You may be thinking to yourself, “why are we talking about primaries? It’s already May.” If you are, you’re probably not an Oregonian. Here in the Beaver State we hold very very late primaries. So, just when you thought you were done hearing about primary season… Let’s talk about voting! (And can I just mention, we vote by mail.)
More specifically, let’s talk about the Voters’ Pamphlet that each voter should have received by mail. I’ve always been a Voters’ Pamphlet Reader, especially when it comes to the Ballot Measures, but this year was the first time I really inspected the whole thing start to finish. And I mean really inspected, down to the staples. Voters’ Pamphlets are generally not the most exciting literature around, but I did find a few things that were more complicated and interesting than I thought.
When you go to read about the candidates you will find them, in theory, grouped by political party, and then by the position they’re running for. In practice, if you read the whole pamphlet chronologically you will find:
- National Republican Candidates
- County and City Ballot Measures
- County Elected Official Candidates
- State Republican Candidates
- National Democratic Candidates
- State Democratic Candidates
This seemed very illogical and confusing when I read through it, and I maintain that it is a bad reader experience. However, by reading all the fine print I was able to discover that much of the confusion comes from a money saving measure employed by the county. Basically, during the printing process before the state pamphlets have been folded and stapled they just stick their county pamphlet on top, and then fold it all together. This means that the county stuff ends up being smack-dab in the middle of the page count.
This ends up being weird because at the beginning of the pamphlet there’s all the information about the different parties and how voting works, which means that even if there are equal numbers of Republican and Democratic candidates, the Republican section extends beyond the halfway point, because it’s pushed back by the stuff at the beginning. Therefore, the County information ends up interrupting the Republican section, which is both annoying and confusing as a reader.
The most interesting thing I learned from the Voters’ Pamphlet came from doing what no one ever does… Reading the Secretary of State’s letter in the front of the pamphlet. It begins as a pretty straightforward letter about the importance of voting, and how primaries work. Then, in the middle, there’s an interesting paragraph about misinformation, which led me down quite the rabbit hole of research. The paragraph states that “the biggest threat we have to elections today is misinformation,” and goes on to list sources of misinformation, “social media, mainstream media, email lists, text message chains and mailers.”
This already had me saying “hmm.” Because, first of all, I would personally argue that voter disenfranchisement and gerrymandered districts are the biggest threats our elections face, and the Secretary of State’s office is heavily involved with the redistricting process. Then, while I was already feeling sort of “hmm” about that, the paragraph went on to say “misinformation can even be spread through candidate statements in this voter pamphlet.” My eyebrows rose with that one, but it went on to say “Candidates pay a fee to have the statements printed and they are not fact checked. In fact, Oregon courts have ruled they cannot be fact checked.”
My first reaction was, WHAT!? But fact checking is so important! My second reaction, after discussing this revelation with some fellow thinkers, was to admit that I understand that for the sake of neutrality it might be bad form to fact check, as it could be unequally applied. However, it still seemed crazy that none of those candidate statements are fact checked at all. So, to clear up my own confusion, I went hunting for the court case.
Turns out, as far as I can tell, there isn’t one. However, there are two relevant statutes that define the consequences for lying in the voters’ pamphlet. These statutes are ORS 260.715 and ORS 260.532. Statute ORS 260.715 pertains to the required information on the candidate statement. This includes your name, occupation, occupational background, educational background and prior government experience. If you provide false information in any of these categories, you can be charged with a class C felony under ORS 260.715. So while this information may not be fact checked pre-publication, it is a crime to provide false information, and the county or state can investigate and charge you if you lie.
ORS 260.532 refers to the optional part of the Candidate Statement, what I refer to as the “why you should vote for me” part. This usually lays out a candidate’s policies, cites endorsements, and gives them a chance to provide any other relevant information. The rules regarding lying in this section of the pamphlet are way more confusing. The first part of the statute itself says,
“No person shall cause to be written, printed, published, posted, communicated or circulated, any letter, circular, bill, placard, poster, photograph or other publication, or cause any advertisement to be placed in a publication, or singly or with others pay for any advertisement, with knowledge or with reckless disregard that the letter, circular, bill, placard, poster, photograph, publication or advertisement contains a false statement of material fact relating to any candidate, political committee or measure”
(this quote was taken from oregonlaws.org).
So basically, you can’t knowingly and willingly publish false information about a candidate, political committee or measure. If you do, the political candidate or committee who is “aggrieved” by your lie can file an action in circuit court against you.
