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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF MULTNOMAH

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GEORGE DEWIN HARRIS, CHRISTINE
SEALS, CAMERON T. ALDERMAN,
CLAIRE DAVIS PARCHMENT,
MAGNOLIA JAHNES-RODGERS, ROBIN
SCHAPIRO, CAM BUI and PAIGE
RICHARDSON, Individuals, and VOTE YES
ON MEASURE 92: WE HAVE THE
RIGHT TO KNOW WHAT’S IN OUR
FOOD, an Oregon political committee,
Plaintiffs,

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Case No.
COMPLAINT
(ORS 246.910 – Act or Failure to Act of
Secretary of State and County Elections
Officials; ORS 28.010, et seq. – Declaratory
Judgment Act; ORS 183.400, et seq. –
Judicial Review of Agency Order)
Filing Fee Authority: ORS 21.135(2)(a)

v.

NOT SUBJECT TO MANDATORY
ARBITRATION

KATE BROWN, Secretary of State of the
State of Oregon, and TIM SCOTT, Director
of Elections, Multnomah County Elections
Division

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Defendants.
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Plaintiffs allege as follows:

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OVERVIEW OF CASE

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1.

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This case arises out of the disenfranchisement of approximately 4,600 registered Oregon

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voters who participated in the November 4, 2014 general election. Those voters completed their

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ballots, signed their return identification envelopes pursuant to the instructions provided by the

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Secretary of State and local elections officials, and timely returned their ballots. However, local

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elections officials, acting under the direction and supervision of the Secretary of State, have not

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

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counted those ballots, because the voters’ signatures on their return identification envelopes do

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not “match” the signatures on file for those voters.
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The approximately 4,600 disenfranchised voters have not been accused of forgery, fraud

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or other illegal activity relating to their exercise of their right to vote. The local elections

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officials who have refused to count those voter’s ballots lack probable cause that (most, if not all

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of) those disenfranchised voters committed forgery or fraud. The Secretary of State, who has

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refused to include those ballots as part of her official canvass of votes, similarly lacks probable

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cause that (most, if not all, of) those disenfranchised voters committed forgery of fraud. Voters

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have been disenfranchised despite any evidence of wrongdoing.
3.

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Local elections officials lack the legal authority to refuse to count those approximately

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4,600 ballots and disenfranchise voters (except those ballots, if any, where local elections

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officials can establish probable cause of forgery or fraud). The Oregon Secretary of State cannot

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certify election results until those approximately 4,600 ballots are included as part of the official

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canvass of votes (except those ballots, if any, where the Secretary of State can establish probable

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cause of forgery or fraud).
4.

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Plaintiffs seek an order enjoining the Secretary of State from certifying the results of the

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November 4, 2014 statewide general election on Ballot Measure 92 until those approximately

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4,600 ballots are counted (excluding those ballots, if any, where the Secretary of State or local

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elections officials can establish probable cause of forgery or fraud). Plaintiffs also seek an order

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compelling the Secretary of State to direct all county elections officials in the state to count those

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approximately 4,600 ballots (excluding those ballots, if any, where the Secretary of State or local

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elections officials can establish probable cause of forgery or fraud).

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

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Approximately 1,100 of the approximately 4,600 ballots that have not been counted were

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cast in Multnomah County. Plaintiffs also seek an order compelling defendant Tim Scott to

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count all of those 1,100 ballots (excluding those ballots, if any, where Defendant Scott can

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establish probable cause of forgery or fraud).
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This case is limited to the pending recount on Ballot Measure 92. The time period for

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challenges and contests for all other statewide races and measures from the November 4, 2014

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election has passed.
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In this case, Plaintiffs do not challenge the legitimacy of Oregon’s vote-by-mail system.

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Rather, Plaintiffs seek to correct a flaw in this year’s statewide election that easily can be

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remedied in future elections. Specifically, Plaintiffs challenge the failure by local elections

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officials and the Secretary of State to inform voters, before voters exercise their voting rights, of

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additional post-voting requirements imposed for their votes to count, and the improper decision

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to disenfranchise approximately 4,600 voters who fully complied with all instructions provided

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to them prior to casting their ballots.

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FACTS COMMON TO ALL CLAIMS

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8.

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Defendant Kate Brown is the Secretary of State for the State of Oregon. Defendant Tim
Scott is the Director of Elections for the Multnomah County Elections Division.
9.

