Michael Caruso v. No. 04-35155YAMHILL COUNTY, an Oregon municipal corporation, by

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MICHAEL CARUSO,
Plaintiff-Appellee,
v.
No. 04-35155YAMHILL COUNTY, an Oregon
municipal corporation, by and D.C. No.
through its County Commissioner, CV-03-01731-ALH
Defendant, OPINION
and
STATE OF OREGON,
Intervenor-Appellant. 
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
May 3, 2005—Portland, Oregon
Filed September 6, 2005
Before: Procter Hug, Jr., A. Wallace Tashima, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
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COUNSEL
Stephen K. Bushong, Oregon Department of Justice, Salem,
Oregon, for the intervenor-appellant.
Daniel W. Meek, Portland, Oregon, for the plaintiff-appellee.
OPINION
CLIFTON, Circuit Judge:
The State of Oregon appeals a district court order declaring
Or. Rev. Stat. § 280.070(4)(a) unconstitutional and perma-
nently limiting its enforcement. Section 280.070(4)(a)
requires that ballots for initiatives proposing local option
taxes include a statement: “This measure may cause property
taxes to increase more than three percent.” The district court
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deemed this requirement constitutionally infirm, concluding
that inclusion of the “three-percent warning” violated appellee
Michael Caruso’s First Amendment rights as a petition circu-
lator and his due process rights as a voter. We conclude that
the requirement does not violate the U.S. Constitution, reverse
the decision of the district court, and vacate the injunction
limiting enforcement of section 280.070(4)(a).
I. BACKGROUND
The Oregon Constitution reserves to the people “the initia-
tive power, which is to propose laws and amendments to the
Constitution and enact or reject them at an election indepen-
dently of the Legislative Assembly.” Or. Const. art. IV, § 1.
Under Oregon law, the ballot titles for initiatives that propose
the imposition of a local option tax must include an additional
statement commonly referred to as the “three-percent warn-
ing”: “This measure may cause property taxes to increase
more than three percent.” Or. Rev. Stat. § 280.070(4)(a).
Appellee Michael Caruso was among the chief petitioners
for an initiative measure which appeared on the ballot for the
March 9, 2004, Yamhill County Special Election. Consistent
with section 280.070(4)(a), the Yamhill County Commission
adopted, on November 26, 2003, the following ballot title for
the measure:
MEASURE 36-55
AUTHORIZES SPECIAL LEVY IF YAMHILL
COUNTY PUD1 IS FORMED
QUESTION: Shall voters authorize levy of $0.003
per $1,000 of assessed valuation if Yamhill County
People’s Utility District is formed?
1Formation of the Yamhill County People’s Utility District (“PUD”)
was proposed by Measure 36-54, which appeared on the same ballot.
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This measure may cause property taxes to increase
more than three percent.
SUMMARY: This measure may be passed only at
an election with at least a 50 percent voter turnout.
If the Yamhill County People’s Utility District is
formed, this measure allows the District board of
directors to impose a special levy on property within
the district. Funds raised from the levy would be
used to pay for an engineer’s report and a later elec-
tion to issue revenue bonds, if held.
This one-time levy will raise about $9,700.00. The
levy for a house with an assessed value of $150,000
would be about 45 cents.
The estimated tax cost for this measure is an ESTI-
MATE ONLY based on the best information avail-
able from the county assessor at the time of the
estimate.
See also Or. Rev. Stat. § 250.035(1) (providing that the ballot
title of any non-state initiative shall consist of a caption, ques-
tion, and summary).
Caruso challenged the constitutionality of section
280.070(4)(a) before the district court, asserting that the
required inclusion of the three-percent warning violated his
First Amendment rights as a petition circulator and his due
process rights as a voter. Caruso requested that the district
court declare the provision unconstitutional, both as applied to
Measure 36-55 and on its face, and enter preliminary and per-
manent injunctions against its enforcement.
With the parties’ consent, the district court consolidated the
hearing on Caruso’s motion for a preliminary injunction with
the trial on the merits. In an opinion issued the day after the
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hearing, the district court held section 280.070(4)(a) unconsti-
tutional as applied and as enacted. Adopting the reasoning set
forth in a companion decision, Horton v. Multnomah County,
No. Civ. 03-1257-HA, 2004 WL 1745789 (D. Or. Aug. 4,
2004), the district court deemed the three-percent warning
“false and misleading” because it implied that the initiative
measure “by itself” “may cause property taxes to increase
more than three percent” when the increase proposed by Mea-
sure 36-55 was in fact much lower: only “$0.003 per $1,000
of assessed valuation.”
The district court reasoned that section 280.070(4)(a) was
therefore constitutionally infirm. First, it impeded Caruso’s
ability to communicate the actual tax consequences of Mea-
sure 36-55 and forced him to be associated with the State’s
misleading message. In light of these burdens on “core politi-
cal speech,” the district court determined that section
280.070(4)(a) was subject to, and did not survive, strict scru-
tiny under the First Amendment. Second, section
280.070(4)(a) substantially chilled protected speech. Specifi-
cally, because the three-percent warning applied to all initia-
tives proposing local option taxes — including those which
posed no threat of themselves increasing property taxes more
than three percent — it discouraged others from circulating
such initiatives by erecting the additional “hurdle of convinc-
ing voters of the false nature of the state mandated ‘warn-
ing.’ ” Finally, the three-percent warning obscured the actual
subject of Measure 36-55, upsetting the evenhandedness of
the election and working a fundamental unfairness on the vot-
ers.
