dissenting.
The majority has failed to demonstrate that the Attorney General’s ballot title does not comply substantially with statutory requirements. See ORS 250.085(5) (“The court shall review the [Attorney General’s] title for substantial compliance with the requirements of ORS 250.035 * * *.”). In modifying the Attorney General’s ballot title, the majority has distorted the criteria that the Attorney General must use in determining the subject of a measure. Accordingly, I dissent.
The proposed initiative measure creates a number of significant changes in existing constitutional law regarding the election and appointment of Oregon judges. As the Attorney General’s ballot title caption indicates, one of the changes concerns an expansion of the opportunities available to the Governor to exercise the power to appoint judges to vacant positions. Another change would alter the ballot to add an option for voters to choose “none of the above” when voting for a judge.
The Attorney General has chosen to mention the first of those changes in the caption and to discuss each of those changes, and others, in the summary. In my opinion, that is a rational choice because, considering the text of the measure, its practical operation, and the voters’ need for accurate information, each of the changes just mentioned is a subject of the measure. The 10-word word limitation in ORS 250.035(2)(a) prevents the disclosure of both of those subjects *537in the caption. Consequently, the Attorney General permissibly may disclose either subject in the caption, after the phrase “changes judicial election process,” and thereby comply fully with the criteria for a lawful caption in ORS 250.035(2)(a).
The majority commits a serious error in attempting to justify its decision to alter the Attorney General’s ballot title caption. It labels the “None of the Above” voting option the “centerpiece of the proposed initiative measure.” However, the sole reason stated for that conclusion is that “[t]hat option appears five times in the text of the measure * * 329 Or at 534.
The majority relies on false reasoning. This court in Doell v. Myers, 328 Or 635, 640, 984 P2d 266 (1999), stated:
“In determining whether a caption accurately states the subject matter of a proposed initiative measure, we examine the text of the measure iiseZ/[.]”
(Emphasis added.) The majority cannot evade the requirement of a genuine analysis of the text of the measure simply by counting the number of times that the measure refers to a particular topic. By following the majority’s false reasoning, future initiative petitioners can control the determination of the subject matter of their measure — and, therefore, the phrasing of the ballot title caption — by referring repeatedly to a politically attractive feature of the measure in the text. In my view, the Attorney General correctly declined simply to count the number of references to the “None of the Above” voting option in the measure and chose instead to analyze the text to determine its subject matter. We may regret this unprecedented step by the majority.
As the Attorney General persuasively argues, the text of the measure makes two very significant changes in the Governor’s constitutional power to appoint judges. First, and most significantly, the measure creates a new opportunity for a gubernatorial appointment to the judicial bench that does not exist under present constitutional law. Second, the measure also restricts the Governor’s existing appointment power by forbidding the Governor from appointing to the vacancy any candidate in the special election who *538received fewer votes than the “None of the Above” option. In light of the significance of those changes in the Governor’s constitutional authority, I fail to see how the Attorney General committed legal error, under our “substantial compliance” standard of review, in referring to those changes in the caption.
The majority may be concerned that the measure does not literally “expand” the Governor’s appointment power but, instead, only increases the opportunities for exercising the appointment power that the Governor already holds. Such a concern is unwarranted. Virtually all voters understand that a measure “expands” the existing appointment power of the Governor if it creates new opportunities for exercising that power.1 In my view, the majority pays insufficient deference, as contemplated by our standard of review, to the Attorney General’s primary role in drafting the ballot title caption. Aside from counting the number of references to the “None of the Above” voting option in the measure, the majority does not explain why the Attorney General’s caption is inadequate for failing to mention that voting option notwithstanding the full and fair discussion of that option in the Attorney General’s summary.
The majority proceeds from the premise of its unjustified modification of the caption to make similar modifications to the result statements. For the reasons explained above, those changes are equally unjustified.
The Attorney General properly rejected petitioner’s suggestions because they are unwarranted and tend to enhance the measure’s political attraction by drawing undue attention to the electorate’s new voting option. The Attorney General’s perceptions about petitioner’s arguments were accurate and deserve appropriate deference by this court. The Attorney General’s ballot title complies substantially *539with statutory requirements. We should certify it without modification.
I dissent.
Kulongoski and Riggs, JJ., join in this dissent.The dictionary definition of “expand” supports the Attorney General’s use of thA term to describe the effect of the measure on the existing constitutional power of the Governor to appoint judges. The dictionary defines “expand” as follows:
“[T]o spread out: open wide : UNFOLD * * * to increase the extent, size, number, volume, or scope of: ENLARGE * * * to express fully: develop in detail: AMPLIFY * *
Webster’s Third New lnt’l Dictionary, 798 (unabridged ed 1993).