818 March 24, 2016 No. 18

IN THE SUPREME COURT OF THE

STATE OF OREGON

Michael J. NEARMAN

and James L. Buchal,

Petitioners,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(SC S063787) (Control)

Andrea MILLER,

Petitioner,

v.

Ellen ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(SC S063789)

En Banc

On petitions to review ballot title filed January 5, 2016; 

considered and under advisement February 23, 2016.

James L. Buchal, Murphy & Buchal LLP, Portland, filed 

the petition and reply for petitioners Michael J. Nearman 

and James L. Buchal.

Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, 

P.C., Portland, filed the petition and reply for petitioner 

Andrea Miller.

Denise G. Fjordbeck, Assistant Attorney General, Salem, 

filed the answering memorandum for respondent. With her 

on the answering memorandum were Ellen F. Rosenblum, 

Attorney General, and Paul L. Smith, Deputy Solicitor 

General.

Gregory A. Chaimov, Davis Wright Tremaine LLP, 

Portland, filed the memorandum for amici curiae David 

Rogers, Rev. Joseph Santos-Lyons, and Kayse Jama.
Cite as 358 Or 818 (2016) 819

BREWER, J.

The ballot title is referred to the Attorney General for 

modification.

Case Summary: Petitioners challenge the Attorney General’s certified ballot 

title for Initiative Petition 51 (IP 51), asserting that it fails to meet the requirements of ORS 250.035(2), which establishes content standards for ballot titles. 

Among other arguments, petitioners contend that the ballot title’s caption and 

summary, as certified, impermissibly limit the scope of IP 51 to state and local 

elections, whereas, by its terms, the measure also applies to federal elections. 

In response, the Attorney General asserts that the National Voter Registration 

Act preempts the subject of the measure; because of that preemption, registration requirements established by IP 51 are in conflict with, and cannot apply to, 

federal elections. Held: (1) the Attorney General has authority to engage in basic 

interpretation to identify a measure’s subject or major effect; (2) where, as here, 

the lawfulness of a proposed measure is not settled, and its determination would 

require extensive legal analysis, ballot title proceedings do not furnish an appropriate opportunity for resolution of that issue; (3) in stating that the application 

of IP 51 is limited to “state and local” elections, the Attorney General’s caption 

does not substantially comply with the requirement in ORS 250.035(2)(a) that 

the caption reasonably identify the subject of the proposed measure; and (4) the 

summary fails to state a major effect of the measure because it does not state 

that, by its terms, the measure applies to federal elections.

The ballot title is referred to the Attorney General for modification.
820 Nearman/Miller v. Rosenblum

BREWER, J.

Petitioners seek review of the Attorney General’s 

certified ballot title for Initiative Petition 51 (2016) (IP 51), 

arguing that the ballot title does not satisfy the requirements of ORS 250.035(2). This court reviews a certified ballot title to determine whether it substantially complies with 

the requirements of that statute. ORS 250.085(5). For the 

following reasons, we refer the ballot title to the Attorney 

General for modification.

IP 51 is a proposed constitutional amendment that, 

if adopted by the voters, would change current voter registration methods for federal, state, and local elections in 

Oregon by requiring in-person registration, thereby eliminating “motor-voter,” online, and mail registration options. 

Its passage also would result in the expiration within

10 years of all current Oregon voter registrations and establish other new requirements that must be satisfied in order 

for Oregonians to register to vote.

IP 51 has four sections. Section (a) provides that

“[p]roof of United States citizenship shall be required to register to vote in all elections in the State of Oregon.” Section 