To remedy these constitutional infirmities, the district court
enjoined the government defendants from enforcing section
280.070(4)(a) in relation to Measure 36-55, and, more
broadly, in relation to “all ballot measures that by themselves
cannot cause an increase in property taxes of more than three
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percent.” The State of Oregon, which had intervened to
oppose Caruso’s claims, timely appealed.2
II. DISCUSSION
A. Mootness
Pursuant to the district court injunction, Measure 36-55
appeared on the ballot for the March 9, 2004, Yamhill County
Special Election without the three-percent warning. The mea-
sure failed, with 3,250 voters favoring the levy and 9,153
opposing it. The State argues that the election rendered moot
Caruso’s claim that section 280.070(4)(a) is unconstitutional
as applied to the defeated measure.
[1] As a general rule, a case is moot “ ‘when the issues pre-
sented are no longer ‘live’ or the parties lack a legally cogni-
zable interest in the outcome.’ ” Schaefer v. Townsend, 215
F.3d 1031, 1033 (9th Cir. 2000) (quoting Powell v. McCor-
mack, 395 U.S. 486, 496 (1969)). There is an exception, how-
ever, for challenged practices that are “ ‘capable of repetition,
yet evading review.’ ” Id. (quoting Dunn v. Blumstein, 405
U.S. 330, 333 n.2 (1972)). Under this exception, a court may
consider the merits of a case that would otherwise be deemed
moot when “(1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration, and
(2) there is a reasonable expectation that the same complain-
ing party will be subject to the same action again.” Spencer
v. Kemna, 523 U.S. 1, 17 (1998) (alterations and citation
omitted).
[2] Cases challenging election laws often fall within the
“capable of repetition, yet evading review” exception “be-
cause the inherently brief duration of an election is almost
invariably too short to enable full litigation on the merits.”
2The named defendant, Yamhill County, also participated in the pro-
ceedings below. It did not appeal the judgment of the district court.
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Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). For this
reason, “[i]f such cases were rendered moot by the occurrence
of an election, many constitutionally suspect election laws . . .
could never reach appellate review.” Joyner v. Mofford, 706
F.2d 1523, 1527 (9th Cir. 1983). Here, the State cannot seri-
ously contest that the period between adoption of the ballot
title and election on the measure — in this case, four months
— is too brief to permit “full litigation on the merits.” See
Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) (finding the
“evading review” prong satisfied where the state “grant[ed]
the proponents of an initiative only six months in which to
obtain the necessary signatures”).
The State more forcefully contests the expectation that
Caruso “will be subject to the same action again.” It observes
that there is no evidence in the record that Caruso has circu-
lated or intends to circulate another initiative proposing the
imposition of a local option tax. Although this is true, we
have rejected the analogous argument that a candidate’s chal-
lenge to an election law is not moot “only when [the] candi-
date plans to seek reelection.” Schaefer, 215 F.3d at 1033. In
Schaefer, we observed that the Supreme Court had proceeded
to the merits of a voter’s challenge to the residency require-
ments for voting even though by the time of the Court’s deci-
sion, the voter had resided in the state long enough to vote in
the next election. Id. at 1033 (citing Blumstein, 405 U.S. at
331-33 & n.2). We accordingly examined the merits of a pro-
spective candidate’s challenge to the residency requirements
for nomination even though by the time of our decision, the
contested seat had been filled and the candidate “refuse[d] to
disclose his intentions” for running for state office in the
future. Id.; accord Merle v. United States, 351 F.3d 92, 95 (3d
Cir. 2003) (disagreeing with the suggestion that a candidate
must allege his intent to run in a future election to satisfy the
“capable of repetition” requirement).
[3] Consistent with Schaefer, we conclude that Caruso’s
claims are not moot. Although Caruso has not expressed an
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intention to circulate similar initiatives in the future, enforce-
ment of section 280.070(4)(a) is nevertheless “capable of rep-
etition, yet evading review.” Accordingly, we proceed to the
merits.
B. Constitutional and Statutory Context
We begin by setting forth the context in which we must
examine section 280.070(4)(a). Before 1997, property in Ore-
gon was assessed and taxed at its real market value. See Or.
Rev. Stat. § 308.232 (1995). Then, in 1997, Oregon voters
adopted Measure 50, which amended the Oregon Constitution
to limit the property taxes imposed by Oregon counties. See
Flavorland Foods v. Wash. County Assessor, 54 P.3d 582,
583-84 (Or. 2002) (en banc). First, Measure 50 “rolled back”
a property’s maximum assessed value for the tax year begin-
ning July 1, 1997, to its “real market value for the tax year
beginning July 1, 1995, reduced by 10 percent.” Or. Const.
art. XI, § 11(1)(a). Second, “[f]or tax years beginning after
July 1, 1997,” Measure 50 provided that a “property’s maxi-
mum assessed value shall not increase by more than three per-
cent from the previous tax year.” Id. § 11(1)(b). Third,
Measure 50 established a “permanent limit on the rate of ad
valorem property taxes imposed” by each local taxing district.
