FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL CARUSO, 

Plaintiff-Appellee,

v.

No. 04-35155 YAMHILL COUNTY, an Oregon

municipal corporation, by and D.C. No.  through its County Commissioner, CV-03-01731-ALH

Defendant, OPINION

and

STATE OF OREGON,

Intervenor-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

May 3, 2005—Portland, Oregon

Filed September 6, 2005

Before: Procter Hug, Jr., A. Wallace Tashima, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

12139
COUNSEL

Stephen K. Bushong, Oregon Department of Justice, Salem,

Oregon, for the intervenor-appellant. 

Daniel W. Meek, Portland, Oregon, for the plaintiff-appellee.

OPINION

CLIFTON, Circuit Judge: 

The State of Oregon appeals a district court order declaring

Or. Rev. Stat. § 280.070(4)(a) unconstitutional and permanently limiting its enforcement. Section 280.070(4)(a)

requires that ballots for initiatives proposing local option

taxes include a statement: “This measure may cause property

taxes to increase more than three percent.” The district court

CARUSO v. YAMHILL COUNTY 12143
deemed this requirement constitutionally infirm, concluding

that inclusion of the “three-percent warning” violated appellee

Michael Caruso’s First Amendment rights as a petition circulator and his due process rights as a voter. We conclude that

the requirement does not violate the U.S. Constitution, reverse

the decision of the district court, and vacate the injunction

limiting enforcement of section 280.070(4)(a). 

I. BACKGROUND 

The Oregon Constitution reserves to the people “the initiative power, which is to propose laws and amendments to the

Constitution and enact or reject them at an election independently of the Legislative Assembly.” Or. Const. art. IV, § 1.

Under Oregon law, the ballot titles for initiatives that propose

the imposition of a local option tax must include an additional

statement commonly referred to as the “three-percent warning”: “This measure may cause property taxes to increase

more than three percent.” Or. Rev. Stat. § 280.070(4)(a). 

Appellee Michael Caruso was among the chief petitioners

for an initiative measure which appeared on the ballot for the

March 9, 2004, Yamhill County Special Election. Consistent

with section 280.070(4)(a), the Yamhill County Commission

adopted, on November 26, 2003, the following ballot title for

the measure:

MEASURE 36-55

AUTHORIZES SPECIAL LEVY IF YAMHILL

COUNTY PUD1IS FORMED

QUESTION: Shall voters authorize levy of $0.003

per $1,000 of assessed valuation if Yamhill County

People’s Utility District is formed? 

1Formation of the Yamhill County People’s Utility District (“PUD”)

was proposed by Measure 36-54, which appeared on the same ballot. 

12144 CARUSO v. YAMHILL COUNTY
This measure may cause property taxes to increase

more than three percent. 

SUMMARY: This measure may be passed only at

an election with at least a 50 percent voter turnout.

If the Yamhill County People’s Utility District is

formed, this measure allows the District board of

directors to impose a special levy on property within

the district. Funds raised from the levy would be

used to pay for an engineer’s report and a later election to issue revenue bonds, if held. 

This one-time levy will raise about $9,700.00. The

levy for a house with an assessed value of $150,000

would be about 45 cents. 

The estimated tax cost for this measure is an ESTIMATE ONLY based on the best information available from the county assessor at the time of the

estimate. 

See also Or. Rev. Stat. § 250.035(1) (providing that the ballot

title of any non-state initiative shall consist of a caption, question, and summary). 

Caruso challenged the constitutionality of section

280.070(4)(a) before the district court, asserting that the

required inclusion of the three-percent warning violated his

First Amendment rights as a petition circulator and his due

process rights as a voter. Caruso requested that the district

court declare the provision unconstitutional, both as applied to

Measure 36-55 and on its face, and enter preliminary and permanent injunctions against its enforcement. 

With the parties’ consent, the district court consolidated the

hearing on Caruso’s motion for a preliminary injunction with

the trial on the merits. In an opinion issued the day after the

CARUSO v. YAMHILL COUNTY 12145
hearing, the district court held section 280.070(4)(a) unconstitutional as applied and as enacted. Adopting the reasoning set

forth in a companion decision, Horton v. Multnomah County,

No. Civ. 03-1257-HA, 2004 WL 1745789 (D. Or. Aug. 4,

2004), the district court deemed the three-percent warning

“false and misleading” because it implied that the initiative

measure “by itself” “may cause property taxes to increase

more than three percent” when the increase proposed by Measure 36-55 was in fact much lower: only “$0.003 per $1,000

of assessed valuation.” 

The district court reasoned that section 280.070(4)(a) was

therefore constitutionally infirm. First, it impeded Caruso’s

ability to communicate the actual tax consequences of Measure 36-55 and forced him to be associated with the State’s

misleading message. In light of these burdens on “core political speech,” the district court determined that section

280.070(4)(a) was subject to, and did not survive, strict scrutiny under the First Amendment. Second, section

280.070(4)(a) substantially chilled protected speech. Specifically, because the three-percent warning applied to all initiatives proposing local option taxes — including those which

posed no threat of themselves increasing property taxes more

than three percent — it discouraged others from circulating

such initiatives by erecting the additional “hurdle of convincing voters of the false nature of the state mandated ‘warning.’ ” Finally, the three-percent warning obscured the actual

subject of Measure 36-55, upsetting the evenhandedness of

the election and working a fundamental unfairness on the voters. 