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Ballot Measure 92 (“Measure 92”) is a statewide initiative measure that appeared on the

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ballot for the November 4, 2014 general election. Measure 92, if passed, would mandate

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labeling of genetically modified foods.

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

10.

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Following the November 4, 2014 general election, the original official canvass of votes

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on Measure 92 was 752,666 in favor and 753,478 opposed. According to that original canvass,

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out of 1,506,144 votes cast, the “no” side had 812 more votes than the “yes” side. The margin of

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defeat for the measure was less than 0.054% (fifty-four thousandths of a percent).
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Oregon law, ORS 258.290(1), requires a mandatory statewide full recount “[i]f the

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official canvass of votes of an election reveals that the difference in the number of votes cast for

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or against any measure is not more than one-fifth of one percent [0.2%] of the total votes cast for

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and against the measure * * *.” Because the original canvass of votes for Measure 92

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established that the difference in the number of votes cast in favor and against the measure was

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substantially less than one-fifth of one percent, the Secretary of State called for a recount on

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Measure 92.
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Under Oregon law, ORS 246.110, the “Secretary of State is the chief elections officer of

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this state.” It is the Secretary of State’s responsibility to ensure the correct application of

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Oregon’s election laws. Under ORS 246.120, the Secretary of State “shall prepare and distribute

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to each county clerk detailed and comprehensive written directives,” “shall assist, advise and

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instruct” each county elections official on elections procedures; and, county elections officials

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“shall comply with the directives * * *.” Under ORS 258.150, the Secretary of State “shall be

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responsible for insuring that the procedures to be used in conducting election recounts assure an

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accurate recount * * *.”

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13.

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On November 26, 2014, pursuant to her statutory authority and responsibility, the

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Secretary of State issued a directive (the “Directive”) stating that the recount on Measure 92

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

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must be completed, and results certified, by December 12, 2014. The Directive includes

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“[i]nstructions for completing the automatic full recount for Measure 92.”
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The right to vote is sacrosanct under Oregon law. Article II, section 1 of the Oregon

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constitution provides: “All elections shall be free and equal.” Article II, section 2 of the Oregon

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constitution provides that every Oregon resident “is entitled to vote in all elections,” if that

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resident meets certain residency and age requirements. The Oregon legislature has stated, in

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ORS 247.005, that it is the clear “policy of this state that all election laws and procedures shall

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be established and construed to assist the elector in the exercise of the right of franchise.”
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Oregon law also sets forth precisely what is required for an Oregon voter to exercise his

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or her right of franchise. Specifically, ORS 254.470(6)(a) provides that upon receipt of a ballot,

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“the elector shall mark the ballot, sign the return identification envelope supplied with the ballot

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and comply with the instructions provided with the ballot.” The only other requirements Oregon

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law places on the voter is that he or she must timely return the ballot, either to the county

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elections office or a designated drop box, in the “return identification envelope.” ORS

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254.470(6)(b)(c).
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The only certification required of voters in the November 4, 2014 election when the voter
signed his or her return identification envelope was some variation of:

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“I am the person to whom this ballot was issued;

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“I am legally qualified to vote in the county that issued this ballot;

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“This is the only ballot I have voted this election; and

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“I still live at the address printed below.”

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

17.

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The instructions provided to Oregon voters on the ballot for the November 4, 2014

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general election did not tell voters that the signature the voter put on the return identification

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envelope must match the voter’s signature on his or her registration card.
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Oregon law provides that a county elections official may count a ballot only if the voter’s

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signature on the return identification envelope is “verified” pursuant to ORS 254.470(9). The

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signature shall be “verified” with the signature on the voter’s registration card. “Verified” is not

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defined in Oregon law. Oregon voters are not notified of this post-voting requirement when they

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cast their vote.
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The Oregon Secretary of State has adopted rules – codified in the Secretary of State’s

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Vote by Mail Procedures Manual – that interpret “verify” to mean “match.” The Secretary of

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State has instructed county elections officials to “challenge” ballots and not count those ballots if

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the voter’s signature on the return identification envelope does not “match” the signature on file.

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The Oregon Secretary of State has set loose, subjective standards for county elections officials to

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use to determine if a signature “matches” the signature on file. The Oregon Secretary of State

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has not established any means to determine whether county elections officials have applied these

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subjective standards consistently, either within the same county or between counties.