(b) requires a prospective voter to present one or more of an 

exclusive list of “documents or records” that constitute proof 

of United States citizenship sufficient to register to vote in 

Oregon. Id. § (b)(i) - (x). Section (b) further provides that, 

if an applicant certifies to the Secretary of State that the 

applicant does not have any of the specified documents, the 

Secretary of State shall ask the United States Immigration 

and Naturalization Service (INS)1

 to “verify the applicant’s 

citizenship status.” Id. § (b)(xi). The federal agency’s determination would be controlling. Id. If the federal agency fails 

to respond, the applicant may offer evidence of his or her 

citizenship status in a contested case hearing before the 

Secretary of State. IP 51, § (b)(xi). Section (c) provides that 

1 The United States Immigration and Naturalization Service (INS) was a 

component of the U.S. Department of Justice from 1933 to 2003. In 2003, many 

of that body’s functions were transferred to U.S. Citizenship and Immigration 

Services, a then-new component of the United States Department of Homeland 

Security. We express no opinion here with respect to the effect, if any, of the measure’s references to INS.
Cite as 358 Or 818 (2016) 821

all existing voter registrations will expire 10 years after the 

measure passes, unless a voter registration is “renewed” 

in accordance with the proof of citizenship requirement 

prescribed by section (a). Section (d) requires the State of 

Oregon to provide, without charge, a replacement birth certificate for the purpose of voter registration to any Oregon 

resident born in Oregon.

The Attorney General certified the following ballot 

title for IP 51:

“Amends Constitution: State Election Registration 

Requires In-Person Registration, Specific 

Citizenship Documents/ Verification/ Hearing;

Voter Registrations Expire

“Result of ‘Yes’ Vote: ‘Yes’ vote requires registration 

for state/local elections in person with specified citizenship documentation or immigration verification/hearing. 

Current voter registrations expire after ten years.

“Result of ‘No’ Vote: ‘No’ vote continues the current system allowing in person, online, mailed voter registration 

for all elections with attestation of citizenship. Voter registrations do not expire.

“Summary: Amends Oregon Constitution. Under current law, voters may register by submitting registration 

card online/ by mail/ in person; voter must attest United 

States citizenship. Felony criminal penalties for providing 

false attestation. Effective January 1, 2016, Driver and 

Motor Vehicle Division (DMV) will submit information 

received from customers to Secretary of State; if information demonstrates citizenship, customer will be registered to vote unless opts out. Proposed measure requires

in-person voter registration proving citizenship with specified documents only; if specified documents are unavailable, federal Immigration and Naturalization Service or 

an administrative hearing required. Proposed measure 

conflicts with federal voter registration laws, applies only 

to state/ local elections. Current voter registration expires 

ten years after proposed measure passes; to vote, current 

voters need to re-register. Other provisions.”

Nearman and Buchal, chief petitioners, and Miller, 

a commenter, seek review of the ballot title certified by the 

Attorney General. Chief petitioners object to the caption and 
822 Nearman/Miller v. Rosenblum

summary for the ballot title. Petitioner Miller objects to the 

caption, “yes” result statement, and summary. We begin 

with chief petitioners’ related arguments about the caption 

and summary.

Chief petitioners object to the caption on the ground 

that it does not reasonably identify the subject matter of IP 

51, insofar as it purports to limit its scope and effect to state 

and local elections. Relatedly, they assert that the summary 

incorrectly states that IP 51 conflicts with federal law and 

only applies to state and local elections.

The caption for the ballot title of a state measure 

must contain no more than 15 words and reasonably identify the “subject matter” of the measure, which is “the actual 

major effect of a measure or, if the measure has more than 

one major effect, all such effects (to the limit of the available words).” McCann/Harmon v. Rosenblum, 354 Or 701, 

706, 320 P3d 548 (2014) (internal quotations marks omitted; 

citations omitted); see ORS 250.035(2)(a).

ORS 250.035(2)(d) provides that a ballot title 

summary shall be “[a] concise and impartial statement 

of not more than 125 words summarizing the state measure and its major effect.” The function of the summary is 

“to provide voters with enough information to understand 

what will happen if the measure is approved.” Caruthers v. 

Kroger, 347 Or 660, 670, 227 P3d 723 (2010). The information must pertain to an identified, actual “effect” of enacting or adopting the proposed measure; it is not permissible 

to “speculate about the possible effects of a proposed measure.” Pelikan/Tauman v. Myers, 342 Or 383, 389, 153 P3d 

117 (2007).