To remedy these constitutional infirmities, the district court

enjoined the government defendants from enforcing section

280.070(4)(a) in relation to Measure 36-55, and, more

broadly, in relation to “all ballot measures that by themselves

cannot cause an increase in property taxes of more than three

12146 CARUSO v. YAMHILL COUNTY
percent.” The State of Oregon, which had intervened to

oppose Caruso’s claims, timely appealed.2

II. DISCUSSION 

A. Mootness

Pursuant to the district court injunction, Measure 36-55

appeared on the ballot for the March 9, 2004, Yamhill County

Special Election without the three-percent warning. The measure failed, with 3,250 voters favoring the levy and 9,153

opposing it. The State argues that the election rendered moot

Caruso’s claim that section 280.070(4)(a) is unconstitutional

as applied to the defeated measure. 

[1] As a general rule, a case is moot “ ‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’ ” Schaefer v. Townsend, 215

F.3d 1031, 1033 (9th Cir. 2000) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). There is an exception, however, for challenged practices that are “ ‘capable of repetition,

yet evading review.’ ” Id. (quoting Dunn v. Blumstein, 405

U.S. 330, 333 n.2 (1972)). Under this exception, a court may

consider the merits of a case that would otherwise be deemed

moot when “(1) the challenged action is in its duration too

short to be fully litigated prior to cessation or expiration, and

(2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Spencer

v. Kemna, 523 U.S. 1, 17 (1998) (alterations and citation

omitted). 

[2] Cases challenging election laws often fall within the

“capable of repetition, yet evading review” exception “because the inherently brief duration of an election is almost

invariably too short to enable full litigation on the merits.”

2The named defendant, Yamhill County, also participated in the proceedings below. It did not appeal the judgment of the district court. 

CARUSO v. YAMHILL COUNTY 12147
Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). For this

reason, “[i]f such cases were rendered moot by the occurrence

of an election, many constitutionally suspect election laws . . .

could never reach appellate review.” Joyner v. Mofford, 706

F.2d 1523, 1527 (9th Cir. 1983). Here, the State cannot seriously contest that the period between adoption of the ballot

title and election on the measure — in this case, four months

— is too brief to permit “full litigation on the merits.” See

Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) (finding the

“evading review” prong satisfied where the state “grant[ed]

the proponents of an initiative only six months in which to

obtain the necessary signatures”). 

The State more forcefully contests the expectation that

Caruso “will be subject to the same action again.” It observes

that there is no evidence in the record that Caruso has circulated or intends to circulate another initiative proposing the

imposition of a local option tax. Although this is true, we

have rejected the analogous argument that a candidate’s challenge to an election law is not moot “only when [the] candidate plans to seek reelection.” Schaefer, 215 F.3d at 1033. In

Schaefer, we observed that the Supreme Court had proceeded

to the merits of a voter’s challenge to the residency requirements for voting even though by the time of the Court’s decision, the voter had resided in the state long enough to vote in

the next election. Id. at 1033 (citing Blumstein, 405 U.S. at

331-33 & n.2). We accordingly examined the merits of a prospective candidate’s challenge to the residency requirements

for nomination even though by the time of our decision, the

contested seat had been filled and the candidate “refuse[d] to

disclose his intentions” for running for state office in the

future. Id.; accord Merle v. United States, 351 F.3d 92, 95 (3d

Cir. 2003) (disagreeing with the suggestion that a candidate

must allege his intent to run in a future election to satisfy the

“capable of repetition” requirement). 

[3] Consistent with Schaefer, we conclude that Caruso’s

claims are not moot. Although Caruso has not expressed an

12148 CARUSO v. YAMHILL COUNTY
intention to circulate similar initiatives in the future, enforcement of section 280.070(4)(a) is nevertheless “capable of repetition, yet evading review.” Accordingly, we proceed to the

merits.

B. Constitutional and Statutory Context

We begin by setting forth the context in which we must

examine section 280.070(4)(a). Before 1997, property in Oregon was assessed and taxed at its real market value. See Or.

Rev. Stat. § 308.232 (1995). Then, in 1997, Oregon voters

adopted Measure 50, which amended the Oregon Constitution

to limit the property taxes imposed by Oregon counties. See

Flavorland Foods v. Wash. County Assessor, 54 P.3d 582,

583-84 (Or. 2002) (en banc). First, Measure 50 “rolled back”

a property’s maximum assessed value for the tax year beginning July 1, 1997, to its “real market value for the tax year

beginning July 1, 1995, reduced by 10 percent.” Or. Const.

art. XI, § 11(1)(a). Second, “[f]or tax years beginning after

July 1, 1997,” Measure 50 provided that a “property’s maximum assessed value shall not increase by more than three percent from the previous tax year.” Id. § 11(1)(b). Third,

Measure 50 established a “permanent limit on the rate of ad

valorem property taxes imposed” by each local taxing district.

Id. § 11(3)(b). This limit is commonly referred to as the “permanent rate.” See Shilo Inn v. Multnomah County, 36 P.3d

954, 958 (Or. 2001), modified by 45 P.3d 107 (Or. 2002). 

