Douglas County Clerk Dan Loomis has denied six “Prospective Initiative Petitions” that would allow petitioners to have the formal petitions needed to gather signatures for getting “hand counting of the ballots” on the Douglas County ballot for the 2024 primary. The unofficial citizens petitions signed at the fair are being used as evidence and to inform Douglas County Clerk Dan Loomis and County Commissioners Tim Freeman, Chris Boice and Tom Kress, that their constituents want ballots hand counted.

The six denied prospective initiative petitions were to create a Douglas County ordinance for restricting official counting of ballots in Douglas County to the method of a hand count. The petitions relied on ORS 254.485 Tally of ballots (1) “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.”

The petitions were denied by County Clerk Dan Loomis because they were “not a matter of county concern” and “not legislative”. Petitioners asked for more information so that they could fix whatever was wrong with the petitions. One answer from 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 (sic) 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”.

During the four days of the Douglas County Fair, the Republican Party Booth offered the public a citizens petition to sign in support of hand counting ballots within the county. The volunteers manning the booth reported that about 90% of the fair goers that stopped at the booth also signed the petition. There were 372 total signatures, mostly from the fair booth. An associated list kept of people who would be willing to volunteer on the counting board received 90 signatures. It appears that fairgoers are confirming that the people of Douglas County want their ballots counted by humans, not machines.

A D V E R T I S E M E N T

A D V E R T I S E M E N T

For a year Dan Loomis never mentioned the Directive, even when he was asked why the petitions were being denied just a few weeks after the directive was issued. Not until October 6th did he mention it as the reason that if we were able to pass hand counting as a measure, the Secretary of State would not certify the votes counted by hand in Douglas County.

“Not Legislative” 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.

Logic tells 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 with 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. Directive 2022-4, “Tally of Ballots”, dated September 2, 2022 might be changing the “method of counting the votes” from a “county concern” to a “state concern”.

The directive states: “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 fewer registered voters. Therefore, Directive 2022-04 disallows all hand counting in Oregon. With this directive, the Secretary of State has created a “rule” that has jurisdiction over all counties. When a state office has jurisdiction, then it is no longer decided at a county level. Therefore jurisdiction changes it from a “county concern” to a “state concern”? Before September 2, 2022, the County Clerks had the authority to switch from tally machines to hand counting of ballots. Two petitions were filed before this 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. Being elected officials, 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 deny that the directive is valid due to a conflict of law between the directive and a statute of superior legal force, ORS 254.485 Tally of ballots. Quoted earlier in this article, it gives a choice between tallying by machines or by hand counting.

The directive is being used to void a statute passed by legislation. The directive was signed by then Elections Director Deborah Scroggin, who has since resigned her position effective January 20, 2023. Her supervisor at that time was Secretary of State Shemia Fagan, who resigned in disgrace on May 8, 2023 over her acceptance of $10,000 per month as a consultant for the cannabis dispensary chain La Mota. Fagan’s office was auditing the state’s cannabis regulations.

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, and shall assist, advise and instruct each county clerk, on registration of electors and election procedures which are under the direction and control of the county clerk. The directives and instructions shall include relevant sample forms of ballots, documents, records and other materials and supplies required by the election laws. A county clerk affected thereby shall comply with the directives or instructions.”

The Secretary of State now has the statutory authority to write law by directives and thus compel County Clerks to follow the directives. However, in this instance, a directive was written that clearly conflicts with a statute. ORS 254.485 Tally of ballots is the superior law. Directive 2022-4 can be challenged and judged null and void when the Clerks denial of the initiative petition is appealed. If successful, choosing the method of counting the ballots will again be “of county concern”.

A D V E R T I S E M E N T

A D V E R T I S E M E N T

The statute "ORS 246.120 Directives, instructions and assistance to county clerks", should be revised to clarify that directives and instructions issued by the Secretary of State shall not conflict with laws passed by legislation or the Oregon Constitution.

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.”

To appeal a County Clerk’s denial of a “Prospective Initiative Petition”, the petitioners must file a complaint (petition) with the circuit court of that county. Appeals could fall under two different statutes: ORS 250.168 Determination of compliance with constitutional provisions or ORS 246.910 Appeal from Secretary of State, county clerk or other elections official to courts.

Anyone that would like to assist the effort to return to hand counting of ballots can contact the author of this article at terrynoonkester@gmail.com


--Terry Noonkester

Post Date: 2023-10-21 06:54:54

Last Update: 2023-10-20 20:17:23