In this case, chief petitioners argue that the caption 

and summary fail to meet those standards because, by its 

terms, IP 51 applies to federal elections as well as state and 

local elections, and the caption and summary fail to state 

that it applies to federal elections. According to chief petitioners, the Elections Clause of the United States Constitution 

allows the states to specify who is qualified to vote in federal 

elections, the measure falls within the ambit of that authority and, thus, the measure does not conflict with federal law. 
Cite as 358 Or 818 (2016) 823

See US Const, Art I, § 4, cl 1 (stating responsibility for times, 

places and manner of elections).2

The Attorney General defends the caption and summary on the ground that “the requirements of the proposed 

measure conflict with, and are preempted by, the National 

Voter Registration Act (NVRA), as construed by the United 

States Supreme Court.” According to the Attorney General, 

the Elections Clause authorizes the State of Oregon to

specify—as it has done—that only United States citizens 

may vote. See Or Const, Art II, § 2 (so describing qualification of electors). However, the Attorney General notes, 

because Congress may specify the “[t]imes, [p]laces and

[m]anner of holding [e]lections,” US Const, Art I, § 4, cl 1, the 

substantive scope of those words is broad enough to encompass “authority to provide a complete code for congressional 

elections, including*** regulations relating to registration.” 

Arizona v. Inter Tribal Council of Ariz., Inc., ___ US ___, 133 

S Ct 2247, 2253, 186 L Ed 2d 239 (2013) (Inter Tribal) (ellipsis added; internal quotation marks and citations omitted). 

Because, under Inter Tribal, the Elections Clause invests 

the states with authority over federal elections “only so far 

as Congress declines to pre-empt state legislative choices,” 

id., the Attorney General opines that IP 51 is inconsistent 

with—and therefore preempted by—the NVRA.

The thread of the Attorney General’s argument is 

more detailed. She notes that, in the NVRA, Congress has 

chosen to allow citizenship to be shown by attestation, rather 

than by documentary proof. See 52 USC § 20508(b)(2)(B).

The stated Congressional purposes of the NVRA are to 

protect the integrity of the electoral process and enhance 

and increase voter participation in federal elections, which 

includes discouraging unfair or discriminatory registration laws and procedures that have a damaging effect on 

voter participation. 52 USC § 20501(a)(2) - (3), (b)(1) - (3). 

The NVRA requires each state to establish a procedure for 

2 Article I, section 4, clause 1 provides:

“The Times, Places and Manner of holding Elections for Senators and 

Representatives, shall be prescribed in each State by the Legislature thereof; 

but the Congress may at any time by Law make or alter such Regulations, 

except as to the Places of [choosing] Senators.”
824 Nearman/Miller v. Rosenblum

federal elections that allows applications to be made by driver 

license application, mail application, or in-person application. 52 USC § 20503(a). To accomplish those objectives, the 

federal Election Assistance Commission (EAC) is required 

to develop, in conjunction with the states, a “federal mail 

voter registration application form.” 52 USC § 20508(a)(2). 

Each state is required to “accept and use” the federal form. 

52 USC § 20505(a)(1). The NVRA allows a state to request 

that the EAC approve instructions for the federal form to 

comport with the state’s voter qualification requirements, 

but at least one federal court of appeals has held that the 

EAC is under no obligation to approve the use of such 

instructions. See Kobach v. U.S. Election Assistance Com’n, 

772 F3d 1183, 1194-96 (10th Cir 2014), cert den, __ US __, 

135 S Ct 2891 (2015). The court in Kobach held that, absent 

evidence that attestation is insufficient to ensure that noncitizens do not vote, the EAC lawfully may deny a state’s 

request that requires documentary proof of citizenship. Id. at

1196-97.

Based on the foregoing authorities and reasoning, 

the Attorney General asserts that

“in the absence of EAC approval of state-specific instructions for the federal form, IP 51 will create a dual system of 

voter registration: Registration for federal elections using 

the federal form requiring attestation of citizenship, and 

registration for state elections requiring in-person presentation of specific documentation of citizenship, or, absent 

such documentation, INS verification or a contested case 

hearing before the Oregon Secretary of State.”

