07/08/2008

By JULIA SILVERMAN  / Associated Press

Oregon's domestic partnership law came under legal fire again Tuesday, as opponents tried to persuade three judges from the 9th U.S. Circuit Court of Appeals that elections officials had wrongly disqualified the issue from the November ballot.

A ruling is expected by the end of the month in a case that could have implications that reach far beyond Oregon. Should the judges rule in favor of the law's opponents, states throughout the West could be forced to re-evaluate the process by which citizen-backed initiatives and referrals qualify for the ballot.

At issue is the arcane elections practice of statistical sampling of the signatures turned in to put a such a measure on the ballot.

Rather than verify each signature to determine that there are enough to merit a position on the ballot, elections officials in most states — including Oregon — pull a sample of the signatures and check them against those on a voter's registration card. Signatures that don't match are thrown out.

In the case at hand, Lemons v. Bradbury, about 30 Oregon voters have argued that their signatures were disqualified improperly, and that they should have been notified and given a chance to appeal.

Those few signatures might have been enough for a referral of the domestic partnership rule to gain a place on the November ballot. Without them, state elections officials ruled, the measure was dead.

The Legislature approved Oregon's domestic partnership law in 2007. After a federal judge blocked it and then lifted his order, it went into effect in February.

That made Oregon the ninth state to approve spousal rights in some form for gay couples, joining Connecticut, Vermont, New Hampshire, New Jersey, Maine, Washington and Hawaii. Massachusetts and California are the only states that allow gay couples to marry.

Under the law, gay couples can file joint state tax returns, inherit each other's property and make medical choices on each other's behalf, along with a host of other state benefits given to married Oregonians.

It does not entitle them to federal benefits awarded to married couples and does not mean that other states have to recognize their partnership.

On Tuesday, the three judges, two appointed by Democratic President Jimmy Carter and one by Republican President Richard Nixon, seemed skeptical of arguments made by Austin Nimocks, lead counsel for the Alliance Defense Fund, an Arizona-based group of Christian attorneys representing the Oregon voters.

Judge Stephen Reinhardt, a Carter appointee, repeatedly queried Nimocks, asking whether he was suggesting that all voters whose signatures were in the sampling pool should be contacted about the authenticity of their signatures, regardless of whether elections officials determined there was a match or not.

Voter fraud is not unheard of, Reinhardt pointed out, particularly if signature gatherers are being paid by the signature, and voters often sign in a rush, without realizing what they are endorsing.

But Nimocks stuck to his argument, asserting that voters whose signatures were disqualified were deprived of the equal protection and due process required by the Constitution.

"The obligation of the state is to make sure the sample is accurate," Nimocks said. "But the state is using an arbitrary standard."

Senior assistant attorney general Kaye McDonald defended the state's methods as "efficient and fair."

Particularly in years when the ballots are clogged with initiatives, he said, it would be time-consuming and very costly to verify each signature in the sampling pool.

The judges have agreed to expedite their decision. If Nimocks and the 30 Oregon voters prevail, the domestic partnership referral could appear on the November ballot.

Outside the courtroom after the arguments, Cathy Travis and Leila Wrathall of Portland said that would be devastating.

After 21 years together, the two become domestic partners on Feb. 4, the first day they were allowed to register.

More than 2,000 couples have done the same since February.

"We are not just two single people who happen to live together," Travis said. "We are part of each other's families."