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Friday, November 11, 2005

The double majority rule -- unconstitutional?

Well, the old double majority rule struck again this week. A number of tax levies in Oregon went down because, although they won a majority of those voting, the measures didn't get a turnout of a majority of those who were entitled to vote. To pass, a tax measure has to get both. State Rep. Dave Hunt (D-Clackamas County) laments this in an e-mail that I got earlier today:

Oregon's "double majority" election requirement struck again this week, overturning the will of voters who passed local measures. In 1996, Ballot Measure 47 had a hidden provision creating the "double majority" voter turnout requirement for local property tax measures. Since then, the double majority rule has unfairly harmed Oregon school districts and other local governments whose residents try to implement essential measures.

In this Tuesday's election, a majority of voters in six communities passed local measures. Because fewer than 50% of registered voters returned their ballots, however, the will of voters was struck down by non-voters in those six communities.

A similar circumstance occurred in May, when the double majority voided eight measures in six Oregon counties -- including a bond passed by 61.6% of Gladstone School District voters who I represent. These measures would have provided essential upgrades to schools, fire districts, sanitation services, and jails.

Since the double majority requirement was introduced, Oregon's vote-by-mail system has been implemented so every registered voter is mailed a ballot for every single election. By having ballots at their home -- and several weeks to complete those ballots -- no Oregon voter has an excuse for missing an election.

During the 2003 and 2005 Legislative Sessions, I was chief sponsor of bills to reform the double majority rule to allow voters to pass local option and bond measures with a simple majority vote in May and November elections. A large bipartisan majority passed SJR 14 this year, but the bill was killed by House leaders without a vote.

I've always hoped someone would challenge double majority on constitutional grounds, but I've never heard anyone else even suggest the theory that I (with my limited knowledge) think might be most worth pursuing. So here it is, folks, fire away at it:

The double majority rule deprives people of their constitutional right to vote. Not those who were voting yes, though. My theory is that it deprives people of the right to vote no. If you show up and vote no, and then the measure passes, your showing up to vote no did as much to cause it to pass as it did to cause it to fail. In effect, that's depriving you of your right to vote no.

Crazy? Perhaps, but no crazier than double majority ittself. It would be worth a try. Forget the frustrated proponents of the tax measures that failed. The complaint would be filed on behalf of no voters on measures that passed.

Comments (21)

Hmmm... I'd think it was the yes voters who would have standing, as those who did not show up were assumed to be "no" votes. I'd say that the double majority counts voters who didn't vote as "no" votes. That's seems pretty presumptuous.

As long as a "no" voter is supported by all the non-voters (being considered as "no" votes), there is no motivation for a "no" voter to bring suit.

Kelly: It is untrue that a non-voter counts as a no vote. Imagine a 51% turnout with 51% of those people voting yes. That means 26% of people voted yes, 25% voted no, and 49% didn't vote. Yet the measure passes. Clearly non-voters aren't counted as "no" votes (though I have seen that claim made many times, and it's sort of a useful metaphor, but it's not really true in a strict interpretation).

However, each person who voted "no" actually helped it pass by raising the turnout above 50%. That's the argument Jack is making.

Not to quibble, Jack, but the double majority rule is in the Oregon Constitution, Art. XI, Sec. 11(8). Ordinarily (as I'm sure you know), anything in the constitution is, well, constitutional. Moreover, because it was enacted after other rights guaranteed under the Oregon constitution, it supercedes any other constitutional guarantees tht might arguably conflict.

Voting guarantees in the US Constitution appear to be limited to the process for federal offices and the status of eligible voters (race, sex, age, etc.). Of course, its entirely possible that a more nimble mind than mine could find an angle. Considering that there must be numerous similar requirements across the country, someone with Lexis/Westlaw and idle time might uncover something interesting.

Unfortunately, I'm afraid the double majority is a political football that will require a political (constitutional initiative) fix.

"The complaint would be filed on behalf of no voters on measures that passed."

Not quite, as overbreadth would be more than applicable here provided that the right advocate demanded standing.

The limit does not effect all elections, just some. The only thing for inquiry is the reasonableness of the restriction on the timing of the placement on the ballot, where the entire set of off-peeeek elections could themselves be ended.

It is not unlike reasonable time place and manner restrictions for free expression as the door is not shut completely.

How about holding weekly elections, on the same issue? How about daily? How about hourly via the internet?

How about an election week or month where no folks can know whether the quorum threshold has been met, and still have an opportunity to vote?

