FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP LEMONS; SUSAN JARRETT; 

MYRNA HINES; JAY SHERMAN;

ROBERT BOLLING; HENRY SCOTT;

JULIE EPPLE; MICHAEL CLARK;

EUGENE ARNAUTOV; STEPHEN

SHUCK; JESSE TORAN; KEVIN EVERS;

JONATHAN LARSEN; PETER O’BRIEN;

ROGER WILLIAMS; KYLE SHROY;

ORIAH LONGANECKER; RANDY

KOOZER; JANITH YTURN; ERIC

JACOBSEN; PAULA CEDILLO; ROY

PRISZNER; SANDRA GOLDEN; THOMAS

RICHARDSON; TORREY LEWIS; PAUL

GLENN; JAMES WHITING; ROSEANNE No. 08-35209

BARKER; SUZANNE FULCHER; DEBBIE D.C. No.

MEADOR; PAULINE ELIZABETH  3:07-CV-01782-MO

HANSON; SANDRA HIATT; NATHANIEL

JANSSEN; DISENFRANCHISED SIGNERS OPINION

NOS. 1-26,

Plaintiffs-Appellants,

v.

BILL BRADBURY, Secretary of the

State of Oregon, in his official and

individual capacity; ANNETTE

NEWINGHAM, Lane County Clerk,

in her official and individual

capacity; JAN COLEMAN, Yamhill

County Clerk, in her official and

individual capacity; SANDRA

BERRY, Hood River County Clerk, 

10599
in her official and individual 

capacity; JAMES MORALES, Benton

County Clerk, in his official and

individual capacity; GEORGETTE

BROWN, Josephine County Clerk,

in her official and individual

capacity; STEVEN DRUCKENMILLER,

Linn County Clerk, in his official

and individual capacity; KATHY

BECKETT, Jackson County Clerk, in

her official and individual

capacity; BILL BURGESS, Marion

County Clerk, in his official and

individual capacity; MICKIE KAWAI, 

Washington County Clerk, in her

official and individual capacity;

JOHN KAUFFMAN, Multnomah

County Director of Elections, in

his official and individual

capacity,

Defendants-Appellees,

JEANA FRAZZINI; ERIN SEXTONSAYLOR; SALLY SPARKS; BASIC

RIGHTS OREGON,

Defendants-intervenorsAppellees. 

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

July 8, 2008—Portland, Oregon

Filed August 14, 2008

10600 LEMONS v. BRADBURY
Before: Alfred T. Goodwin, Harry Pregerson, and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Goodwin

LEMONS v. BRADBURY 10601
COUNSEL

Amy Smith, Austin R. Nimocks, Alliance Defense Fund,

Scottsdale, Arizona, for the plaintiffs-appellants. 

Denis M. Vannier, Kaye E. McDonald, Office of the Attorney

General, Salem, Oregon, for the defendants-appellees. 

Margaret S. Olney, Smith, Diamond & Olney, Portland, Oregon, for the defendants-intervenors-appellees.

OPINION

GOODWIN, Circuit Judge: 

Plaintiffs, Oregon voters who signed Referendum 303,

appeal the district court’s denial of permanent injunctive relief

against Oregon Secretary of State Bill Bradbury

(“Secretary”). The Secretary determined that Referendum

303, which sought a statewide vote on a legislative act establishing same-sex domestic partnerships, did not have enough

valid signatures to qualify for the ballot. Plaintiffs contend

that the Secretary’s procedures for verifying referendum petition signatures violated their equal protection and due process

rights. The district court held that no constitutional violations

occurred. We affirm. 

I

The citizens of Oregon have reserved the power to refer

legislative acts to the ballot for approval or rejection by the

state’s voters. Or. Const. art. IV, § 1(3). A referendum quali10604 LEMONS v. BRADBURY
fies for a statewide vote upon submission of a petition containing valid signatures of “a number of qualified voters equal

to four percent of the total number of votes cast for all candidates for Governor” in the most recent gubernatorial election.