Id. § 11(3)(b). This limit is commonly referred to as the “per-
manent rate.” See Shilo Inn v. Multnomah County, 36 P.3d
954, 958 (Or. 2001), modified by 45 P.3d 107 (Or. 2002).
The limits imposed by Measure 50, however, were subject
to an exception for taxes submitted to and approved by the
voters:
A local taxing district other than a school district
may impose a local option ad valorem property tax
that exceeds the limitations imposed under this sec-
tion by submitting the question of the levy to voters
in the local taxing district and obtaining the approval
of a majority of the voters voting on the question.
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Or. Const. art. XI, § 11(4)(a)(A). The conditions for submit-
ting local option taxes to the voters are provided for by Ore-
gon statutes. See Or. Rev. Stat. §§ 280.070-.075. These
statutes require that the ballot titles for such measures include,
in addition to the three-percent warning, “the period during
which the proposed local option tax will be imposed,” “[t]he
first fiscal year in which the proposed local option tax will be
imposed,” and “the total amount of money to be raised by the
proposed local option tax, in dollars and cents.” Id.
§§ 280.070(4)(a), 280.070(5)(a)-(b), 280.075(1). Against this
constitutional and statutory backdrop, we consider Caruso’s
First and Fourteenth Amendment challenges.
C. First Amendment
Caruso contends that section 280.070(4)(a) infringed upon
his complementary First Amendment rights “to speak freely
and . . . to refrain from speaking at all.” Wooley v. Maynard,
430 U.S. 705, 714 (1977). Specifically, he contends that the
three-percent warning restricted his ability to communicate
accurately the tax consequences of Measure 36-55 and forced
him instead to be associated with the State’s misleading com-
munication. The district court agreed. Where, as here, a dis-
trict court sustains a constitutional challenge to a restriction
on speech, its findings of fact are reviewed for clear error.
Lovell ex. rel. Lovell v. Poway Unified Sch. Dist., 90 F.3d
367, 370 (9th Cir. 1996). Its application of law to those facts
and its ultimate determination that the restriction is unconsti-
tutional, however, are reviewed de novo. Mont. Right to Life
Ass’n v. Eddleman, 343 F.3d 1085, 1090 (9th Cir. 2003).
1. Level of Scrutiny
We turn at the outset to the appropriate level of First
Amendment scrutiny, pausing first to reject the State’s sug-
gestion that no scrutiny is warranted because the speech regu-
lated by section 280.070(4)(a) is the government’s. We have
elsewhere identified “several recognized instances of constitu-
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tional limitations on government speech.” R.J. Reynolds
Tobacco Co. v. Shewry, 384 F.3d 1126, 1140 (9th Cir. 2004).
For example, the First Amendment may limit government
speech that “make[s] private speech difficult or impossible,”
id., or that attributes a government message to a private
speaker, see Johanns v. Livestock Mktg. Ass’n, 125 S. Ct.
2055, 2064-65 & nn.7-8 (2005). Caruso argues that section
280.070(4)(a) inflicted both types of harm.
a. Election Laws
[4] An election law that burdens First Amendment rights is
not necessarily subject to strict scrutiny, however. See Cling-
man v. Beaver, 125 S. Ct. 2029, 2038 (2005). Rather, such
laws are generally subject to a balancing standard, under
which a reviewing court weighs the “character and magni-
tude” of the burden imposed against the interests advanced to
justify that burden. See e.g., Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358 (1997); Burdick v. Takushi, 504
U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780,
789 (1983). As the Supreme Court explained in Burdick, it
has typically applied this “more flexible” standard to election
laws because “[c]ommon sense, as well as constitutional law,
compels the conclusion that government must play an active
role in structuring elections.” 504 U.S. at 433; accord Cling-
man, 125 S. Ct. 2039 (explaining that subjecting every elec-
toral regulation to strict scrutiny would “hamper the ability of
States to run efficient and equitable elections”).
[5] To be sure, the Supreme Court has in several other
cases subjected election laws to strict scrutiny rather than
flexible balancing. See, e.g., McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 345-46 (1995); Meyer v. Grant, 486
U.S. 414, 420 (1988). Unlike the cases described above, these
cases did not involve regulations of the “voting process”; they
instead involved regulations of — or, more precisely, limita-
tions on — “pure speech.” See McIntyre, 514 U.S. at 345;
accord Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir.
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2000) (“[S]trict scrutiny is applied where the government
restricts the overall quantum of speech available to the elec-
tion or voting process.”). Although these cases “do not lend
themselves to a simple synthesis,” Campbell, 203 F.3d at 745,
we regard them as distinguishable in two respects.
[6] First, unlike the provisions challenged in McIntyre and
Meyer (which respectively prohibited the distribution of anon-
ymous campaign literature, McIntyre, 514 U.S. at 336, and the
payment of petition circulators, Meyer, 486 U.S. at 416), sec-
tion 280.070(4)(a) governs the political process more than it
does political speech. See McIntyre, 514 U.S. at 344. Signifi-
cantly, the provision regulates only what is said through the
ballot itself. See Timmons, 520 U.S. at 362-63 (applying flexi-
ble balancing where the challenged law burdened a political
party’s ability to communicate through the ballot only); Rubin
v. City of Santa Monica, 308 F.3d 1008, 1015 (9th Cir. 2002)
(similar). All other means of communication, including the
“interactive” discussions for which First Amendment protec-
tion is “at its zenith,” Meyer, 486 U.S. at 422, 425, fall outside
the provision’s regulatory scope.
