Legislative lawyer: Secretary of state lacks authority to change initiative petition rules
SALEM — Secretary of State Dennis Richardson may lack the authority to change rules he has proposed for collecting initiative petition signatures in Oregon, according to a preliminary review by the Legislature's lawyers.
Richardson, a Republican, wants to allow petitioners to gather signatures while an official ballot title is still being drafted or remains in dispute. The ballot title is intended to be a neutral summary of what the initiative does.
Richardson says his intention is to stop opponents of an initiative from delaying signature gathering by filing a legal challenge of a ballot title's wording.
"The reason the secretary has proposed this rule is to empower grassroots activists and improve the democratic process," said Steve Elzinga, governmental and legal affairs director in the Secretary of State's Office. "It's unfortunate that the coalition of groups currently in power are opposing changes that will empower the people of Oregon."
Critics say such changes would reverse restrictions that the Oregon Legislature and Richardson's predecessors put in place in the past several years to combat signature fraud by paid petitioners.
"The idea … was you don't want people to gather signatures without a neutral title because that could potentially mislead the voters," said Rep. Dan Rayfield, D-Corvallis.
Rayfield, who is a lawyer, requested the opinion from Legislative Counsel on the proposed rule change.
Richardson said his intention is that petitioners would have to show voters the full text of their initiative in place of the official ballot title.
Deputy Legislative Counsel Dan Gilbert issued a preliminary opinion that the proposed change may be outside the secretary of state's jurisdiction, because it would go against "legislative policy choice" on the signature gathering process.
The secretary of state's rulemaking authority is limited to administering legislatively enacted laws and policies and does not grant the secretary "authority to adopt administrative rules that alter legislative policy determinations," Gilbert wrote.
Elzinga said he is still reviewing Gilbert's analysis. However, Elzinga, Richardson and Elections Director Steve Trout, who are all lawyers, and two outside lawyers reviewed state law and concluded the secretary of state has authority to change the rule.
The two outside lawyers were Dan Meek of the Oregon Independent Party and Eric Winters, who champions conservative causes. Both men have been advocates of less restrictive policies that support grassroots democracy efforts.
The secretary of state did not seek an opinion from the Attorney General's Office, Elzinga said.
"Whenever we send a request to the attorney general, they bill us for their time so when there is something where it is clear we have legal authority, we don't send (a request)," he said.
More than 20 people commented on the proposed rule change Aug. 25 Another 80 comments have come in via email, Elzinga said.
Oregonians may submit comments on the proposed rule change until Sept. 14, after which Richardson can formally adopted it.
Rayfield said there is interest in challenging the rule in court if it moves forward, but opponents of the change are hopeful their formal comments will help Richardson "see the light."