
will be underinclusive and thus inaccurate.”
	In Keisling/Lutz, this court addressed that problem
in the context of a challenge to a ballot title for Measure
65. Because the parties’ arguments in this case turn on the
interpretation and application of that decision, we describe
it in some detail. The court summarized the effect of the
measure at issue in Keisling/Lutz as follows:
   “If adopted, the proposed measure would change the
   Oregon primary election process, replacing the system
   now in use with one in which all candidates for a particu-
   lar office appear on a single primary ballot. All voters then
   would choose whomever they favor for the office (rather
   than whomever they favor as a candidate of their party for
   the office) from that single primary ballot. Thereafter, the
   two persons who receive the highest number of votes in the
Cite as 355 Or 364 (2014)	371

   primary voting would move on to the general election bal-
   lot, without regard to the party affiliation (or lack of affili-
   ation) of either.”
343 Or at 382 (emphasis in original). The Attorney General
certified a ballot title that included the caption: “Changes
partisan primaries: Primary ballots contain all candidates;
top two candidates proceed to general election.” Id. at 383.
	        The petitioners challenged the ballot title caption.
According to the petitioners, the measure applied not only
to partisan primaries, but also to nominations of minor par-
ties and independent candidates. By describing the mea-
sure solely in terms of changes to “partisan primaries,” they
argued, the caption was underinclusive and, thus, inaccu-
rate. Id. at 384-85.
	       This court agreed. The court explained that, under
the existing election scheme, candidates for minor parties
and independent candidates do not participate in parti-
san primary elections. The ballot measure, however, would
change that. Yet, the court observed, the ballot title caption
stated only that the measure “changes partisan primaries.”
The court noted that, “[t]here is neither any direct reference
to minor parties and independent candidates in that phrase,
nor—in our reading of it—any suggestion that the proposed
measure extends to those topics.” Id. at 385. Because of
that omission, the court concluded, the ballot title had to
be referred to the Attorney General for modification. Id. at
385-86.
	        The court went on to identify “one other shortcom-
ing” of the certified ballot title. The court explained that,
while the ballot title caption mentioned only changes to
“partisan primaries,”
   “[t]he change that would be wrought by the proposed mea-
   sure would significantly alter the appearance of the general
   election ballot—and, necessarily, any election held under it.
   The current system permits many candidates for a posi-
   tion to appear on the general election ballot, in addition to
   the two candidates of the major political parties. The tradi-
   tional Oregon election lists the candidacy of minority party
   and independent candidates who have achieved a place on
   the ballot through an alternative nomination process. If
372	                       Dixon / Frohnmayer v. Rosenblum

   the proposed measure is adopted, the general election will
   offer two candidates only.”
Id. at 386 (citations omitted).
	         In this case, petitioner Dixon contends that the cer-
tified ballot title caption for IP 38 suffers a similar defect,
given that it mentions only changes to the “general elec-
tion nomination process,” in the singular, when it actually
would affect multiple processes, viz., “the existing process
for political parties, and the existing nominating process for
minor parties and nonaffiliated voters, and the general elec-
tion itself.” (Emphasis in original.) According to petitioner
Dixon, the caption would meet the statutory standard if it
stated that IP 38 “[c]hanges both general election and nom-
ination processes.”
	       That argument presents a closer question. Certainly,
the caption that petitioner Dixon proposes is accurate
and perhaps in some sense “better” than the one that the
Attorney General certified. But that is not the standard that
we apply. As we have explained, under ORS 250.085(5), our
task is to review the certified ballot title for “substantial
compliance” with statutory requirements.
	         In this case, on the one hand, it is true that IP 38
would affect multiple processes, as petitioner Dixon describes
them. But, on the other hand, it also is entirely accurate
to refer to all of those multiple processes collectively as the
“general election nominating process.” In that sense, there
is nothing inaccurate or underinclusive about the certified
ballot title caption in using that phrase.
	        In that regard, Keisling/Lutz is distinguishable. In
that case, the ballot title caption referred only to changes
to “partisan primaries,” which failed completely to describe
a number of the measure’s significant effects. In this case,
the ballot title caption refers to changes to the “general elec-
tion nominating process,” which captures all of the proposed
measure’s most significant effects as to the partisan offices
to which it applies. Given our standard of review—and the
applicable word limit, ORS 250.035(2)(a) (15-word limit for
ballot title caption)—we cannot say that the phrasing of
the ballot title caption does not substantially comply with
Cite as 355 Or 364 (2014)	373

