A8 — THE OBSERVER
Inactive
voters can’t
sign petitions
for initiatives
By PETER WONG
TUESDAY, JANUARY 11, 2022
OREGON
High court changes course on motor vehicle searches
Ruling makes it
harder for police
to search vehicles
without a warrant
Oregon Capital Bureau
By PETER WONG
SALEM — The Oregon
Supreme Court has held
again that only active voters,
excluding people who remain
on county registration rolls
but are considered inac-
tive, are eligible to sign peti-
tions for ballot initiatives and
referendums.
The court upheld the sec-
retary of state, who declined
to place an initiative on the
2016 statewide ballot because
it relied on signatures from
inactive voters to qualify it.
Judge J. Channing Bennett
upheld the state’s action in
mid-2020 in Marion County
Circuit Court. But a three-
judge panel of the Oregon
Court of Appeals overturned
it in a 2-1 decision released
on Dec. 30, 2020.
Exactly one year later,
on the fi nal business day of
2021, the Supreme Court
upheld the original 2016
decision by then-Secre-
tary of State Jeanne Atkins
to exclude signatures from
inactive voters. The resulting
total fell short of the amount
required to qualify the ini-
tiative for a statewide ballot.
(Atkins has had three suc-
cessors: Republican Dennis
Richardson, elected in 2016;
Republican Bev Clarno,
appointed in 2019 after Rich-
ardson died, and Demo-
crat Shemia Fagan, elected
in 2020. The case now
bears Fagan’s name as the
respondent.)
The Oregon Constitu-
tion specifi es the signatures
required to qualify a refer-
endum, initiative or constitu-
tional amendment for a state-
wide election, based on the
total votes cast in the most
recent election for governor.
Justice Thomas Balmer,
who wrote for the court, said
that voter registration for
elections has been required
by state law since 1920 and
by the Oregon Constitution
since 1927.
He wrote:
“Defi ning and regulating
voter registration and veri-
fi cation of registrations has
been within the purview of
the legislative branch. And
this court has issued several
decisions squarely holding
that voters may sign initiative
petitions only if they could
legally vote in an election at
the time of signing.
“We conclude that voters
with inactive registration,
who statutorily may not vote,
may not have their signatures
counted on initiative peti-
tions either.”
Voters are considered
“inactive” under a state
administrative rule if they
have not cast ballots for at
least 10 years, and county
elections offi cials have sent
specifi ed notices to them.
They can become active
and eligible to vote if they
notify the Division of Driver
and Motor Vehicle Services
(DMV) or their county elec-
tions offi ce.
The legal challenge was
fi led by Richard Whitehead
on behalf of the Citizens in
Charge Foundation, based in
Virginia. It sought to qualify
a ballot measure barring
disclosure of certain voter
information to third parties,
such as the status of a vot-
er’s ballot, without a voter’s
written consent. The law-
suit was joined by Timothy
Grant, who became an inac-
tive voter because he joined
his spouse on active military
duty out of state.
Three lawyers from
the Portland fi rm of Davis
Wright Tremaine were
involved with the plaintiff s’
challenge: Chris Swift; Evan
Christopher, who now is a
counsel with the U.S. House
Judiciary Committee, and
Greg Chaimov, a former
counsel for the Oregon
Legislature.
Separate friend-of-the-
court briefs were fi led by
Greg Wasson, a longtime
advocate for Oregon’s ini-
tiative process, and Daniel
Meek on behalf of the Inde-
pendent Party of Oregon
and the Oregon Progressive
Party.
Oregon Capital Bureau
SALEM — The
Oregon Supreme
Court has dropped its
35-year blanket excep-
tion for motor vehicles
in requiring court-issued
warrants before police can
conduct most searches for
criminal evidence.
The court ruling,
which makes it harder
for police to search vehi-
cles without a warrant,
came on the fi nal business
day of 2021. The 51-page
opinion, penned by Justice
Rebecca Duncan, said the
1986 exception carved out
by the court was meant to
be temporary.
“Notably, the court
did not intend the auto-
mobile exception to be
permanent,” Duncan
EO Media Group, File
The Oregon Supreme Court has dropped its 35-year blanket excep-
tion for motor vehicles in requiring court-issued warrants before
police can conduct most searches for criminal evidence.
wrote. “The exception
was based on the length
of time it generally took
to get warrants, which
the court expected
would be reduced
in the ‘near future’
because of advances in
technology.”
The decision still
allows police to conduct
warrantless searches if
there are “exigent cir-
cumstances,” defi ned by
the court as those “that
require the police to act
swiftly to prevent danger
to life or serious damage
to property, or to forestall
a suspect’s escape or the
destruction of evidence.”
The decision was made
by six justices plus senior
judge Jack Landau, who
retired from the court at the
end of 2017. Justice Thomas
Balmer, a former No. 2 offi -
cial at the Oregon Depart-
ment of Justice, did not
participate.
The Oregon Constitu-
tion bars “unreasonable”
searches and seizures, and
court warrants for police
to conduct them must be
based on “probable cause”
and specify the place to be
searched and the person or
thing to be seized.
But like its fed-
eral counterpart in the
Fourth Amendment, the
state guarantee has been
the subject of numerous
interpretations.
Prior ruling
The court upheld a 2017
ruling by Judge Lindsay
Partridge in Marion County
Circuit Court to exclude
the seizure by Salem police
of evidence from a law-
fully parked and unoccu-
pied truck about a mile
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east of the Marion County
Courthouse.
A warrantless search on
Nov. 28, 2016, uncovered
heroin, a scale, and drug
paraphernalia — and led to
charges of possession and
delivery of heroin against
Charles Steven McCarthy,
who had been the subject of
an earlier investigation by
police.
A detective testifi ed in
circuit court that police
based the search on the
“automobile exception,”
which the Oregon Supreme
Court decided on a split
vote in 1986 was not subject
to the usual requirement for
warrants under two condi-
tions: “The car was mobile
at the time it was stopped
by the police, and the
police had probable cause
to believe that the car con-
tained contraband or crime
evidence.”
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