The Attorney General asserts that “[i]t is not only entirely 

speculative, but also wholly unlikely, that the EAC will 

approve Oregon-specific instructions that are contrary to 

the NVRA’s purpose and language.” It follows, the Attorney 

General urges, that the certified ballot title correctly states 

that, if adopted, IP 51 would apply to only state and local 

elections.

Chief petitioners dispute the Attorney General’s 

arguments. Among other arguments, they assert that the 

Attorney General has misinterpreted the United States 

Supreme Court’s decision in Inter Tribal. Chief petitioners 
Cite as 358 Or 818 (2016) 825

point out that the majority in that case “noted that there 

would be ‘serious constitutional doubts’ as to the lawfulness of the NVRA if it ‘precluded a state from obtaining 

information necessary to enforce its voter qualifications’ 

and *** that the ‘power to establish voting requirements 

is of little value without the power to enforce those requirements.’ “ (Quoting Inter Tribal, 133 S Ct at 2258-59.) To 

reinforce the point, chief petitioners rely on a recent letter 

from the Executive Director of the EAC reporting that the 

EAC accepted a request from the State of Kansas that 

the national voter registration form be modified to add 

instructions that an application must “have provided a 

document, or copy thereof, demonstrating United States 

citizenship within 90 days of filing the application with 

the secretary of state or applicable county election officer.” 

According to chief petitioners, that letter demonstrates 

that there is “no inherent inconsistency” between IP 51 

and federal law.

The parties’ disagreement about the effect of federal 

election law on IP 51 is an interesting one, but we ultimately 

conclude that it is not a matter that is properly before us at 

this stage of the measure’s life cycle. To explain why, it is 

helpful to consider several of this court’s previous decisions 

that have addressed similar issues.

In the past, this court often stated that determinations of the constitutionality of a proposed measure are not 

within the scope of the ballot title certification process.3

 In 

Kane v. Kulongoski, 320 Or 273, 277-78, 882 P2d 588 (1994), 

this court applied that principle to a ballot title challenge 

that was based on the asserted preemption of the subject of 

the measure by federal law. The petitioner there asserted 

that the measure was “unconstitutional because, if passed, 

it would purport to allow Oregonians to grow, process, and 

sell marijuana, while federal law specifically criminalize[d] 

such conduct.” Id. at 277. It followed, the petitioner argued, 

that the measure violated the Supremacy Clause of the 

United States Constitution.

3 See, e.g., Dunagan v. Thornton, 237 Or 379, 380, 391 P2d 783 (1964) (so 

holding under former ORS 254.080 (1963), under which this court was responsible for certifying ballot titles to the Secretary of State); Johnson v. City of Astoria, 

227 Or 585, 591, 363 P2d 571 (1961) (same).
826 Nearman/Miller v. Rosenblum

This court rejected that challenge:

“Whether or not petitioner’s argument in this regard is well 

founded in law, our precedents make clear that this court 

will not address it at this stage in the initiative process. 

See, e.g., Hand v. Roberts, 309 Or 430, 436, 788 P2d 446 

(1990) (court not authorized to assess ‘legality’ of proposed 

ballot measure in the context of a ballot title review).

“Although petitioner makes the foregoing argument 

under the heading, ‘The Measure is Unconstitutional,’ petitioner argues another proposition, as well. Petitioner says: 

‘The measure is in direct conflict with federal law * **[, y]et

no part of the challenged ballot title refers to the conflict 

between the measure and federal law.’ Enactment of the 

proposed measure, petitioner argues, would ‘expose’ those 

who acted in conformance with it ‘to prosecution under federal law.’ A ballot title, petitioner asserts, ‘should disclose 

an obvious conflict between an initiative measure and federal law.’

“That argument, although dressed up slightly differently, does not really differ from the unconstitutionality 

argument: It is an attempt to have inserted into the ballot title a warning to the effect that the proposed measure 

creates serious legal difficulties and questions. So understood, petitioner’s argument offends both the rule that this 

court does not address the legality of a proposed measure 

in these proceedings, Hand v. Roberts, supra, and also the 

requirement that a ballot title not take sides for or against 

a proposed measure. Id. at 433 (ballot title ‘should provide accurate and neutral information to the voters, not 

an additional opportunity for proponents or opponents to 

persuade’).”