Caruso responds that the ballot is not merely a means of
communication; it is the most direct and credible means of
communication. This argument has some force. Indeed, the
Supreme Court has characterized “ ‘the instant before the vote
is cast’ ” as “ ‘the most crucial stage in the election process.’ ”
Cook v. Gralike, 531 U.S. 510, 525 (2001) (quoting Anderson
v. Martin, 375 U.S. 399, 402 (1964)). But the fact that the bal-
lot is “crucial” to an election does not imply that Caruso
therefore has a First Amendment right to communicate a spe-
cific message through it. To the contrary, the Supreme Court
in Timmons rejected the “contention that [a political party]
has a right to use the ballot itself to send a particularized mes-
sage”: “Ballots serve primarily to elect candidates, not as
forums for political expression.” 520 U.S. at 362-63; accord
Rubin, 308 F.3d at 1016 (“A ballot is a ballot, not a bumper
sticker.”).
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Caruso argues that cases such as Timmons are inapposite
because they involved candidates rather than initiatives. We
disagree. In Buckley v. American Constitutional Law Founda-
tion, Inc., 525 U.S. 182 (1999), a case involving ballot initia-
tives, the Supreme Court expressly affirmed the Tenth
Circuit’s reliance on Timmons. See id. at 190. The Supreme
Court further affirmed that “States allowing ballot initiatives
have considerable leeway to protect the integrity and reliabil-
ity of the initiative process, as they have with respect to elec-
tion processes generally.” Id. at 191. It is true that the
Supreme Court has elsewhere highlighted the differences
between initiatives and candidates, but it appears to have done
so not because the First Amendment is more protective of ini-
tiatives than of candidates, but because elections on initiatives
pose lesser risks of quid pro quo corruption. See, e.g., First
Nat’l Bank v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of
corruption perceived in cases involving candidate elections
simply is not present in a popular vote on a public issue.”
(citations omitted)).
Caruso also observes that notwithstanding Timmons, Chief
Justice Rehnquist in Cook applied strict scrutiny to an amend-
ment governing the composition of Missouri ballots. See
Cook, 531 U.S. at 530-32 (Rehnquist, C.J., concurring in the
judgment). Specifically, the amendment required that ballots
label candidates for congressional office who “DISRE-
GARDED VOTERS’ INSTRUCTIONS ON TERMS LIM-
ITS” or “DECLINED TO PLEDGE TO SUPPORT TERM
LIMITS.” Id. at 514-15. Chief Justice Rehnquist described the
requirement as constitutionally suspect in part because it was
“not neutral as to issues or candidates.” Id. at 532. To the con-
trary, only one issue was selected for comment and “only
those candidates who fail[ed] to conform to the State’s posi-
tion receive[d] derogatory labels.” Id.
Caruso maintains that here, just as Chief Rehnquist
described in Cook, the State selected a single consideration
for comment on the ballot. As an initial matter, we note that
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Chief Justice Rehnquist’s opinion in Cook was a concurrence,
joined only by Justice O’Connor. Id. at 530. In contrast to
Chief Justice Rehnquist’s concurring opinion, the majority
opinion reviewed Missouri’s labeling requirement under the
Tenth Amendment and the Elections Clause rather than under
the First Amendment. Id. at 518-27. In fact, the majority spe-
cifically rejected the respondents’ reliance on “First Amend-
ment cases upholding ‘time, place, and manner’ regulations of
speech,” explaining that “[a]lthough the Elections Clause uses
the same phrase as that branch of our First Amendment juris-
prudence, it by no means follows that such cases have any rel-
evance to our disposition of this case.” Id. at 527 n.20.
But even apart from its precedential value, we regard Chief
Justice Rehnquist’s concurring opinion as distinguishable.
Unlike Missouri’s labeling requirement, which applied to
“only those candidates who fail[ed] to conform to the State’s
position,” id. at 532, Oregon’s three-percent warning applies
to all “measure[s] authorizing the imposition of local option
taxes,” Or. Rev. Stat. § 280.070(4)(a). Accordingly, no mea-
sure or group of measures is “singled out.” Compare Cook,
531 U.S. at 532. And unlike congressional candidates, who
“may debate tax reform, Social Security, national security,
and a host of other issues,” id., initiative measures, by law,
may “embrace one subject only,” Or. Const. art. IV, § (2)(d).
For Measure 36-55, that subject was a one-time increase in
property taxes. The measure’s possible effect on property
taxes, then, was not simply one facet of many. Finally, unlike
the State of Missouri, which “ha[d] chosen one and only one
issue to comment on,” id., the State of Oregon has chosen to
comment not only on a measure’s possible effect on property
taxes, but also on the rate of the special levy, the voter turnout
required to pass it, the proposed uses for the funds, the total
amount of funds anticipated, and the estimated additional cost
to property owners.
