"Would You Like Your Receipt?"

Voter pamphet coverPerhaps he should have said, "No". After all, the primary purpose of the receipt in commerce is to serve as a proof of purchase/transaction. And who hasn't experienced a delay, whether caused by a "slow" internet connection or server-side script, in receiving the secondary confirmation of the transaction (always confirmed at checkout, right?) from the online merchant? Only with government would one find such a reversal of purpose and of course, in the favor of the bureaucracy.

On Tuesday, 25 August, shortly before the deadline of 5:00 PM, Oregon Republican Party (ORP) chair Bill Currier submitted the party's 2020 General Election statement to be included in the state's Voter Pamphlet. Six days later the Secretary of State's office notified Mr. Currier that the statement would not appear in the Pamphlet because it had missed the deadline by 29 seconds. The office based the decision on the time stamp printed on the receipt the system issued upon processing the fee payment that accompanied the statement.

Bill Currier
ORP Chairman Bill Currier

Mr. Currier, through Salem attorney Kevin Mannix, immediately filed suit in Marion County Circuit Court challenging that decision and seeking an order to compel the Secretary to include the statement in the Pamphlet. On Monday, 14 September, following a hearing, Judge Channing Bennett issued the order:  "Secretary of State is ordered to publish ORP's statement in the voters' pamphlet," he wrote. "Court finds time of payment transaction is arbitrary and cannot be the bar."

"Policy statement by a major party is necessary for a free and informative election," he concluded. Secretary of State Bev Clarno issued a statement indicating that she would comply with the order and "ensure the Oregon Republican Party's statement is printed in the Voters' Pamphlet for November's General Election" while noting some pique with the order, declaring, "At the same time, I still believe 5 p.m. is 5 p.m. and we will appeal the ruling to ensure there is a bright line for filing requirements going forward."

The State of Oregon Voter Pamphlet is iconic to candidates and voters alike. Candidates and others who submit statements (including the Oregon Republican Party) pay hundreds, even thousands, of dollars (PDF; see pg 4) for the privilege of placing them in it; the receipt issued by the ORESTAR elections system was for payment of $1,200. But since the Pamphlet goes to every household in the state with at least one registered voter in residence, that fee buys access to quite an audience. As long as the statement gets into the Pamphlet.

Dueling timestamps

So, why wouldn't the statement of a major, statewide political party be included in the Pamphlet? Because, according to ORESTAR (PDF; see pg 5), "Oregon election law requires all statements and arguments submitted for inclusion in the state voters' pamphlet to be filed electronically", reliable links throughout the data communications network between the user and the State are critical. Only if the Secretary declares in writing that a system failure forces the use of the alternative may users submit statements by e-mail; payment, however, must still be received in the office by the deadline.

Ahh, the deadline. Given that most online transaction sites establish deadlines at 11:59:59 PM, it may seem odd that the Secretary of State still operates on the in-person office clock, ending business and setting the submission deadline at 5:00 PM. That, by the way, is what tripped up the staff member of Marion County Republicans Rep. Bill Post's campaign tasked with submitting his candidate statement to the Pamphlet. Also, most sites account for the time at which the user logs in to the site when determining whether or not one met any deadline.

The State argued in defending its determination the ORP submitted its statement late that since acceptance of the statement hinges on payment of the fee, its processing time stamp of 5:00:29 is dispositive. Yet their own manuals favor a different take, one that ensures a successful user interaction. This is what undergirds the decision issued by Judge Bennett.

ORESTAR logoThe ORESTAR Transaction Filing user manual (PDF; page 7) breaks the electronic filing process into three steps:  Entering the transaction, validating the transaction, and filing the transaction. While each step could be considered self-explanatory and this whole section of the manual easily skipped, let's take a closer look at the validation and filing steps. Simply put, validation ensures that the user has entered all the required information to complete the transaction. The manual states (emphasis added), "Validating a transaction can also display an informational or warning message(s) (e.g., the transaction is late . . .). In the event of an error message, it must be corrected prior to filing." While a "late transaction" notice may not have prevented Mr. Currier from submitting the Pamphlet statement anyway, it would have alerted him to the possibility that some hard-nosed bureaucrat would ultimately reject it.

After describing the choices the user faces for filing, the manual instructs (emphasis again added), "Clicking the File button will submit the transaction immediately after attestation." Once filed, all responsibility for the transaction passes to the system, i.e. the Secretary of State. Mr. Currier had successfully performed everything required of him and, confident in his full compliance, he logged off ORESTAR prior to 5:00 PM as shown in the system log. That the system took additional time until 29 seconds after 5:00 to finalize the process is immaterial and to rely on that time stamp is "legal error" according to Mr. Mannix. Judge Bennett deemed it "arbitrary".

"Good faith" vs tech

In the complaint and supporting exhibits, Mr. Currier blasted each and every claim asserted by the State. To the claim that there were "no problems or glitches" with the online reporting system, Mr. Currier recounted the numerous issues he faced as he tried to access his ORESTAR account earlier in the day and produced an e-mail thread between he and ORESTAR support staff that included the e-mail alerting him that they had fixed the problem.

Judge Channing Bennett
Marion County Circuit Court Judge Channing Bennett

He detailed the session during which he submitted the statement beginning with his login at 4:52 PM and closing by 4:59 PM.

Hearkening back to the days before ORESTAR took all elections filings online, ORP spokesman Kevin Hoar said the Party submitted its statement at the last minute because the account had been disabled. He said that in the past, elections officials have accepted late submissions as long as one made a "good faith" attempt to submit on time. With in-person transactions, as long as one is "in the queue" at deadline, whether at the store on the last day of the sale, a government office at the end of the day, or mailing your taxes at 11:59:59 on 15 April, one's transactions were processed under the terms prevailing at the time one entered the line. During the hearing, Judge Bennett, noting how the measuring of time is becoming ever more precise, remarked, "Our law is not up to speed with our technology".

While Secretary Clarno expressed her strong desire to appeal the ruling in order to, as she claimed, clear up any ambiguity in the rules and "ensure there is a bright line for filing requirements going forward", a spokesman for the Attorney General, whose office represented the State and will handle any appeal, only stated that the matter was under consideration.

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