The Oregon Supreme Court may issue a narrow ruling when it decides between gubernatorial candidate Nicholas Kristof and Secretary of State Shemia Fagan, but it would better serve the state to take a broader view.
The narrow case would review the details of Kristof’s immediate case, his request for the ballot status Fagan’s office has denied him. But more could be accomplished here.
Some arguments fail simply, such as one contending the secretary’s office shouldn’t be making this decision at all. But it regularly does such work. So far this election season, the secretary of state has rejected ballot status for 10 candidates, and three more are under review. (I asked the office for recent disqualification letters, which it promptly provided.)
Oregon law, as the office said in a release, “requires all candidates to provide a signed statement affirming that they will qualify for office if elected. Oregon elections officials evaluate whether prospective candidates meet residency requirements by checking Oregon voter registration records. If those records are insufficient to verify residency, or if officials become aware of other concerns about residency, they ask prospective candidates to provide additional facts.”
Kristof isn’t the only candidate to get a turn-down this month, not even the only candidate for governor, or even the only Democratic candidate for governor. The list includes four Republicans - John M Kohler Jr., Alexander M Males III, Timothy R. Meeks and Governor Sweet - and one other Democrat, Sergio Retamal. The case of a third Democrat, Michael Cross, is pending.
The reasons for disqualification have varied. Some want to run in legislative districts where they do not live. Kohler, who wanted to run for governor as a Republican, was denied for this reason: “You will not have been a member of the Oregon Republican party for at least 180 days before the candidacy filing deadline as set forth in ORS 249.031 and ORS 249.046. You needed to have been a member of the Republican party by September 9, 2021.”
The reasons the office cites usually have this in common: Some specific data point (or more than one) which runs afoul of some qualification element in Oregon law. It is a legalistic approach, but clear and specific.
The Kristof case fits. The Oregon Constitution says among other things that a person cannot serve as governor unless they “have been three years next preceding his election, a resident within this State.” Certain facts - the big one being his voter registration in New York state in 2020 - may counter his assertion that he has been an Oregon resident consistently for at least three years.The office also notes that he had a primary residence, was licensed to drive, files taxes and was employed, as well as voted, in New York, into 2020.
This is a coherent case. There also is a counter case.
The New York voter registration affirmation Kristrof would have had to make to vote there in 2020 says: “I am a citizen of the United States. I will have lived in the county, city or village for at least 30 days before the election. I meet all requirements to register to vote in New York State.” Remarkably, it doesn’t actually require he declares himself as a permanent resident of New York, or not a resident of any other state.
More significant may be that the Oregon Constitution does not define “resident,” and there appears to be no state Supreme Court case on point. Residency rules vary according to what you’re trying to do: oting, college enrollment, obtaining a driver's licence or a fishing permit, or running for different offices. The evidence for establishing residence for these things varies (and can be frustrating, as a trip to the Division of Motor Vehicles sometimes will show). In some of these cases you have to give up the permit for one state (a driver’s license, say) to get Oregon’s. Is that true for a candidate for office? We don’t know for sure.
Kristof’s advocates seem to be arguing an overall weight of evidence: A look at the big picture rather than specifics. Kristof can cite consistent family ownership of personal and business property (since 1971), a regular practice of returning to it, numerous statements referring to it as home, and more. His connections to the area clearly are deep.
There is a coherent case here as well.
What lurks in the fog: What criteria should establish a person as a resident of Oregon? An answer might bring more consistency to Oregon law, across a range of areas, on that subject.
That’s the kind of non-slam-dunk question the Oregon Supreme Court was made to answer, and not just for Nicholas Kristof.