On August 14, the 9th circuit issued a short, perfunctory opinion, upholding Oregon’s procedures for checking signatures for initiative and referendum petitions. Lemons v Bradbury, 08-35209. The vote was 3-0. The case had been brought by proponents of a referendum petition earlier this year. The evidence showed that different counties in Oregon use different procedures for deciding whether a signature is valid or not. The 9th circuit said, in response, that Bush v Gore is not applicable because the U.S. Supreme Court never intended that Bush v Gore be applied to other cases. This is outrageously wrong, because the 9th circuit itself several years ago used Bush v Gore to decide not only a school board election dispute in the Northern Mariana Islands, but also to strike down Idaho’s distribution requirement for inititiative petitions.

The evidence also showed that Oregon uses far more careful procedures when it is checking signatures on mail ballots, than it does for checking signatures. A signature is 7 times more likely to be rejected on an initiative or referendum petition than it is to be rejected on a voter’s mail ballot. The 9th circuit shrugged this off with a conclusion that the burden on the signers is slight, and that the state’s interest in efficiency is more important.

This decision cries out for an en banc review. Clearly the three judges who heard this case were prejudiced against the proponents of the referendum. The three judges are all markedly liberal, and the object of the referendum was to stop a law permitting civil unions for same-sex couples.