[7] Second, and also unlike the provisions challenged in
McIntyre and Meyer, section 280.070(4)(a) does not have “the
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inevitable effect of reducing the total quantum of speech on
a public issue.” Meyer, 486 U.S. at 423; accord McIntyre, 514
U.S. at 346. In Meyer, the Supreme Court determined that
Colorado’s ban on the use of the paid petition circulators
“limit[ed] the number of voices who will convey appellees’
message and the hours they can speak,” thus restricting their
ability to reach a larger audience, “garner the number of sig-
natures necessary to place the matter on the ballot,” and
“make the matter the focus of statewide discussion.” 486 U.S.
at 422-23. The Court quoted the observation made by the Col-
orado Supreme Court in another context: “ ‘[T]he solicitation
of signatures on petitions is work. It is time-consuming and
it is tiresome — so much so that it seems that few but the
young have the strength, the ardor and the stamina to engage
in it, unless, of course, there is some remuneration.’ ” Id. at
423-24 (quoting Urevich v. Woodard, 667 P.2d 760, 763
(Colo. 1983)).
[8] In contrast, the effect of the three-percent warning on
the “total quantum of speech” is uncertain. In a declaration
submitted to the district court, Caruso predicted that contin-
ued enforcement of the three-percent-warning requirement
would discourage petition circulators “as they w[ould] realize
that all of their work can and will be nullified by the false
statement that will appear on the ballot.” But Caruso’s predic-
tion — unsupported by any evidence in the record, compare
Am. Constitutional Law Found., 525 U.S. at 198 (describing
the testimony of several petition circulators who recounted the
harassment and fear that they and others had experienced as
a result of the requirement that they wear identification
badges) — is not the only plausible one. In fact, the require-
ment “might encourage more speech,” Campbell, 203 F.3d at
745, with petition circulators working not only to collect sig-
natures, but also to inform voters that their measures would
not, by themselves, increase property taxes more than three
percent. Along these lines, we note that the three-percent
warning required by section 280.070(4)(a) is “separated from
the moment the circulator speaks,” leaving circulators free to
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contest its accuracy in their conversations with electors. Com-
pare Am. Constitutional Law Found., 525 U.S. at 198-200
(explaining that Colorado’s affidavit requirement, unlike its
identification badge requirement, “exemplifies the type of
regulation for which McIntyre left room” because it “must be
met only after circulators have completed their conversations
with electors”).
b. Compelled Speech
Caruso contends that section 280.070(4)(a) should be sub-
ject to strict scrutiny for the additional reason that it forced
him to be associated with the State’s message. See Pac. Gas
& Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 32-33 (1986);
Wooley v. Maynard, 430 U.S. 705, 714 (1977). Yet unlike the
requirements challenged in Pacific Gas & Electric and Woo-
ley, section 280.070(4)(a) does not require that owners use
their private property to transmit the State’s message. See
Pac. Gas & Elec. Co., 475 U.S. at 17-18 (invalidating an
order requiring a utility company “to use its property — the
billing envelopes — to distribute the message of another”);
Wooley, 430 U.S. at 714 (invalidating a New Hampshire law
requiring drivers to use their cars as a “ ‘mobile billboard’ for
the State’s ideological message”). The provision instead pro-
vides for the State’s message to be transmitted through bal-
lots, documents prepared, printed, and distributed by — and
therefore attributed to — State and local governments. See
Timmons, 520 U.S. at 356; see also Johanns, 125 S. Ct. at
2065 (“[T]his second [compelled speech] theory might . . .
form the basis for an as-applied challenge — if it were estab-
lished, that is, that individual beef advertisements were attri-
buted to respondents.”).
Nor does section 280.070(4)(a) require the “affirmation of
a belief.” Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943).
Oregon law requires that the ballot title for a county initiative
be prepared by the district attorney, not by the petitioner. See
Or. Rev. Stat. § 250.175(3). Indeed, in his declaration, Caruso
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opined that voters view the three-percent warning as “an offi-
cial statement of government.” No part of section
280.070(4)(a) required Caruso to affirm the government’s
statement; rather, he remained free to publicly dissociate him-
self from it. See PruneYard Shopping Ctr. v. Robins, 447 U.S.
74, 88 (1980).
[9] We thus find the present appeal distinguishable from
both the election law cases and the compelled speech cases in
which the Supreme Court has applied strict scrutiny. We
accordingly apply the Supreme Court’s more flexible balanc-
ing standard.
2. Balancing Standard
Under this standard, “the rigorousness of [a reviewing
court’s] inquiry into the propriety of a state election law
depends upon the extent to which a challenged regulation bur-
dens First and Fourteenth Amendment rights.” Burdick, 504
U.S. at 434. “[W]hen those rights are subjected to ‘severe’
restrictions, the regulation must be ‘narrowly drawn to
advance a state interest of compelling importance.’ ” Id.
(quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). But
when those rights are subjected only to “ ‘reasonable, nondis-
criminatory’ ” restrictions, “ ‘the State’s important regulatory
interests are generally sufficient.’ ” Id. (quoting Anderson,
460 U.S. at 788).
a. Burden
Caruso argues that section 280.070(4)(a) imposed a “se-
vere” burden on his communication with voters by requiring
that the ballot title for Measure 36-55 include the “false and
misleading” warning that “[t]his measure may cause property
taxes to increase more than three percent.” This warning,
Caruso maintains, implied that Measure 36-55 by itself might
cause property taxes to increase more than three percent when
the measure in fact proposed a much lower increase of 0.0003
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percent. Because the material facts are not in dispute, “the
character and extent of the statute’s burden involves a ques-
tion of law,” which we review de novo. Krislov v. Rednour,
226 F.3d 851, 859 (7th Cir. 2000) (citing (WIN) Wash. Initia-
tives Now v. Rippie, 213 F.3d 1132, 1137 (9th Cir. 2000)).