The limits imposed by Measure 50, however, were subject

to an exception for taxes submitted to and approved by the

voters: 

A local taxing district other than a school district

may impose a local option ad valorem property tax

that exceeds the limitations imposed under this section by submitting the question of the levy to voters

in the local taxing district and obtaining the approval

of a majority of the voters voting on the question. 

CARUSO v. YAMHILL COUNTY 12149
Or. Const. art. XI, § 11(4)(a)(A). The conditions for submitting local option taxes to the voters are provided for by Oregon statutes. See Or. Rev. Stat. §§ 280.070-.075. These

statutes require that the ballot titles for such measures include,

in addition to the three-percent warning, “the period during

which the proposed local option tax will be imposed,” “[t]he

first fiscal year in which the proposed local option tax will be

imposed,” and “the total amount of money to be raised by the

proposed local option tax, in dollars and cents.” Id.

§§ 280.070(4)(a), 280.070(5)(a)-(b), 280.075(1). Against this

constitutional and statutory backdrop, we consider Caruso’s

First and Fourteenth Amendment challenges. 

C. First Amendment

Caruso contends that section 280.070(4)(a) infringed upon

his complementary First Amendment rights “to speak freely

and . . . to refrain from speaking at all.” Wooley v. Maynard,

430 U.S. 705, 714 (1977). Specifically, he contends that the

three-percent warning restricted his ability to communicate

accurately the tax consequences of Measure 36-55 and forced

him instead to be associated with the State’s misleading communication. The district court agreed. Where, as here, a district court sustains a constitutional challenge to a restriction

on speech, its findings of fact are reviewed for clear error.

Lovell ex. rel. Lovell v. Poway Unified Sch. Dist., 90 F.3d

367, 370 (9th Cir. 1996). Its application of law to those facts

and its ultimate determination that the restriction is unconstitutional, however, are reviewed de novo. Mont. Right to Life

Ass’n v. Eddleman, 343 F.3d 1085, 1090 (9th Cir. 2003). 

1. Level of Scrutiny 

We turn at the outset to the appropriate level of First

Amendment scrutiny, pausing first to reject the State’s suggestion that no scrutiny is warranted because the speech regulated by section 280.070(4)(a) is the government’s. We have

elsewhere identified “several recognized instances of constitu12150 CARUSO v. YAMHILL COUNTY
tional limitations on government speech.” R.J. Reynolds

Tobacco Co. v. Shewry, 384 F.3d 1126, 1140 (9th Cir. 2004).

For example, the First Amendment may limit government

speech that “make[s] private speech difficult or impossible,”

id., or that attributes a government message to a private

speaker, see Johanns v. Livestock Mktg. Ass’n, 125 S. Ct.

2055, 2064-65 & nn.7-8 (2005). Caruso argues that section

280.070(4)(a) inflicted both types of harm. 

a. Election Laws 

[4] An election law that burdens First Amendment rights is

not necessarily subject to strict scrutiny, however. See Clingman v. Beaver, 125 S. Ct. 2029, 2038 (2005). Rather, such

laws are generally subject to a balancing standard, under

which a reviewing court weighs the “character and magnitude” of the burden imposed against the interests advanced to

justify that burden. See e.g., Timmons v. Twin Cities Area

New Party, 520 U.S. 351, 358 (1997); Burdick v. Takushi, 504

U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780,

789 (1983). As the Supreme Court explained in Burdick, it

has typically applied this “more flexible” standard to election

laws because “[c]ommon sense, as well as constitutional law,

compels the conclusion that government must play an active

role in structuring elections.” 504 U.S. at 433; accord Clingman, 125 S. Ct. 2039 (explaining that subjecting every electoral regulation to strict scrutiny would “hamper the ability of

States to run efficient and equitable elections”). 

[5] To be sure, the Supreme Court has in several other

cases subjected election laws to strict scrutiny rather than

flexible balancing. See, e.g., McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 345-46 (1995); Meyer v. Grant, 486

U.S. 414, 420 (1988). Unlike the cases described above, these

cases did not involve regulations of the “voting process”; they

instead involved regulations of — or, more precisely, limitations on — “pure speech.” See McIntyre, 514 U.S. at 345;

accord Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir.

CARUSO v. YAMHILL COUNTY 12151
2000) (“[S]trict scrutiny is applied where the government

restricts the overall quantum of speech available to the election or voting process.”). Although these cases “do not lend

themselves to a simple synthesis,” Campbell, 203 F.3d at 745,

we regard them as distinguishable in two respects. 

[6] First, unlike the provisions challenged in McIntyre and

Meyer (which respectively prohibited the distribution of anonymous campaign literature, McIntyre, 514 U.S. at 336, and the

payment of petition circulators, Meyer, 486 U.S. at 416), section 280.070(4)(a) governs the political process more than it

does political speech. See McIntyre, 514 U.S. at 344. Significantly, the provision regulates only what is said through the

ballot itself. See Timmons, 520 U.S. at 362-63 (applying flexible balancing where the challenged law burdened a political

party’s ability to communicate through the ballot only); Rubin

v. City of Santa Monica, 308 F.3d 1008, 1015 (9th Cir. 2002)

(similar). All other means of communication, including the

“interactive” discussions for which First Amendment protection is “at its zenith,” Meyer, 486 U.S. at 422, 425, fall outside

the provision’s regulatory scope. 