Id. § 1(3)(b). The deadline for submission of a referendum

petition is ninety days after the end of the legislative session

in which the legislation was passed. Id. The Secretary must

complete the signature verification process within thirty days

of the petition filing deadline. Id. § 1(4)(a). 

The Oregon Constitution subjects the people’s referendum

power to regulation by the legislature. See id. § 1(4)(a)-(b).

Statutes require the Secretary to use a statistical sampling

method for verifying referendum petition signatures, using

“an elector’s voter registration record or other database.” Or.

Rev. Stat. § 250.105(4), (6). The Secretary samples approximately five percent of the submitted signatures for each referendum, and submits the sampled signatures to county

elections officials. Or. Admin. R. 165-014-0030(5)(a), (7).

The State Initiative and Referendum Manual, adopted by the

Secretary through administrative rule, see Or. Admin. R. 165-

014-0005(1), requires county elections officials to “verify[ ]

the original signatures” sampled from referendum petitions

“using voter registration records.” A publication entitled

Directive for Signature Verification, issued by the Secretary

on November 24, 1981, specifies that county elections officials should “[c]ompare the signature on the petition and the

signature on the voter registration card to identify whether the

signature is genuine and must be counted.” The Secretary

extrapolates the overall number of valid petition signatures

using the sampled signature results. See Or. Admin. R. 165-

014-0030. 

Under these procedures, county elections officials verify

sampled referendum signatures by determining whether each

petition signature matches the signature on the signer’s existing voter registration card. Oregon law does not provide procedures by which a voter can introduce extrinsic evidence to

LEMONS v. BRADBURY 10605
rehabilitate a referendum signature after its rejection. See Or.

Rev. Stat. § 250.105. In contrast, for non-matching ballot signatures returned during Oregon’s vote-by-mail elections, the

Secretary’s Vote by Mail Procedures Manual requires county

elections officials to give the voter ten-days notice and an

opportunity to submit an updated voter registration card. 

II

In 2007, the Oregon Legislature passed House Bill 2007

(“HB 2007”), which establishes same-sex domestic partnerships. See 2007 Or. Laws, ch. 99. Plaintiffs are Oregon voters

who signed petitions for Referendum 303, which sought a

statewide vote on HB 2007. On September 26, 2007, proponents of Referendum 303 submitted approximately 62,000

unverified signatures to the Secretary. The Secretary randomly selected 3,033 signatures from the petition through statistical sampling. 

On October 3, 2007, the Secretary distributed the sampled

signatures to county elections officials. An accompanying

memorandum instructed county officials to “[c]heck the registration of the names indicated by comparing the signature on

the petition to the signature on the registration card.” One of

the options for rejecting signatures was that the “[s]ignatures

do not match.”

1

 The memorandum instructed the counties to

complete their verification by October 8, 2007. 

Counties allowed petitioners and members of the public to

observe the signature verification process. Every county had

a system for reviewing initially rejected signatures. The counties rejected 254 of the 3,033 sampled signatures; of the

rejected signatures, 55 were invalid because they did not

match signatures on existing voter registration cards. No

county gave notice to voters with rejected signatures. The

counties also refused to consider extrinsic evidence presented

1Other reasons included “[n]ot registered” and “[i]llegible signatures.”

10606 LEMONS v. BRADBURY
by voters with rejected signatures, such as affidavits and

updated voter registration cards. 

On October 26, 2007, after extrapolating the verification

results, the Secretary announced that there were 55,083 valid

signatures for Referendum 303, fewer than the 55,179 valid

signatures required to qualify for the ballot. Plaintiffs filed an

action in federal district court against the Secretary and several county officials, alleging violations of state and federal

rights, including equal protection and due process. Plaintiffs

sought an opportunity to rehabilitate their signatures, and a

declaration that Referendum 303 contained enough signatures

to qualify for the ballot. On December 31, 2007, the district

court granted plaintiffs’ motion for a preliminary injunction,

staying the effective date of HB 2007 until a hearing on the

merits. 

After hearing oral argument on February 1, 2008, the district court vacated the preliminary injunction, denied permanent injunctive relief, and dismissed plaintiffs’ federal claims.

