364 May 8, 2014 No. 29

29355 Or Dixon 2014 /Frohnmayer v. Rosenblum May 8, 2014

IN THE SUPREME COURT OF THE

STATE OF OREGON

Frank DIXON,

Petitioner,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

S062043 (Control)

Mark FROHNMAYER

and David Frohnmayer,

Petitioners,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

S062046

En Banc

On petitions to review ballot title filed February 14, 2014; 

considered and under advisement on April 8, 2014.

Roy Pulvers, Holland & Knight, LLP, Portland, filed the 

petition and response for petitioner Dixon.

Gregory A. Chaimov, Davis Wright Tremaine, LLP, 

Portland, filed the petition and response for petitioners 

Frohnmayer.

Matthew J. Lysne, Senior Assistant Attorney General, 

Salem, filed the answering memorandum. With him on the 

memorandum were Ellen F. Rosenblum, Attorney General, 

and Anna M. Joyce, Solicitor General.

LANDAU, J.

Ballot title referred to Attorney General for modification.

Petitioners challenged the proposed ballot title for Initiative Petition 38 

(2014), which would alter the Oregon primary election process for certain partisan offices. Held: the proposed ballot title does not substantially comply with the 
Cite as 355 Or 364 (2014) 365

statutory requirements for, among other things, referring to “unlimited votes” 

with regard to the nominating process, for failing to clarify that the proposed 

measure affects only certain partisan offices, and for failing to clarify the “no” 

vote result with regard to purported, and unexplained, “vote limitation[s].”

The ballot title is referred to the Attorney General for modification.
366 Dixon/Frohnmayer v. Rosenblum

LANDAU, J.

Petitioners seek review of the ballot title for 

Initiative Petition 38 (2014) (IP 38), arguing that the ballot 

title does not satisfy the requirements of ORS 250.035(2). 

We review a certified ballot title to determine whether it 

substantially complies with those statutory requirements. 

ORS 250.085(5). For the reasons that follow, we refer the 

ballot title to the Attorney General for modification.

IP 38, if adopted, would alter the Oregon primary election process for certain partisan offices, denominated “voter choice offices.” Those offices are United States 

Senator, Congressional Representative, Governor, Secretary 

of State, State Treasurer, Attorney General, state Senator, 

state Representative, and any state, county, city, or district 

partisan office for which the law currently authorizes political party nominations to the general election. Under current law, major parties nominate candidates to the general 

election through party primaries. Minor parties and independents nominate their candidates directly to the general 

election ballot. Under IP 38, all candidates for affected partisan offices—whether from a major party, a minor party, or 

an independent—would appear on a primary ballot. Every 

voter then would be authorized to vote for one or more of the 

candidates for each office. Specifically, the proposed measure provides that “[a] voter may vote for as many of the 

listed candidates as the voter chooses, and in so doing may 

cast votes for more than one candidate for a single * * * office, 

provided that the voter may not cast more than one vote for 

any individual candidate.” The two candidates who receive 

the greatest number of votes for each office would then “be 

the sole candidates who advance to the general election.”

IP 38 also would alter the way ballots are to be 

printed in primary elections. If passed, the measure would 

require election clerks to print on primary and general election ballots the name of each candidate, followed by his or 

her political affiliation, if any, and the name of any major or 

minor party that has officially endorsed the candidate.

In addition, IP 38 would modify the process for 

filling vacancies in partisan offices. In particular, it would 
Cite as 355 Or 364 (2014) 367

eliminate the current requirement that a person filling a 

vacancy be affiliated with the same political party as that of 

the person leaving office.

IP 38 would modify the election process in other 

less significant ways, as well, by changing the process by 

which minor political parties qualify, and setting the dates 

for primary and general elections.

The Attorney General certified the following ballot 

title for IP 38:

“Changes general election nominating process: 

provides one common primary ballot;

unlimited votes; top two advance

“Result of ‘Yes’ Vote: ‘Yes’ vote replaces current general 

election nomination process for most partisan offices; all 

candidates listed on common primary ballot; vote one or 

more; two advance.

“Result of ‘No’ Vote: ‘No’ vote retains current general 

election nomination processes: party primaries for major 

parties; no common primary ballot; vote limitations; multiple candidates on general election ballot.

“Summary: Currently, voters are limited to voting for 

one candidate for each office in primary elections; multiple 

candidates may appear for each office on general election 

ballot. Major parties nominate candidates through party 

primaries with separate ballots for each. Measure replaces 

that system for most partisan offices, including many federal (not presidential), all state, county, city, district partisan offices, Primary ballot will list all candidates for each 

office. Voters may vote for as many candidates as they like 

for each office, regardless of party affiliation of voter/candidate. Only top two candidates will appear on general election ballot; may be from same party. Primary, general election ballots must contain candidates’ party registration/

endorsements. Eligible person, regardless of party, may be 

selected to fill vacancy. Other provisions.

