Charter reform measure survives legal challenge.
Now the fate of the Charter Commission's reform proposal is up to the voters.
Three major reforms. One measure. That’s how charter reform will appear on the ballot this November.
Judge Stephen Bushong’s ruling yesterday gave the green light for the Charter Commission’s sweeping ballot measure to proceed to the ballot as one question.
A question that now looks a little different than before.
The legal battle over the Charter Commission’s ballot measure is over.
In a ruling yesterday afternoon, Multnomah County Circuit Court Judge Stephen Bushong cleared the path for the measure to continue on its way to the November ballot.
That marks the end for Portland Business Alliance President Andrew Hoan’s attempt to disqualify the ballot question on constitutional grounds.
Measure complies with single-subject rule, Judge says.
Hoan’s lawsuit claimed the Charter Commission’s measure, which bundles three major reforms into one ballot question, violated a constitutional rule that limits ballot questions to a single subject.
But Judge Bushong disagreed, saying each reform met the criterion of being logically connected to a unifying principle.
“All the provisions in this package of reforms are properly connected to the unifying principle of reforming the structure and operation of city government,” the judge’s decision said.
Mr. Hoan didn’t respond to Rose City Reform’s requests for comment.
Meanwhile, Charter Commission co-chair Melanie Billings-Yun told Rose City Reform she felt thrilled and relieved about the court ruling.
“This proposal was never intended to be separable. All of the parts need to work together to bring the positive outcomes for Portlanders that we have been aiming for from the start,” she said.
“Now Portland voters will have the power to choose a better future for our city,” Billings-Yun added.
Judge: “Voter preference is not a legal test for compliance.”
Vadim Mozyrsky, a former Charter Commissioner and now an ardent opponent of the charter reform measure, said the court ruling was disappointing but not unexpected.
“During the hearing, Judge Bushong raised several important considerations regarding whether the gravity of the measure, as written, would be fully understood by voters,” said Mozyrsky, who works as an administrative law judge.
“It’s now more important than ever […] to publicly discuss the details of the current proposal so that voters can weigh both the good and negative consequences of this unique and experimental measure,” he added.
While Judge Bushong was unswayed by the Portland Business Alliance’s argument that voters deserve the choice to vote for the reforms they want while rejecting the ones they don’t want, the judge acknowledged that the ruling might be a letdown for voters who think the Charter Commission’s bold reform is too much too soon.
“Many voters might prefer to vote on the three main reforms – establishing a City Administrator management structure, expanding City Council with councilors selected by district, and adopting ranked choice voting procedures – separately. But the Charter Commission chose to submit these reforms as a single package,” he wrote.
“Voter preference is important in setting public policy, but it is not the legal test for determining compliance with the constitution’s single-subject requirement,” the judge concluded.
Judge orders rewording of ballot title and explanatory statement.
Here’s the question that will be put to voters this November:
“Should Administrator manage city government, 12-member Council (three from each district) make laws, voters elect officials using ranked choice process?”
If it seems a little different than what you remember, that’s because it is.
The City’s original version read:
“Should City Administrator, supervised by Mayor, manage Portland with twelve Councilors representing four districts making laws and voters ranking candidates?”
The rewording was brought about by a ballot title challenge from leaders of the youth advocacy organization Next Up, alongside a friend-of-the-court brief from James Posey, co-founder of the National Association of Minority Contractors of Oregon.
Both parties argued that the City’s ballot language was confusing and failed to explain the proposed changes in a way that voters could easily understand.
Judge Bushong agreed.
His ruling orders a rewrite of the ballot title, as well as the explanatory statement that will be published in the voter’s pamphlet, in order to meet the statutory requirement of being “impartial, simple and understandable.”
Charter reform is complex - even for judges.
In the court hearing last Thursday, Judge Bushong admitted that he himself had trouble understanding exactly what was being proposed, particularly with regards to the proposed voting methods: ranked choice voting and single transferable vote.
“This is something that the voters need to understand. And I know that I didn't understand what those terms meant, until I looked back at the report and got a more detailed explanation of what they meant,” he said.
“So don't we need to give a little better explanation than just using the terms?” the judge asked, adding in jest:
“Unless maybe I'm not as smart as the average voter.”
While the judge didn’t accept Next Up’s requested changes verbatim, Isabela Villarreal, Next Up’s Policy and Communications Manager, told Rose City Reform she was pleased to see the ruling in favor of a unified charter reform measure.
“As an organization focused on expanding voter access, Next Up is thrilled that voters will have the opportunity to adopt ranked-choice voting, an expanded city council elected in multi-member districts, and replacing the commission form of government with a professional city administrator,” she said.
“All of these changes are inextricably linked and long-overdue. Any delays will add to Portland’s current dysfunction and lack of representation for working-class voters, youth, communities of color, and more,” Ms. Villarreal added.
What’s next for the charter reform measure?
Now the City Elections Officer must forward the final ballot wording, as crafted by Judge Bushong, to County elections officials by September 8.
Then the question will appear on Portlanders’ ballots under the caption “Amends Charter: Changes Portland’s government structure and process for electing city officials”.
In November, voters will face a distinct choice: Either comprehensive reform – or no change at all.
There will be no middle option.
So let’s get back to geeking out on the proposed reforms, shall we?
Like the judge said: You need to understand what you’re voting on.
Charter reform in the news:
Willamette Week: Charter Reform Measure Will Appear As One Question On November Ballot After Judge Rules in Favor of City
The Oregonian: Measure to radically reshape Portland city government can advance to November’s ballot, judge rules.
Portland Business Journal: Judge rules on Portland charter ballot measure.
Portland Tribune: Portland Charter reform measure stays on Nov. 8 ballot.
All the talk about district representation has focused on responsiveness, inclusion and equity. While definitely important, other related issues have been ignored. My biggest concern is that the districting provisions will inevitably lead to dysfunctional inter-district squabbling over budgets and other competitive issues and will lose track of the needs of the City as a whole. Many cities of Portland's size have chosen a hybrid approach to representation with some council seats elected at-large and the balance by district. That seems to be a balanced solution that blends responsiveness with cohesion of the City. I hope the media and the No PACs will take a hard look at this issue and give due consideration to the merits of combining district and at-large representation.
All props to Judge Bushong, who delivered major opinions in just a matter of days, but this appeal process is crying out for reform too. Putting the final say on ballot language and constitutional sufficiency in a single Judge's chambers puts a ton of pressure on a single individual who has only briefs to rely on. The Judge has no appeals court to correct any of his mistakes, and there's no time in the election schedule to correct a mistake anyway.
For what it's worth, the Judge's rewrite of the ballot language is simpler and easier to parse, but I think it makes a mistake by erasing the Mayor's role entirely. Under the commission's proposal, the administrator answers to the Mayor; they're not independent. The Judge coulda/shoulda remanded it back to the Commission, or the parties, to fix the language, but there was essentially no time. And for goodness sake, why are the word limits so severe in the first place?
And on the "single subject rule," the process doesn't afford an opportunity for an appeals court to provide more authoritative precedent on something that will keep coming up as Portland struggles to fix its unwieldy charter. Already, in "Phase II" of the Charter Commission's ongoing process, there is some uncertainty as to just how to package a new hodge-podge of additional charter fixes. But if "reforming the structure and operation of city government" truly suffices as a unifying principle, then what charter reform would ever not be covered? There's only a tiny handful of appellate cases to provide guidance.