Caruso responds that the ballot is not merely a means of

communication; it is the most direct and credible means of

communication. This argument has some force. Indeed, the

Supreme Court has characterized “ ‘the instant before the vote

is cast’ ” as “ ‘the most crucial stage in the election process.’ ”

Cook v. Gralike, 531 U.S. 510, 525 (2001) (quoting Anderson

v. Martin, 375 U.S. 399, 402 (1964)). But the fact that the ballot is “crucial” to an election does not imply that Caruso

therefore has a First Amendment right to communicate a specific message through it. To the contrary, the Supreme Court

in Timmons rejected the “contention that [a political party]

has a right to use the ballot itself to send a particularized message”: “Ballots serve primarily to elect candidates, not as

forums for political expression.” 520 U.S. at 362-63; accord

Rubin, 308 F.3d at 1016 (“A ballot is a ballot, not a bumper

sticker.”). 

12152 CARUSO v. YAMHILL COUNTY
Caruso argues that cases such as Timmons are inapposite

because they involved candidates rather than initiatives. We

disagree. In Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), a case involving ballot initiatives, the Supreme Court expressly affirmed the Tenth

Circuit’s reliance on Timmons. See id. at 190. The Supreme

Court further affirmed that “States allowing ballot initiatives

have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.” Id. at 191. It is true that the

Supreme Court has elsewhere highlighted the differences

between initiatives and candidates, but it appears to have done

so not because the First Amendment is more protective of initiatives than of candidates, but because elections on initiatives

pose lesser risks of quid pro quo corruption. See, e.g., First

Nat’l Bank v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of

corruption perceived in cases involving candidate elections

simply is not present in a popular vote on a public issue.”

(citations omitted)). 

Caruso also observes that notwithstanding Timmons, Chief

Justice Rehnquist in Cook applied strict scrutiny to an amendment governing the composition of Missouri ballots. See

Cook, 531 U.S. at 530-32 (Rehnquist, C.J., concurring in the

judgment). Specifically, the amendment required that ballots

label candidates for congressional office who “DISREGARDED VOTERS’ INSTRUCTIONS ON TERMS LIMITS” or “DECLINED TO PLEDGE TO SUPPORT TERM

LIMITS.” Id. at 514-15. Chief Justice Rehnquist described the

requirement as constitutionally suspect in part because it was

“not neutral as to issues or candidates.” Id. at 532. To the contrary, only one issue was selected for comment and “only

those candidates who fail[ed] to conform to the State’s position receive[d] derogatory labels.” Id.

Caruso maintains that here, just as Chief Rehnquist

described in Cook, the State selected a single consideration

for comment on the ballot. As an initial matter, we note that

CARUSO v. YAMHILL COUNTY 12153
Chief Justice Rehnquist’s opinion in Cook was a concurrence,

joined only by Justice O’Connor. Id. at 530. In contrast to

Chief Justice Rehnquist’s concurring opinion, the majority

opinion reviewed Missouri’s labeling requirement under the

Tenth Amendment and the Elections Clause rather than under

the First Amendment. Id. at 518-27. In fact, the majority specifically rejected the respondents’ reliance on “First Amendment cases upholding ‘time, place, and manner’ regulations of

speech,” explaining that “[a]lthough the Elections Clause uses

the same phrase as that branch of our First Amendment jurisprudence, it by no means follows that such cases have any relevance to our disposition of this case.” Id. at 527 n.20. 

But even apart from its precedential value, we regard Chief

Justice Rehnquist’s concurring opinion as distinguishable.

Unlike Missouri’s labeling requirement, which applied to

“only those candidates who fail[ed] to conform to the State’s

position,” id. at 532, Oregon’s three-percent warning applies

to all “measure[s] authorizing the imposition of local option

taxes,” Or. Rev. Stat. § 280.070(4)(a). Accordingly, no measure or group of measures is “singled out.” Compare Cook,

531 U.S. at 532. And unlike congressional candidates, who

“may debate tax reform, Social Security, national security,

and a host of other issues,” id., initiative measures, by law,

may “embrace one subject only,” Or. Const. art. IV, § (2)(d).

For Measure 36-55, that subject was a one-time increase in

property taxes. The measure’s possible effect on property

taxes, then, was not simply one facet of many. Finally, unlike

the State of Missouri, which “ha[d] chosen one and only one

issue to comment on,” id., the State of Oregon has chosen to

comment not only on a measure’s possible effect on property

taxes, but also on the rate of the special levy, the voter turnout

required to pass it, the proposed uses for the funds, the total

amount of funds anticipated, and the estimated additional cost

to property owners. 

