Ninth Circuit Upholds Oregon’s Vote-by-Mail System

Metropolitan News-Enterprise

Thursday, July 12, 2001

Page 1

Ninth Circuit Upholds Oregon’s Vote-by-Mail System

From Staff and Wire Service Reports

The statewide vote-by-mail system adopted by Oregon voters in 1998 does not violate federal election laws, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Although Oregonians now vote over the course of two to three weeks rather than on the one “election day” mandated by federal law, the court said, the state system leaves sufficient vestiges of voting day intact to remain legal. Besides, the court said, Oregon vote-by-mail bears a close resemblance to absentee voting, which Congress has long encouraged.

“What persuades us of the proper outcome in this difficult case is the long history of congressional tolerance, despite the federal election day statute, of absentee balloting and express congressional approval of absentee balloting when it has spoken on the issue,” Judge Andrew A. Kleinfeld wrote for the court. “We find it difficult to reconcile a decision rejecting the Oregon law with the maintenance of absentee balloting.”

Oregon so far is the only state to adopt vote-by-mail, which does away with regular polling places. County clerks mail ballots to registered voters 14 to 20 days before the voting deadline, which is still known as election day. Voters mark their ballots at home and mail them in, or deposit them in drop boxes.

Proponents say the law increases voter turnout by at least 10 percent by eliminating the need to go to a polling place. In addition, voters have time to think about the candidates and the measures at leisure, instead of struggling with their decisions inside a polling booth.

But critics say the new system allows too much room for fraud.

After Oregon’s measure passed, the non-partisan Voting Integrity Project, a Virginia-based watchdog group, sued trying to block the change. Lawyers argued it violated federal law requiring congressional and presidential elections to take place on the same day in November.

Kleinfeld acknowledged that federal law designating the first Tuesday after the first Monday in November as “the day for election” implies that Congress meant elections were to take place on no other days.

Citing legislative history dating back to Reconstruction, the judge found “substantial arguments” that multi-day elections were to be prohibited.

But he also cited a U.S. Supreme Court decision that, in striking down a Louisiana election scheme, “cuts in favor” of the Oregon law.

In Foster v. Love, the high court in 1997 rejected Louisiana’s statute that required all candidates for the House and Senate to run together in an open primary in October, with the winner of a majority to be deemed elected. If no one won a majority, a run-off was to be held on federal election day.

The Supreme Court held that the Louisiana law provided for federal elections earlier than federal election day, violating federal law.

Kleinfeld noted that the court defined “election” as “the combined action of voters and officials meant to make a final selection of an officeholder.”

That interpretation favors the Oregon law, the judge said, because the “final selection” cannot be made until federal election day, when the ballots are collected and counted.

Even if Foster is not controlling, Kleinfeld said, Congress’ attitude toward absentee balloting is persuasive. The federal absentee balloting law requires states to make arrangements for voters to cast their ballots when they will be out of state on voting day, but it also specifically allowed states to adopt “less restrictive” voting practices.

“We take no position on the desirability of one or another scheme for voting or absentee voting, only its legality,” Kleinfeld said. “We only conclude that the Oregon scheme is in compliance with the federal election day statute.”

Lawyer M. Miller Baker, who represents the Voting Integrity Project, said the group will appeal either to the full appeals court or to the U.S. Supreme Court.

“We think you can confine absentee voting to certain circumstances when people can’t vote for a reason rather than what Oregon has, which is unrestricted early voting ... a rolling election that lasts several weeks,” Baker said.

But Secretary of State Bill Bradbury called the ruling “a big win” for Oregonians.

“We had a record turnout in the May 2000 primary. We were at 80 percent of registered voters in the general election,” Bradbury said. “Basically, it was very clear that vote-by-mail reversed the trend of declining turnout.”

Kleinfeld was joined by Ninth Circuit Judge William A. Fletcher and Third Circuit Senior Judge Ruggero J. Aldisert, sitting by designation.

The case is Voting Integrity Project, Inc. v. Keisling, 99-35337.