measure so i'm going to focus my arguments this morning on the facial challenge in order to understand why the statute on its face does not violate either the first amendment or the due process clause and to take just a moment to talk about the context in which it arises under oregon law because the statement that's required by or as two eight zero point zero seven zero seven for its part of a larger statute under the same statute the ballot title must also include the number of years that a local tax will be imposed the first year that the tax will be imposed and the total amount in terms of dollars and cents that would be raised by the tax also under oregon law to fifty point zero three five valid title has to have a ten ten work caption that kind of summarizes what it's about twenty work question  question that the voters are going to be voting on and the one hundred maximum one hundred seventy five words summary which is required to be concise impartial just that summarizes the measure and its major effect there is also a process under oregon law for an elector to challenge the fairness of the impartiality of any ballot title that's created that's under or as to fifty point one five electors thinks that so at issue in this case and determine whether that what the ballot title would be unfair or misleading violation of either the due process clause or the first amendment and the fact that there is a process available under state law i think the court can assume unofficial challenge that the state courts are going to comply with the first amendment and the due process requirements in addition to complying with the statutory requirements in crafting a ballot title that court explained there is that the ballot itself it's not a forum for speech what it is is a mechanism for conducting an election and a ballot by by its nature by definition is a short hand if it doesn't already cannot possibly explain all the nuances of either a ballot measure or candidates position it's a shorthand so that the voters know what it is that they're voting on about all the nuances of the measure so so i don't think the due process you know the cases that come up are due process cases i think that does help us to understand a little bit the first amendment challenge i turn to the first amendment issue if i may and i think the question here under under buckley versus a c l that's the main u s supreme court case the court says the test is whether the restriction in question significantly inhibits communication with voters about a proposed political change and are not warranted by the state's interests alleged to justify those prescriptions so it's a two part  at the nature of the restriction as it significantly inhibit communication and that's that's why this case is different from the prior cases in which states state law restrict the number of circulators that could be out there circulating a petition to get out of the ballot those cases are different and the reason they're different is because this case the prospect creation of the ballot itself by definition the measure already is on the ballot it's already the subject of discussion in this case within the local community within the county so thorough a lot of things around the valley that aren't much talked about by average citizens and day to day life and the is that we assume that they the voters understand just from what's on the ballot what they just are voting on and that's enough then it's up to the voters themselves to educate themselves about the nuances of the measure that's that's the requirement and then with respect to the first amendment challenge the question is does the listing of information on the ballot ensure that someone's right to communicate about just nature that's the difference between this case the thumb on the scale of just because in your brief you acknowledge i think to your credit that this may not be the world's greatest language in terms of explaining what's an issue if you  of recent work in front of history limitations on your property taxes in assessments and so forth it becomes more understandable but again we're looking at the one piece that the voter has in front of himself or herself and they go into the  vote and that may be the primary source of information isn't there a problem here because the language is so potentially misleading i don't think there's a problem linked in terms of the foliage of the of the statute out its face because of the other information that's required by oregon law to eat i the ballot is part of the ballot title it's not just the statement it is the statement plus the explanation of the intended effect of the measure the explanation of the exact amount in terms of dollars and cents that will be raised to take the gamble county measure as an example although that claim is moot as it was a very small tax it would be a forty five cent increase in tax you had one hundred fifty thousand dollars hours and that was stated on the ballot itself so i think in context is this is was that ballot misleading or would it be misleading if the if the warning statement had been le on the ballot i don't think you can say as a matter of law that it would certainly not it doesn't it's not a violation of the due process task because voters know that they're they're voting on a tax to pay for a report regarding the creation of the public utility district and they know that it's a very small amount of the tax because the total the total amount raised by the measure in this case was ninety seven hundred dollars so they know that that information is before the voters and looking at all of the information not just this this language encountered in isolation i don't think you can say that it's automatically a violation of the of either the due process clause or the first amendment the issue it could be viewed as a thumb on the scale does that inhibit communications just a complete about the measure i don't think it does certainly it doesn't get to the extent that the state's interest in calling to the attention to voters that they are waving are right that they have previously adopted by amending their constitution they are waving this this absolute three percent cap on their tax increase i did i read that in the brief and i think the answer is the same and i explained that in our opening brief i'm page nineteen and footnote sixty three how that increase in an assessment of three percent actually is an increase in the taxes the amount of the check that the taxpayer has to write it's also a three percent increase and if you if you raise the rate even by the forty five cents that gangrel county measure would raise  then the overall increase in the amount of the chapter that the taxpayer has to write from his prior years taxes would be three point zero one nine percent which is more than three percent and th violate the first amendment rights of people who are of order or a proponent