Two sets of petitioners challenge the certified ballot 

title. In case number S062043, petitioner is Frank Dixon, 

an elector of the state who timely submitted written comments to the Attorney General’s draft ballot title and is 

therefore entitled to seek review of the certified ballot title. 
368 Dixon/Frohnmayer v. Rosenblum

See ORS 250.085(2) (stating that requirement). In case 

number S062046, petitioners Mark Frohnmayer and David 

Frohnmayer are likewise electors of the state who timely 

submitted written comments to the Attorney General’s draft 

ballot title and are entitled to seek review, as well. Id. Those 

petitioners collectively advance a number of challenges to 

the certified ballot title for IP 38. We write to address five of 

those challenges.

First, petitioner Dixon contends generally that, 

because IP 38 is similar to Ballot Measure 65 (2008), a previous ballot measure concerning so-called “open primaries,” 

and because this court certified a ballot title for Measure 65 

in Keisling/Lutz v. Myers, 343 Or 379, 171 P3d 345 (2007), 

the ballot title for that previous measure should be “presumed to be proper.” Accordingly, Dixon argues, the ballot 

title for IP 38 “should track the ballot title for Measure 65 

(2008) to the extent practicable.”

We reject that contention. ORS 250.035(2) sets out 

various requirements for a ballot title’s caption, “yes” and 

“no” vote result statements, and summary. Under ORS 

250.085(5), we review an Attorney General’s certified ballot 

title for “substantial compliance” with those requirements. 

Any number of different ballot titles for the same measure 

could satisfy that statutory standard. And a ballot title 

that is not necessarily the “best,” in terms of meeting the 

requirements of ORS 250.035(2), still may substantially 

comply with those requirements. As this court explained 

in Caruthers v. Myers, 343 Or 162, 166 P3d 514 (2007), the 

fact that the Attorney General could have produced a better 

ballot title is beside the point. Id. at 168. “[T]here has to be 

some play in the joints of the ballot title writing process,” the 

court explained, “if this court is to maintain its status as a 

law-enforcing court, rather than an editorial board.” Id. As 

a result, merely because this court may have concluded that 

a given certified ballot title met the substantial compliance 

standard does not mean that a subsequent ballot title for a 

similar measure is required to “track” the one previously 

approved.

Second, both sets of petitioners contend that 

the caption does not comply with the requirements of 
Cite as 355 Or 364 (2014) 369

ORS 250.035(2)(a) because it refers to “unlimited votes.” 

According to petitioners, that phrase is confusing and misleading, if not outright incorrect. It implies that, under the 

current nomination system, votes are in some unexplained 

sense “limited.” Moreover, it states that, under IP 38, votes 

in primary elections will be in some unexplained sense 

“unlimited,” when, in fact, the number of votes that an elector may cast is limited by the number of candidates.

The Attorney General responds that the use of the 

phrase “unlimited votes” is neither inaccurate nor misleading. According to the Attorney General, “[v]oters are 

unlikely to conclude from reading the caption that they may 

vote an unlimited number of times for any one candidate, or 

that there will be multiple elections[.]”

ORS 250.035(2)(a) requires the caption of a certified 

ballot title to “identify[y] the subject matter of the * * * measure.” To comply with that standard, case law requires that 

the caption “state or describe the proposed measure’s subject matter ‘accurately, and in terms that will not confuse or 

mislead potential petition signers and voters.’” Kain/Waller 

v. Myers, 337 Or 36, 40, 93 P3d 62 (2004) (citation omitted). 

A caption that misstates or inaccurately describes the subject of a measure does not substantially comply with that 

standard. Lavey v. Kroger, 350 Or 559, 564, 258 P3d 1194 

(2011).

In this case, the caption states that the subject matter of IP 38 is changes to the “general election nominating 

process” and that those changes include “unlimited votes.” 

The problem with that part of the caption is that nothing 

in IP 38 refers to “unlimited votes.” To the contrary, IP 

38 would afford each elector a limited number of votes for 

each office, depending on the number of candidates running for that office. As we have noted, the proposed measure 

expressly states that “the voter may not cast more than one 

vote for any individual candidate.” The caption is inaccurate. 

As a result, the ballot title must be referred to the Attorney 

General for modification.

