Clackamas commissioners' "urban renewal" measure doubly ambiguous
We've been staring for a couple of days now at the language of the decoy ballot measure that the Clackamas County commissioners have placed on the November ballot to compete with the citizens' initiative petition that would require countywide votes for future "urban renewal" expansions. The longer we look at the politicians' measure, the more ambiguous parts of it seem.
In particular, we're referring to the conflict provision -- the part of the commissioners' measure that talks about what happens if it conflicts with other county laws. It reads as follows:
A number of intriguing questions arise out of this poorly chosen language.
First things first: Does this language even apply to the conflict between the two measures on the November ballot? Specifically, is the measure originally initiated by the citizens' petition a "referral"? At least to our untrained eye, it doesn't seem so. There's a clear distinction made in state law between an initiative and a referendum. A referendum is the situation in which a law or ordinance that the county commissioners enacted is forced onto the ballot by petition signatures. As we understand it, that's not what the citizens did here -- they invented their own measure, which is an initiative rather than a referendum. And so the conflict language in the commissioners' measure -- alluding to "any referral" -- may not even apply to the glaring conflict between these two measures. (The crux of the dispute is whether future "urban renewal" schemes should be subject to a countywide vote, or just a vote of the district that would benefit.)
Assuming that the conflict language does apply -- and that seems a major assumption -- there's an additional problem with the operative language: "the provisions having received the lesser number of votes in any referral of the measure to an election shall be void." Does that mean (a) the lesser number of "yes" votes, or (b) the lesser number of total votes, both in favor and against?
Take this example: Both measures pass. The citizens' initiative passes 10,000 to 5,000, and the commissioners' measure passes, 8,000 to 7,500. Assuming the conflict language applies, then which ballot measure prevails, and which one is void? The citizens' initiative has more "yes" votes (10,000 to 8,000), but the commissioners' measure, which also passed, has more overall votes (15,500 to 15,000). Which "provisions... received the lesser number of votes"? Common sense would say the politicians' version, but that idea could have been expressed much more clearly than in the commissioners' drafting.
If somehow the language means that the most total votes wins, then so long as both measures get a majority of votes cast, folks who favor the citizens' measure might be better off not voting at all on the commissioners' measure -- not even voting "no." On the other hand, if the measure with the most "yes" votes wins (a more loigcal, but by no means necessary, reading), then it would make sense for the citizens' group to vote yes on the initiative measure and no on the commissioners'.
Are these two ambiguities deliberate and malicious, or are they accidental? It's hard to tell. In the original version of the decoy measure, there was reference to actions taken by more or less than 51% of the voters in the "urban renewal" area. That was bad drafting, too. As anyone who's thought about it knows, a majority is 50% plus 1 vote -- not 51%. 5,001 to 4,999 is a majority -- you needn't get to 5,100. Somebody down there is a truly poor drafter, or diabolically clever.
Either way, it's hard to tell what the heck that conflict provision says. So who knows what the rules are going to be here? Maybe Kate Brown or John Kroger can send out a press release on the subject. But the vote's less than two months away. Election procedures in Oregon are the pits sometimes, aren't they?