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20.

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Pursuant to the Secretary of State’s instructions, when a county elections official

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determines that a voter’s signature on the voter’s return identification envelope does not “match”

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the voter’s signature on file, that ballot is set aside and not counted. The county elections official

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is supposed to send the voter a letter, as soon as practicable, informing the voter that the ballot

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has not been counted, and notifying the voter that he or she may take additional steps within a

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

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limited time period to “correct” his or her signature. If the voter does not receive the letter and

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cannot “correct” his or her signature, or otherwise fails to or is unable to do so, his or her ballot

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is not counted. Signatures must be “corrected,” and those corrections approved by the county

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elections officials within two weeks of election day, for the voter’s ballot to be counted.
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As a result of this policy and practice, approximately 4,600 voters who completed, and

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timely returned their ballots have not had their ballots counted. The Oregon Secretary of State,

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in her Directive, has not instructed county elections officials to count these ballots. As a result,

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county elections officials, including Defendant Tim Scott, have not counted these ballots, and

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approximately 4,600 voters have been disenfranchised.
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In the light of the current 812 vote margin on Measure 92, these signed and uncounted

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ballots could determine the outcome of the election. The failure to count approximately 4,600

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ballots may be determinative as to whether the measure passes or fails.
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Plaintiff George Harris is an Oregon voter and taxpayer. He is a resident of Multnomah

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County. Plaintiff Harris suffered a stroke on April 8, 2014, which dramatically altered his

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signature. Plaintiff Harris voted by mail in the November 4, 2014 general election and

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personally signed the return identification envelope that he was provided, which contained his

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completed ballot. He timely returned his ballot in the signed return identification envelope. As

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with the return identification envelope provided to all Oregon voters in the November 4, 2014

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general election, his return identification envelope did not indicate that his ballot would only be

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opened if the signature on the envelope matched the signature on his voter registration card.

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Plaintiff Harris received a letter from local elections officials, inviting him to re-register.

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However, he is undergoing therapy and rehabilitation for his stroke, and was unable to complete

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

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and return the additional voter registration form. In addition, he hopes the use of his arm and

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regular signature will be restored, and he did not want to have to re-register repeatedly, simply to

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exercise his right to franchise. Plaintiff Harris’ ballot has been rejected, and his vote has not

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been counted in this election. Plaintiff Harris has an interest in having his vote counted, and an

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interest in the outcome of Measure 92. Plaintiff Harris has been adversely affected as a result of

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actions or failures to act taken by Defendant Tim Scott in Multnomah County, and by actions or

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failures to act taken by Defendant Kate Brown, at least in part, in Multnomah County.
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Plaintiff Christine Seals is an Oregon voter and taxpayer. She is a resident of Multnomah

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County. She is a quadriplegic and cannot sign her own name by hand. For many years, she

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signed her name by using a pen in her mouth, but that was extremely difficult for her to do.

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Recently, she changed to using a stamp as her legal signature. Plaintiff Harris voted by mail in

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the November 4, 2014 general election and personally signed (by stamp) the return identification

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envelope that she was provided, which contained her completed ballot. She timely returned her

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ballot in the signed return identification envelope. As with the return identification envelope

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provided to all Oregon voters in the November 4, 2014 general election, her return identification

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envelope did not indicate that her ballot would only be opened if the signature on the envelope

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matched the signature on her voter registration card. Plaintiff Seals received a letter from local

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elections officials, inviting her to re-register. She reasonably assumed that the letter was sent by

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mistake by a new worker because of her long-standing disability, which she understood was

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well-documented by Multnomah County elections officials. She has used her signature stamp on

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the return identification envelopes she has submitted in prior elections and, to her knowledge, her

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ballot has always been accepted and counted. Plaintiff Seals’ ballot has been rejected, and her

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vote has not been counted in this election. Plaintiff Seals has an interest in having her vote

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counted, and an interest in the outcome of Measure 92. Plaintiff Seals has been adversely

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

affected as a result of actions or failures to act taken by Defendant Tim Scott in Multnomah

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County, and by actions or failures to act taken by Defendant Kate Brown, at least in part, in

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Multnomah County.
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Plaintiff Cameron T. Alderman is an Oregon voter and taxpayer. He is a resident of

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Multnomah County. He voted by mail in the November 4, 2014 general election. He personally

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signed the return identification envelope that he was provided, which contained his completed