Third, petitioner Dixon contends that the caption 

does not comply with ORS 250.035(2)(a) for the additional 
370 Dixon/Frohnmayer v. Rosenblum

reason that it refers only to changes to the general election 

nominating process. According to Dixon, by referring only 

to changes to the nominating process, the caption is fatally 

underinclusive, as IP 38 would require significant changes 

to the general election process, as well. In support of that 

argument, petitioner Dixon relies on this court’s decision in 

Keisling/Lutz, in which he contends the court found a similar flaw in the ballot title for Measure 65. The Attorney 

General contests petitioner Dixon’s reading of Keisling/

Lutz, arguing that the decision found the ballot title at issue 

flawed for an entirely different reason.

As we have noted, ORS 250.053(2)(a) requires a 

ballot title caption to identify the “subject matter” of a measure, and case law explains that the identification of that 

subject matter must be accurate. Lavey, 350 Or at 564. One 

way that a caption may be “inaccurate” for the purposes of 

ORS 250.035(2)(a) is by being “underinclusive.” A caption 

is underinclusive when it identifies the subject matter of a 

measure by mentioning only some of its aspects, while leaving other, “major aspects” of the measure unmentioned. 

Kain v. Myers, 336 Or 116, 121, 79 P3d 864 (2003). As this 

court explained in Towers v. Myers, 341 Or 357, 361, 142 

P3d 1062 (2006), “[w]hen the Attorney General chooses to 

describe the subject matter of a proposed measure by listing 

some of its effects, he [or she] runs the risk that the caption 

will be underinclusive and thus inaccurate.”

In Keisling/Lutz, this court addressed that problem 

in the context of a challenge to a ballot title for Measure 

65. Because the parties’ arguments in this case turn on the 

interpretation and application of that decision, we describe 

it in some detail. The court summarized the effect of the 

measure at issue in Keisling/Lutz as follows:

“If adopted, the proposed measure would change the 

Oregon primary election process, replacing the system 

now in use with one in which all candidates for a particular office appear on a single primary ballot. All voters then 

would choose whomever they favor for the office (rather 

than whomever they favor as a candidate of their party for 

the office) from that single primary ballot. Thereafter, the 

two persons who receive the highest number of votes in the 
Cite as 355 Or 364 (2014) 371

primary voting would move on to the general election ballot, without regard to the party affiliation (or lack of affiliation) of either.”

343 Or at 382 (emphasis in original). The Attorney General 

certified a ballot title that included the caption: “Changes 

partisan primaries: Primary ballots contain all candidates; 

top two candidates proceed to general election.” Id. at 383.

The petitioners challenged the ballot title caption. 

According to the petitioners, the measure applied not only 

to partisan primaries, but also to nominations of minor parties and independent candidates. By describing the measure solely in terms of changes to “partisan primaries,” they 

argued, the caption was underinclusive and, thus, inaccurate. Id. at 384-85.

This court agreed. The court explained that, under 

the existing election scheme, candidates for minor parties 

and independent candidates do not participate in partisan primary elections. The ballot measure, however, would 

change that. Yet, the court observed, the ballot title caption 

stated only that the measure “changes partisan primaries.” 

The court noted that, “[t]here is neither any direct reference 

to minor parties and independent candidates in that phrase, 

nor—in our reading of it—any suggestion that the proposed 

measure extends to those topics.” Id. at 385. Because of 

that omission, the court concluded, the ballot title had to 

be referred to the Attorney General for modification. Id. at 

385-86.

The court went on to identify “one other shortcoming” of the certified ballot title. The court explained that, 

while the ballot title caption mentioned only changes to 

“partisan primaries,”

“[t]he change that would be wrought by the proposed measure would significantly alter the appearance of the general 

election ballot—and, necessarily, any election held under it. 

The current system permits many candidates for a position to appear on the general election ballot, in addition to 

the two candidates of the major political parties. The traditional Oregon election lists the candidacy of minority party 

and independent candidates who have achieved a place on 

the ballot through an alternative nomination process. If 
372 Dixon/Frohnmayer v. Rosenblum

the proposed measure is adopted, the general election will 

offer two candidates only.”

Id. at 386 (citations omitted).

In this case, petitioner Dixon contends that the certified ballot title caption for IP 38 suffers a similar defect, 

given that it mentions only changes to the “general election nomination process,” in the singular, when it actually 

would affect multiple processes, viz., “the existing process 

for political parties, and the existing nominating process for 

minor parties and nonaffiliated voters, and the general election itself.” (Emphasis in original.) According to petitioner 

Dixon, the caption would meet the statutory standard if it 

stated that IP 38 “[c]hanges both general election and nomination processes.”