Let's make voting mandatory, under the threat of removing the liberty interests of non-voters.

I'm conflicted on this issue, I like the "double majority" rule, but then again when I want to vote no on a new local tax, I have to think twice... Is there something else that I really want to vote on, or not. If not, I might be better off reducing the turnout rate.

Of course, that brings to question how is it counted if I do vote for one thing, but don't mark yes or no for the local tax? Do they count turnout different for each item on the ballot?

The double majority is simply a quorum requirement, which is a well accepted democratic protection, common in most legislative bodies.

Sure, it is uncommon to have it in a popular vote election, but it serves the same purpose there as it does in committees, legislative bodies and corporate by laws: to make sure binding decisions are not made by small percentages of the voters.

One thing you can be sure of: if there were any legitimate grounds for litigating its constitutionality, alll the usual suspects would have done it.

The constitutional issue I would advocate raising would have to be a federal one, of course. There are federal first amendment, equal protection, and due process overtones here. As I say, I'm no expert on this, but I think it's an avenue worth pursuing.

As for Rob's "nothing to see here, folks, go on home now," forgive me if I don't take his teachers-union-hatin' word for it. 8c)

Here's my scenario: There are 50,000 registered voters. 25,001 show up at the election. The vote is 12,501 yes to 12,500 no. Any two of those no voters could have defeated the measure by staying home. By showing up and voting no, they caused the measure to pass. You're telling me they have no gripe that they were disenfranchised?

If you want to talk labor rights (Rob and Jack) then go here. Yes it is about Liberty.

Support new teacher's bargaining rights.

Rob's attack is misdirected and misguided but he would lose a money raising issue if he got it right.

Of course, I don't know nothing anyway.

Jack your scenario was painfully close to what happened to Parks in the Spring 2002 election, where they got an overwhelming majority of the vote 70% Yes but fell just under the 50%. You could have had added all no votes to get to the 50% had a 60-someting % majority. It was quite frustrating after doing all the work not to have voter turnout enough to pass it. To keep things positive, what we need is to get the vote out, the Bus Project folks have a new program called the Block Project it to set up something like the old precient captains to get out the vote only it is non-partisan. Really there is no excuse for us not getting out the vote. The website is

Jack, it's an interesting thought. But a right to vote doesn't translate to a right to win an election, correct?

Those who voted no were in no way disenfranchised. They were able to cast their votes in the way they intended (as NO votes). The votes counted as they intended (as NO votes).

That the outcome was not as they intended (YES votes carried) doesn't seem to me to have anything to do with whether or not they were disenfranchised.

And not for nothing, but in your scenario those aggrieved voters "disenfranchised" themselves by showing up to vote. So who they gonna sue??? ;-)

Personally, I think the double majority rule is a good thing.

Nevertheless, one thing that I really get sick of hearing is representatives claiming "the will of the people" or "the people of Oregon felt this way"

Our state and local governments have been so out of touch about what the people want that we have given up.

"No Oregon voter has an excuse for missing an election" [referring to vote by mail] I don't need an excuse not to vote. I very seldom vote anymore because I get sick and tired of all the issues that we should be voting on and what we actually are ALLOWED to vote on are two different things.

I could care less who will be running the library. But a lot of times that's all that is on the ballot.

Were the voters asked if we wanted a brand-new high-speed hybrid bus system in Eugene at a beginning cost of $29 million that will be choking off our main arteries and cutting down trees only to save five minutes off the bus run? Not to my knowledge.

Why should I waste my time in voting for something repeatedly only to be told that "we didn't understand what we were voting on" referring to the suicide law, or having judges constantly overturn an issue stating that it was unconstitutional IE measure 37.

How many times have we told local and state governments that we do not want a sales tax only to have the city of Eugene bring it up again as a proposal for public safety.

Speaking of public safety, in addition to the proposed sales tax, they are also proposing an additional business tax. For years, they have threatened us with cuts in public safety to try and get money. Now they are going to force it from us. The question, why now? The answer: the 2008 Olympic track and field trials. Big money, understaffed.

Therefore, it is not really an issue of convenience why people don't vote at least in my opinion. the real issue is that the government has lost the trust of the people and people who are struggling with their own issues in the second-highest unemployment State in the nation are more concerned about keeping a roof over their heads more than they are concerned about a school budget..