Kane, 320 Or at 277-78 (ellipsis and first alteration in original; footnote omitted).

More recently, this court has refined and, indeed, 

retreated from the seemingly categorical stance that it took 

in Kane and earlier cases. We have recognized, for example, that the Attorney General has authority to engage in 

basic interpretation of a measure to identify its subject or 

determine its major effect and, in so doing, to consider the 

“changes that the proposed measure would enact in the context of existing law.” Rasmussen v. Kroger, 350 Or 281, 285, 
Cite as 358 Or 818 (2016) 827

253 P3d 1031 (2011). As this court stated in Christ/Tauman 

v. Myers, 339 Or 494, 500, 123 P3d 271 (2005),

“[t]he statutory framework in which the Attorney General 

performs the ballot title preparation function may deny the 

Attorney General the right to speculate as to a proposed initiative measure’s meaning, where two or more reasonable 

interpretations are possible. But the statutory standards 

in ORS 250.035(2)(a) (requiring Attorney General to prepare caption ‘that reasonably identifies the subject matter’ 

of the proposed measure); (2)(b) (requiring a ‘simple and 

understandable statement *** that describes the result 

if the state measure is approved’); (2)(c) (requiring a ‘simple and understandable statement * ** that describes the 

result if the state measure is rejected’); and (2)(d) (requiring a statement ‘summarizing the state measure and its 

major effect’) all require a degree of interpretive effort by 

the Attorney General. See, e.g., Kain/Waller v. Myers, 337 

Or 36, 93 P3d 62 (2004) (interpreting ORS 250.035(2)(a)

and (b), and illustrating proposition). The Attorney General 

should not in the future rely on apparently contrary statements from our older decisions. Instead, the Attorney 

General must recognize that his or her statutory obligation 

includes a certain amount of basic interpretation including, 

in this case, an independent assessment of what the proposed initiative measure in this case is—statutory enactment or constitutional amendment. He or she must make 

that identification in order to inform potential signers of 

the initiative petition as to what the ‘practical effect’ of the 

proposed measure will be if it is adopted.”4

(Emphases in original).

Christ/Tauman did not involve an assertion that 

a proposed measure was unconstitutional, that it was preempted by federal law, or that it otherwise was unlawful. 

Instead, the question there was whether the Attorney General 

should have interpreted a ballot title so as to determine and 

4 The older cases to which the court referred in Christ/Tauman were “Kouns 

v. Paulus, 296 Or 826, 828, 680 P2d 385 (1984) (not Attorney General’s role in 

ballot title process to interpret words of proposed measure); Hand v. Roberts, 309 

Or 430, 438, 788 P2d 446 (1990) (‘[t]his court *** assiduously attempts to avoid 

deciding questions of the practical effect of initiative *** measures in its review 

of a certified ballot title’); and ACLU v. Paulus, 282 Or 539, 544, 580 P2d 168 

(1978) (inappropriate for Attorney General to speculate on meaning of wording of 

the proposed measure).” Christ/Tauman, 339 Or at 500 n 3.
828 Nearman/Miller v. Rosenblum

indicate whether the proposed measure would amend the 

Oregon Constitution or have the force of a statute. The court 

concluded that making that determination was part of the 

Attorney General’s obligation to reasonably identify the subject of the measure. Id. That conclusion was not, itself, at 

odds with the holding in Kane. As this court later explained, 

Christ/Tauman

“underscores the obvious point that, although neither this 

court nor the Attorney General may speculate about the 

possible secondary effects of a proposed measure or adopt 

one of several plausible interpretations of the measure for 

purposes of the ballot title, the preparation of a ballot title 

necessarily requires some level of interpretation of the 

measure.”

Wolf v. Myers, 343 Or 494, 501, 173 P3d 812 (2007).

However, this court went further in Caruthers v. 