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ballot. He timely returned his ballot in the signed return identification envelope. As with the

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return identification envelope provided to all Oregon voters in the November 4, 2014 general

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election, his return identification envelope did not indicate that his ballot would only be opened

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if the signature on the envelope matched the signature on his voter registration card. He did not

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receive notice from county elections officials that his ballot would be rejected. His ballot has

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been rejected, and has not been counted in this election. Plaintiff Alderman has an interest in

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having his vote counted, and an interest in the outcome of Measure 92. Plaintiff Alderman has

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been adversely affected as a result of actions or failures to act taken by Defendant Tim Scott in

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Multnomah County, and by actions or failures to act taken by Defendant Kate Brown, at least in

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part, in Multnomah County.
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Plaintiff Claire Davis Parchment is an Oregon voter and taxpayer. She is a resident of

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Multnomah County. She voted by mail in the November 4, 2014 general election. She

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personally signed the return identification envelope that she was provided, which contained her

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completed ballot. She timely returned her ballot in the signed return identification envelope. As

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with the return identification envelope provided to all Oregon voters in the November 4, 2014

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general election, her return identification envelope did not indicate that her ballot would only be

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opened if the signature on the envelope matched the signature on her voter registration card. Her

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

ballot has been rejected, and has not been counted in this election. Plaintiff Parchment has an

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interest in having her vote counted, and an interest in the outcome of Measure 92. Plaintiff

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Parchment has been adversely affected as a result of actions or failures to act taken by Defendant

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Tim Scott in Multnomah County, and by actions or failures to act taken by Defendant Kate

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Brown, at least in part, in Multnomah County.
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Plaintiff Magnolia Jahnes-Rodgers in an Oregon voter and taxpayer. She is a resident of

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Columbia County. She voted by mail in the November 4, 2014 general election. She personally

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signed the return identification envelope that she was provided, which contained her completed

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ballot. She timely returned her ballot in the signed return identification envelope. As with the

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return identification envelope provided to all Oregon voters in the November 4, 2014 general

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election, her return identification envelope did not indicate that her ballot would only be opened

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if the signature on the envelope matched the signature on her voter registration card. Her ballot

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has been rejected, and has not been counted in this election. Plaintiff Jahnes-Rodgers has an

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interest in having her vote counted, and an interest in the outcome of Measure 92. Plaintiff

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Jahnes-Rodgers has been adversely affected as a result of actions or failures to act by Defendant

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Kate Brown.
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Plaintiff Robin Schapiro is an Oregon voter and taxpayer. He is a resident of Washington

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County. He voted by mail in the November 4, 2014 general election. He personally signed the

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return identification envelope that he was provided, which contained his completed ballot. He

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timely returned his ballot in the signed return identification envelope. As with the return

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identification envelope provided to all Oregon voters in the November 4, 2014 general election,

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his return identification envelope did not indicate that his ballot would only be opened if the

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signature on the envelope matched the signature on his voter registration card. The November 4,

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

2014 election was the first election in which he had ever voted. After receiving a “cure” notice

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from Washington County elections officials, he twice attempted to “cure” his signature. The first

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time was by mail and the second time was in person at the Washington County elections office.

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His ballot has been rejected, and has not been counted in this election. Plaintiff Schapiro has an

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interest in having his vote counted, and an interest in the outcome of Measure 92. Plaintiff

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Schapiro has been adversely affected as a result of actions or failures to act by Defendant Kate

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Brown.
29.

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Plaintiff Cam Bui is an Oregon voter and taxpayer. She is a resident of Washington

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County. She voted by mail in the November 4, 2014 general election. She personally signed the

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return identification envelope that she was provided, which contained her completed ballot. She

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timely returned her ballot in the signed return identification envelope. As with the return

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identification envelope provided to all Oregon voters in the November 4, 2014 general election,

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her return identification envelope did not indicate that her ballot would only be opened if the

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signature on the envelope matched the signature on her voter registration card. Her ballot has

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been rejected, and has not been counted in this election. Plaintiff Bui has an interest in having

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her vote counted, and an interest in the outcome of Measure 92. Plaintiff Bui has been adversely

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affected as a result of actions or failures to act by Defendant Kate Brown.
30.

