Summary
The Oregon Supreme Court reviewed the Attorney General’s certified ballot title for Initiative Petition 52 (2016), which would require employers to use a federal employment-authorization verification program and impose related licensing consequences. The court held that the caption and the yes and no result statements did not substantially comply with Oregon ballot-title requirements because they inadequately described the measure’s major effects and the source of existing employment-authorization requirements. The court also required modifications to the summary and referred the ballot title to the Attorney General for modification.
Topics
Practice areas
Questions Presented
- Whether the ballot-title caption substantially complied with ORS 250.035(2)(a) by reasonably identifying the measure's subject matter and actual major effects.
- Whether the yes-vote result statement substantially complied with ORS 250.035(2)(b) by describing the measure's most significant and immediate effects.
- Whether the no-vote result statement substantially complied with ORS 250.035(2)(c) by accurately describing the consequences of rejecting the measure without implying that federal requirements originated in state law.
- Whether the summary substantially complied with ORS 250.035(2)(d) by concisely and impartially summarizing the measure and its major effects.
Holdings
- The caption did not substantially comply because it focused primarily on the licensing mechanism and failed to identify the measure's actual major effect: requiring employers to use a federal program to verify the authenticity of employment-authorization documents that federal law otherwise requires employers only to review.
- The yes-vote result statement did not substantially comply because, like the caption, it emphasized the licensing scheme rather than the significant and immediate effect of requiring employers to use a federal program to verify new employees' authorization to work.
- The no-vote result statement did not substantially comply because its use of the word "maintains" inaccurately implied that the existing employment-authorization requirement was imposed by state law, when the requirement originated in federal law and would remain unchanged regardless of the vote.
- The summary did not substantially comply because it inaccurately suggested that existing state law required employers to confirm employment authorization; however, its references to an internet-based federal program, nonconfirmation and incorrect information, and exceptions did not independently make the summary deficient.
Key quotations
“It would require, as a matter of state law, that employers use a federal website to verify the authenticity of the documents that federal law requires only that they review.” (618)
“Rather, the federal statutory requirement that the “no” result statement describes will remain unchanged regardless of whether electors vote for or against IP 52.” (621)
“For the reasons stated above, the caption, the “yes” and “no” result statements, and the summary should be modified.” (623)
Factual background
Initiative Petition 52 would supplement federal immigration law by requiring covered Oregon employers to register for and use a federal employment-authorization verification program, such as E-Verify, for newly hired employees. The measure would implement that requirement through an employment-licensing scheme, including probation and license suspension for noncompliance. The Attorney General's certified ballot title emphasized the licensing mechanism, and the petitioner challenged the caption, result statements, and summary as inaccurate or incomplete.
Procedural history
Cynthia Kendoll petitioned the Oregon Supreme Court to review the Attorney General's certified ballot title for IP 52, which proposed requiring employers to use a federal employment-authorization verification program. The court reviewed the caption, yes-vote result statement, no-vote result statement, and summary for substantial compliance with Oregon ballot-title requirements and referred the ballot title to the Attorney General for modification.
Remand instructions
The certified ballot title was referred to the Attorney General for modification of the caption, yes-vote result statement, no-vote result statement, and summary to accurately identify the measure's effects and distinguish federal from state law requirements.