Myers, 344 Or 596, 189 P3d 1 (2008). In that case, we considered whether the Attorney General could go beyond the 

words of a measure to interpret and describe its subject matter or its effects, where the measure undisputedly conflicted 

with federal law. Id. at 601-03. The proposed measure in 

Caruthers would have changed Oregon law to provide, among 

other things, that “no union shall be required to represent 

or bargain for an employee who chooses not to be a member 

of the union.” Id. at 598 (internal quotation marks omitted). 

However, the petitioner argued, and this court agreed, that 

“settled federal law requires a private sector union to represent all the employees in a bargaining unit and that that 

federal requirement will continue to apply notwithstanding 

any changes that the proposed measure might make to state 

law.” Id. at 599. The court concluded:

“Not only is the law settled but its application here is clear. 

Under settled law, the proposed measure would have no 

effect on a private sector union’s federal obligation to represent all the employees in a bargaining unit.”

Id. at 601.

Based on that interpretation, the court concluded 

that the ballot title improperly failed to place the proposed measure “in the context of existing law.” Id. (internal 
Cite as 358 Or 818 (2016) 829

quotation marks and citations omitted). In doing so, the 

court distinguished an earlier decision:

“In Sizemore [v. Myers, 326 Or 220, 953 P2d 360 (1997)],

this court held that the ballot title in that case need not discuss the effect that a proposed constitutional amendment 

to prohibit regional governments would have on Oregon’s 

constitutional home rule provisions. 326 Or at 231. The 

court reasoned that discussion of that issue ‘would require 

extensive legal interpretation, not only of the proposed initiative measure, but also of the interaction of the initiative 

measure with other constitutional provisions.’ Id.

“This aspect of the case does not present the same problem that concerned the court in Sizemore. In Sizemore, the 

relationship between the proposed measure and existing 

law was complex and unresolved. Here, the relationship 

between the proposed measure and existing federal law is 

straightforward and settled. When petitioners objected to 

the Attorney General’s proposed ballot title on the ground 

that, under settled federal law, the effect of the measure 

would be more limited than the ballot title explained, 

Sizemore provided no basis for avoiding the Attorney 

General’s obligation to describe the proposed measure 

accurately.”

Caruthers, 344 Or at 601-02.

This case is not as clear-cut as Caruthers. Although 

the Attorney General’s federal preemption analysis has 

force, it is neither undisputed nor—in light of the parties’ 

competing arguments and submissions—a settled issue. 

The question whether the State of Oregon could succeed in 

obtaining permission from the EAC to use a federal election 

registration form that requires documentation of citizenship 

rather than attestation by an applicant is sufficiently complex and uncertain that we conclude that this ballot title 

proceeding does not furnish an appropriate opportunity to 

answer it. See McCann v. Rosenblum, 355 Or 256, 264, 323 

P3d 955 (2014) (holding that, where constitutionality of ballot title provision was uncertain, Attorney General appropriately declined “to factor those complex legal determinations 

into her description of the measure’s effects,” and comparing 

Sizemore, 326 Or at 231 (declining to engage in extensive 

contextual legal interpretation), with Caruthers, 344 Or at 
830 Nearman/Miller v. Rosenblum

601 (referring for modification when the legal effect was 

undisputed)).

We therefore conclude that, in stating that the application of IP 51 is limited to “state and local” elections, the 

Attorney General’s caption does not substantially comply 

with the requirement in ORS 250.035(2)(a) that the caption 

reasonably identify the subject of the proposed measure. In 

addition, the summary fails to state a major effect of the 

measure because it does not state that, by its terms, the 

measure applies to federal elections. Accordingly, both the 

caption and the summary must be modified to identify that 

subject and major effect.

We turn to petitioner Miller’s challenge to the “yes” 

result statement. She asserts that the reference in that 

statement to “immigration verification” is inaccurate and 

misleading. Petitioner Miller argues that “immigration” is 

immaterial to IP 51 and that the word therefore should not 

appear in the ballot title, because “[o]nly United States citizens who are Oregon residents can vote in Oregon elections.” 

See Or Const, Art II, § 2, cl 1. As explained below, we agree.

