Did Oregon's law banning 'electioneering' within 100 feet of election offices violate the state constitution's free speech protections?

Plain-English summary

Oregon law has long prohibited "electioneering" near places where ballots are cast. The original rationale, in the polling-place era, was to protect voters from harassment as they walked into a precinct on election day. ORS 260.695(2) carried that prohibition forward to the vote-by-mail era: no electioneering "within any building in which any state or local government elections office designated for the deposit of ballots under ORS 254.470 is located, or within 100 feet measured radially from any entrance," during business hours over the entire ballot-return period (about three weeks before election day plus election day itself).

The Director of the Secretary of State's Elections Division asked the AG whether that prohibition is consistent with Article I, section 8 of the Oregon Constitution, which protects speech robustly.

Attorney General Ellen F. Rosenblum's office concluded that ORS 260.695(2), as applied across the lengthy vote-by-mail return window, likely violated Article I, section 8. The opinion is careful: there is no controlling case law, the statute has not been struck down, and the AG's view is "likely" rather than definite. But the analysis is straightforward. Oregon's switch to vote-by-mail in 1998 (Ballot Measure 60) eliminated the captive-voter problem that justified election-day polling-place buffer zones. The 100-foot zone around an election office, applied for weeks at a time and even when the office is just a county clerk's drop-off location, restricts a wide range of protected expression: leafleting, signature-gathering, public address, holding a sign, even wearing a button if interpreted as electioneering.

The Oregon Constitution's free speech protections under Article I, section 8 are stronger than the federal First Amendment in many respects, and laws restricting protected expression must satisfy a strict framework. The AG concluded the buffer zone could not satisfy that framework once the vote-by-mail context was accounted for.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Why Oregon's old buffer zone became a problem

In 1998, Oregon voters adopted vote-by-mail. Ballots are sent to every registered voter weeks before election day and can be returned by mail or dropped off at any official drop box. The polling-place buffer zone, designed to keep election-day voters from running a gauntlet, did not map onto vote-by-mail. Voters returning ballots typically arrived at drop boxes or county clerks' offices over a weeks-long window, often briefly, and the buffer zone applied to all of them, restricting speech for an extended period at locations that were not "captive" in any meaningful sense.

How the AG analyzed the speech question

Article I, section 8 of the Oregon Constitution, "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever," is one of the strongest free-speech provisions in any state constitution. Oregon courts apply a framework that distinguishes between laws aimed at the harmful effects of speech (potentially valid) and laws aimed at the speech itself (presumptively invalid). The AG read ORS 260.695(2) as restricting expressive conduct directly without sufficient compelling justification once vote-by-mail eliminated the captive-voter rationale.

The opinion also addressed Article II, section 8, which gives the Legislature authority to enact laws regulating elections, and concluded that section 8 does not override Article I, section 8's free-speech protection.

Picray v. Secretary of State

The opinion cited Picray v. Secretary of State, 140 Or App 592 (1996), aff'd by equally divided court, 325 Or 279 (1997), holding that a polling-place ban on wearing political buttons violated the Oregon Constitution. Picray was authority that even narrow content-based restrictions in the polling-place setting could fall to Article I, section 8 scrutiny.

Practical effect

The AG's conclusion did not strike down ORS 260.695(2). It signaled to the Secretary of State that enforcement was constitutionally risky and a candidate or signature-gatherer prosecuted under it would have a strong defense. That changed enforcement posture. Subsequent legislative action or rulemaking presumably has narrowed the buffer-zone rule.

Common questions

Q: What is "electioneering"?
A: Active participation in an election campaign, including distributing materials, soliciting signatures on petitions, and verbal advocacy supporting or opposing candidates or measures. The dictionary definition includes "to take active part in an election campaign" and "to try to sway public opinion."

Q: Why does Oregon's free speech protection matter here?
A: Article I, section 8 of the Oregon Constitution is read more protectively than the federal First Amendment in many contexts. Oregon courts apply a framework that scrutinizes laws restricting expression by their text rather than just by their effect.