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These plaintiffs are representative of the approximately 4,600 Oregon voters who have
been disenfranchised in the November 4, 2014 general election.
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Plaintiff Vote Yes on Measure 92: We Have a Right to Know What’s in Our Food (“Yes

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on Measure 92”) is a political committee duly organized and registered under Oregon law. The

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

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committee and its donors and volunteers have an interest in the outcome of Measure 92. The

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committee’s principal place of business is in Multnomah County.
32.

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Plaintiff Paige Richardson is an Oregon elector and taxpayer who resides in Clackamas

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County. She is the campaign manager for Yes on Measure 92 and has both a personal and

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professional interest in the outcome of Measure 92. To the best of her knowledge and belief, her

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vote on Measure 92 was counted.

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FIRST CLAIM FOR RELIEF

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(ORS 246.910 – Act or Failure to Act by Secretary of State and County Elections Officials)

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(Against Both Defendants)
33.

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Plaintiffs reallege and incorporate by reference paragraphs 1 - 32 as if fully set forth

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herein.
34.

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ORS 246.910(1) provides:

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“A person adversely affected by any act or failure to act by the Secretary
of State, a county clerk, a city elections officer or any other county, city or district
official under any election law, or by any order, rule, directive or instruction made
by the Secretary of State, a county clerk, a city elections officer or any other
county, city or district official under any election law, may appeal therefrom to
the circuit court for the county in which the act or failure to act occurred or in
which the order, rule, directive or instruction was made.”

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35.

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Plaintiffs Harris, Seals, Alderman, Parchment, Jahnes-Rogers, Schapiro and Bui have

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been adversely affected by the Secretary of State’s rules and guidance requiring that signatures

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on the voter’s return identification envelope must “match” the signature on file, because their

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votes have not been counted.

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

36.

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Each Plaintiff has been adversely affected by the Secretary of State’s failure, in her

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directive, to instruct county elections officials to accept and count these approximately 4,600

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ballots, because each Plaintiff has an interest in the outcome of the recount of Measure 92.
37.

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Plaintiffs Harris, Seals, Alderman and Parchment, who are all residents of Multnomah

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County, have been adversely affected by Defendant Tim Scott’s failure to count his or her ballot,

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which failure occurred in Multnomah County.

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38.

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All Plaintiffs have an interest in the outcome of the recount on Measure 92 and,

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accordingly, have been adversely affected by Defendant Tim Scott’s failure to accept and count

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the approximately 1,100 uncounted ballots in Multnomah County, because the difference in

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votes for and against Measure 92 is less than the number of uncounted votes in Multnomah

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County.
39.

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Pursuant to ORS 246.910, Plaintiffs are entitled to a determination that:

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(a)

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The Secretary of State and Defendant Tim Scott’s actions and failures to act

violate Oregon election law and must be remedied; and,
(b)

Each of the uncounted ballots (except those ballots contained in ballot return

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envelopes that the Secretary of State and/or local elections officials can establish probable cause

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were fraudulently signed or forged) must be accepted and counted before the Secretary of State

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can certify the results of the recount on Measure 92.

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COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

SECOND CLAIM FOR RELIEF

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(ORS 28.010, et seq. – Declaratory Judgment Act)

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(Against Both Defendants)
40.

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Plaintiffs reallege and incorporate paragraphs 1 - 32 and 34 - 39 as if fully set forth

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herein.
41.

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Pursuant to ORS 28.010 and ORS 28.020, Plaintiffs are entitled to a declaration that:

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(a)

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The Secretary of State’s “match” requirement violates Oregon law and improperly

disenfranchises Oregon voters.
(b)

County elections officials, including defendant Tim Scott, must include and count

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all of the outstanding approximately 4,600 ballots, except those ballots contained in ballot return

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envelopes that the Secretary of State and/or local elections officials can establish probable cause

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were fraudulently signed or forged.

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(c)

The Secretary of State cannot certify the results of the recount of Measure 92 until

the outstanding ballots are counted.
42.

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Pursuant to ORS 28.050 and ORS 28.080, Plaintiffs further request that the Court provide

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such supplemental and remedial relief as may be necessary to ensure that the ballots are counted

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and made a part of the final official canvas of votes before the Secretary of State certifies the

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results of the recount on Measure 92.

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Page 14 -

COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

THIRD CLAIM FOR RELIEF

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(ORS 183.400, et seq. – Judicial Review of Agency Order)

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(Against Defendant Secretary of State)
43.