[10] Mindful of the constitutional backdrop against which
section 280.070(4)(a) was enacted, we reject Caruso’s
assumption that his is the only reasonable interpretation of the
three-percent warning. As discussed above, the Oregon Con-
stitution provides that a “property’s maximum assessed value
shall not increase by more than three percent from the previ-
ous tax year.” Or. Const. art. XI, § 11(1)(b). But this limita-
tion may be exceeded by local option taxes submitted to and
approved by voters in the taxing district. Id. § 11(4)(a)(A).
When construed in context, then, the three-percent warning
could be read as an accurate reminder that the local option tax
proposed by Measure 36-55 would not be subject to the limi-
tation imposed by the Oregon Constitution. In other words,
absent approval of Measure 36-55, maximum assessed values
and, in turn, property taxes could increase by no more than
three percent. Id. § 11(1)(b). If the measure were approved,
however, property taxes could increase by more than that
amount. Id. § 11(4)(a)(A).
Caruso offers several reasons to reject this reading: (a) vot-
ers are unlikely to know of the constitutional three-percent
limit; (b) the constitutional three-percent limit applies to max-
imum assessed values, not property taxes; (c) there is only an
“infinitesimal possibility” that other property taxes will
increase three percent; and (d) even if other property taxes
increased three percent, it would not be Measure 36-55 that
would “cause” total taxes to increase more than that amount.
We address these reasons in turn.
[11] As to voters’ knowledge, we note that Measure 50,
which imposed the three-percent limit, was adopted by refer-
endum. Flavorland Foods, 54 P.3d at 583-84. Before the elec-
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tion on Measure 50, voters would have been presented with
summaries of its impact on the ballot and in the voters’ pam-
phlet. Or. Rev. Stat. §§ 250.035(2)(d), 251.185(1). It is also
likely that the ballot issue was the subject of discussion and
press coverage leading up to election day. We further note
that Measure 50 replaced Measure 47, a “short-lived constitu-
tional amendment” which had been enacted by the voters by
ballot initiative the year before the approval of Measure 50,
and which included substantially the same property tax limita-
tions. See Flavorland Foods, 54 P.3d at 583 (explaining that
“ ‘[c]ertain practical and technical difficulties in the applica-
tion of Measure 47 led the legislature to propose, and the peo-
ple to adopt, Measure 50 as its effective replacement’ ”
(quoting Shilo Inn, 36 P.3d at 958 n.6)). As such, voters
would have been presented with substantially identical sum-
maries before the election on Measure 47 as well. Accord-
ingly, although voters might not have had perfect knowledge
of the Oregon property tax system, they were likely aware of
the constitutional three-percent limit, which not only was the
subject of two separate ballot measures, both of which the
voters approved, but which also affected the calculation of
property taxes for every year since its adoption.
As to the difference between maximum assessed values and
property taxes and the likelihood that the latter will increase
by three percent, Caruso’s assertions are undermined by other
limitations imposed by Measure 50. Taken together, these
limitations create more than an “infinitesimal possibility” that
property taxes will increase three percent. As described
above, in addition to imposing the three-percent limit, Mea-
sure 50 “rolled back” properties’ maximum assessed values
for the tax year beginning July 1, 1997, and established a
“permanent limit on the rate of ad valorem property taxes
imposed” by each local taxing district. Or. Const. art. XI,
§ 11(1)(a)-(3)(b). The State informs us that real market val-
ues, meanwhile, have been “generally rising.” The result is
that for tax years beginning after July 1, 1997, a property’s
assessed value — defined as “the lesser of: (a) The property’s
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maximum assessed value; or (b) The property’s real market
value,” Or. Rev. Stat. § 308.146 — is likely to equal its maxi-
mum assessed value. And as maximum assessed values
increase by three percent per year, property taxes increase by
the same amount because they are imposed at the permanent
rate established by Measure 50.3
Finally, as to the “cause” of a greater-than-three-percent
increase in property taxes, predictable three-percent increases
in property taxes suggest that local option taxes may in fact
“produce[ ]” an increase of more than that amount. See
Black’s Law Dictionary 234 (8th ed. 2004) (defining “cause”
as “[s]omething that produces an effect or result”). That is,
absent approval of a local option tax, maximum assessed val-
ues and, frequently, assessed values and property taxes could
increase by no more than three percent. Or. Const. art. XI,
§ 11(1)(b). If a local option tax is approved, however, it could
produce an increase of more than that amount. Id.
§ 11(4)(a)(A).