Q: Did Oregon get rid of polling places?
A: Largely yes. Oregon switched to vote-by-mail in 1998 (Ballot Measure 60). Some in-person voting is still available for accessibility reasons, but the bulk of voting is by mail or drop box.

Q: Could a county clerk eject a signature-gatherer from outside the elections office under this opinion?
A: The opinion's reasoning suggests not, at least in most cases, since the AG considers the buffer zone constitutionally suspect. Practically, a clerk facing this situation should consult counsel.

Q: Did this opinion strike down ORS 260.695(2)?
A: No. AG opinions are persuasive, not binding. Only a court can strike down a statute. The opinion's force is in its predictive value about how a court would rule.

Background and statutory framework

ORS 260.695(2) prohibits electioneering in the building of any state or local elections office, or within 100 feet, during the ballot return period. The original prohibition dates to 1891 with Oregon's adoption of the secret ballot. The vote-by-mail conversion in 1998 changed the operational context without changing the statutory text.

Article I, section 8 protects free speech. Article II, section 8 grants the Legislature general authority over elections. The two provisions interact: the Legislature can regulate elections, but cannot do so by suppressing protected speech.

Citations and references

Statutes and constitutional provisions:
- ORS 260.695(2) (electioneering prohibition)
- Or. Const. art. I, § 8 (free speech)
- Or. Const. art. II, § 8 (legislative authority over elections)

Cases:
- Picray v. Secretary of State, 140 Or App 592 (1996)

Source

• Index page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2016/05/op8292.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

FREDERICK M. BOSS
DEPUTY ATTORNEY GENERAL

ELLEN F. ROSENBLUM
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE

Justice Building
1162 Court Street NE
Salem, Oregon 97301-4096
Telephone: (503) 378-4400

May 4, 2016

No. 8292

The Secretary of State enforces state election laws. ORS 260.345. ORS 260.695(2) is an
election law that prohibits “electioneering” at local and state election offices during times that
electors may deposit their ballots. “Electioneering” is expressive conduct protected by free
speech guarantees in the Oregon Constitution. The Director of the Secretary of State’s Elections
Division asks whether ORS 260.695(2) comports with those free speech guarantees. Below we
set out the question presented and our short answer, followed by a discussion.

QUESTION PRESENTED

Does ORS 260.695(2) violate the free speech guarantee of Article I, section 8, of the
Oregon Constitution?

SHORT ANSWER

While there is no controlling case law, we conclude that ORS 260.695(2) likely violates
Article I, section 8, of the Oregon Constitution.

DISCUSSION
I. Organization

We first discuss Oregon’s change from a system of voting at polling places to a vote-by-
mail system. Next, we set out the specifics of ORS 260.695(2). We then analyze whether
ORS 260.695(2) violates Article I, section 8, of the Oregon Constitution and conclude that it
does. Finally, we address whether Article II, section 8, of the Oregon Constitution, which allows
the Legislative Assembly to enact certain laws regulating elections, changes our conclusion
under Article I, section 8, and conclude that it does not.

6

I Voting Process

Until recently, Oregon electors, except absentee voters, voted at precinct polling places
on election day. In 1998, Oregon voters passed a ballot measure authorizing an exclusively vote-
by-mail system. Ballot Measure 60 (1998). Under this system, registered voters receive their
ballots two to three weeks before an election. ORS 254.470(2)(a).” Voters may fill out their
ballots in the privacy of their own homes or any place they choose. Marked ballots are then
inserted into security envelopes which are placed in return envelopes. Voters must sign the
return envelopes. ORS 254.470(6).