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The “match” requirement contained in the Secretary of State’s Vote By Mail Procedures

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Manual is an administrative rule, adopted pursuant to OAR 165-007-0030. Accordingly, the

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“match” requirement is subject to judicial review under ORS 183.400(2).
44.

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County elections officials, including defendant Tim Scott, applied the “match”

10

requirement (albeit inconsistently) as set forth in the Secretary of State’s Vote By Mail

11

Procedures Manual. As a result, Plaintiffs Harris, Seals, Alderman, Parchment, Jahnes-Rogers,

12

Schapiro and Bui, and the approximately other approximately 4,600 disenfranchised Oregon

13

voters, were denied their right to vote as of November 4, 2014.
45.

14
15

The Secretary of State’s adoption of the “match” requirement and the county elections

16

officials’ application of the “match” requirement adversely affect Plaintiffs Harris, Seals,

17

Parchment, Alderman, Jahnes-Rogers, Schapiro and Bui, and the other approximately 4,600

18

disenfranchised Oregon voters because those Plaintiffs and the other 4,600 disenfranchised

19

Oregon voters have been denied the right to vote. The Secretary of State’s adoption of the

20

“match” requirement and the county elections officials’ application of the “match” requirement

21

adversely affect all Plaintiffs, because all Plaintiffs have an interest in the outcome of the vote on

22

Measure 92.
46.

23
24
25

Plaintiffs Harris, Seals, Alderman and Parchment were adversely affected in Multnomah
County, where they reside.

26
Page 15 -

COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

47.

2

Because the Secretary of State’s adoption of the “match” requirement exceeds her

3

statutory authority, the Court should declare the rule invalid, pursuant to ORS 183.400 and ORS

4

183.480.
48.

5
6

The Secretary of State’s initial canvass of votes, which incorporated the county election

7

officials’ application of the “match” requirement, is an order in other than a contested case, as

8

that term is used in the Oregon Administrative Procedures Act.
49.

9
10

The application of the “match” requirement improperly denies Plaintiffs Harris, Seals,

11

Alderman, Parchment, Jahnes-Rogers, Schapiro and Bui the right to vote and improperly denies

12

all Plaintiffs their right to have the outcome of a statewide ballot measure properly determined.

13

For that reason, pursuant to ORS 183.484(5)(a)(A) the Court should set aside or modify any

14

recount results that do not include the approximately 4,600 ballots that have not been counted

15

(except those ballots contained in ballot return envelopes that the Secretary of State and/or local

16

elections officials can establish probable cause were fraudulently signed or forged). In the

17

alternative, pursuant to ORS 183.484(5)(a)(B), (b) and/or (c), the Court should remand to the

18

Secretary of State any recount that does not include counting of the approximately 4,600 ballots

19

(except those ballots contained in ballot return envelopes that the Secretary of State and/or local

20

elections officials can establish probable cause were fraudulently signed or forged) for further

21

action under a correct interpretation of the law.
50.

22
23
24

The Secretary of State’s November 26, 2014 Directive is an order in a proceeding in
other than a contested case, subject to review under ORS 183.484.

25
26
Page 16 -

COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

51.

1
2
3

The Secretary of State’s Directive fails to instruct county elections officials to count the
approximately 4,600 ballots.
52.

4
5

Because the Secretary of State’s directive fails to take corrective action regarding the

6

“match” requirement, and does not require county elections officials to count the approximately

7

4,600 ballots, the directive exceeds her statutory authority; the Court should declare the directive

8

invalid, pursuant to ORS 183.400 and ORS 183.480, to the extent the directive does not instruct

9

county elections officials to count the approximately 4,600 ballots (except those ballots

10

contained in ballot return envelopes that the Secretary of State and/or local elections officials can

11

establish probable cause were fraudulently signed or forged).

12

53.

13

Application of the directive improperly denies Plaintiffs Harris, Seals, Alderman,

14

Parchment, Jahnes-Rogers, Schapiro and Bui their right to vote and improperly denies all

15

Plaintiffs their right to have the outcome of a statewide ballot measure properly determined. For

16

that reason, pursuant to ORS 183.484(5)(a)(A) the Court should set aside or modify any recount

17

results that do not include the approximately 4,600 ballots that have not been counted (except

18

those ballots contained in ballot return envelopes that the Secretary of State and/or local elections

19

officials can establish probable cause were fraudulently signed or forged). In the alternative,

20

pursuant to ORS 183.484(5)(a)(B), (b) and/or (c), the Court should remand to the Secretary of

21

State any recount that does not include counting of the 4,600 ballots (except those ballots

22

contained in ballot return envelopes that the Secretary of State and/or local elections officials can

23

establish probable cause were fraudulently signed or forged) for further action under a correct

24

interpretation of the law.