First, the court held that the Secretary’s signature verification

procedures did not violate plaintiffs’ equal protection rights.

The court concluded that signing a referendum petition does

not implicate a fundamental right, and in any event the Secretary’s procedures do not unconstitutionally infringe on plaintiffs’ alleged rights. The court also ruled that county elections

officials use specific, uniform standards for signature verification. Second, the district court held that the Secretary did not

violate plaintiffs’ due process rights by denying them notice

and an opportunity to rehabilitate their rejected referendum signatures.2

This appeal followed. 

2The district court also dismissed plaintiffs’ claim that the Secretary’s

actions violated the First Amendment by prohibiting core political speech.

Plaintiffs do not appeal the district court’s ruling on this claim. 

LEMONS v. BRADBURY 10607
III

We review the district court’s denial of permanent injunctive relief for abuse of discretion. Citizens for Clean Gov’t v.

City of San Diego, 474 F.3d 647, 650 (9th Cir. 2007). Legal

conclusions underlying the denial are reviewed de novo. Id.

We review factual determinations for clear error. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653 (9th Cir. 2002).

IV

[1] The Fourteenth Amendment provides that no state shall

“deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.” U.S. Const. amend. XIV,

§ 1. Plaintiffs do not challenge the sampling concept, but contend that the Secretary’s procedures for verifying sampled signatures violate their equal protection and due process rights.

First, they argue that the method of verifying referendum signatures burdens their fundamental right to vote. Second,

plaintiffs contend that the Secretary violated their equal protection and due process rights by not providing the same

notice and opportunity to rehabilitate referendum signatures

that is afforded to signers of vote-by-mail election ballots.

Third, plaintiffs argue that county elections officials lack uniform statewide rules for verifying referendum signatures, violating the rule from Bush v. Gore, 531 U.S. 98 (2000). 

We hold that the Secretary’s procedures did not violate

plaintiffs’ constitutional rights. Although regulations on the

referendum process implicate the fundamental right to vote,

the state’s important interests justify the minimal burden on

plaintiffs’ rights. Additionally, Oregon’s signature verification standards are uniform and specific enough to ensure

equal treatment of voters. 

A

[2] We agree with plaintiffs that state regulations on the initiative and referendum process implicate the fundamental

10608 LEMONS v. BRADBURY
right to vote. In Moore v. Ogilvie, 394 U.S. 814 (1969), the

Supreme Court held that restrictions on candidate nominating

petitions implicate voters’ fundamental rights because “[a]ll

procedures used by a State as an integral part of the election

process must pass muster against the charges of discrimination or of abridgement of the right to vote.” Id. at 818. In

Idaho Coalition United for Bears v. Cenarrussa, 342 F.3d

1073 (9th Cir. 2003), we relied on Moore and held that regulations on a state’s initiative process “implicate the fundamental right to vote, for the same reasons and in the same

manner,” as regulations on candidate nominating petitions. Id.

at 1077. “[W]hile a state may decline to grant a right to legislate through ballot initiatives, it may not grant that right on a

discriminatory basis.” Id. at 1077 n.7. 

[3] The principle underlying Moore and Idaho Coalition

applies equally to Oregon’s regulations on the referendum

process. The people of Oregon reserved both the initiative and

referendum powers in their state constitution. Or. Const. art.

IV, § 1(2)-(3). Both processes serve as “ ‘basic instrument[s]

of democratic government.’ ” Idaho Coalition, 342 F.3d at

1076 (quoting City of Cuyahoga Falls v. Buckeye Cmty. Hope

Found., 538 U.S. 188, 196 (2003)). Thus, regulations on Oregon’s referendum process implicate plaintiffs’ fundamental

right to vote. 

B

Plaintiffs argue that because the Secretary’s referendum

verification procedures implicate the right to vote, strict scrutiny applies, and the regulations must be narrowly drawn to

advance a compelling state interest. They contend that the

procedures cannot meet strict scrutiny because they treat referendum signatures differently than signatures on vote-bymail ballots. Specifically, plaintiffs note that Oregon limits its

referendum verification process to a comparison of petition

signatures and signatures on existing voter registration cards.