Voters then may return their ballots by mail or by dropping them off at any official drop
box in the state “or at any location described in ORS 254.472 [places where ballots are issued
and where at least three compartments, shelves or tables must be provided for marking ballots] or
ORS 254.474 [places designated by county clerks to have at least one voting booth in counties
with fewer than 35,000 electors or one booth per 20,000 electors in bigger counties. ]”
ORS 254.470(6)(b). When the ballots are received the voter’s signature on the return envelope is
checked against the signature on the most current voter registration card. OREGON SECRETARY
OF STATE, VOTE BY MAIL PROCEDURES MANUAL at 29 (2015) (so stating).

.

Il. ORS 260.695(2)

ORS 260.695(2) is the most current version of a law that has existed in some form since
1891 when Oregon first adopted a secret ballot system. It provides:

A person may not do any electioneering, including circulating any cards or
handbills, or soliciting of signatures to any petition, within any building in which
any state or local government elections office designated for the deposit of ballots
under ORS 254.470 is located, or within 100 feet measured radially from any
entrance to the building. A person may not do any electioneering by public
address system located more than 100 feet from an entrance to the building if the
person is capable of being understood within 100 feet of the building. The
electioneering need not relate to the election being conducted. This subsection
applies during the business hours of the building or, if the building is a county
elections office, during the hours the office is open to the public, during the period
beginning on the date that ballots are mailed to electors as provided in

ORS 254.470 and ending on election day at 8 p.m. or when all persons waiting in
line at the building who began the act of voting as described in ORS 254.470 (10)
by 8 p.m. have finished voting.

A. Prohibited conduct

ORS 260.695(2) does not define “electioneering” except to state that it “includ[es]
circulating any cards or handbills, or soliciting of signatures to any petition” and that the
electioneering “need not relate to the election being conducted.” The ordinary meaning of
“electioneering” is “to take active part in an election campaign * * * to try to sway public

opinion especially by the use of propaganda.” See WEBSTER’S THIRD NEW INT’L DICTIONARY at
731(2002) (so defining “electioneering”). “Propaganda” includes ideas or information spread
“through any medium of communication in order to further one’s cause or to damage an
opponent’s cause” and any public action or “display having the purpose or the effect of
furthering or hindering a cause.” Jd. at 1817. The Secretary of State’s Election Law Summary
explains that electioneering:

includes the display, distribution or circulation of any political material or verbal
statements supporting or opposing a candidate or ballot measure on any election,
even an election other than the one being conducted * * * includ[ing] exit polling
and the gathering of signatures on any election-related petition.

OREGON SECRETARY OF STATE ELECTION LAW SUMMARY at 42.
http://sos.oregon.gov/elections/Pages/laws-rules.aspx (emphasis in original). However,
“electioneering” does not include wearing political badges, buttons and other political insignia.
Id. Although that conduct would otherwise fall within the definition of “electioneering,” a ban
on wearing those things at polling places on election day has been held to violate the Oregon
Constitution. See Picray v. Secretary of State; 140 Or App 592, 916 P2d 324 (1996), aff'd by an
equally divided court, 325 Or 279, 936 P2d 974 (1997) (so holding).

B. Where the prohibition applies

The prohibition applies in three places: (1) “within any building in which any state or
local government elections office designated for the deposit of ballots under ORS 254.470 is
located”; (2) “within 100 feet measured radially from any entrance to the building”; and,

(3) “more than 100 feet from an entrance to the building” if the person uses a “public address
system” and “is capable of being understood within 100 feet of the building.” ORS 260.695(2).

The restriction is not limited to rooms in the building where ballots are deposited, but
applies to the entire building. The restriction also encompasses any portion of a parking lot that
is within 100 feet of the entrance to the building raising questions about whether it is a violation
to park a car with a bumper sticker endorsing or opposing a measure in those lots. See OREGON
SECRETARY OF STATE ELECTION LAW SUMMARY at 43 (discussing that issue). But, as explained
by the Secretary of State:

Ballot deposit sites that are not located within a state or local government elections
office are not under this restriction. Ballot deposit sites may include post office
boxes, the post office and official drop sites designated by the county elections
official, other than state or local government elections offices. A ballot drop site is a
deposit for voter ballots. A voter may choose to complete the voter’s ballot at a drop
site location (or anywhere else the voter wishes), but voting assistance, special
privacy measures or other polling place amenities are not required.

