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The Unwritten Rules of the Duopoly

How Democrats Kicked Nader Off the Oregon Ballot

by DAN MEEK

In a recent editorial the Oregonian celebrated the decision by Secretary of State Bill Bradbury, upheld by the Oregon Supreme Court, to keep Ralph Nader off the Oregon ballot, citing grave concerns for "fraud" and "circulator irregularities."

But the Oregonian has never described the absurd excuses Bradbury actually used to disqualify Nader. In fact, Nader submitted far more county-verified voter signatures than the 15,306 needed on sheets in full compliance with all statutes and all written rules.

After conducting a trial, the Presiding Judge of the Marion County Circuit Court concluded that Bradbury had booted Nader by using "unwritten rules" that were "not supported by the written administrative rules as set forth in the [State Candidate's] Manual." He also found the "unwritten rules" to be "inconsistent with ORS 247.005, as well as with the prior policy of the Elections Division" and "not applied either uniformly or consistently in actual practice."

These "unwritten rules" disqualified over 700 valid voter signatures, all of which had already been verified by county elections officers, who themselves signed and dated every sheet with an affidavit of authenticity (often with a county seal as well). This subtraction left Nader 218 short of the 15,306 needed.

The Oregon Supreme Court concluded that Bradbury had the legal authority to use his "unwritten rules," a conclusion that now requires all petitioners to comply with any requirements he dreams up but fails to publish, before or even after the signatures have been collected and filed.

One "unwritten rule" Bradbury used to toss away over 400 county-verified voter signatures was that circulator signatures could not "appear to be initials." This appears in no statute and no rule on nominating petitions. When the rejected circulators came forward with affidavits, showing their same signatures on important documents (including drivers licenses, social security cards, and past tax filings), Bradbury refused to consider the documents.

Another "unwritten rule" was that every circulator signature be "legible," even though the circulator’s printed name is right below her signature on every sheet. Many people have signatures that are not "legible," such as Norm Frink, a Multnomah County Deputy District Attorney, whose signature did not seem to spell out "Norm Frink." Bradbury rejected all the Frink sheets (and hundreds of sheets of other circulators) with no notice to him or to the Nader campaign and then refused to consider the affidavits Mr. Frink and the others provided, vouching for their signatures and showing those same signatures on past important documents.

Another "unwritten rule" rejected any sheet having any correction whatever of the date on the circulator’s signature. If the circulator made any slip of the pen in writing the date, Bradbury threw out all of the county-verified voter signatures on that sheet. If a circulator began to write a "7" for the day of the month, realizing the error, crossed it out and wrote an "8," the entire sheet was discarded, and Bradbury allowed absolutely no way for the circulator to correct such a slip of the pen. Banks accept checks with such "dating errors," but not Bradbury, even though there exists no statute or rule requiring that the date on a circulator’s signature be the result of a pristine flow of ink on paper.

In addition, Bradbury discarded 2,354 county-verified voter signatures (out of the 18,186 submitted to him), because they were on sheets filed with the county elections officers without sequential sheet numbers on them. Employees of the Secretary of State could provide no instance of this ever being applied to reject nominating petitions. Further, the manager of the Nader campaign testified at trial, using his log of notes, that he had been submitting the sheets with sequential sheet numbers until being advised by Bradbury’s office late in the process that he should stop numbering the sheets. That employee testified that she did not recall the conversation but that she had more than once provided incorrect advice to candidates and that the resulting violations of written rules were waived by Bradbury. But no waiver for Nader.

Testimony at trial showed that the county elections officers themselves placed numbers the sheets missing them and that counting these county-numbered sheets would qualify Nader for the ballot. Bradbury offered no reason for questioning the county-numbered sheets and no instance of ever rejecting them in the past. The counties had no problem with accepting and verifying 2,354 voter signatures on the non-numbered sheets. Each sheet was then signed and dated by a county official. Only the original sheets, with the original county official signatures (and often official seals as well) were filed with Bradbury. And he threw them all away, thus leaving Nader 218 short.

There are also an unknown number of other signatures discarded by county officials, after Bradbury ordered them not to accept circulator signatures that were not "legible" or that had "dating errors." Despite repeated requests, Bradbury has never identified how many hundreds or thousands of otherwise valid voter signatures were tossed away by the counties, at his unpublished order.

While the Oregonian would prefer that Nader be off the ballot, it should at least inform the public of the actual tactics Bradbury used to accomplish this goal.

DAN MEEK is a public interest lawyer based in Portland, Oregon.