County elections officials do not notify voters after rejecting

LEMONS v. BRADBURY 10609
referendum signatures as non-matching. In contrast, when

county elections officials reject a signature on a vote-by-mail

election ballot, they give the voter ten-days notice and an

opportunity to submit an updated voter registration card, or

otherwise provide proof that the signature is valid. Plaintiffs

contend that this disparate treatment of referendum petition

signatures and vote-by-mail ballot signatures violates their

equal protection and due process rights. 

Plaintiffs’ argument “proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote

must be subject to strict scrutiny.” Burdick v. Takushi, 504

U.S. 428, 432 (1992). This premise is flawed. “States retain

the power to regulate their own elections,” and “ ‘as a practical matter, there must be a substantial regulation of elections

if they are to be fair and honest and if some sort of order,

rather than chaos, is to accompany the democratic processes.’ ” Id. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730

(1974)). Subjecting every election law to strict scrutiny

“would tie the hands of States seeking to assure that elections

are operated equitably and efficiently.” Id.; see also Crawford

v. Marion County Election Bd., 128 S. Ct. 1610, 1616 (2008).

[4] In Burdick, the Supreme Court recognized that “a more

flexible standard applies” for analyzing election laws that burden the right to vote. Id. at 434. 

A court considering a challenge to a state election

law must weigh the character and magnitude of the

asserted injury to the rights protected by the First

and Fourteenth Amendments that the plaintiff seeks

to vindicate against the precise interests put forward

by the State as justifications for the burden imposed

by its rule, taking into consideration the extent to

which those interests make it necessary to burden the

plaintiff’s rights. 

Id. (internal quotations and citations omitted). Under this standard, strict scrutiny applies only when the right to vote is

10610 LEMONS v. BRADBURY
“subjected to severe restrictions.” Id. (internal quotations

omitted). However, “when a state election law provision

imposes only reasonable, nondiscriminatory restrictions upon

the First and Fourteenth Amendment rights of voters, the

State’s important regulatory interests are generally sufficient

to justify the restrictions.” Id. (internal quotations omitted). 

[5] To date, the Supreme Court has subjected only two

types of voting regulations to strict scrutiny. See Green v. City

of Tucson, 340 F.3d 891, 899-900 (9th Cir. 2003). First, strict

scrutiny applies to “regulations that unreasonably deprive

some residents in a geographically defined governmental unit

from voting in a unit wide election.” Id. at 899. Examples

include laws that condition the right to vote on property ownership or payment of a poll tax. See id. (citing cases). Second,

“regulations that contravene the principle of ‘one person, one

vote’ by diluting the voting power of some qualified voters

within the electoral unit” also are subject to strict scrutiny. Id.

at 900. Examples include laws that weigh votes from rural

counties more heavily than votes from urban counties. See id.

(citing cases). 

[6] Unlike these examples of severe restrictions, the Secretary’s procedures in this case are reasonable, and do not violate plaintiffs’ equal protection rights. First, the magnitude of

plaintiffs’ asserted injury is minimal. See Burdick, 504 U.S.

at 434. Although county elections officials do not notify voters after rejecting non-matching signatures, referendum petition cover sheets instruct voters to “[s]ign your full name, as

you did when you registered to vote.” Chief petitioners and

members of the public observe the process and can object to

signature verification decisions. All counties provide that

higher county elections authorities review all signatures that

are initially rejected. All counties also uniformly limit their

review to a comparison between petition signatures and existing voter registration cards. This process protects the rights of

petition signers and treats voters in different counties equally.

When viewed in context, the absence of notice and an opporLEMONS v. BRADBURY 10611
tunity to rehabilitate rejected signatures imposes only a minimal burden on plaintiffs’ rights. 

