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The decision in Washington County Circuit Court leaves the matter to voters, though opponents may appeal the results.

COURTESY PHOTO: - A ballot drop-box inside the Washington County Elections Office in Hillsboro. Voters will weigh in on the county's ban on flavored tobacco products, though opponents of county's policy will likely challenge the results of the election. A Washington County circuit judge has decided not to block a referendum on the May ballot asking voters whether the county's flavored tobacco ban should be repealed.

The decision was relayed to county officials and opponents of the county's ban during a hearing in Washington County Circuit Court on Monday, May 9. Judge Theodore Sims ruled in favor of the county by not granting the plaintiff's request to bar the question from the ballot.

Opponents of the county policy, led by Plaid Pantry chief executive Jonathan Polonsky, say that the language of the referendum is unconstitutional because it confuses voters by making a "no" vote in favor of the policy, while a "yes" vote would strike it down.

The ballot measure wording, which appears in the Voter's Pamphlet statement and on the ballot, states, "Should ordinance 878, prohibiting flavored tobacco products, machine sales, coupons, discounts, and moveable sales of tobacco products, be repealed?"

Polonsky, who led a campaign called "No on 878," gathered the required signatures from county voters to refer the question to voters, after the county commissioners adopted the ordinance late last year. He says voters will now be confused whether a "no" vote is for or against the ordinance.

"Let's just say voters vote no on this referendum," Polonsky told Pamplin Media. "The question is if you vote no, what did you vote no for?"

His lawyers pointed to Oregon statutes that say counties should draft measure language so that a "yes" vote is in favor of the measure, while a "no" is against the measure.

In this case, the measure asks whether a policy should be repealed, which Polonsky says is a double negative that leads to this confusion.

He also asserts that the use of the word "repeal" is inaccurate because the county never passed its ordinance.

However, the county did pass its ordinance back in November, on a narrow 3-2 vote of county commissioners. It officially took effect at the beginning of this year, before Polonsky gathered enough signatures to effectively suspend the ordinance until voters can decide on the matter.

The county has pointed to the fact that no parties appealed the ballot language within the deadline allowed by Oregon law, therefore the judge should deny Polonsky's request for injunctive relief.

Polonsky says that now, it falls to the results of the election to determine the next steps. If a majority of voters choose "no," as he suspects they will, he said he intends to appeal the results to an appellate court to determine whether the results of the election are valid based on the ballot language issue.

"We're waiting for voters to say 'yes' or 'no,'" Polonsky said. "If voters vote no, what did they actually just accomplish?"

Ballots are already out to voters, who have until 8 p.m. Tuesday, May 17, to drop their ballots off at a drop site or mail their completed ballots in.

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