The Fight for Hand-Counting of Ballots In Oregon

The Fight for Hand-Counting of Ballots In Oregon

By Terry Noonkester

On October 6th 2023, two election Integrity enthusiasts filed a petition for the
hand-counting of ballots at the Douglas County Courthouse in Roseburg, Oregon.
County Clerk Dan Loomis informed the petitioners that the Secretary of State’s
office had said that if such a measure did pass, the Secretary of State would
not count the votes for Douglas County.  A directive was given as the
authority used to established that computer run ‘machines’ would continue to
count the votes or the votes would not be counted. 

The prospective petitions are the first step to getting a measure on the ballot for
the voters to decide by what method they want their votes to be counted. If the
clerk determined that the petition was constitutional, the petitioners would be
allowed to collect signatures to get the initiative on the ballot. Then the
voters would be allowed to decide which method they would use to count the
votes. 

On September 2, 2022 the Oregon Secretary of State’s Office issued Directive
2022-4  aka “Tally of Ballots” which states in part that “To ensure
the uniform and accurate tally of all valid ballots cast, election officials in
a jurisdiction where, on the 45th day before an election, the number of active
registered voters eligible to vote in the election exceeds 500, must count all
valid ballots cast in the election using a voting machine or vote tally system,
that is approved for use under Oregon law.”  

There are no counties in Oregon with 500 or less registered voters.  Therefore,
Directive 2022-04 disallows all hand-counting in Oregon.  All ballots in
Oregon are currently counted by machines. 

Since July of 2022 Clerk Dan Loomis has denied 6 prospective initiative petitions
that demanded the return to hand-counting for Douglas County.  After the
first 2 petitions were denied, the Secretary of State issued Directive
2022-4.

The petitioners rely on law passed by the Oregon Legislature.  ORS 254.485 Tally of
ballots (1) states that “Ballots may
be tallied by a vote tally system or by a counting board.  A counting
board may tally ballots at the precinct or in the office of the county clerk.
In any event, the ballots shall be tallied and returned by precinct.”  

Clerk Dan Loomis’s determination means that to give the voter’s of Douglas County the
choice to use a counting board to tally their vote is unconstitutional, and
that in turn would mean that the Oregon statute that gives the choice would
have to be unconstitutional.  Petitioners disagree. 

The text that the last prospective initiative proposed for the Douglas County Code

follows:

The official vote tallies for elections conducted by the Douglas County Elections
Division shall be counted by hand by a counting board in compliance with ORS
254.485 (1).  Counting of the votes shall be by precinct numbers using
groups of 100 ballots for each bundle. Bundles of ballots shall be saved in
sealed and numbered envelopes with a sheet denoting the total tally of the vote
results for the ballots in the envelope.  Only after all ballots for the
day have been counted shall bundles of less than 100 be tallied. The bundles
for individual precincts shall be tallied together resulting in individual
precinct totals.  This Ordinance shall be in effect 90 days after passage.  

The explanation on the petition allows for the machines to provide ballot images.

The Clerk’s role in the process is to determine “whether the initiative meets the
requirements of ORS 250.168 which includes Section 1 (2)(d) & (5) of Article IV, and
Section 10 of Article VI, of the Oregon Constitution.”  There
are no other requirements mentioned in the statute.

The petitions were denied by County Clerk Dan Loomis because they were “not a
matter of county concern” and “not legislative”.  These requirements are
listed under Constitutional requirements in the denial letter, but are not in
the text of the Oregon Constitutional cites given by the clerk’s office. 
The petitioners assert that the petition for counting votes by hand is
constitutional.

Dan Loomis cited Section 1(2)(d) of the Oregon Constitution which applies only when an
initiative is to change the Oregon Constitution. The proposed petition does not
propose such a change. 

Section
1(2)(d); “An initiative petition shall include the full text of the proposed
law or amendment to the Constitution. A proposed law or amendment to the
Constitution shall embrace one subject only and matters properly connected
therewith.”

Dan Loomis also cited Article VI, Section 10, which does not apply to Douglas
County because the county is not governed under a home rule county charter.

County home rule under county charter. The Legislative Assembly shall provide by law a
method whereby the legal voters of any county, by majority vote of such voters
voting thereon at any legally called election, may adopt, amend, revise or
repeal a county charter.

