concurring.
The majority and the dissent divide over whether ORS 260.695(4) is a law that implements the requirement in Article II, section 8, of the Oregon Constitution that the legislature enact laws to secure free and fair elections. Although I agree with the majority that ORS 260.695(4) is not a law that implements that requirement, I believe that this case can be resolved more simply by recognizing that Article II, section 8, has no bearing on the constitutionality of that law.
The legislature has plenary power to enact laws. That means that it can enact any law that it wants as long as the law does not violate a prohibition in the state or federal constitution against its enactment. Consequently, there is no reason to give the legislature specific authority to enact laws regulating the conduct of elections, as respondent contends Article II, section 8, does, because the legislature already has the power to do that.
Properly understood, Article II, section 8, and comparable provisions, such as the requirement in Article VIII, section 3, that the legislature establish “a uniform, and general system of Common schools,” impose obligations on state government. They require the legislature to do certain things, which is why they are in the constitution. They do not give the legislature any greater authority to do the things that they command, however, because the legislature’s plenary authority already gives the legislature all of the power that it needs to do that.
Because Article II, section 8, and comparable provisions are not a source of authority beyond the plenary authority the legislature already has to act, there is no occasion to balance those provisions against the limitations on government found elsewhere in the constitution to determine which commands on government must be obeyed. They all are expected to be obeyed according to their terms.
If the constitution were understood to work the way respondent contends it does, it would require the legislature to weigh competing constitutional commands in order to determine which are more important, without any intellegible standard by which to make that judgment. Assume, for *607example, that the legislature concluded that the state could not afford to fund an adequate system of common schools for all children in the state, but that it could afford to fund a system for half the children. Could it enact a law that excludes all boys from public school, notwithstanding the command in Article I, section 20, that no law be passed granting privileges to one class of citizens that are not granted to others on equal terms, on the ground that one obligation is more important than the other?
If it did, how would a court evaluate that choice in a case challenging the law, and on what kind of record. Fundamentally, there is no coherent way for us to balance one constitutional obligation against the other except by making our own policy choice about which obligation is more important, or by deferring, as the dissent suggests we should in this case, to the legislature’s policy choice. Nothing suggests that the constitution was intended to impose on the legislature or us the obligation to make choices of that kind, because nothing suggests that the relevant constitutional provisions add anything to the legislature’s plenary authority to enact laws.1
In summary, the issue in this case is whether ORS 260.695(4) violates Article I, section 8. For the reasons stated by the majority, it does. Article II, section 8, adds nothing relevant to the analysis.
See generally Hans A. Linde, Fair Trials and Press Freedom — Two Rights Against the State, 13 Will LJ 211, 214-18 (1977) (state constitutional obligation to conduct fair criminal trials is not a source of authority to restrict free speech rights guaranteed by the state constitution). For example, the commands in Article I, section 8, and Article II, section 8, both impose requirements on the government. The legislature is obliged to comply with both, not use one to evade the other.