[12] Certainly, the three-percent warning could also be read
to suggest that Measure 36-55 by itself might cause property
taxes to increase more than three percent, but we regard its
interpretation as an accurate reminder that the measure would
not be subject to the constitutional three-percent limit to be at
least as plausible. For this reason, we do not characterize the
burden imposed by section 280.070(4)(a) as “severe.” Rather,
like the Fourth Circuit, we believe that we may not declare a
3We do not dispute that the real market values for some properties may
be decreasing. For these properties, the likelihood that property taxes
would increase by three percent in a given year would be much lower,
because assessed values would likely equal decreasing real market values
rather than incrementally increasing maximum assessed values. But partic-
ularly in the absence of evidence that a substantial portion of Oregon prop-
erties fit this description, we decline to condition application of section
280.070(4)(a) on the real market values of individual properties. Doing so
would effectively “tie the hands” of the State. See Burdick, 504 U.S. at
434.
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State’s ballot language unconstitutionally burdensome
“merely because it could conceivably mislead some individu-
als and could have been crafted more adroitly.” Cf.
McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1227 (4th
Cir. 1995) (rejecting constitutional challenges to the allegedly
misleading heading printed on voter petitions because the
court could not say that the language “permits of only one
interpretation” (internal quotation marks omitted)).
b. Interest
[13] Where, as here, a state election law imposes restric-
tions on speech that are not severe, “ ‘the State’s important
regulatory interests are generally sufficient’ ” to justify it.
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788).
The State maintains that section 280.070(4)(a) advances its
interest in reminding voters that approving a local option tax
effectively waives the constitutional three-percent limit. The
sufficiency of this interest presents a question of law, which
we review de novo. See McClure v. Galvin, 386 F.3d 36, 41-
45 (1st Cir. 2004).
[14] The Supreme Court has consistently acknowledged
states’ legitimate interest in “fostering informed and educated
expressions of the popular will.” Anderson, 460 U.S. at 796;
see, e.g., Eu v. S.F. County Democratic Cent. Comm., 489
U.S. 214, 228 (1989); Jenness v. Fortson, 403 U.S. 431, 442
(1971). By requiring inclusion of the three-percent warning as
a “shorthand designation” of an initiative’s potential tax con-
sequences, section 280.070(4)(a) “plays a role in the process
by which voters inform themselves for the exercise of the
franchise.” Cf. Tashjian v. Republican Party, 479 U.S. 208,
220 (1986) (observing that “party labels provide a shorthand
designation of the views of party candidates on matters of
public concern”); compare McIntyre, 514 U.S. 348-49 (noting
that “in the case of a handbill written by a private citizen who
is not known to the recipient, the name and address of the
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author add little, if anything, to the reader’s ability to evaluate
the document’s message”).
We are mindful that a state’s asserted interest in informing
voters will not necessarily justify the burdens its regulations
impose on First Amendment rights. For example, “[a] state’s
claim that it is enhancing the ability of its citizenry to make
wise decisions by restricting the flow of information to them
must be viewed with some skepticism.” Anderson, 460 U.S.
at 798. Skepticism is also warranted if a state goes beyond
“merely” providing information about candidates to “handi-
cap[ping]” them. Cook, 531 U.S. at 525 (internal quotation
marks omitted). Section 280.070(4)(a), however, neither
restricts information nor handicaps initiatives. It instead pro-
vides additional information, “ ‘open[ing] the channels of
communication rather than . . . clos[ing] them,’ ” and applies
equally to all initiatives proposing local option taxes, leaving
no measure at a “political disadvantage.” Compare Anderson,
460 U.S. at 798 (quoting Va. Pharmacy Bd. v. Va. Consumer
Council, 425 U.S. 748, 770 (1976)); Cook, 531 U.S. at 525.
We note, too, that the State enacted section 280.070(4)(a) as
part of a statutory scheme requiring that ballot titles for local
option taxes include not only the three-percent warning, but
also the rate, period, amount, and purpose of the proposed
option tax. See Or. Rev. Stat. §§ 280.070, 280.075. The
State’s directing attention to this variety of considerations is
in our view more consistent with an interest in informing vot-
ers than with an interest in influencing them. Compare Ander-
son, 375 U.S. at 402 (“[B]y directing the citizen’s attention to
the single consideration of race or color, the State . . . may
[d]ecisively influence the citizen to cast his ballot along racial
lines.”).
[15] As stated above, the three-percent warning might have
been more clearly worded. For example, Article XI-A, section
4 of the Oregon Constitution, which authorizes a separate
statewide property tax for the purpose of repaying the princi-
pal and interest of bonds, provides that “said tax levy hereby
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authorized shall be in addition to all other taxes which may
be levied according to law.” Or. Const. art. XI-A, § 4. But
because the three-percent warning, even as presently worded,
does not impose a severe burden on Caruso’s First Amend-
ment rights, “the State need not narrowly tailor the means it
chooses to promote [its interests].” See Timmons, 520 U.S. at
365.
The district court deemed section 280.070(4)(a) insuffi-
ciently tailored in a different respect: specifically, in its appli-
cation to all measures proposing the imposition of a local
option tax, even those which by themselves cannot cause
property taxes to increase more than three percent. The dis-
trict court concluded that the general applicability of section
280.070(4)(a) rendered it substantially overbroad and there-
fore facially invalid. See Broadrick v. Oklahoma, 413 U.S.
601, 615-16 (1973).
