Kendoll v. Rosenblum
Our friends at Oregonians for Immigration Reform (OFIR), the organization instrumental in championing the ballot referendum that repealed in a landslide vote (by more than 66%) a law hastily passed by the Oregon legislature making illegal aliens eligible for Oregon driver’s licenses, introduced a ballot initiative (Initiative Petition 2016-52 or IP 52) to appear on the November 2016 general election ballot that would require all businesses in Oregon with five or more employees to verify every new employees authorization to work in the United States using the federal government’s E-Verify program. E-Verify is a free, web-based system through which employers may verify the work authorization of new hires using existing federal records. Congress created E-Verify in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 as a way to help employers comply with the federal ban on hiring unauthorized aliens. Requiring E-Verify use at the state level is good public policy. The benefits include:
providing a fast, free, and effective way for an employer to verify that all new hires are authorized to work in the United States as required by federal law;
rectifying the current I-9 process that unintentionally encourages document fraud and identity theft because new hires are required to provide specific documents which illegal aliens and individuals who are trying to hide their true identities cannot legally obtain;
protecting jobs for legal residents and U.S citizens;
preventing the downward spiral of wages that results from illegal aliens willing to work for sub-standard wages;
preventing labor union effectiveness from being diminished as a result of the employment of illegal aliens under substandard conditions;
ensuring that all employers can compete on a level playing field by preventing the use of cheap illegal labor; and
fighting illegal immigration by eliminating the attraction for illegal aliens to come to your state to find jobs.
OFIR obtained the requisite number of signatures under Oregon law in August 2015 to start the ballot title process. In October, the state attorney general certified lopsided ballot language that obfuscated the true purpose and effect of IP 52 and would only serve to confuse voters. Many times, the ballot language is all that voters see on an issue and is thus critical to winning any measure. IRLI and local counsel Jill Gibson filed a petition on behalf of OFIR’s president Cynthia Kendoll in the Oregon Supreme Court to challenge the attorney general’s certified ballot language.
The Oregon Supreme Court handed down a decision in favor of OFIR. In its decision, the Oregon Supreme Court found that the ballot language certified by the attorney general obfuscated the true purpose and effect of IP 52. The court stated regarding the ballot title, “We agree with petitioner that the caption fails to substantially comply with ORS 250.035(2)(a). Federal immigration law requires that employers review certain documents to ‘establis[h] an employee’s eligibility for employment,’ and it prohibits employers from knowingly hiring unauthorized aliens. Whiting, 131 S Ct at 1974. IP 52, if enacted, would add an additional requirement to that federal law. It would require, as a matter of state law, that employers use a federal website to verify the authenticity of the documents that federal law requires only that they review. That additional requirement is one major effect of the measure. The caption, however, does not highlight that effect.” The court likewise found the questions that will be posed to voters and summary of the law defective and misleading. The court ordered the attorney general to re-draft the ballot language consistent with its decision.