Draft Pleading (Planning Document)

     What follows is a "draft" pleading for this case. In the left hand column is the proposed text of the pleading. In the right hand column are explanatory comments, links to related evidence, etc... (Items in the right hand column are for planning purposes only and will not be included in the final pleading document. Items in the left hand column may or may not be included in the final pleading, that is up to the prosecuting attorney.)
A large group of centrist voters - disenfranchised by the two-party system.

The Keel

Note that I have deliberately included in the left hand column, the relevant "issues of law" that have already been settled. I've been counseled that this is not allowed - a plaintiff may not make arguments in a pleading. Nonetheless, a pleading is a "formal proof" outline: The constitutional provisions are inviolate "axioms"; The "facts" are "premises" for the proof; and many settled "issues of law" are "rules of inference". We start with the premises, then, using the rules of inference, we successively prove additional "factual allegations" until one or more of the axioms is contradicted. Many of the facts and factual allegations in this pleading don't make any sense without the associated inference rules. Rule 12 of the Oregon Rules of Civil Procedure deals directly with this issue:
ORCP 12(b). Disregard of error or defect not affecting substantial right. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.
1. This action is to be pursued in state court - not federal court.
2. Is it required that the action be filed in Marion County?
3. Normally the Secretary of State would be named as the defendant in his/her "official capacity". Nonetheless, the two major parties are the "real parties in interest"
Oregon Attorney General: Interested Party(ORS 28.110)
4. Under ORS 28.110 the Attorney General must be served and allowed to be heard if a constitutional provision or state statute is challenged. However, because the Secretary of State is not named as a defendant, the Atttorney General has the option to "enforce - but not defend".
This is a civil action seeking declaratory and injunctive relief against the enforcement of certain Oregon Election Laws. More particularly, those statutes from ORS Chapters 246 to 250 that relate to "Partisan Offices".
Plaintiff alleges that the election scheme adopted by the Oregon Legislature, to nominate candidates to "Partisan" office, violates an inviolate provision of the Oregon Constitution:
Article II, Section 1 - "All elections shall be free and equal."
6. Only one provision of the Oregon Constitution is cited. The final decision will be made by the Oregon Supreme Court. It cannot be appealed to the U.S. Supreme Court because no federal issues are involved.
The following 3 facts pertain to the standing of the plaintiff to bring this action.
1. Plaintiff, Paul Damian Wells is an "elector" defined by ORS 249.002(3) and;
2. Plaintiff, Paul Damian Wells is registered to vote under ORS 274.002 and;
3. Plaintiff, Paul Damian Wells is not registered as a member of any political party ORS249.002(5). (Nonaffiliated)
In prior cases, the Oregon Supreme Court has made more specific interpretations of this provision, and at least one of these interpretations is pertinent to this case:
"In this respect, Article II section 1, can be viewed as a special application of Article I, section 20, which prohibits disparate treatment of "any citizen or class of citizens" based upon impermissible or nonexistent criteria."
LPO v. Roberts, 305 Or at 248 (1988)
The U.S. Supreme Court has previously tried cases similar to this one and has made rulings pertaining to the admissability and sufficiency of evidence - "The Least Drastic Means" Doctrine. This doctrine, while not based on Oregon Constitutional Provisions, is nonetheless pertinent:
”If a State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.”
Kusper v. Pontikes, 414 U.S. 59.
As it pertains to this case, this doctrine means that when;
1. the legislature adopts more than one scheme for nominating candidates to the general election and;
2. it is alleged that the more drastic scheme invidiously discriminates against an identifiable class of citizens,
1. evidence of a less drastic scheme is admissable and;
2. the existence of a less drastic scheme is sufficient to prove an invidious discrimination with respect to the more drastic scheme.
7. This is the single inference rule that will be used to inititially establish standing and eventually to make the final contradiction in the proof.
9. This section could probably be worded better, but the idea is to confront the issue of admissability and sufficiency of evidence head on. If the trial court does not agree to allow evidence of a less drastic means - we are wasting our time and money.
11. I am registered to vote in Washington County and we should be able to get a certified copy of my voter registration card from the county or the Secretary of States' office to establish each of these facts.