[7] Second, Oregon’s important interests justify this minimal burden on the right to vote. See id. Oregon elections officials may process more than 100,000 sampled initiative and

referendum signatures within the thirty-day period required

by state law. In any election period, there may be ten or more

proposed initiative and referendum measures that require signature verification. The administrative burden of verifying a

referendum petition signature is significantly greater than the

burden associated with verifying a vote-by-mail election ballot signature. Verification of a vote-by-mail signature takes

mere seconds because elections officials can scan the barcode

on the back of the ballot envelope and automatically access

the signer’s voter registration record. In contrast, verification

of each referendum petition signature takes several minutes

because elections officials must identify the signer, find the

corresponding voter registration card, determine whether the

signer is an active, registered voter, and then compare the signatures. Moreover, fraudulent signatures are less likely in

vote-by-mail elections, in which the ballots are sent directly

by the elections official to the voter, and returned directly by

the voter to the elections official. In initiative and referenda,

by contrast, the signatures are often gathered by privately

hired signature gatherers who are paid a fixed amount for

each signature they obtain. These differences between referendum petitions and vote-by-mail ballots justify the minimal

burden imposed on plaintiffs’ rights in this case. 

[8] We reject plaintiffs’ procedural due process argument

for the same reasons. Oregon’s interests in detecting fraud and

in the orderly administration of elections are weighty and

undeniable. Requiring the state to provide thousands of petition signers with individual notice that their signatures have

been rejected and to afford them an opportunity to present

extrinsic evidence during the short thirty-day verification

period would impose a significant burden on the Secretary

10612 LEMONS v. BRADBURY
and county elections officials. In contrast to the significant

weight of the state’s interests, plaintiffs’ interest in the additional procedures they seek is slight. First, the verification

process is already weighted in favor of accepting questionable

signatures, in part because only rejected signatures are subject

to more than one level of review by county elections officials.

Providing notice and allowing individuals to contest a determination that a signature did not match would further skew

the process in favor of accepting invalid signatures, as there

would be no corresponding notice to those whose signatures

were erroneously deemed to match.3 Second, as previously

noted, the Secretary’s procedures already allow chief petitioners and members of the public to observe the signature verification process and challenge decisions by county elections

officials. The value of additional procedural safeguards therefore is negligible, and the burden on plaintiffs’ interests from

the state’s failure to adopt their proposed procedures is slight

at most. See Protect Marriage Ill. v. Orr, 463 F.3d 604, 608

(7th Cir. 2006) (holding that “[t]he cost of allowing tens of

thousands of people to demand a hearing on the validity of

their signatures would be disproportionate to the benefits” of

allowing petition signers to challenge rejected signatures). 

[9] Under the circumstances, the administrative burden of

the additional process plaintiffs propose outweighs any marginal benefit that would result from additional procedures.

3The state’s expert reviewed 556 of the signatures county elections officials verified as matching, only a small percentage of the total number of

Referendum 303 signatures. She found sixty-five signatures in that small

portion in which she would have ruled differently than the county officials

—i.e., in sixty-five cases the handwriting expert would have concluded

that the accepted petition signature did not match the voter registration

card. By contrast, the expert reviewed all of the signatures that county

elections officials determined did not match, and found only six cases in

which she would have ruled differently. Thus, if the handwriting expert

had verified all of the signatures, the petition would have lacked sufficient

signatures by a far wider margin than the county elections officials determined. 

LEMONS v. BRADBURY 10613
Thus, Oregon’s “important regulatory interests” are sufficient

to justify the state’s “reasonable, nondiscriminatory restrictions.” Burdick, 504 U.S. at 434. Like other “evenhanded

restrictions that protect the integrity and reliability of the electoral process itself,” the state’s signature verification procedures must be upheld. Crawford, 128 S. Ct. at 1616; Burdick,

504 U.S. at 434. 

C

Plaintiffs also contend that Oregon lacks uniform statewide

rules for verifying referendum petition signatures, violating

equal protection rights under Bush v. Gore, 531 U.S. 98

(2000). The Secretary argues that county elections officials

use a uniform standard: whether a referendum petition signature matches the signature on the signer’s existing voter registration card. The district court held that this standard is

uniform and specific enough to ensure equal treatment of voters. We agree. 

[10] In Bush, the Supreme Court reversed the Florida

Supreme Court’s decision ordering a manual recount in the

disputed 2000 Presidential election. 531 U.S. at 102-03, 111.

