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The lawsuit says the ballot wording, created by the county, violates state law.

COURTESY PHOTO: COLUMBIA HEALTH SERVICES - A display of tobacco products for sale in a storefront in 2019. Advocates of Washington County's flavored tobacco ban say that marketing by tobacco companies and retailers appeal to children by displaying them like candy. Opponents of the ban say the ordinance should have regulated the industry rather than banned all sales. Opponents to Washington County's flavored tobacco ban have sued the county elections division, saying that the ballot language for the referendum is confusingly worded and led to incorrect arguments by those in opposition in the Voters' Pamphlet and guide.

The legal complaint was filed by attorneys for Jonathan Polonsky, chief executive of Plaid Pantry, who claims there is an unconstitutional "double negative" in the measure's wording.

The wording of the ballot measure, numbered as Measure 34-314 is, "Should ordinance 878, prohibiting flavored tobacco products, machine sales, coupons, discounts, and moveable sales of tobacco products, be repealed?"

Legal complaint

Polonsky spearheaded the effort to place the referendum on the ballot. When gathering the required signatures, he formed a committee called "No on 878" in reference to the ordinance number passed by Washington County late last year.

"I spent a lot of effort on a 'No on 878' campaign … and had thousands of people sign a petition for 'No on 878,' and now those people are going to be severely confused," he said, pointing to the fact that a "no" vote would actually maintain the county's ordinance.

The ballot language was generated by the county government. Polonsky's attorney argues the wording is a violation of both state laws and the local charter. They aim to have it stricken from the ballot in time for the May 17 primary — although ballots have already been mailed out to voters.

"Measure 34-314 has not been lawfully submitted to voters and is invalid," states the legal complaint filed in Washington County Circuit Court on April 18.

Oregon law pertaining to referendum ballot wording states that the question should be no more than 20 words long and "plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure."

County officials argue that the petitioners had the opportunity to object to the proposed ballot language before it was finalized — and they didn't.

"Washington County produced a ballot title and explanatory statement regarding Measure 34-314 as required by Oregon law," said county spokesman Philip Bransford in an emailed statement. "No challenge was received in response to these submissions within the statutory deadline."

The notice of measure election is dated March 11, spelling out the caption, question and summary for Measure 34-314.

The challenge period was one week long, ending March 18 — a date that remains posted next to the measure filing on the county's website, as of Friday, April 29.

Polonsky emailed Washington County counsel Tom Carr on March 24, saying that in the course of writing his argument for the Voters' Pamphlet, "it became apparent that my 'No on 878' slogan was not appropriate as a result of how the ballot title had been written." He attached a legal memorandum from his group's attorney to that email spelling out perceived issues with the ballot title.

Carr responded the following day in an email that was later shared with Pamplin Media Group.

"This issue came up shortly after we submitted the ballot title language," Carr acknowledged in the March 25 reply email. "Unfortunately, there is no process to change a county referendum ballot title after the time to appeal has elapsed."

Carr added, "I would be happy to explore potential solutions with your attorney, although I note that he acknowledged 'the inflexibility of the election laws governing the referendum process.'"

Garbled arguments

Others who were against the ordinance and submitted Voters' Pamphlet statements also say they were confused by the ballot measure's wording.

Jason Williams, who co-founded the Oregon Taxpayer Association, says that he drafted his argument against the ordinance on the assumption that a "yes" vote would retain the tobacco ban and a "no" vote would repeal it.

"It's in the constitution, it's in the charter," Williams said. "We think they violated them both. … If you're going to change a near-100-year tradition, you ought to have a public hearing. That's the thing we're going on."

While Polonsky said he was able to adapt his own ballot argument in time and had reached out to others to do the same, Williams did not. His argument in favor of the repeal ended up being listed first in the Voters' Pamphlet, in the section for arguments against the measure.

"This is the reason why you don't change the referendum process in secret," Williams said. "It will lead to confused voters. It confused us."

The American Cancer Society supports the ordinance, arguing that keeping it in place will cut off a common way that minors get hooked on nicotine. Many vape juices and flavored tobacco products feature flavors like strawberry and bubble gum that are also found in candy.

"Big Tobacco knows that flavors hook kids and tobacco companies aggressively target them with flavored products, including e-cigarettes," said American Cancer Society spokesperson Noe Streetman in an email.

The email also cited statistics compiled by the ACS's Cancer Action Network, saying that more than 80% of youth who used tobacco started with a flavored product.

The ACS submitted an argument for the Voters' Pamphlet as well, urging voters to vote "no" on the repeal measure. So did Kathryn Harrington, Pam Treece and Nafisa Fai, the three Washington County commissioners who voted in favor of the ban.

This battle over the sale of flavored tobacco and vaping products in Washington County has bubbled up ever since the county first started weighing the issue last summer. Initially, county officials were discussing how to place stricter regulations on tobacco retailers, who often market and promote flavored tobacco products in a manner that appeals to children.

On a motion by Fai, the county ordinance broadened from that regulatory goal to include an outright ban on flavored tobacco products, including menthol. It narrowly passed on a 3-2 vote, with Commissioners Jerry Willey and Roy Rogers opposed.

Willey and Rogers said at the time and in follow-up interviews that they didn't see the effectiveness of a ban in one county, rather than statewide, and that the ordinance should have focused on the stated regulations rather than an outright ban — which Polonsky and other retailers have said would significantly affect their sales.

The ordinance was approved in November, but it didn't take effect until this year. Once the signatures on Polonsky's referendum effort were validated in late January, the ordinance was suspended pending the outcome of the vote.

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