Like Godzilla who never dies and keeps coming back to ravage Tokyo, Armatta v. Kitzhaber has reared its head again, used uncritically as the touchstone for analysis in LINT v. Kitzhaber, decided on October 19. The question posed and decided there by the Oregon Supreme Court was the now-familiar "whether [name your Oregon constitutional initiative measure] actually contains two or more constitutional amendments in violation of Article XVII, section 1, of the Oregon Constitution." Very seriously and carefully, the court has applied the Armatta test, as glossed by several other supreme court opinions since 1998, and it has concluded that the scrutinized amendment does not contain "two or more constitutional amendments."
I'm not going to argue whether the supreme court's application of the almost hopelessly arcane and subjective Armatta test is correct or not in this latest case to require it (but it's a 4-3 decision with Justices Kistler, De Muniz, and Balmer dissenting). Instead, I'd like to use this forum to say what I've believed from the beginning, that Armatta was wrongly decided. The apple cart may be too big by now to overturn gracefully, but the oldest apple in it, the Armatta decision, has always been rotten.
This could turn into a long treatise on early 20th century Oregon history, but I'll cut to the essential points. One - Article XVII section 1 was an initiative placed on the ballot in 1906 by the People's Power League and its "secretary" (read driving force), William S. U'Ren. The Oregon initiative system itself, along with that 1906 amendment, both owed their existence to U'Ren and his colleagues. Two - There was a reason for the language in Article XVII section 1 about requiring "two or more amendments" in the same election to "be voted on separately." Three - The reason plainly was not to keep a single ballot measure from enacting multiple "amendments" to the Oregon Constitution - People's Power League initiatives before and after 1906 regularly embodied multiple amendments. Heck, the 1906 measure itself dealt with (1) the canvassing of votes on amendments and (2) the prohibition of a state constitutional convention without a vote of the people to call it. Would it survive Armatta scrutiny today? I don't think so. Four - The reason for requiring that votes on separate "amendments" be counted separately was not hard to see in 1906. The loosely used term "amendments" actually meant "ballot measures for amendments" to the constitution. The problem being addressed was the undervote, plain and simple.
Before 1906, a ballot measure for amending the constitution had to be approved by a majority of the voters who cast ballots in the election. With the multiplicity of constitution-amending measures that the People's Power League intended to place on the ballot in coming elections, there was a real risk that some of the amendments would receive a majority of those voting on that measure but would fail because not enough of the voters had bothered to go down the ballot as far as the particular measure. Under the proposed 1906 change (Article XVII section 1), the vote canvassers would count the votes for and against each measure, "severally" as the new amendment said, and if a majority of the votes on the measure favored it, the measure would pass. William U'Ren actually made that point in a letter to the editor of The Oregonian that was printed just before election day in 1906.
So Article XVII section 1 solved the undervote problem. The last thing in the minds of the People's Power League, or of the voters (if they understood the amendment) was bringing about the strange concoction that we now know as Armatta v. Kitzhaber.
Here's an ironic footnote. Amended Article VII of the Oregon Constitution (Judiciary) was an initiative adopted in 1910. The measure was at the very bottom of a long ballot of initiatives, probably put there purposely by U'Ren and the People's Power League, who may have feared for its passage. Sure enough, the measure passed with a small majority of the vote on that particular measure, but well short of fifty percent of the voters who cast ballots in that election. Amended Article VII passed into the Oregon Constitution only because Article XVII section 1 had performed its intended purpose.
I say this reluctantly, out of respect for the institution and the justices of the Oregon Supreme Court, but in establishing the rule in Armatta, which now is the gold standard for parsing of initiated constitutional amendments, the supreme court made it up. The Armatta rule came pretty much out of thin air and finds no support in the history of Article XVII section 1.
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