The Petitioners contend that their petition is constitutional and that the appeal

rights given to them by the County Clerk’s Office, “ORS 250.168
Determination of compliance with constitutional provisions” should be
included in the appeal, but  the true statute providing the petitioners
rights to an appeal are under “ORS 246.910 Appeal from
Secretary of State, county clerk or other elections official to courts“. 
Clerk Loomis failed to provide these appeal rights in his notice of denial.

This appeal process states “An appeal described in subsection (1) of this section of
an order of the Secretary of State approving or disapproving a state initiative
petition for circulation for the purpose of obtaining signatures of electors
must be filed within 60 days following the date the order is served.” 
Prospective Petition Number P-10-2023-03 was denied on October 16, and
therefore must be appealed by December 15, 2023.

After the petitioners second petition was denied, the petitioners asked for more
information about why the petitions were being denied, to which Dan Loomis
stated: “My obligation is to review the submitted ‘text to determine whether
the prospective initiative petition complies with constitutional
requirements’.  ORS 250.168 (3) simply requires me to notify the
petitioner of my determination.  The statute to does not require me to
state why I’ve made the determination that I did, but simply to state my conclusion,
which I have done… Kind Regards, Dan”.  Another standard answer was
that he could not give legal advise.

For a year after the directive was issued, Dan Loomis never mentioned the
directive, even when he was questioned about the reason for denial just a few
weeks after it was issued. Not until October 6, 2023 did he mention the
directive as the reason that the Secretary of State stated she would not count
the votes counted by hand in Douglas County.    

The reason for denials were referred to as “not legislative” and were not defined
further by Clerk Loomis, but petitioners found it is based on case law. ”The
crucial test for determining that which is legislative and that which is
administrative is whether the proposed measure makes law or executes a law
already in existence.”   Monahan v. Funk.
The caselaw supports the petitioners assertion that the petition for hand
counting ballots in Douglas County is legislative.

The reasons for denial referred to as “not of county concern” were not further
defined by Clerk Loomis, but common logic tells the petitioners that when the
Douglas County Code is amended to add a new ordinance, it is of  “county
concern”.  The ordinance would command that “all ballots in Douglas County
shall be tallied by a counting board”.  Electors all claim Douglas County
as their legal residence.  All the candidates run for positions that are
in the jurisdiction of Douglas County.  Douglas County elections are
conducted at the county level by the County Clerk.

There may be an exception vaguely referred to in ORS 246.200 “County clerk
to conduct elections”.  The statute states; “…Except as otherwise
provided by law…”.  That phrase allows the clerk’s control over elections
to become influenced by the Secretary of State through directives.  This
is where  Directive 2022-4 “Tally of Ballots”, is possibly being used to change the ‘method of
counting the votes’ from a “county concern” to a “state concern”.  Since
the Secretary of State would be claiming jurisdiction, the Clerk could claim
that the ordinance proposed would no longer be of “county concern”. 

An ordinary directive is not enforceable by law.  However, Directive 2022-4
is because “ORS 246.120 Directives, instructions and assistance to county clerks” broadens the authority of the Secretary of State’s office.   The statute
states:  “The Secretary of State shall prepare and distribute to each
county clerk detailed and comprehensive written directives,… A county clerk
affected thereby shall comply with the directives or instructions.”  In
this instance, a directive was written that clearly conflicts with a statute. ORS 254.485 Tally of
ballots allows for a choice of a counting board and is clearly the superior
law.

Therefore, the petitioners contend the directive is null and void and does not establish
that the county election process for a county code is within the Secretary of
State’s jurisdiction. The Clerk would have a duty to follow the superior law.

USlegal states; “Administrative agencies can
make rules only when rulemaking power is delegated to them by statute
or constitution.  If an agency exceeds the power conferred by a
legislature in making a rule, the rule made will be considered void.  The
fact that regulations made by an agency are reasonable does not prevent them
from being deemed invalid.”

Before September 2, 2022, the County Clerks seemed to have had the authority to switch
from tally machines to hand counting of ballots. Two petitions were filed
before that time.  However, Douglas County Clerk Dan Loomis and County
Commissioners Tim Freeman, Chris Boice and Tom Kress stood firm on being
against the hand counting of ballots. They are elected officials and they trust
the machines to count the votes that put them in office.  Incumbent Dan
Loomis has recently announced he is running for another term as County Clerk
during the May 2024 primary.

The Petitioners are without legal council.  Anyone willing to assist the
effort to return to the hand-counting of ballots in Oregon can contact the
author of this article at terrynoonkester@gmail.com.