[7] Second, and also unlike the provisions challenged in

McIntyre and Meyer, section 280.070(4)(a) does not have “the

12154 CARUSO v. YAMHILL COUNTY
inevitable effect of reducing the total quantum of speech on

a public issue.” Meyer, 486 U.S. at 423; accord McIntyre, 514

U.S. at 346. In Meyer, the Supreme Court determined that

Colorado’s ban on the use of the paid petition circulators

“limit[ed] the number of voices who will convey appellees’

message and the hours they can speak,” thus restricting their

ability to reach a larger audience, “garner the number of signatures necessary to place the matter on the ballot,” and

“make the matter the focus of statewide discussion.” 486 U.S.

at 422-23. The Court quoted the observation made by the Colorado Supreme Court in another context: “ ‘[T]he solicitation

of signatures on petitions is work. It is time-consuming and

it is tiresome — so much so that it seems that few but the

young have the strength, the ardor and the stamina to engage

in it, unless, of course, there is some remuneration.’ ” Id. at

423-24 (quoting Urevich v. Woodard, 667 P.2d 760, 763

(Colo. 1983)). 

[8] In contrast, the effect of the three-percent warning on

the “total quantum of speech” is uncertain. In a declaration

submitted to the district court, Caruso predicted that continued enforcement of the three-percent-warning requirement

would discourage petition circulators “as they w[ould] realize

that all of their work can and will be nullified by the false

statement that will appear on the ballot.” But Caruso’s prediction — unsupported by any evidence in the record, compare

Am. Constitutional Law Found., 525 U.S. at 198 (describing

the testimony of several petition circulators who recounted the

harassment and fear that they and others had experienced as

a result of the requirement that they wear identification

badges) — is not the only plausible one. In fact, the requirement “might encourage more speech,” Campbell, 203 F.3d at

745, with petition circulators working not only to collect signatures, but also to inform voters that their measures would

not, by themselves, increase property taxes more than three

percent. Along these lines, we note that the three-percent

warning required by section 280.070(4)(a) is “separated from

the moment the circulator speaks,” leaving circulators free to

CARUSO v. YAMHILL COUNTY 12155
contest its accuracy in their conversations with electors. Compare Am. Constitutional Law Found., 525 U.S. at 198-200

(explaining that Colorado’s affidavit requirement, unlike its

identification badge requirement, “exemplifies the type of

regulation for which McIntyre left room” because it “must be

met only after circulators have completed their conversations

with electors”). 

b. Compelled Speech

Caruso contends that section 280.070(4)(a) should be subject to strict scrutiny for the additional reason that it forced

him to be associated with the State’s message. See Pac. Gas

& Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 32-33 (1986);

Wooley v. Maynard, 430 U.S. 705, 714 (1977). Yet unlike the

requirements challenged in Pacific Gas & Electric and Wooley, section 280.070(4)(a) does not require that owners use

their private property to transmit the State’s message. See

Pac. Gas & Elec. Co., 475 U.S. at 17-18 (invalidating an

order requiring a utility company “to use its property — the

billing envelopes — to distribute the message of another”);

Wooley, 430 U.S. at 714 (invalidating a New Hampshire law

requiring drivers to use their cars as a “ ‘mobile billboard’ for

the State’s ideological message”). The provision instead provides for the State’s message to be transmitted through ballots, documents prepared, printed, and distributed by — and

therefore attributed to — State and local governments. See

Timmons, 520 U.S. at 356; see also Johanns, 125 S. Ct. at

2065 (“[T]his second [compelled speech] theory might . . .

form the basis for an as-applied challenge — if it were established, that is, that individual beef advertisements were attributed to respondents.”). 

Nor does section 280.070(4)(a) require the “affirmation of

a belief.” Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943).

Oregon law requires that the ballot title for a county initiative

be prepared by the district attorney, not by the petitioner. See

Or. Rev. Stat. § 250.175(3). Indeed, in his declaration, Caruso

12156 CARUSO v. YAMHILL COUNTY
opined that voters view the three-percent warning as “an official statement of government.” No part of section

280.070(4)(a) required Caruso to affirm the government’s

statement; rather, he remained free to publicly dissociate himself from it. See PruneYard Shopping Ctr. v. Robins, 447 U.S.

74, 88 (1980). 

[9] We thus find the present appeal distinguishable from

both the election law cases and the compelled speech cases in

which the Supreme Court has applied strict scrutiny. We

accordingly apply the Supreme Court’s more flexible balancing standard. 

2. Balancing Standard 

Under this standard, “the rigorousness of [a reviewing

court’s] inquiry into the propriety of a state election law

depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 504

U.S. at 434. “[W]hen those rights are subjected to ‘severe’

restrictions, the regulation must be ‘narrowly drawn to

advance a state interest of compelling importance.’ ” Id.

(quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). But

when those rights are subjected only to “ ‘reasonable, nondiscriminatory’ ” restrictions, “ ‘the State’s important regulatory

interests are generally sufficient.’ ” Id. (quoting Anderson,

460 U.S. at 788). 

a. Burden 

Caruso argues that section 280.070(4)(a) imposed a “severe” burden on his communication with voters by requiring

that the ballot title for Measure 36-55 include the “false and

misleading” warning that “[t]his measure may cause property

taxes to increase more than three percent.” This warning,

Caruso maintains, implied that Measure 36-55 by itself might

cause property taxes to increase more than three percent when

the measure in fact proposed a much lower increase of 0.0003

CARUSO v. YAMHILL COUNTY 12157
percent. Because the material facts are not in dispute, “the

character and extent of the statute’s burden involves a question of law,” which we review de novo. Krislov v. Rednour,

226 F.3d 851, 859 (7th Cir. 2000) (citing (WIN) Wash. Initiatives Now v. Rippie, 213 F.3d 1132, 1137 (9th Cir. 2000)). 

[10] Mindful of the constitutional backdrop against which

section 280.070(4)(a) was enacted, we reject Caruso’s

assumption that his is the only reasonable interpretation of the

three-percent warning. As discussed above, the Oregon Constitution provides that a “property’s maximum assessed value

shall not increase by more than three percent from the previous tax year.” Or. Const. art. XI, § 11(1)(b). But this limitation may be exceeded by local option taxes submitted to and

approved by voters in the taxing district. Id. § 11(4)(a)(A).

When construed in context, then, the three-percent warning

could be read as an accurate reminder that the local option tax

proposed by Measure 36-55 would not be subject to the limitation imposed by the Oregon Constitution. In other words,

absent approval of Measure 36-55, maximum assessed values

and, in turn, property taxes could increase by no more than

three percent. Id. § 11(1)(b). If the measure were approved,

however, property taxes could increase by more than that

amount. Id. § 11(4)(a)(A). 

Caruso offers several reasons to reject this reading: (a) voters are unlikely to know of the constitutional three-percent

limit; (b) the constitutional three-percent limit applies to maximum assessed values, not property taxes; (c) there is only an

“infinitesimal possibility” that other property taxes will

increase three percent; and (d) even if other property taxes

increased three percent, it would not be Measure 36-55 that

would “cause” total taxes to increase more than that amount.

We address these reasons in turn. 

[11] As to voters’ knowledge, we note that Measure 50,

which imposed the three-percent limit, was adopted by referendum. Flavorland Foods, 54 P.3d at 583-84. Before the elec12158 CARUSO v. YAMHILL COUNTY
tion on Measure 50, voters would have been presented with

summaries of its impact on the ballot and in the voters’ pamphlet. Or. Rev. Stat. §§ 250.035(2)(d), 251.185(1). It is also

likely that the ballot issue was the subject of discussion and

press coverage leading up to election day. We further note

that Measure 50 replaced Measure 47, a “short-lived constitutional amendment” which had been enacted by the voters by

ballot initiative the year before the approval of Measure 50,

and which included substantially the same property tax limitations. See Flavorland Foods, 54 P.3d at 583 (explaining that

“ ‘[c]ertain practical and technical difficulties in the application of Measure 47 led the legislature to propose, and the people to adopt, Measure 50 as its effective replacement’ ”

(quoting Shilo Inn, 36 P.3d at 958 n.6)). As such, voters

would have been presented with substantially identical summaries before the election on Measure 47 as well. Accordingly, although voters might not have had perfect knowledge

of the Oregon property tax system, they were likely aware of

the constitutional three-percent limit, which not only was the

subject of two separate ballot measures, both of which the

voters approved, but which also affected the calculation of

property taxes for every year since its adoption. 

As to the difference between maximum assessed values and

property taxes and the likelihood that the latter will increase

by three percent, Caruso’s assertions are undermined by other

limitations imposed by Measure 50. Taken together, these

limitations create more than an “infinitesimal possibility” that

property taxes will increase three percent. As described

above, in addition to imposing the three-percent limit, Measure 50 “rolled back” properties’ maximum assessed values

for the tax year beginning July 1, 1997, and established a

“permanent limit on the rate of ad valorem property taxes

imposed” by each local taxing district. Or. Const. art. XI,

§ 11(1)(a)-(3)(b). The State informs us that real market values, meanwhile, have been “generally rising.” The result is

that for tax years beginning after July 1, 1997, a property’s

assessed value — defined as “the lesser of: (a) The property’s

CARUSO v. YAMHILL COUNTY 12159
maximum assessed value; or (b) The property’s real market

value,” Or. Rev. Stat. § 308.146 — is likely to equal its maximum assessed value. And as maximum assessed values

increase by three percent per year, property taxes increase by

the same amount because they are imposed at the permanent

rate established by Measure 50.3

Finally, as to the “cause” of a greater-than-three-percent

increase in property taxes, predictable three-percent increases

in property taxes suggest that local option taxes may in fact

“produce[ ]” an increase of more than that amount. See

Black’s Law Dictionary 234 (8th ed. 2004) (defining “cause”

as “[s]omething that produces an effect or result”). That is,

absent approval of a local option tax, maximum assessed values and, frequently, assessed values and property taxes could

increase by no more than three percent. Or. Const. art. XI,

§ 11(1)(b). If a local option tax is approved, however, it could

produce an increase of more than that amount. Id.

§ 11(4)(a)(A). 

[12] Certainly, the three-percent warning could also be read

to suggest that Measure 36-55 by itself might cause property

taxes to increase more than three percent, but we regard its

interpretation as an accurate reminder that the measure would

not be subject to the constitutional three-percent limit to be at

least as plausible. For this reason, we do not characterize the

burden imposed by section 280.070(4)(a) as “severe.” Rather,

like the Fourth Circuit, we believe that we may not declare a

3We do not dispute that the real market values for some properties may

be decreasing. For these properties, the likelihood that property taxes

would increase by three percent in a given year would be much lower,

because assessed values would likely equal decreasing real market values

rather than incrementally increasing maximum assessed values. But particularly in the absence of evidence that a substantial portion of Oregon properties fit this description, we decline to condition application of section

280.070(4)(a) on the real market values of individual properties. Doing so

would effectively “tie the hands” of the State. See Burdick, 504 U.S. at

434. 