5. Is a "Jurisdictional" statement specifying the statutory authority of the court needed?
4. The criteria used by the legislature to distinguish a "nonpartisan" office from a "partisan" office, is either impermissable or nonexistent - violating Article II, Section 1 of the Oregon Constitution.
8. The primary defensive strategy will be to obfuscate. We need to simplify the case as much as possible to counteract this tactic. This is all the more important if we are allowed a jury trial. This section is an outline of the factual allegations that we need to prove and the order that they will be proved.
1. An "election" for nonpartisan offices consists of two stages where Nonaffiliated voters are allowed full participation in both stages:
a. an initial stage where the field of viable candidates is narrowed to no more than two. The selection of the top two viable candidates is based solely on the outcome of an "open" nominating election. (A "nonviable" candidate is implicitly defined by statute as a candidate who cannot reasonably be expected to win more than 50% of the vote in the general election.)
  1. an optional final stage which is a runoff between the top two viable candidates at the general election.
3. In many election districts in Oregon, only one of the two major party candidates is viable. This is the result of natural voter demographics, deliberate legislative intereference (gerrymandering) or the slow but relentless decline of the Republican party. In these election districts, nonaffiliated voters have been totally disenfranchised because the only viable candidate is chosen solely by major party voters months before the general election.
In contrast to the federal level where the rules restricting legislative election schemes do not exist - in Oregon, the Constitution limits the scope of legislative authority over elections:
Article II, Section 8 - "Regulation of elections. The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections, and prohibiting under
adequate penalties, all undue influence therein, from power, bribery, tumult, and other improper conduct."
10. I'm not quite sure how to use this provision, but it seems to limit the scope under which the defense can can claim a "compelling" state interest. May eventually decide to leave this one out.
1. The Oregon Legislature has adopted not one, but two completely seperate and independent schemes for nominating candidates to the general election ballot:
a. Nonpartisan and;
  1. Partisan.
2. The scheme for nominating candidates to "nonpartisan" office incorporates a single "nominating" election. This election is open to all candidates and voters on an equal basis. This "less drastic" scheme does not mandate or permit the disparate treatment of candidates or voters.
3. The scheme for nominating candidates to "partisan" office mandates the seperation of candidates and voters based on party affiliation. This "more drastic" scheme further mandates disparate treatment based on this seperation.
During the course of trial, plaintiff will submit evidence to prove the following four factual allegations:
During the course of trial, the plaintiff will present evidence to prove the following three factual allegations:
2. An "election" for partisan offices consists of two stages where Nonaffiliated voters are guaranteed full meaningful participation in the second stage only:
a. an initial stage where the field of viable candidates is narrowed to no more than two candidates: one Democrat and one Republican. The selection of these two candidates is based solely on the outcome of the "closed" Republican and "closed" Democratic primary elections.
  1. a mandatory final stage where voters choose one candidates from a field of candidates in the general election. The field of candidates includes the two candidates from stage one and; any number of nonviable third party and independent candidates. (State statutes mandate financial subsidies for Democratic and Republican candidates, late filing dates and burdensome qualifying proceedures for other candidates. This combination normally insures all third party candidates are nonviable and eliminates all Independent candidates entirely.)
12. How far do we have to go to establish standing? This seems like an entirely independent cause of action. Isn't standing "tried" by the court? If we establish standing, is there any need for trial?
13. We can use the historical vote tallies from past elections to prove that third party candidates rarely garner anything near 50% of the vote in the general election. We can also show that Independent candidates rarely qualify for the general election ballot. (Oregon Blue Book and the Secretary of State.)
14. Again, we can use the historical vote tallies to prove this point. In the last two elections for Attorney General and State Treasurer, the Republican Party failed to even nominate a candidate.