25
26
Page 17 -

COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

54.

1
2

Pursuant to ORS 183.486 and ORS 183.490, Plaintiffs further request that the Court

3

require the Secretary of State to take such supplemental and remedial action as may be necessary

4

to ensure that the ballots are counted and made a part of the final official canvas of votes before

5

the Secretary of State certifies the results of the recount on Measure 92.

6
PRAYER FOR RELIEF

7
8

WHEREFORE, Plaintiffs pray for relief as follows:

9

1.

Pursuant to ORS 246.910, a determination that:

10

(a)

The Secretary of State and Defendant Tim Scott’s actions and failures to act

11
12

violate Oregon election law and must be remedied; and,
(b)

Each of the uncounted ballots (except those ballots contained in ballot return

13

envelopes that the Secretary of State and/or local elections officials can establish probable cause

14

were fraudulently signed or forged) must be counted before the Secretary of State can certify the

15

results of the recount on Measure 92.

16

2.

Pursuant to ORS 28.010 and ORS 28.020, a declaration that:

17

(a)

The Secretary of State’s “match” requirement violates Oregon law and improperly

18
19

disenfranchises Oregon voters;
(b)

County elections officials, including defendant Tim Scott, must count all of the

20

outstanding ballots, except those ballots contained in ballot return envelopes that the Secretary of

21

State and/or local elections officials can establish probable cause were fraudulently signed or

22

forged; and,

23
24

(c)

The Secretary of State cannot certify the results of the recount of Measure 92 until

the outstanding ballots are counted.

25
26
Page 18 -

COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

3.

Pursuant to ORS 28.050 and ORS 28.080, such supplemental and remedial relief

2

as may be necessary to ensure that all of the non-matching ballots are counted and made a part of

3

the final official canvas of votes before the Secretary of State certifies the results of the recount

4

on Measure 92.

5

4.

Pursuant to ORS 183.400, ORS 183.480 and ORS 183.484, a determination:

6

(a)

That the “match” rule contained in the Vote By Mail Procedures Manual exceeds

7
8
9
10
11

the Secretary of State’s statutory authority and cannot be enforced;
(b)

The approximately 4,600 outstanding ballots must be counted (except those

ballots contained in ballot return envelopes that the Secretary of State and/or local elections
officials can establish probable cause were fraudulently signed or forged); and,
(c)

Setting aside or modifying any recount results that do not include the

12

approximately 4,600 ballots that have not been counted (except those ballots contained in ballot

13

return envelopes that the Secretary of State and/or local elections officials can establish probable

14

cause were fraudulently signed or forged); or, in the alternative, remanding to the Secretary of

15

State any recount that does not include counting of the 4,600 ballots (except those ballots

16

contained in ballot return envelopes that the Secretary of State and/or local elections officials can

17

establish probable cause were fraudulently signed or forged) for further action under a correct

18

interpretation of the law.

19

5.

Pursuant to ORS 183.486 and ORS 183.490, that the Court require the Secretary

20

of State to take such supplemental and remedial action as may be necessary to ensure that all

21

ballots are counted and made a part of the final official canvas of votes before the Secretary of

22

State certifies the results of the recount on Measure 92.

23
24
25
26
Page 19 -

COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

1

6.

Such other relief as the Court deems just and proper.

2
3

DATED this 8th day of December, 2014.

4

STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

5
By: /s/ Steven C. Berman
Steven C. Berman, OSB No. 951769
Keith S. Dubanevich, OSB No. 975200

6
7

10

209 SW Oak Street, Suite 500
Portland, OR 97204
Telephone:
(503) 227-1600
Facsimile:
(503) 227-6840
Email:
sberman@stollberne.com
kdubanevich@stollberne.com

11

Attorneys for Plaintiffs

12

Trial Attorney:

8
9

Steven C. Berman

13
14
15
16
17
18
19
20
21
22
23
24
25
26
Page 20 -

COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. OAK STREET, SUITE 500
PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840