Proponents of Oregon’s Measure 92, a GMO labeling initiative, are conceding defeat in what had become the most expensive ballot campaign in state history. The proponents from RightToKnow.org were unsuccessful in their lawsuit this week arguing that some 4,600 ballots were illegally left uncounted and should be included in the final tally from the razor-thin November 4th contest.

“Oregonians will never know the true outcome of this election,” Paige Richardson, Campaign Director for Yes on 92 said, after a judge rejected the group’s attempt to block final certification of the automatic statewide “recount” that followed the extraordinarily close computer-tallied results of the contest.

A hand-count of some 1.5 million hand-marked Vote-by-Mail (VBM) paper ballots cast and previously tallied only by optical-scan computers was triggered after the initially certified margin of defeat for the initiative was just 812 votes, or .02 percent, or just 812 votes. State law requires hand counts for elections with an initial margin of less than .5 percent.

Some 13,000 ballots across Oregon — which holds its elections only by mail-in ballot — were rejected and never counted due to signatures on the ballot envelopes judged by election officials to not match those on voter registration cards on file. Voters with signature problems on their ballots are sent a letter to notify them, allowing them two weeks to contact officials to confirm that they were the one to have cast the ballot in question.

Additionally, a new state law requires the Sec. of State to publicly release the names of such voters. That allowed proponents to try and contact those voters to urge them to cure their signature problems with county election officials. 8,600 voters responded and ultimately had their ballots included in the tally, while 4,600 did not. Those 4,600 rejected ballots, more than enough to potentially flip the final results of the election, were left uncounted…

Measure 92 proponents argued that many of those 4,600 voters may not have been able to respond, because they were disabled, for example, or out of town. Their suit contended that state law does not allow ballots to be rejected simply due to signature problems and that voters are not instructed that signatures — which often change over time for various reasons — must match those on file. Many registration cards, they noted, were submitted many years earlier.

Attorneys for the proponents argued that the only requirements for Oregon voters is that they are residents who are 18 or older and registered to vote in the state. State officials argued in response that there has never been a problem in the past with the state’s signature requirements and that it is an important security element in Oregon’s all Vote-by-Mail electoral system.

“These voters did everything right; completing, signing and returning their ballots on time and yet they have been denied the right to vote,” proponents said in an email to supporters on Thursday conceding defeat after their loss in court. “We strongly believe we would win the election if those votes were counted.”

Multnomah County Judge Henry Kantor, however, denied the supporters request for a temporary restraining order which would have kept the state from certifying the final results of the “recount” next week. Two counties have yet to turn in results, though it is not believed their will be enough changed votes to overcome the narrow margin of defeat for the measure. So far, the hand-count has tallied an additional 100 “Yes” votes and 89 “No” votes over the initial computer tallies, not nearly enough to overcome the 812 margin.

“The judge agreed that leaving thousands of ballots uncounted in this election will cause irreparable harm to those voters and to the Measure 92 campaign,” the proponents said in their email. “But he ultimately ruled that Oregon law didn’t allow him to issue the order to stop the count.”

As we detailed at the beginning of the week, on the day the group filed their lawsuit, concern about signatures on Vote-by-Mail ballots (and absentee ballots elsewhere) is just one of the reasons we have long found VBM elections to be problematic.

The Measure 92 contest became the most expensive in Oregon history with out-of-state corporate opponents from Monsanto, DuPont, Kraft and other processed food companies spending some $21 million to defeat the measure which would have required genetically engineered food to be labeled as such. Proponents spent about $8 million in support of the initiative.

Similar ballot initiatives have been defeated by massive (and deceptive) advertising campaigns sponsored by the same corporate coalitions in California, Washington and Colorado over recent years. (A citizen-led “recount” of the failed GMO labeling initiative in California, Prop 37, was effectively blocked by a single County Registrar in Fresno in 2013. Unlike Oregon, California has no automatic, state-sponsored “recounts”, even in the very closest of elections, though citizens may pay for such a hand-count if they like — and if they are able to afford exorbitant fees often arbitrarily assessed by local election officials. That’s what happened when the hand count of the state’s GMO labeling initiative was stopped dead in its tracks in CA in 2013. A legislative effort to require state-sponsored recounts in CA was recently blocked by Republicans.)

“We have examined all legal options and have found there are none that could succeed in getting the remaining votes counted before the election is certified,” the Yes on 92 campaign explained to supporters following the adverse court ruling on Thursday.

“Challenging election results is permitted in Oregon,” they added, “but a successful challenge doesn’t change the outcome of that election. It simply sets aside the results and orders a new election be held.”

They promised to continue their effort in the near future, reiterating their belief “that Oregonians will never know for sure the true outcome of this race.”

“We’re not done,” they vowed. “We’re just getting started.”