Id. at 42 (emphasis in original), Hence there are no electioneering restrictions at many of the
places where voters may drop their ballots.

C. When the prohibition applies

The prohibition begins when ballots are mailed and ends on election day. ORS 260.695(2).
That is a period of fourteen to twenty days. See ORS 260.695(2) (applying the prohibition “during
the period beginning on the date that ballots are mailed to electors as provided in ORS 254.470” and
ending on election day); ORS 254.470(2) (ballots must be mailed no sooner than the 20" day before
an election and no later than the 14" day before the election), Ballots may be issued up to four
times a year. OREGON SECRETARY OF STATE ELECTION LAW SUMMARY at 43. The statute was
amended in 2014 to limit the times of the restriction to “during the business hours of the building or,
if the building is a county elections office during the hours the office is open to the public.”
Or Laws 2014, ch 112, § 6.

IV. Article I, section 8, of the Oregon Constitution
A. Framework of analysis

The Elections Division asks if ORS 260.695(2) violates Article I, section 8, of the
Oregon Constitution, which prohibits the legislature from enacting laws “restraining the free
expression of opinion, or restricting the right to speak, write, or print freely on any subject
whatever[.]” For purposes of evaluating whether a law violates Article I, section 8, laws are
divided into three categories: (1) laws directed at the content of speech; (2) laws that focus on
forbidden results but restrict speech that achieves those results; and, (3) laws that do not mention
speech, but that may be applied in a way that affects speech. State v. Robertson, 293 Or 402,
412-18, 649 P2d 569 (1982).

A different analysis applies to each type of law. A law directed at the content of speech
violates Article I, section 8, “unless the scope of the restraint is wholly confined within some
historical exception that was well established when the first American guarantees of freedom of
expression were adopted and that the guarantees then or in 1859 were not intended to reach.”
State v. Robertson, 293 Or at 412. A law that focuses on forbidden effects but expressly
prohibits speech that achieves those effects is scrutinized for “overbreadth,” i.e., to determine
whether it restrains privileged speech, in which case it is unconstitutional, or whether it can be
interpreted in a way that avoids restricting privileged speech. Jd. at 417-18. If a law is not
directed to expression at all, but may be enforced in a way that restricts expression, the law is not
facially unconstitutional, but may be unconstitutional as applied in a particular case. Id. at 418.

B. ORS 260.695(2) is content-directed

We conclude that ORS 260.695(2) is a content-directed law as it prohibits only
expression that conveys a political message. In Picray v. Secretary of State, the Court of
Appeals majority sitting in banc held that former ORS 260.295(4), which prohibited wearing
political badges, buttons, and other political insignia at polling places on election day was a
content-directed law for the same reason. 140 Or App at 596. The Oregon Supreme Court
issued a memorandum opinion affirming the Court of Appeals’ decision by an equally divided
court, Picray vy. Secretary of State, 325 Or 279, 936 P2d 974 (1997) (Kulongoski, J, not

participating). The Oregon Supreme Court does not give such opinions precedential weight.
See Perez y. Bay Area Hospital, 315 Or 474, 478 n 5, 846 P2d 405 (1993) (so stating). The
United States Supreme Court has also characterized a law prohibiting electioneering within 100
feet of polling places on election day as a facially content-based restriction on political speech.
See Burson v. Freeman, 504 US 191, 197, 112 S Ct 1846, 119 Led2d 5 (1992) (so stating).

That ORS 260.695(2) restricts speech only at certain places and times does not alter our
conclusion that ORS 260.695(2) is directed at the content of speech. See Moser v. Frohnmayer,
315 Or 379, 845 P3d 1284 (1993) (analyzing a “content-selective” time place and manner
restriction on speech as a content-directed law); Burson v. Freeman, 504 US at 197 (refusing to
apply time, place, and manner analysis to a law prohibiting electioneering at polling places on
election day, because the restriction was not content neutral); but see, Moser v. Frohnmayer,
315 Or at 384 (Graber, J, concurring in part and specially concurring in part) (stating that
content-selective time, place and manner restrictions should be analyzed for overbreadth and
citing ORS 260.695(2) as an example of such a law).