the statutory requirement to identify accurately the subject
matter of the proposed measure.
	        Fourth, in a related vein, petitioners Mark and
David Frohnmayer argue that the caption fails to meet the
requirements of ORS 250.035(2)(a) because it overstates the
effects of IP 38 by failing to state that it applies only to parti-
san elections. The Attorney General replies that the caption
substantially complies with the statute because other parts
of the ballot title inform voters that the proposed measure
applies only to “most partisan offices.”
	        Just as a ballot title caption can fail for understat-
ing the major effect of a measure, so also can it fail for over-
stating the measure’s major effects. Kain/Waller, 337 Or at
40 (caption should identify the proposed measure’s subject
matter in a way that “do[es] not understate or overstate the
scope of the legal changes that the proposed measure would
enact”). A ballot title caption that phrases the subject mat-
ter of a measure in too-sweeping terms “fails to disclose the
subject matter of the proposed measure in terms that give
notice to the voters of the principal substantive choice or
choices that the measure presents.” Rogers v. Myers, 344 Or
219, 224, 179 P3d 627 (2008).
	         In this case, the Attorney General’s certified bal-
lot title caption broadly states that IP 38, if adopted, would
change the “general election nominating process.” The pro-
posed measure, however, would not change the general elec-
tion nominating process for nonpartisan offices. Indeed,
the proposed measure would not change the general elec-
tion nominating process for all partisan offices, either. By
its terms, the measure would apply only to “voter choice
offices,” which the measure defines as meaning a specified
list of partisan political offices. The ballot title caption thus
overstates the effect of the measure and requires referral for
that reason, as well.
	        Fifth, and finally, petitioner Dixon argues that
the “no” vote result statement is defective because, among
other things, it states that a “no” vote would retain “vote
limitation.” The Attorney General does not respond to that
374	                      Dixon / Frohnmayer v. Rosenblum

argument beyond the general assertion that the “no” vote
result statement complies with the law.
	        ORS 250.035(2)(c) requires ballot titles to contain
“yes” and “no” vote result statements that consist of “sim-
ple and understandable statement[s]” that “describe[  the
                                                       ]
result if the measure is rejected.” The description of the
result must not be inaccurate or misleading. McCormick v.
Kroger/Devlin, 347 Or 293, 300, 220 P3d 412 (2009).
	        In this case, the “no” vote result statement’s refer-
ence to “vote limitation” presumably is intended to contrast
with the statement in the caption that, under IP 38, vot-
ers are permitted “unlimited votes.” As we have concluded,
however, the reference to “unlimited votes” in the caption is
inaccurate and misleading. If the reference in the caption to
unlimiting voting is eliminated, then the later reference to
a “vote limitation” that would be retained if the measure is
rejected has no point of reference and becomes, at best, con-
fusing, if not misleading. We conclude that this aspect of the
“no” vote result statement must be remedied on referral.
	       In that regard, we note that petitioners advance
other arguments about the “yes” and “no” vote result state-
ments and the summary that, in essence, complain that
the foregoing errors in the caption have been repeated in
the other portions of the ballot title. We assume that the
Attorney General “is quite capable of identifying the ways
in which the other sections of the certified ballot title are
affected” by our decision and will modify the ballot title
accordingly on referral. Keisling/Lutz, 343 Or at 385-86 n 2.
	       Ballot title referred to Attorney General for
modification.