of the measure i think there's a reason why there's no case on that one of the reason is because the ballots not a form and people don't expression restrict expression at all about the measure in question that's why there are no first amendment cases aren't quite the first amendment cases that discuss this petition circulators it's a key case that that both parties a portland general electric company which is owned by was owned by enron then and continues to be owned by enron now so through so years hear of observing the day and his concerns remain the same as they were back in two thousand and three army two thousand and obtain the relief that he sought he sought to have a ballot go out to the voters in danville county they did not contain the extremely misleading statement that this measure may cause property taxes to increase more than three percent as a district court found the at question would in fact cause property taxes to increase by one ten thousandth of three percent or if you interpret it in a different way at most it would cost property tax to increase by one fifty three percent so the court found that the and persons interested in the petition is very highly protected and in this case you can communicate all you want in this case the district court and made it very explicit findings that this communication three percent warning misleads voters to grossly overestimate the tax consequences of the ballot measure which the warning attaches to the inclusion of the three percent warning in the title of the measure will inevitably cause voter confusion it's a finding of fact and that's the district court's opinion and order the district court specifically indicates that he is basing his findings on the evidence of the record where he states in the last paragraph point of the spoken with hundreds of potential voters about measure plaintiffs ability to accurately explain the tax consequences associated with measure thirty six fifty five voters is impaired by state mandated language that is profoundly misleading placing the wording on the ballot itself a place where voters are likely to give great weight to the government the original ballot proposed by the county did include the warning but then again the district court ordered that to be removed so the actual measure that if you're on the ballot did not include the warning that's on page forty nine of the excerpts of record so i the question is the twenty were statement the first thing you see after the talk after the catching of the measure so if you look at the excerpts of record page forty nine for example measure thirty six fifty five authorize a special levy name even if it was the true statement that in this case what we have the state doing is on a ballot measure and generally ballot measure ballot measures are subject to a greater degree and more exacting scrutiny when it comes to limitation on an expression of first amendment rights than elections that point out the memorandum but here we have a statement that the district court has found based on evidence is patently false and profoundly misleading so one in the united states supreme court with the elections clause under the u s constitution that is decided since this would not pass muster on the election they did not need to reach the first amendment of the chief justice and that even under the strict reading of national audubon society the three percent warning with so mislead voters that they would be unable to decipher the subject of subject of measure thirty six fifty five the voter is misled to believe that the subject matter of measure thirty six fifty five involves a potentially significant tax increase the court finds the photos will be funny to recognise the subject of measure thirty six fifty five because voters will be misled by a three percent warning that overstates potential tax consequences of the measure by a whether your property taxes go up or down three percent or some other number if you if you look at the excerpts of record you'll find mr bush on his place they are just some of the election results from two oregon counties over a period of two or three years and we find in both an mccallion marion county a couple of the larger counties in oregon you're looking at about ten of these local option tax collections per year and there are dozens of taxing jurisdictions the fact that you be limited to three percent it doesn't tell you much of anything about how your property taxes are going to change in fact mr song was honks presentation this morning assumes that your property tax assessment goes up three percent and none of the i don't believe so i don't believe the district court found that the district court found it was profoundly misleading and it would believe that it was this measure that was causing property taxes to increase more than three percent in particular because the language of the statute is that this measure may approximately three point zero one five percent however that assumes that all other taxing authorities in the county do nothing if any taxing authority in the county does anything that means that this measure will not cause property taxes to increase more than three percent because they all either already been more than three percent increase without this cause or they won't be increased by three percent because the other taxing authorities will have reduced their will have reduced their rate not content neutral certainly less content neutral in stating whether a person a candidate does or does not take the term limits pledge as chief justice rehnquist stated in that you know it directs the voters attention to a particular just briefly your honor in response to point the gator case that mr meek refers to became moot because of a settlement agreement between the parties the cases that are more  out one sided in our brief arizona nts for official english and then a series of ninth circuit cases that make the distinction between a case that becomes moot because of an election or some other reason that is not attributed to the conduct of the parties requiring the candidate to take a stand on term limits the supreme court of course the majority did not decided on that basis decided on the basis of the election clause and even justice rehnquist and his concurred speech analysis of the eighth circuit either and his his first amendment he was essentially equating first giving the candidate a right not to be tainted by the california right to life counsel versus at midnight tonight circuit cases where the court says it's kind of a waiting first we look at whether or not you know the extent to which the statute in question restricts first amendment rights and if there's a substantial restriction of those rights then of course it has to be justified by compelling state interest but if it's not a substantial then it then the state's interest doesn't need to be as strong and i think that's you know