The “yes” and “no” result statements are required 

to describe the results of approving and rejecting a proposed 

measure. The statements are limited to 25 words. ORS 

250.035(2)(b) - (c). A “yes” vote result statement must accurately describe “in simple and understandable terms *** the 

result if a proposed measure is approved.” Mabon v. Myers, 

332 Or 633, 639, 33 P3d 988 (2001); see ORS 250.035(2)(b).

As noted, the “yes” vote result statement prepared 

by the Attorney General states:

‘“Yes’ vote requires registration for state/ local elections in 

person with specified citizenship documentation or immigration verification/ hearing. Current voter registrations 

expire after ten years.”

(Emphasis added). Nothing in IP 51 establishes requirements for immigrants or involves an inquiry as to whether 

an immigrant is properly documented for residency in 

Oregon. The measure addresses only the documentation that 

a United States citizen must provide to register to vote or 

how an applicant’s citizenship otherwise must be verified for 
Cite as 358 Or 818 (2016) 831

registration purposes. Accordingly, the reference to “immigration verification” is inaccurate and misleading, and the 

“yes” vote result statement must be modified to remove it.

Chief petitioners Nearman and Buchal and petitioner Miller also make related objections to the summary 

that require brief discussion. In particular, they each object 

to the description of current law in the fourth sentence of the 

summary on the ground that it is confusing and inaccurate. 

That sentence begins: “Effective January 1, 2016, Driver 

and Motor Vehicle Division (DMV) will submit information 

received from customers to Secretary of State; if information 

demonstrates citizenship, customer will be registered to vote 

unless opts out.” (Emphasis added). The quoted reference 

is to the January 2016 effective date of the newest “motorvoter” enactment, Or Laws 2015, ch 8. Under that provision, 

the Secretary of State is required by rule to supply a schedule for the Department of Transportation to provide electronic records, including “citizenship information,” for “each 

person who meets qualifications identified by the secretary 

by rule.” Or Laws 2015, ch 8, § 1(1) (creating amended ORS 

247.017(1)).

Petitioner Miller correctly observes that IP 51 could 

not be circulated for signatures, much less submitted to voters, until sometime after January 1, 2016. She asserts that 

the prospective wording is misleading and would be confusing to potential petition signers and voters. Chief petitioners 

object to the prospective description of current law because 

they assert that the Secretary of State has no procedure in 

place to comply with Or Laws 2015, ch 8, and that the reference to its enactment incorrectly suggests that current law 

provides adequate means of assuring elector citizenship, 

whereas chief petitioners think that it does not.

We agree that petitioner Miller’s objection is well 

taken, and, to the extent that chief petitioners’ objection has merit, it is for the same reason: The “[e]ffective 

January 1, 2016, *** (DMV) will submit” wording in the 

summary is misleading; the potential for confusion can be 

remedied without adding to the length of the summary by 

changing “will submit” to “must submit.” We agree with the 

Attorney General, however, that the summary appropriately 
832 Nearman/Miller v. Rosenblum

cross-references Or Laws 2015, ch 8, because that accurate 

reference to that law permits a voter to assess a major effect 

of IP 51—its in-person voter registration requirement—on 

current law. See Berman v. Kroger, 347 Or 509, 514, 225 

P3d 32 (2009) (summary may include description of effect of 

measure on other laws, so long as description is accurate).

Petitioner Miller also objects to the phrase in the 

summary that, “if specified documents are unavailable, federal Immigration and Naturalization Service or an administrative hearing required.” Petitioner Miller asserts that that 

phrase is confusing and misstates the scope of section (b)(xi) 

of the measure. We agree. A voter or potential petition signer 

reading the phrase “federal Immigration and Naturalization 

Service or an administrative hearing required” reasonably 

would infer that IP 51 requires some form of hearing before 

a federal agency when, in fact, the measure contains no such 

requirement. Similarly, that phrase fails to inform voters 

and potential petition signers that the measure requires the 

Secretary of State to conduct a contested case hearing only 

if the applicant pursues the matter. For that additional reason, the summary must be revised.

Chief petitioners and petitioner Miller advance 

other arguments, which we reject without discussion.

The ballot title is referred to the Attorney General 

for modification.