12160 CARUSO v. YAMHILL COUNTY
State’s ballot language unconstitutionally burdensome

“merely because it could conceivably mislead some individuals and could have been crafted more adroitly.” Cf.

McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1227 (4th

Cir. 1995) (rejecting constitutional challenges to the allegedly

misleading heading printed on voter petitions because the

court could not say that the language “permits of only one

interpretation” (internal quotation marks omitted)). 

b. Interest 

[13] Where, as here, a state election law imposes restrictions on speech that are not severe, “ ‘the State’s important

regulatory interests are generally sufficient’ ” to justify it.

Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788).

The State maintains that section 280.070(4)(a) advances its

interest in reminding voters that approving a local option tax

effectively waives the constitutional three-percent limit. The

sufficiency of this interest presents a question of law, which

we review de novo. See McClure v. Galvin, 386 F.3d 36, 41-

45 (1st Cir. 2004). 

[14] The Supreme Court has consistently acknowledged

states’ legitimate interest in “fostering informed and educated

expressions of the popular will.” Anderson, 460 U.S. at 796;

see, e.g., Eu v. S.F. County Democratic Cent. Comm., 489

U.S. 214, 228 (1989); Jenness v. Fortson, 403 U.S. 431, 442

(1971). By requiring inclusion of the three-percent warning as

a “shorthand designation” of an initiative’s potential tax consequences, section 280.070(4)(a) “plays a role in the process

by which voters inform themselves for the exercise of the

franchise.” Cf. Tashjian v. Republican Party, 479 U.S. 208,

220 (1986) (observing that “party labels provide a shorthand

designation of the views of party candidates on matters of

public concern”); compare McIntyre, 514 U.S. 348-49 (noting

that “in the case of a handbill written by a private citizen who

is not known to the recipient, the name and address of the

CARUSO v. YAMHILL COUNTY 12161
author add little, if anything, to the reader’s ability to evaluate

the document’s message”). 

We are mindful that a state’s asserted interest in informing

voters will not necessarily justify the burdens its regulations

impose on First Amendment rights. For example, “[a] state’s

claim that it is enhancing the ability of its citizenry to make

wise decisions by restricting the flow of information to them

must be viewed with some skepticism.” Anderson, 460 U.S.

at 798. Skepticism is also warranted if a state goes beyond

“merely” providing information about candidates to “handicap[ping]” them. Cook, 531 U.S. at 525 (internal quotation

marks omitted). Section 280.070(4)(a), however, neither

restricts information nor handicaps initiatives. It instead provides additional information, “ ‘open[ing] the channels of

communication rather than . . . clos[ing] them,’ ” and applies

equally to all initiatives proposing local option taxes, leaving

no measure at a “political disadvantage.” Compare Anderson,

460 U.S. at 798 (quoting Va. Pharmacy Bd. v. Va. Consumer

Council, 425 U.S. 748, 770 (1976)); Cook, 531 U.S. at 525.

We note, too, that the State enacted section 280.070(4)(a) as

part of a statutory scheme requiring that ballot titles for local

option taxes include not only the three-percent warning, but

also the rate, period, amount, and purpose of the proposed

option tax. See Or. Rev. Stat. §§ 280.070, 280.075. The

State’s directing attention to this variety of considerations is

in our view more consistent with an interest in informing voters than with an interest in influencing them. Compare Anderson, 375 U.S. at 402 (“[B]y directing the citizen’s attention to

the single consideration of race or color, the State . . . may

[d]ecisively influence the citizen to cast his ballot along racial

lines.”). 

[15] As stated above, the three-percent warning might have

been more clearly worded. For example, Article XI-A, section

4 of the Oregon Constitution, which authorizes a separate

statewide property tax for the purpose of repaying the principal and interest of bonds, provides that “said tax levy hereby

12162 CARUSO v. YAMHILL COUNTY
authorized shall be in addition to all other taxes which may

be levied according to law.” Or. Const. art. XI-A, § 4. But

because the three-percent warning, even as presently worded,

does not impose a severe burden on Caruso’s First Amendment rights, “the State need not narrowly tailor the means it

chooses to promote [its interests].” See Timmons, 520 U.S. at

365. 

The district court deemed section 280.070(4)(a) insufficiently tailored in a different respect: specifically, in its application to all measures proposing the imposition of a local

option tax, even those which by themselves cannot cause

property taxes to increase more than three percent. The district court concluded that the general applicability of section

280.070(4)(a) rendered it substantially overbroad and therefore facially invalid. See Broadrick v. Oklahoma, 413 U.S.

601, 615-16 (1973). 

We disagree. If, as the district court ordered, application of

section 280.070(4)(a) were limited to measures which themselves could cause property taxes to increase more than three

percent, the statute would be rendered largely ineffective in

increasing the information available to voters. Under a separate provision of Oregon law, the ballot titles for measures

proposing local option taxes must declare the “dollar rate per

thousand dollars assessed value.” Or. Rev. Stat.