That argument presents a closer question. Certainly, 

the caption that petitioner Dixon proposes is accurate 

and perhaps in some sense “better” than the one that the 

Attorney General certified. But that is not the standard that 

we apply. As we have explained, under ORS 250.085(5), our 

task is to review the certified ballot title for “substantial 

compliance” with statutory requirements.

In this case, on the one hand, it is true that IP 38 

would affect multiple processes, as petitioner Dixon describes 

them. But, on the other hand, it also is entirely accurate 

to refer to all of those multiple processes collectively as the 

“general election nominating process.” In that sense, there 

is nothing inaccurate or underinclusive about the certified 

ballot title caption in using that phrase.

In that regard, Keisling/Lutz is distinguishable. In 

that case, the ballot title caption referred only to changes 

to “partisan primaries,” which failed completely to describe 

a number of the measure’s significant effects. In this case, 

the ballot title caption refers to changes to the “general election nominating process,” which captures all of the proposed 

measure’s most significant effects as to the partisan offices 

to which it applies. Given our standard of review—and the 

applicable word limit, ORS 250.035(2)(a) (15-word limit for 

ballot title caption)—we cannot say that the phrasing of 

the ballot title caption does not substantially comply with 
Cite as 355 Or 364 (2014) 373

the statutory requirement to identify accurately the subject 

matter of the proposed measure.

Fourth, in a related vein, petitioners Mark and 

David Frohnmayer argue that the caption fails to meet the 

requirements of ORS 250.035(2)(a) because it overstates the 

effects of IP 38 by failing to state that it applies only to partisan elections. The Attorney General replies that the caption 

substantially complies with the statute because other parts 

of the ballot title inform voters that the proposed measure 

applies only to “most partisan offices.”

Just as a ballot title caption can fail for understating the major effect of a measure, so also can it fail for overstating the measure’s major effects. Kain/Waller, 337 Or at 

40 (caption should identify the proposed measure’s subject 

matter in a way that “do[es] not understate or overstate the 

scope of the legal changes that the proposed measure would 

enact”). A ballot title caption that phrases the subject matter of a measure in too-sweeping terms “fails to disclose the 

subject matter of the proposed measure in terms that give 

notice to the voters of the principal substantive choice or 

choices that the measure presents.” Rogers v. Myers, 344 Or 

219, 224, 179 P3d 627 (2008).

In this case, the Attorney General’s certified ballot title caption broadly states that IP 38, if adopted, would 

change the “general election nominating process.” The proposed measure, however, would not change the general election nominating process for nonpartisan offices. Indeed, 

the proposed measure would not change the general election nominating process for all partisan offices, either. By 

its terms, the measure would apply only to “voter choice 

offices,” which the measure defines as meaning a specified 

list of partisan political offices. The ballot title caption thus 

overstates the effect of the measure and requires referral for 

that reason, as well.

Fifth, and finally, petitioner Dixon argues that 

the “no” vote result statement is defective because, among 

other things, it states that a “no” vote would retain “vote 

limitation.” The Attorney General does not respond to that 
374 Dixon/Frohnmayer v. Rosenblum

argument beyond the general assertion that the “no” vote 

result statement complies with the law.

ORS 250.035(2)(c) requires ballot titles to contain 

“yes” and “no” vote result statements that consist of “simple and understandable statement[s]” that “describe[] the 

result if the measure is rejected.” The description of the 

result must not be inaccurate or misleading. McCormick v. 

Kroger/Devlin, 347 Or 293, 300, 220 P3d 412 (2009).

In this case, the “no” vote result statement’s reference to “vote limitation” presumably is intended to contrast 

with the statement in the caption that, under IP 38, voters are permitted “unlimited votes.” As we have concluded, 

however, the reference to “unlimited votes” in the caption is 

inaccurate and misleading. If the reference in the caption to 

unlimiting voting is eliminated, then the later reference to 

a “vote limitation” that would be retained if the measure is 

rejected has no point of reference and becomes, at best, confusing, if not misleading. We conclude that this aspect of the 

“no” vote result statement must be remedied on referral.

In that regard, we note that petitioners advance 

other arguments about the “yes” and “no” vote result statements and the summary that, in essence, complain that 

the foregoing errors in the caption have been repeated in 

the other portions of the ballot title. We assume that the 

Attorney General “is quite capable of identifying the ways 

in which the other sections of the certified ballot title are 

affected” by our decision and will modify the ballot title 

accordingly on referral. Keisling/Lutz, 343 Or at 385-86 n 2.

Ballot title referred to Attorney General for 

modification.