Not only is ORS 260.695(2) directed at the content of speech; it does not mention the harm
that it is intended to prevent nor limit its restrictions to speech that causes that harm. For that
reason, too, we conclude that the law is focused on speech, not harm. See Vannatta v. Keisling,
324 Or 514, 539, 931 P2d 770 (1997) (treating a statute limiting campaign contributions that was
calculated to prevent fraud as a law focused on speech, because it penalized speech even when it
did not produce harm); Picray v. Secretary of State, 140 Or App at 596 (concluding that former
ORS 260.695(2) was not a law focusing on forbidden effects as it did “not mention, much less
focus on, forbidden effects of displaying political paraphernalia in polling places.”).””

C. Historical exception

A law directed at the content of expression violates Article I, section 8, “unless the scope
of the restraint is wholly confined within some historical exception that was well established
when the first American guarantees of freedom of expression were adopted and that the
guarantees then or in 1859 [when Article I, section 8, was adopted] were not intended to reach.”
State v. Robertson, 293 Or at 412. To meet that test, a restriction must: (1) have been well
established when the first American guarantees of freedom of expression were adopted; (2) fit
wholly within the well-established exception; and, (3) the drafters of the Oregon Constitution
must not have intended to abolish the exception in adopting Article I, section 8. See
State v. Ciancanelli, 339 Or 289, 316, 121 P3d 613 (2005) (explaining that even if a restriction
fits within an historical exception, the proponent of the restriction must demonstrate that the
drafters did not intend Article I, section 8, to abolish the exception).

The restriction in ORS 260.695(2) fails on the first count as the speech restriction it
imposes was not established at all when the first American guarantees of freedom of expression
were adopted. In Burson v. Freeman, the United States Supreme Court exhaustively examined
the history of American election reforms that led to the adoption of laws restricting

electioneering at polling places. In the colonial period, voting was done publicly by voice or a
show of hands and was “witnessed by all and improperly influenced by some.” 504 US at 200.
The opportunity that system “gave for bribery and intimidation led to its repeal.” Jd.

Within twenty years of the formation of the union, many states adopted a paper ballot
system under which people made “their own handwritten ballots, marked them in the privacy of
their homes, and then brought them to the polls for counting.” Jd. That system initially was a
“vast improvement” but soon was eroded as political parties wishing to gain influence began
making their own easily-recognizable ballots and state efforts to standardize ballots failed. Id.
Those wanting to buy votes could place their ballot in the voter’s hand and watch until the ballot
was placed in the ballot box. :

Approaching the polling place under this system was akin to entering an open
auction place. As the elector started his journey to the polls, he was met by various
party ticket peddlers “who were only too anxious to supply him with their party
tickets.” * * * Often the competition became heated when several such peddlers
found an uncommitted or wavering voter. * * * . Sham battles were frequently
engaged in to keep away elderly and timid voters of the opposition. * * *. In short,
these early elections “were not a very pleasant spectacle for those who believed in
democratic government.”

Id. at 202 (citations removed). “Polling places were frequently * * * ‘scenes of battle, murder,
and sudden death.’” Jd. at 204 (citations removed).

To remedy those evils, states began adopting election reforms in 1888. The first
authorized secret ballots to be marked in private voting booths with a surrounding fifty foot
restricted area which only voters, candidates or their agents and electors could enter. Jd. at 203.
Candidates’ agents were not allowed to “persuade, influence or intimidate anyone” in their
choice of candidate. Jd. New York and Massachusetts adopted laws excluding the general
public only from an area within a guardrail constructed six feet from the voting booths. That had
the advantage of providing additional monitoring by the public and prevented candidates from
buying the election officers of the other party. New York also prohibited any person from
“electioneering on election day within any polling place, or within one hundred feet of any
polling place.” Jd. The reforms were so successful at ensuring orderly elections and avoiding
voter bribery and intimidation that all states soon adopted them. Jd. at 204.

