This page contains a single entry from the blog posted on October 20, 2003 2:39 AM. The previous post in this blog was Multnomah County Democrats endorse PUD. The next post in this blog is On to the Ninth Circus! -- er, I mean, Circuit. Many more can be found on the main index page or by looking through the archives.

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Monday, October 20, 2003

You thought hanging chads were bad

The chief of the federal district court judges here in town, Ancer Haggerty, has gone to extraordinary lengths to remedy what he says is a fundamental injustice in the current election here in Multnomah County regarding the formation of a public utility district (PUD). And he's taking control of at least one aspect of the administration of the election in a powerful way.

First, some background: There are two measures currently on the ballot that would create a PUD to take over some or all of the local electric business here in the Portland area, wresting it away from PGE, and possibly from Pacific Power.

The case before Judge Haggerty is in some senses one of first impression, because unlike other states, Oregon requires that all voting be done entirely by mail. Folks mark their ballots and either turn them over to the Postal Service for delivery or hand them off at drop-off stations positioned around the county. It's a system just begging for fraud and mistake, if you ask me, but that's not the point of this post.

What's happened this time around is that the proponents of the PUD have challenged in Judge Haggerty's court a notice that the county Elections Division has printed on the mail-in ballots, as required by state law. The ballots have already been mailed to the voters, with the controversial language on them. (They're due back November 4.) My spouse and I got ours Saturday, and here's what the fuss is about:

The PUD proponents complain that this statement is highly misleading, because the PUD ballot measures, in and of themselves, would raise property taxes only a tiny bit -- only a small fraction of 1 percent -- and therefore nowhere near 3 percent. The elections bureau counters that the notice is perfectly legitimate. State law already allows counties to raise taxes by 3 percent a year, without any vote of the people, and so any voter authorization of additional new property taxes could "cause" the total tax increase -- both under the ballot measure and as otherwise allowed without a vote -- to be more than 3 percent in the aggregate.

On Friday, Judge Haggerty announced that he agrees with the PUD proponents. The legend on the ballots is so misleading as to be unconstitutional, he declared.

You could stop right there and have yourself a pretty good political story. It's a big victory for the left and for revenue-hungry governments in Oregon, not just in the PUD election but potentially in many other contexts in the future. Under this ruling, unless a particular ballot measure in and of itself would raise property taxes by more than 3 percent, the notice may not be necessary, and in fact could be unconstitutional.

But the plot gets even thicker than that. As usual, the devil is in the details. Since the ballots have already been mailed, what's the proper remedy for the injustice?

The judge's highly unusual order requires the county elections bureau to publish, on its web site home page and in paid advertisements in various sections of The Oregonian daily newspaper, notices that the legend printed on the ballot is misleading. The judge has even specified the exact size and wording of the notices. For example, according to Portland Communique, the newspaper notices must be at least five column inches each, and read: "By Order of the United States District Court for the District of Oregon, the Multnomah County Elections Division advises voters that the passage of Measure 26-52 by itself cannot cause property taxes to increase more than three percent. This clarifies language printed in the November 4, 2003, ballot that was found to be misleading."

(Communique broke this story Friday evening, and I've been trying to read the full text of the judge's order ever since, but I can't get past the first page of the pdf file that Communique links to without my version of Adobe Reader choking on it.)

As of late last night, the county hadn't put the notice up on its home page, as the judge requires, but I suspect it will do so sometime today.

The anti-tax, anti-government zealots who engineered Measure 50, the 1997 initiative which requires the tax increase ballot notice, must be in a snit. Here's a federal judge defiling their precious political baby, and who's there to defend it? Mostly county and state politicians and bureaucrats, who deeply resent the entire law that requires the notice in the first place. Those officials certainly won't lose sleep if that legend has to be removed from future ballots; indeed, they'll laugh themselves to sleep.

Perhaps the state and local governments won't even bother appealing Judge Haggerty's ruling to the U.S. Court of Appeals for the Ninth Circuit. Which is a shame, because the judge's order is an extraordinary exercise of federal power over county elections officials. It literally puts words in their mouths and forces expenditures of public funds to provide public notices to the effect that state law disclosure requirements are misleading. (As they used to say on Seinfeld, not that there's anything wrong with that.)

Perhaps PGE and Pacific Power -- oops, I mean {sarcasm} those grassroots citizens groups that are opposing the PUD {/sarcasm} -- will file an appeal.

Somebody ought to.

I like Judge Haggerty well enough. I see him at the gym from time to time. He may even be right on the merits of this one. But a federal judge literally dictating to a county elections bureau what it must publish in the paper and put on its web site? That's probably worth a higher court taking a second look.

UPDATE, 5:55 p.m.: As for that balky pdf file, I upgraded my Adobe Acrobat Reader to 5.0, and it works fine now. Turns out the court relied on both First Amendment and due process grounds for its order, which is a preliminary injunction.

Although the order requires the corrective ads to start running as of yesterday (Sunday), none have appeared as of Monday's paper. And at the end of the business day on Monday, still no notice has appeared on county elections home page. We'll see what tomorrow brings.

Comments (6)

Not sure why the PDF file of the order that OPPC offers up isn't working for you. Maybe it's their connection and not the file? I've put a copy of it here -- see if that works.

"proponents of the PUD." heh heh.

Here's what I know so far: As expected, the County has indeed appealed the decision, and according to Assistant County Attorney John Thomas a motion to stay the judge's order has also been filed with the Ninth Circuit.

According to Dan Meek, one of the attorneys for the plaintiffs in the case, the County must "continue to comply with the U.S. District Court order until and unless the Ninth Circuit says otherwise." However, as you note, neither the ads nor the website notice ordered by the judge have yet to appear.

Okay, I have a dumb question, which will require me to reach back into my recollection of how initiatives work back there. (We don't have them on the frozen tundra -- yet.)

Doesn't the DOJ review the initiative titles or something before they go on the ballot? Would it make sense for them to make the call about whether to include that notice, rather than leaving it to the counties to guess? It just surprised me, if the ballot initiatives are being checked for some basic form-and-style stuff anyway, that you couldn't just throw that issue in there too, as to whether it needed the Measure 50 notice.

I'm not really of any particular opinion about the notice, or about the federal-county relationship (which I agree looks wonky here) -- I'm just wondering if it could have been avoided.

My understanding (which is fallible) is that everyone agrees that Measure 50 by its terms requires the notice whenever property taxes are to be increased, at all. Thus, I think the DOJ routinely says you must include it. The court has decided that that's unconstitutional, at least as applied to these facts.

Got it. I was misunderstanding the "three percent" issue. I was thinking it was a three percent cutoff -- that you only had to include it if the tax increase was more than three percent. I should have known the initiative would never be that forgiving. I knew some of the attorneys I worked for at the DOJ did that kind of work from time to time, so that's what made me think of them.

Considering what a hassle it is at the legislature I now work for to get an objective fiscal note for a bill (which fiscal note always arrives with a list of "assumptions" allowing anyone who doesn't like its result to discount it anyway), I'm not surprised that the issue of what does or does not make property taxes go up by so-and-so amount turns out to be sticky as all get out.


Listed below are links to weblogs that reference You thought hanging chads were bad:

» The trials and tribulations of the PUD ballot from JohnHays.net
In Multnomah County, Oregon there is an upcoming election concerning a couple of PUD initiatives. Now you might think it would be a nice, simple little election, right? Man, would you be wrong. Wev'e got all sorts of counsel, the federal judge, the Nin... [Read More]

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