We disagree. If, as the district court ordered, application of
section 280.070(4)(a) were limited to measures which them-
selves could cause property taxes to increase more than three
percent, the statute would be rendered largely ineffective in
increasing the information available to voters. Under a sepa-
rate provision of Oregon law, the ballot titles for measures
proposing local option taxes must declare the “dollar rate per
thousand dollars assessed value.” Or. Rev. Stat.
§ 280.060(1)(b). Voters can thus readily identify ballot mea-
sures that themselves may cause property taxes to increase
more than three percent. What voters are less likely to readily
identify are those ballot measures that propose lower dollar
rates, but which, if approved, will be levied outside the three-
percent limit imposed by the Oregon Constitution. See Or.
Const. art. XI, § 11(4)(a)(A). In our view, then, the general
applicability of section 280.070(4)(a) does not burden sub-
stantially more speech than is justified by the State’s impor-
tant interests.
[16] In sum, we conclude that the First Amendment burden
imposed by section 280.070(4)(a) is not severe and further
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that that burden is justified by the State’s important interest in
encouraging informed and educated voting. We accordingly
conclude that section 280.070(4)(a) does not violate the First
Amendment, either as applied to Measure 36-55 or on its face.
D. Fourteenth Amendment
In addition to his First Amendment claims, Caruso asserts
a Fourteenth Amendment claim, arguing that required inclu-
sion of the “false and misleading” three-percent warning vio-
lates his rights to substantive due process. We review the
claim de novo. See Mont. Chamber of Commerce v. Argen-
bright, 226 F.3d 1049, 1054 (9th Cir. 2000).
[17] “Several appellate courts, including our own, have
held that an election is a denial of substantive due process if
it is conducted in a manner that is fundamentally unfair.” Ben-
nett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998). To pre-
vail on his substantive due process claim, then, Caruso must
demonstrate that “ ‘the state’s choice of ballot language so
upset[s] the evenhandedness of the [election] that it work[s]
a ‘patent and fundamental unfairness’ on the voters.’ ” Nat’l
Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 858 (9th Cir.
2002) (quoting Burton v. Georgia, 953 F.2d 1266, 1269 (11th
Cir. 1992)). The parties agree that such an exceptional case
would arise if, for example, the ballot language were so mis-
leading as to deceive voters about the subject of the measure
at issue. See id.
[18] Applying this standard in National Audubon Society,
we rejected a challenge to ballot material which allegedly
misled voters by understating the scope of proposed changes
to California law. Id. at 859. The district court there con-
cluded that an argument favoring passage of the proposition
was not “materially misleading” in part because it “was not
completely inaccurate.” Id. at 858. Rather, although the argu-
ment allegedly understated the scope of the broader of two
proposed bans, it accurately described the narrower one. Id.
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In addition, “other materials accompanying the ballot”
included arguments against the proposed changes. Id. at 858-
59. We agreed that under those circumstances, “the ballot
material did not rise to the level of a substantive due process
violation.” Id. at 859.
[19] Like the material challenged in National Audubon
Society, the three-percent warning is “not completely inaccu-
rate.” To be sure, the three-percent warning might have been
read as a misleading suggestion that Measure 36-55 by itself
might cause property taxes to increase more than three per-
cent. But, as described above, the warning might also have
been read, in context, as an accurate reminder that the pro-
posed local option tax would not be subject to the three-
percent limit imposed by the Oregon Constitution. Moreover,
although an average voter might have read the three-percent
warning as Caruso does “ ‘[i]f [he] had to decide what he was
voting on from the [warning] alone, . . . . he did not have to
decide from this summary.’ ” Burton, 953 F.2d at 1271 (quot-
ing Kohler v. Tugwell, 292 F. Supp. 978, 981 (E.D. La.
1968)). Instead, he could look to “other materials” — includ-
ing the text of Measure 36-55 and the remainder of the ballot
title as it appeared in the voters’ pamphlet and, indeed, on the
ballot itself, see Or. Rev. Stat. §§ 250.235, 251.315(1)(g),
280.060(1)(b) — which indicated the actual increase proposed
by Measure 36-55, disclosing both the dollar rate of the pro-
posed tax and the estimated levy for a house with an assessed
value of $150,000. See Nat’l Audubon Soc’y, 307 F.2d at 858-
59. We are thus unpersuaded that the State’s choice of ballot
language rose to the level of a due process violation under
National Audubon Society.
[20] The fact that the three-percent warning would have
appeared in the ballot title for Measure 36-55 rather than in
an “avowedly partisan portion of the materials” does not
change our conclusion. Compare Nat’l Audubon Soc’y, 307
F.3d at 858 (internal quotation marks omitted). Because the
three-percent warning could have been interpreted accurately,
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and because “other materials” would have enforced this inter-
pretation, we cannot say that including the three-percent
warning in the ballot title would have “infected” the entire
election with “patent and fundamental unfairness.” Burton,
953 F.2d at 1271 (internal quotation marks omitted).
III. CONCLUSION
[21] For the above reasons, we conclude that Or. Rev. Stat.
§ 280.070(4)(a) does not violate Caruso’s First Amendment
or Fourteenth Amendment rights. Accordingly, we reverse the
contrary determinations of the district court and vacate the
injunction permanently limiting the enforcement of section
280.070(4)(a).
JUDGMENT REVERSED; INJUNCTION VACATED.
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