The Florida Supreme Court had instructed county elections

officials to count all votes in which there was a “clear indication of the intent of the voter.” Id. at 102. In a ruling “limited

to the present circumstances,” and applicable only because it

was a court-ordered recount, the Supreme Court held that

Florida’s recount violated the Equal Protection Clause

because it lacked “specific standards to ensure its equal application,” resulting in the disparate treatment of voters, and a

process without “sufficient guarantees of equal treatment.” Id.

at 106-07, 109. 

[11] Even were Bush applicable to more than the one election to which the Court appears to have limited it, Oregon’s

standard for verifying referendum signatures would be sufficiently uniform and specific to ensure equal treatment of vot10614 LEMONS v. BRADBURY
ers. The Secretary uniformly instructs county elections

officials to verify referendum signatures by determining

whether each petition signature matches the signature on the

signer’s voter registration card. For example, the Secretary’s

November 24, 1981 Directive for Signature Verification

instructs county elections officials to “[c]ompare the signature

on the petition and the signature on the voter registration card

to identify whether the signature is genuine and must be

counted.” Similarly, the Secretary’s October 3, 2007 memorandum accompanying sampled Referendum 303 signatures

instructed county officials to “[c]heck the registration of the

names indicated by comparing the signature on the petition to

the signature on the registration card.” One of the options provided for rejecting Referendum 303 signatures was that the

“[s]ignatures do not match.” This standard ensures equal

treatment because it uniformly requires all counties to compare two existing signature specimens when determining the

validity of each sampled signature on a referendum petition.

Moreover, the task is far simpler than that used in many states

to determine voter intent. See id. at 106-07. 

Oregon’s referendum signature verification process also

has “sufficient guarantees of equal treatment.” Id. at 107. The

Secretary sponsors signature verification training sessions,

and county elections officials regularly attend these sessions

and use the materials provided. During the verification of Referendum 303, all counties subjected initially rejected signatures to a second level of review. The signature verification

process was uniformly limited to a comparison between petition signatures and existing voter registration cards, and all

counties refused to consider extrinsic evidence from rejected

signers. 

We are not persuaded by plaintiffs’ arguments to the contrary. Plaintiffs contend that a few petitioners had signatures

rejected on Referendum 303, even though their signatures

were accepted on petitions for other referenda. Such isolated

discrepancies do not demonstrate the absence of a uniform

LEMONS v. BRADBURY 10615
standard, nor do they prove that the district court was clearly

erroneous in finding that “overall we have a fairly coherent

set of results.” After all, the fact that the same name appeared

on both petitions does not establish that both signatures

matched the voter registration card. Plaintiffs also argue that

county elections officials exercised discretion when deciding

whether to review erroneously excluded signatures. They

point to Washington County’s decision to amend its verification results, accepting one signature that was initially rejected.

As the record shows, however, Washington County properly

based its revised decision on a comparison of the voter’s petition signature and existing voter registration card. Like all

other counties, Washington County did not review extrinsic

evidence. 

[12] Finally, plaintiffs point to differences in the number of

signatures rejected by various counties. For example, Hood

River County rejected three of its twenty-one sampled signatures as non-matching; Multnomah County excluded only one

non-matching signature from its 274 sampled signatures; and

Washington County rejected seventeen of its 336 sampled signatures as non-matching. Plaintiffs contend that these differences demonstrate the absence of a uniform standard. This

argument is without merit, for the reasons given by the district

court. First, the statistical significance of these differences is

questionable, considering the relatively small number of sampled signatures at issue. Second, signature gatherers in some

counties do a better job than those in other counties. Most

importantly, uniform standards can produce different results.

Viewing the record as a whole, we are convinced that Oregon’s counties used the same uniform standard and thus

would satisfy the requirements of Bush, if it were applicable.

[13] For these reasons, we hold that the Secretary’s procedures for verifying sampled referendum petition signatures

did not violate plaintiffs’ equal protection and due process

rights. 

AFFIRMED. 

10616 LEMONS v. BRADBURY