§ 280.060(1)(b). Voters can thus readily identify ballot measures that themselves may cause property taxes to increase

more than three percent. What voters are less likely to readily

identify are those ballot measures that propose lower dollar

rates, but which, if approved, will be levied outside the threepercent limit imposed by the Oregon Constitution. See Or.

Const. art. XI, § 11(4)(a)(A). In our view, then, the general

applicability of section 280.070(4)(a) does not burden substantially more speech than is justified by the State’s important interests. 

[16] In sum, we conclude that the First Amendment burden

imposed by section 280.070(4)(a) is not severe and further

CARUSO v. YAMHILL COUNTY 12163
that that burden is justified by the State’s important interest in

encouraging informed and educated voting. We accordingly

conclude that section 280.070(4)(a) does not violate the First

Amendment, either as applied to Measure 36-55 or on its face.

D. Fourteenth Amendment

In addition to his First Amendment claims, Caruso asserts

a Fourteenth Amendment claim, arguing that required inclusion of the “false and misleading” three-percent warning violates his rights to substantive due process. We review the

claim de novo. See Mont. Chamber of Commerce v. Argenbright, 226 F.3d 1049, 1054 (9th Cir. 2000). 

[17] “Several appellate courts, including our own, have

held that an election is a denial of substantive due process if

it is conducted in a manner that is fundamentally unfair.” Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998). To prevail on his substantive due process claim, then, Caruso must

demonstrate that “ ‘the state’s choice of ballot language so

upset[s] the evenhandedness of the [election] that it work[s]

a ‘patent and fundamental unfairness’ on the voters.’ ” Nat’l

Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 858 (9th Cir.

2002) (quoting Burton v. Georgia, 953 F.2d 1266, 1269 (11th

Cir. 1992)). The parties agree that such an exceptional case

would arise if, for example, the ballot language were so misleading as to deceive voters about the subject of the measure

at issue. See id.

[18] Applying this standard in National Audubon Society,

we rejected a challenge to ballot material which allegedly

misled voters by understating the scope of proposed changes

to California law. Id. at 859. The district court there concluded that an argument favoring passage of the proposition

was not “materially misleading” in part because it “was not

completely inaccurate.” Id. at 858. Rather, although the argument allegedly understated the scope of the broader of two

proposed bans, it accurately described the narrower one. Id.

12164 CARUSO v. YAMHILL COUNTY
In addition, “other materials accompanying the ballot”

included arguments against the proposed changes. Id. at 858-

59. We agreed that under those circumstances, “the ballot

material did not rise to the level of a substantive due process

violation.” Id. at 859. 

[19] Like the material challenged in National Audubon

Society, the three-percent warning is “not completely inaccurate.” To be sure, the three-percent warning might have been

read as a misleading suggestion that Measure 36-55 by itself

might cause property taxes to increase more than three percent. But, as described above, the warning might also have

been read, in context, as an accurate reminder that the proposed local option tax would not be subject to the threepercent limit imposed by the Oregon Constitution. Moreover,

although an average voter might have read the three-percent

warning as Caruso does “ ‘[i]f [he] had to decide what he was

voting on from the [warning] alone, . . . . he did not have to

decide from this summary.’ ” Burton, 953 F.2d at 1271 (quoting Kohler v. Tugwell, 292 F. Supp. 978, 981 (E.D. La.

1968)). Instead, he could look to “other materials” — including the text of Measure 36-55 and the remainder of the ballot

title as it appeared in the voters’ pamphlet and, indeed, on the

ballot itself, see Or. Rev. Stat. §§ 250.235, 251.315(1)(g),

280.060(1)(b) — which indicated the actual increase proposed

by Measure 36-55, disclosing both the dollar rate of the proposed tax and the estimated levy for a house with an assessed

value of $150,000. See Nat’l Audubon Soc’y, 307 F.2d at 858-

59. We are thus unpersuaded that the State’s choice of ballot

language rose to the level of a due process violation under

National Audubon Society. 

[20] The fact that the three-percent warning would have

appeared in the ballot title for Measure 36-55 rather than in

an “avowedly partisan portion of the materials” does not

change our conclusion. Compare Nat’l Audubon Soc’y, 307

F.3d at 858 (internal quotation marks omitted). Because the

three-percent warning could have been interpreted accurately,

CARUSO v. YAMHILL COUNTY 12165
and because “other materials” would have enforced this interpretation, we cannot say that including the three-percent

warning in the ballot title would have “infected” the entire

election with “patent and fundamental unfairness.” Burton,

953 F.2d at 1271 (internal quotation marks omitted). 

III. CONCLUSION 

[21] For the above reasons, we conclude that Or. Rev. Stat.

§ 280.070(4)(a) does not violate Caruso’s First Amendment

or Fourteenth Amendment rights. Accordingly, we reverse the

contrary determinations of the district court and vacate the

injunction permanently limiting the enforcement of section

280.070(4)(a). 

JUDGMENT REVERSED; INJUNCTION VACATED.

12166 CARUSO v. YAMHILL COUNTY