Do Measure 117 mailers violate Oregon election law?

I wrote about this yesterday, and I was planning to let it go at that, but here it is in our mailbox again: another mailer from the people pushing "rank choice" voting, Measure 117, on Oregon voters. This one makes the same bogus claim about the measure that got me worked up yesterday.

The right-hand column paraphrases the outrageous language that I quoted yesterday from the first flyer. Here's yesterday's version, even worse:

Measure 117 guarantees that the winning candidate has support from more than 50% of voters. That makes it so our leaders will focus on the issues that matter to the majority of us.

That's just not true. As I have explained a couple of times now, in "rank choice" voting, the winner has to have only 50 percent plus one of the votes that are counted in the final "round" of tabulation. (All of the "rounds" happen simultaneously, in a computer program.) The votes counted in the final round are fewer – and possibly a lot fewer – than the total of votes cast. Some ballots are declared "exhausted" and don't count in the final round. And so there is no "guarantee" that the winner will have a majority of the total votes cast, even counting second and later rankings. In yesterday's post, I gave a number example proving this point. 

So are they lying, or just misleading? Either way is despicable, of course, but how bad is what they've done here?

Well, let's pick apart the two sentences I just quoted from yesterday. First, and this one was in bold in the flyer: "Measure 117 guarantees that the winning candidate has support from more than 50% of voters." The only way that sentence can be true is if by "50% of voters," they mean 50% of some voters, namely, the ones who make it to the final round. 

But that reading is negated by the next sentence: "That makes it so our leaders will focus on the issues that matter to the majority of us." Who is "us"? All the voters who vote in the race in question? That's the way a typical reader would take it. But again, the only "us" whose majority is needed in "rank choice" are the voters in the final round, and there's no way of knowing who that is until the last ballot is processed. The only way this could be a true statement about "rank choice voting" is if "us" means the voters whose votes are counted in that last round. If "us" is supposed to be everyone who gets the mailer, everyone entitled to vote, or everyone who actually votes on the race being counted, they're misrepresenting "rank choice." 

Taken together, the two quoted sentences are worse than misleading. To me, they're false.

Which got me thinking: Is it against the law to make false statements in a campaign mailer in Oregon? Turns out, it is. There is an Oregon statute, ORS 260.532. It reads in relevant part:

False publication relating to candidate or measure

(1)  No person shall cause to be written, printed, published, posted, communicated or circulated, including by electronic or telephonic means, 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 or circulate an advertisement by electronic or telephonic means, 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....

(5)  Any candidate or political committee aggrieved by a violation of this section shall have a right of action against the person alleged to have committed the violation. The aggrieved party may file the action in the circuit court for any county in this state in which a defendant resides or can be found or, if the defendant is a nonresident of this state, in the circuit court for any county in which the publication occurred. To prevail in such an action, the plaintiff must show by clear and convincing evidence that the defendant violated subsection (1) of this section.

(6)  A plaintiff who prevails in an action provided by subsection (5) of this section may recover economic and noneconomic damages, as defined in ORS 31.705 (Economic and noneconomic damages separately set forth in verdict), or $2,500, whichever is greater. The court may award such additional equitable relief as it considers necessary or proper. The equitable relief may include, but is not limited to, a requirement that a retraction of the false statement be disseminated in the manner directed by the court. Proof of entitlement to economic and noneconomic damages must be by a preponderance of evidence. The court shall award the prevailing party reasonable attorney fees at trial and on appeal.

(7)  A political committee has standing to bring an action provided by subsection (5) of this section as plaintiff in its own name, if its purpose as evidenced by its preelection activities, solicitations and publications has been injured by the violation and if it has fully complied with the provisions of this chapter. In an action brought by a political committee as provided by subsection (5) of this section, the plaintiff may recover economic and noneconomic damages for all injury to the purpose of the committee as provided in subsection (6) of this section....

(10)  The remedy provided by this section is the exclusive remedy for a violation of this section.

Would the opponents of Measure 117 take the "rank choice" pushers, Yes on 117 PAC, to court over this? They could. If it were me, I would. There's no assurance that the local judges will show any spine and find a violation, but it would be worth it to watch the measure's pushers twist themselves into a pretzel trying to explain their way out of this.

The only legal issue would be whether the language I've quoted is a "false statement," and if I were the judge, I'd say it is. Clearly the supposed "guarantee" is a material fact, and clearly the people who prepared the mailers knew that what they were saying is a stretch of the truth. Either that, or they don't understand what their own ballot measure does.

A recent OPB debate indicates that the main opponents are something called the Equal Vote Coalition. It seems that it may be the only one with standing in court. But if any other political committees have been opposing the measure, they may be able to file suit as well.

In any event, the relentless sleaze of the proponents is just one more reason to vote no on 117. I've laid out the rest of the case against the measure here. Please, vote No.