## Facts

- Oregon law permits voters to refer enacted legislation to the ballot if proponents submit petition signatures meeting a constitutional and statutory threshold.
- The Oregon Secretary of State verifies referendum petition signatures using a statutory statistical sampling method, generally reviewing about five percent of submitted signatures through county election officials who compare petition signatures to voter registration records.
- In 2007, the Oregon legislature enacted the Oregon Family Fairness Act, extending certain rights and responsibilities to domestic partnerships.
- Opponents sought to place a veto referendum (Referendum 303) on the ballot and were required to submit 55,179 valid signatures.
- Proponents submitted about 62,000 signatures; the Secretary sampled 3,033 signatures and counties reported 254 as invalid.
- Extrapolating from the sample results, the Secretary determined that only 55,083 valid signatures were submitted and declined to certify the referendum for the ballot.
- Voters and petition proponents sued the Secretary, arguing that signatures were wrongly rejected, that verification lacked sufficiently uniform standards, and that signers should have been allowed to cure or “rehabilitate” rejected petition signatures, similar to cure procedures available for certain mail-in ballots.

## Issues

1. Whether petition-signature verification for a state referendum implicates a federal fundamental right such that strict scrutiny applies under the Equal Protection Clause.
2. Whether denying a cure/rehabilitation opportunity for rejected referendum petition signatures, while allowing cure for certain election ballots, violates equal protection.
3. Whether Oregon’s sampling-based signature verification procedures, including alleged variability among counties and the absence of a cure mechanism, violate procedural due process.

## Decision

- The Ninth Circuit affirmed the district court’s denial of permanent injunctive relief and upheld the Secretary’s refusal to certify Referendum 303.
- The court held that the initiative/referendum process is a state-created mechanism and does not constitute a federal fundamental right; rational-basis review applied to equal-protection challenges.
- The court concluded Oregon had rational reasons to use statistical sampling and to treat petition signatures differently from ballot-signature cure procedures used in elections for officeholders.
- The court rejected the due-process claim, finding the verification scheme sufficiently structured and not shown to be arbitrary or discriminatory, and held that due process did not require a signature rehabilitation process in this setting.

## Legal Principles

- State initiative and referendum procedures are state-created political mechanisms; restrictions on access typically do not trigger strict scrutiny absent a burden on a federally protected fundamental right or suspect classification.
- Under rational-basis review, a state may differentiate between referendum petition administration and ballot-counting procedures if the distinctions reasonably relate to legitimate governmental interests (e.g., timely administration, integrity, and manageable verification workloads).
- Procedural due process in election administration requires fundamentally fair, non-arbitrary procedures; it does not necessarily require individualized post-rejection cure opportunities for petition signatures in a time-constrained, high-volume sampling system.
- A showing of inconsistent outcomes is insufficient without evidence of arbitrary, targeted, or discriminatory application of verification standards.

## Conclusion

The Ninth Circuit upheld Oregon’s sampling-based referendum signature verification and the resulting denial of ballot access for Referendum 303, holding that the referendum process is not a federal fundamental right, that the state’s differing treatment of petition signatures and election ballots was rational, and that due process did not require additional uniformity measures or a signature cure procedure.


Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008)