This statute, and the whole situation with the letter, was pretty confusing to me, so I reached out to the Elections Division at the Secretary of State’s office. My first question was which court case they had been referencing in the letter at the beginning of the voter’s pamphlet, since I had not found any. Bob Roberts, an “Investigations and Legal Specialist,” emailed me back and explained that ORS 260.532 specifies that only a private party, either a candidate or committee, can press charges in the event that someone lies during the optional part of the statement, which means the state can’t open an investigation.
If you’re saying to yourself, “but I thought you asked about a court case?” … I know! I received no confirmation or rejection regarding my court case question. This led me to believe initially that this was his way of saying “there is no court case”. So, of course, I did more reading trying to confirm… And found only more questions.
There are actually a series of court cases that relate to ORS 260.532; however none of them (that I could find, at least) specifically mention the involvement, or lack of involvement, of the state. I understand that by specifying that only a candidate or committee can press charges the state is excluded from any post publication investigations. However, I was curious not about post publication investigations but about fact-checking, which in my mind is a pre-publication process. I attempted to clarify this with Mr. Roberts and ask a few follow up questions, but after about a week of waiting I still have not heard back. This is very disappointing for me, as I wanted to be able to include his response in this article.
I had three main follow up questions for Mr. Roberts:
First, does pre-publication fact checking fall under the same statute as post-publication investigating? If so, where is that defined? And if not… Is there some other law that says it can’t happen. I understand completely why that would be the case… Fact checking is a slippery slope when it comes to neutrality. However, the SOS’ letter specifically says that “Oregon courts have ruled” that they cannot fact check, and I want to know what that sentence is referencing.
Secondly, my only question pertaining to the more straightforward statute ORS 260.715 (that’s the one about the required information) is why do they wait for it to be published before they investigate? It would seem to me that the person actually lies when they turn in their paperwork… After that, it’s up to the State to print it. My hypothesis is that it is handled by a different office, so that the people who collect and publish these statements can maintain utter neutrality, but it just seems so inefficient!
My third and final question for Mr. Roberts, and the one that’s been on my mind the most, is regarding the confusing statute, ORS 260.532. The statute states that you can’t publish false information about any candidate, political committee, or measure, and I want to know if that “candidate” can refer to yourself.
If you publish something in the voter’s pamphlet that is demonstrably false about yourself, but it’s in the optional section, can your opponent or opposing committee press charges? I suspect not, because I think this statute parallels libel laws, under which you can press charges for someone smearing your name, but them lying about themselves would be protected under freedom of speech. However, since I have not been able to receive any clarification, I could be way off base.
Given that I was unable to get a response from Mr. Roberts clarifying these issues, this article feels slightly like it has no point because it holds no answers. However, there are a few things we know. We know that in her letter, Secretary of State Clarno claims that misinformation is the greatest threat to our elections, and she furthermore claims that you cannot trust what’s in the candidate statements because “Oregon courts have ruled they cannot be fact checked”.
I can find no court cases that rule on this particular subject. We understand that post-publication review is forbidden under ORS 260.532, however, I could not confirm with the Secretary of State’s legal department whether this also applies to pre-publication fact checking. Even if fact checking is covered by ORS 260.532, I still have no idea what “court ruling” Secretary of State Clarno was referring to in her letter.
I am not here to accuse the Secretary of State of lying. However, I do find it quietly ironic that I tried to fact check her statements about fact checking, and could not confirm that she was telling the truth. The more I researched the more it started to feel like a meta joke about misinformation.
For my Oregonian friends, I will leave you with this: Our current Oregon Secretary of State, Bev Clarno, is not running for reelection. Her position will be filled during the general election in November. I urge you to think carefully about who you want your next Secretary of State to be, now that you know more about what they’re responsible for.
To my wider circle of American friends: This may have been a lot of really boring analysis of Oregon election laws, but do you know how this works in your state? I would highly encourage all of my voting friends to actually read the statements that your state governments put out about voting accessibility, misinformation and logistics– especially this year. As always, the best thing we can do is to stay informed, and remember that LOCAL ELECTIONS MATTER, that we need to push and fight as hard as we can for accessible and fair elections, and to VOTE come November.
If anyone has information regarding my questions about these laws, please contact me at thecommonthieme@gmail.com . If I ever receive an answer from the Legal Department at the Elections Division, I will add an update to this post.