Oregon adopted the reforms in 1891, including a ban on electioneering within fifty feet of
polling places on election day. 2 Codes and Statutes of Oregon, Title XXVIII (Bellinger and
Cotton 1902). But before 1891, no Oregon law banned electioneering, or any sort of political
expression, at polling places. Rather, Oregon territorial laws and laws adopted shortly after the
Oregon Constitution was adopted banned only “disorderly” or “riotous” conduct at polling
places. Picray, 140 Or App at 602.

In short, although laws restricting electioneering in and around polling places are
venerable, they substantially post-date both the ratification of the First Amendment in 1791 and
the adoption of Article I, section 8, in 1859. Accordingly, there was no well-established
restriction on electioneering in and around polling places when the First Amendment or Article I,
section 8, were adopted. See Picray, 140 Or App at 605 (holding there to be no well-established
historical exception restricting wearing political badges at polling places on election day).

Nor would ORS 260.695(2) wholly fit within an historical exception for electioneering at
polling places on election day had there been one. The restriction in ORS 260.695(2) is not
limited to “election day” but applies for a two to three week period surrounding elections. Nor
do Oregonians vote at “polling places” under the vote-by-mail system.

We conclude that ORS 260.695(2) is a content-directed law that does not wholly fit
within any well-established historical exception and, therefore, appears to violate Article I,
section 8. But before reaching that conclusion we must also consider the effect of another
provision of the Oregon Constitution, Article II, section 8.

V. Article II, section 8, of the Oregon Constitution
Article II, section 8, provides:

The Legislative Assembly shall enact laws to support the privilege of free
suffrage, prescribing the manner of regulating, and conducting elections, and
prohibiting under adequate penalties, all undue influence therein, from power,
bribery, tumult, and other improper conduct.

Article II, section 8, like Article I, section 8, was adopted in 1859 as an original provision of the
Oregon Constitution.

No Oregon appellate case has addressed whether the drafters of the Oregon Constitution
intended Article II, section 8, to empower the legislature to enact election laws that infringe on
Article I, section 8, guarantees. Oregon appellate courts have been asked to address that question
on two occasions, but in both cases they concluded that the laws at issue did not implement
Article II, section 8, and, therefore, did not decide the issue.”

We first address whether ORS 260.695(2) implements Article II, section 8. In
Vannatta y. Keisling, 324 Or 514, the court considered whether laws imposing campaign
contribution and expenditure limitations violated Article I, section 8. The state asserted that
expression otherwise protected under Article I, section 8, is not protected in the context of
political campaigns due to the countervailing effect of Article II, section 8. Jd. at 525. In
response, the court explained that Article II, section 8, authorizes three different types of laws.
The first type prescribes the manner of regulating elections. The court explained that these laws
“establish what offices will be elective, who will run for and serve in them, when and how such
persons must make their candidacy official” and such. Jd. at 531. ORS 260.695(2) does not
concern those things.

The second type prescribes the manner of conducting elections. These laws concern “the
mechanics of elections themselves, i.e., * * * questions of where and how many polling places
there will be, how they shall be operated, who may be present in them to ensure their proper
operation, and the like.” Jd. at 532. Because the law at issue in Vannatta was a campaign
finance law rather than a law governing election-day mechanics, the court did not expound
further on the second type of laws.

The Court of Appeals majority in Picray discussed these laws in more detail. The
majority explained that the first phrase of Article II, section 8, authorizing both laws prescribing
the manner of regulating elections and the manner of conducting elections must be read in the
context of the second phrase authorizing laws that prohibit undue influence in elections. If the
first phrase authorized laws that regulate all elections conduct it would subsume the second
phrase’s authority to prohibit undue influence in elections; in other words, the second phrase
would be superfluous. Instead, the majority concluded that the first and second phrases address
“qualitatively different concerns.” 140 Or App at 604.

