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 perspective 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

 

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