We have the double-double here only because Kleptocrats figured out that the best way to pass tax increase measures was to put them up for so-called approval in micro-turnout elections where the well-organized, self-interested YES votes dominated.

One constitutional anchor of stablity in the arrangement between tax spenders and tax payers is a reasonable budget cycle that is not too short; where they aren't continually trying to get into our pockets. In Oregon's case, if our vaunted government planners would have set spending on a 2-year cycle there would have been no need for the double-double rule.

But of course, according to the conventional wisdom, this is merely a problem that needs to be corrected by shortening the budget cycle, instituting annual legislative sessions, and getting rid of the double-double.

What is actually needed to avoid the double-double problem entirely is for tax spenders to stick to the basics, prioritize, and limit revenue measures to even-year November elections when turnout is reliably higher.

Low turnout elections lack legitimacy, not unlike our system of "electing" judges - who typically are appointed to vacancies in order to run unopposed (because no lawyer who wants to practice here will challenge a seated judge.)

The lust for increasing taxes and government power knows no bounds. The Kleptocrats are even willing to make a mockery of our system of self-government by junking up the calendar with illegitimate elections. This is what is meant by the expression "the ends justify the means".

I fail to see how name-calling advances any of the arguments here, even if the epithet used were apt, which it is not. We may have waste and incompetence and even graft and corruption, but "kleptocrats"? I don't think so. The argument may have merit, but its author discredits it with this language.

I buy your argument Jack. Life is determined by those who show up... or should be, but this system makes nonvoting a kind of voting.

Of course we should do a lot of things differently, and our voting systems are messed up in a lot of ways: (see Wikpedia Voting Systems)

For example by voting for the candidate I might really want (say a Green or a Looney Tune), I might inadvertently elect a Republican. That outcome is also a structural consequence of the voting rules. I'd favor rank order voting to remedy that, but I'm not sure the argument can be made on constitutional grounds... rather the argument would have to be made on political philosophical grounds and implemented at a constitutional level. That's something there is no political will for, I suspect.

I'd like to argue that I'm disenfranchised by the existing system... but I'm not sure that I'm disenfranchised in a way that the Constitution protects me from being disenfranchised.

Whether your double majority case could be argued within the existing constitutional framework is an interesting question.

"As for Rob's "nothing to see here, folks, go on home now," forgive me if I don't take his teachers-union-hatin' word for it. 8c)"

What's there to hate teacher unions for?

Shutting down schools for weeks and then demanding to get paid for every day they strike as a condition for settling the strike?

Call it "hate" if it helps you ignore the problem, but that union behavior is disgusting.

Rob writes that the double majority requirement is uncommon in a popular vote election, but my Internet search indicates that it is unique to Oregon. I could not find ONE other instance.

It is also NOT comparable to a quorum requirement. Lack of a quorum does not send a measure to defeat--it simply delays the decision making of a committee or legislative body until another time.

The double majority, in contrast, allows a lack of a quorum to defeat a measure.

Finally, the double majority is bad public policy because it it confusing and can encourage non-participation, something we should avoid in election rules.

The arguments made here in favor of the double majority election requirement held SOME water when it was first implemented, but....

Back then, local governments could put out property tax measures EIGHT times a year. That was later cut to six. Then to five. And now they may only put them out in March, May, September, and November. Our proposed fix would further limit local governments to just TWICE a year. So it's hard to argue that two ballots a year is overwhelming to voters.

Back then, voters had to physically go to the polls on election day. Especially for the lower profile elections, it was fairly easy to forget about the election. But now, every voter gets their ballot -- and several weeks to cast it -- in their own home.

Even Kevin Mannix agrees that the double majority is no longer warranted in a vote-by-mail Oregon.

The choice seems simple: Do we value the opinions of people who actually vote? Or do we give veto authority to those who choose not to vote?

(To Miles) I am a poor person who feels a keen sense of disenfranchisement which I am powerless to remedy. The Constitution does not afford me protection from disenfranchisement because poor people were excluded from writing it and thus it was not written for poor people. In fact, poor people didn't even get the right to vote until all of the Founding Fathers were dead. So I find it no surprise that the rules are rigged against people like me.

I note the wider celebration of Iraqis writing and holding a referendum on their constitution. Why can't we have a referendum on ours?


You lost me on this one. In the scenarios you lay out, the "no" voters are no worse off than if the double majority rule did not exist. Where's the harm?

Where's the harm?

The harm is having to decide whether to vote or not, when voting against something may actually help (or cause) it to pass.


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