The majority interpreted the “undue influence” phrase to address “’intramural’ influences
* * * that is * * * conduct or expression that affects whether, or how, individual electors cast
their votes.” Jd. “Conversely, and necessarily” the first phrase “pertains to legislative oversight —
of matters other than ‘influencing’ conduct or expression.” Jd. The majority, therefore,
concluded that authority to enact laws prescribing the manner of “regulating” elections and
“conducting” elections did not include authority to enact laws prohibiting electors’ influencing
conduct, such as former ORS 260.695(4). Id.

The majority explained that the historical context surrounding adoption of Article II,
section 8, supported that conclusion. Specifically, before 1857,“‘a panoply of territorial
legislation” regulated the mechanics of elections, but none regulated citizens’ “influencing”
conduct at polling places, except when such conduct was demonstrably disruptive or disorderly.
Id. at 605. Prohibitions on electors’ expression before and for a long time after the adoption of
Article II, section 8, were limited to disruptive and coercive conduct, which corresponded to the
second phrase’s authorization to prohibit “all undue influence * * * from power, bribes, tumult,

and other improper conduct.” Id.

As discussed, the Oregon Supreme Court issued an affirming memorandum opinion that
contains no analysis and has no precedential weight. But, applying the reasoning of the Court of
Appeals’ majority opinion, we conclude that ORS 260.695(2) is not a law prescribing the
conduct of an election.

We last consider the third type of laws authorized by Article II, section 8: those
prohibiting and punishing “all undue influence * * * from power, bribes, tumult and other
improper conduct.” In Vannatta, the Oregon Supreme Court explained that Article II, section 8:

specifically enumerates the sources of influence that it considers to be “undue”:
power, bribery, tumult, and other improper conduct. * * * * *. “Power” appears
to be a reference to the possibility that a person might, by a show of force, either

attempt to prevent an election from occurring or coerce a particular outcome * *
* “Bribery” appears to be a reference to someone actually paying a voter to vote
in a particular way. And “tumult” * * * is a reference to the kind of unruly and
riotous conduct at or near the polling place that would have the actual effect of
hindering or preventing the voting process.

324 Or at 532. We conclude that “electioneering” does not fit within any of those sources of
undue influence.

The court in Vannatta also addressed the meaning of “other improper conduct.” It
applied the doctrine of ejusdem generis, under which “a nonspecific or general phrase that
appears at the end of a list of items in a statute is to be read as referring only to other items of the
same kind.” Jd.at 533 (citing State v. K.P., 324 Or 1, 11 n. 6, 921 P2d 380 (1996)). It concluded
that all three specific examples of “undue influence” spoke to “actual interference in the act of
voting itself.” Jd. It did not expound further as the campaign finance laws at issue did not
pertain to the act of voting. Jd.

The Court of Appeals majority in Picray (decided before Vannatta) discussed the
meaning of “other improper conduct” in greater detail. It too applied the principle of ejusdem
generis to construe “other improper conduct” concluding that “power, bribery and tumult” “all
describe active, demonstrably coercive conduct calculated to subvert free suffrage * * * [that]
can effect undue influence by impeding, intimidating, or impermissibly inducing the exercise of
the franchise.” Jd. at 600. It noted that conduct could be prohibited under this provision only if
it had the effect of unduly influencing an election or adversely affecting free suffrage. Id. at 600,
603. The majority concluded that former ORS 260.695(4) “indiscriminately punishes the mere
display of political paraphernalia without referring to, much less requiring any showing of, some
adverse effect on suffrage.” Jd. at 604. It held that:

The mere passive display of a political button or badge in a polling place does not
constitute ‘improper conduct’ of the sort contemplated in Article II, section 8.
The silent expression of political opinion is not coercive. To the extent that such
expression in the polling place might affect the votes of others, that influence
cannot be deemed constitutionally “undue.”

