A standard handed down last year could restrict the ability of residents to make amendments to the state constitution

Oregon's initiative process is at a crossroads.

One of the nation's oldest systems of direct democracy faces several legal challenges that could scale back its future and reopen its past.

The central issue is a 2000 court ruling that legal experts say effectively states constitutional ballot measures can contain only one change. The standard does not sound dramatic, but election law experts agree that it would restrict the historic ability of Oregon residents to amend the state constitution.

Take a measure proposed for the 2002 ballot that would eliminate property taxes and create a state sales tax: It could flunk the new test because it would do more than one thing.

"We think that test is ludicrous," said Bill Sizemore, executive director of Oregon Taxpayers United, which is sponsoring the sales-tax proposal. "If that ends up being the standard, the citizens of Oregon will no longer be able to amend their constitution by initiative."

Supporters of the new standard say it will still allow simple, straightforward constitutional amendments. It also will allow activists to use statutory initiatives, which have looser standards than constitutional amendments.

What the new standard will stop, initiative critics say, is the growing abuse of the system by those who draft constitutional ballot measures with many issues, only some of which voters support.

"Nobody (should) be forced to vote for something they don't want to get something they do," said Thomas M. Christ, a Portland attorney and elections law expert.

Potentially more explosive is the application of the new rule to past initiatives. A suit that goes to trial Tuesday in Marion County seeks to overturn a 1992 term limits amendment.

If the legal challenge succeeds, any constitutional amendment passed since 1904 could be challenged.

"It's a big deal," Secretary of State Bill Bradbury said. "What these cases really are about is whether or not Oregonians are able to use the initiative process to amend the constitution."

"Separate vote" comes into play
In June 1902, Oregon voters adopted the initiative and referendum system, which provided a process for state residents to place on the ballot statutory and constitutional initiatives as well as laws the Legislature passed. Since then, voters have made several changes, including requiring that constitutional amendments be voted on separately.

The "separate vote" rule lay dormant until 1998, when the Oregon Supreme Court overturned Measure 40, a 1996 constitutional amendment that enacted rights for crime victims, altered search and seizure laws and made several other changes.

The court ruled that Measure 40 violated the separate vote rule because it had a number of changes that were not "closely related."

Last year, the Oregon Court of Appeals ruled that Measure 62, a 1998 initiative that changed campaign finance rules, also violated the separate vote rule. The court said "closely related" meant it must be obvious that voters intended to support all the changes.

Measure 62 required disclosure of certain contributions and that signature-gatherers be registered Oregon voters.

"A vote in favor of the former certainly does not imply a vote in favor of the latter," the court said.

Elections experts say the standard will be almost impossible to meet. Does a vote to eliminate property taxes necessarily imply support for a sales tax?

"What the Court of Appeals said is that voters are too stupid to make any choices that require consideration of a package or a trade-off," Sizemore said.

Bradbury, the state's chief elections official, proposes a rule that would allow different changes "if they represent one specific, discreet, cohesive policy choice," he said.

But where Bradbury and Sizemore worry that legitimate measures might not get on the ballot, others are concerned that illegitimate ones already do.

Christ, who handled the Measure 40 and Measure 62 challenges, says the separate vote rule is necessary to stop "log rolling," the process of packaging a number of issues, some of which would not pass if they stood alone.

Take Measure 40. After the Supreme Court overturned it, the 1999 Legislature referred seven parts of it to the ballot. Voters approved four and rejected three.

Most experts saw the vote as a vindication of the rule.

Even some initiative activists acknowledge that special interest groups increasingly have put forth measures that package an appealing topic such as victims' rights, campaign finance or tax reform with other less-popular proposals.

"I think the goal of the system is to put voters in the position to make clear decisions about specific matters," said Carlton Grew, a Salem attorney who campaigned for Measure 62. "Obviously a number of ballot measures in recent years have not been of that type. They have been wish lists for particular groups to try and enact and comprehensive vision."

Other initiative supporters say the new separate vote standard might force activists to use statutory measures, which are not subject to the separate vote rule and require fewer signatures to get on the ballot.

"The end result of this might be more initiatives that are easier to qualify," said Phil Keisling, secretary of state from 1991-99.

Bradbury and many activists say that voters are unlikely to support tax reform and other big issues if they are not safely locked into the constitution.

For now, the Court of Appeals' ruling is binding. Earlier this year, a Marion County judge overturned Measure 7, a property rights initiative, in part because he said it failed the new standard. Another Marion County judge ruled that Measure 3, which essentially abolished civil forfeiture, passed the test.

The final word belongs to the Supreme Court, which is weighing appeals to the Measure 62 and Measure 7 decisions. The Measure 3 case is before the Court of Appeals. A ruling on the issue is not expected before then end of the year.

Past initiatives could fall
Although the future of the initiative system is in the hands of the Supreme Court, its past is sitting in the lap of Marion County Circuit Judge Richard Barber.

A suit filed in May on behalf of two former state representatives seeks to use the separate vote standard to overturn a 1992 term limits amendment that prevents them from running again.

If the suit succeeds, realistically dozens of the more than 200 constitutional amendments Oregon has enacted could be challenged, including measures that created the state lottery, Metro and the structure of the state courts. A group that supports term limits plans to file a suit next week challenging a 1962 constitutional measure that allows legislators to raise their pay.

Not everyone agrees that the separate vote rule can be applied to ballot measures already on the books. Christ says that the doctrine of laches, a common law rule that essentially prohibits legal challenges that could have been filed earlier, will prevent lawsuits against old ballot measures.

Charles F. Hinkle, the Portland lawyer who is handling the term limits challenge, disagrees.

"Laws don't get less unconstitutional by age," Hinkle said.

There is no deadline to decide the term limits case, but a decision likely will come before the end of the summer. As with the other cases, the Oregon Supreme Court will have the last word and likely will not rule until next year.

Sizemore might not wait. He recently drafted a proposed constitutional amendment that eliminates the separate vote requirement.