Id. at 600.

Like former ORS 260.695(4), ORS 260.695(2) does not refer to nor require any showing
that electioneering at ballot deposit sites at state or local elections offices has an adverse effect
on suffrage. ORS 260.695(2) also prohibits expression that is not “demonstrably coercive.”
Some of the expression, such as displaying election material, is the “silent expression of political
opinion” indistinguishable from the conduct at issue in Picray. Other conduct, like soliciting
signatures on petitions or voicing support or opposition to a candidate or measure not related to a
candidate or measure in the present election is not conduct calculated to influence voting in the

election at hand at all. Nor is voicing support or opposition to a candidate or measure in itself
demonstrably coercive conduct. Expression has the potential to become demonstrably coercive
if it becomes threatening or intimidating, but ORS 260.695(2) restricts expression that is neither.

Moreover, electioneering at ballot deposit sites is unlikely to actually hinder or prevent
voting in a vote-by-mail system. Electors may vote anywhere they like over a two-to-three-week
period and may return their ballots at a wide variety of locations, including by mail. Although a
few voters may choose to vote at state or local elections offices, the vast majority vote by mail.
Under the vote-by-mail system, electioneering at ballot deposit sites is unlikely to influence — let
alone unduly influence — voting. Indeed, electioneering at some ballot deposit sites is not
restricted. As the majority in Picray observed, former ORS 260.695(4), in restricting expression
at “polling places,” likely would be rendered “an anachronism” under a vote-by-mail system.
140 Or App 592, 595 n 3.

In short, no plausible interpretation of ORS 260.695(2) confines its restrictions to unduly
influential or demonstrably coercive conduct that would have an actual effect of hindering or
preventing the voting process. Therefore, ORS 260.695(2) does not implement Article II,
section 8’s mandate to enact laws prohibiting undue influence in elections. And, because
ORS 260.695(2) is content-directed and does not fall within any well-established historical
exception or implement Article II, section 8, it appears to violate Article I, section 8.

Nothing in this opinion is meant to suggest that county elections officers may not enforce
content-neutral laws that facilitate order at county elections offices during elections.
ORS 260.695(3), for example, prohibits persons from obstructing an entrance to a building in
which ballots are issued or deposited or where a voting booth is maintained during elections.
ORS 254. 472 requires the county to arrange compartments, shelves or tables provided for
persons to mark their ballots in such a way that ensures secrecy. Under this provision, county
elections officers could take measures such as permitting access around the compartments,
shelves or tables only to those who are marking their ballots. And, if necessary, county elections
officers could alert law enforcement officers to possible criminal conduct, such as disorderly
conduct, taking place at county elections offices.

EN F. ROSENBLUM

Attorney General

ERI :nogDM6495891

’ Out-of-state non-military or oversees voters must be mailed their ballots “not sooner than the
29" day before the date of the election.” ORS 254.479(2)(c).

2/ While there was a dissent in Picray, it did not argue that ORS 260.695(2) fell into the second
Robertson category, but was based on the effect of another constitutional provision, Article II, section 8.
The Oregon Supreme Court was equally divided in affirming Picray (one justice did not participate) and
issued only a memorandum opinion that does not reveal why four justices would have reached a different
result.

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’ Although the Court of Appeals majority in Picray did not address whether it was constitutionally
permissible for a law implementing Article IJ, section 8, to infringe on Article I, section 8, rights, concurring
and dissenting opinions did. The concurring opinion concluded that Article II, section 8, was intended to
require the legislature to adopt certain laws, but not to permit those laws to infringe on Article I, section 8,
rights. Picray, 140 Or at 606 (Armstrong, J, concurring). The dissenting opinion concluded that Article I,
section 8, permitted the legislature to enact laws that “minimally restrict[]” political expression and that
Article I, section 8, and Article II, section 8, must be harmonized. Jd. at 609 (DeMuniz, J, dissenting).

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