The plain meaning of Article II, Section 2 in the Oregon state constitution seems to be eluding a lot of people in high office in the state.
And that’s a little puzzling because the words seem basic: “Every citizen of the United States is entitled to vote in all elections not otherwise provided for by this Constitution.” It does go on to restrict voting by residency and registration, and allow the Legislature to impose limitations on some financial ballot issues to taxpayers. But the rule is that in elections held by and paid for by the public, every qualified voter gets to vote.
Except that this isn’t true, in a meaningful way, in primary elections, the next of which arrives in May. There, if you’re not registered with the Democratic or Republican party (as a vast number of Oregon voters are not), you’re shut out from most of what’s on the ballot. That includes voting at a critical stage (often, in these hyper-partisan times, the only meaningful stage) for top elective offices.
Democrats and Republicans between them have an effective monopoly on most of Oregon’s top elective offices, but the theory is that those parties are private organizations that should be able to control participation in their activities (“freedom of association”). This leads to the perverse result of private benefit conferred by a government intended to operate for and by the people more broadly.
Two recent and separate legal challenges to this are underway.
One is a frontal constitutional legal argument. The group Our Primary Voice and plaintiff Mark Porter, a retired attorney, last summer sued the state in Marion County court to challenge the restrictive nature of Oregon’s primaries. They noted the state constitution language on voter access and said the primaries aren’t a special carve-out.
On Jan. 30, Judge Natasha Zimmerman rejected the challenge. There’s no written transcript or decision yet, and her reasoning wasn’t entirely clear. A message from Porter indicated she seemed to hold that primary elections aren’t covered under the constitutional provision. But Porter also said she acknowledged the state of Oregon didn’t make that argument.
An appeal is expected, so we’ll have to wait for the next round of legal filings for further analysis — probably long after this year’s primary election.
The second of the recent actions concern two proposed ballot initiatives (currently numbered 55 for a constitutional change and 56 for statutory changes to go along with it). They are intended to accomplish much the same thing as the Marion County lawsuit — to open primary elections — but in this case do it through a vote at the next general election. That effort has been driven by a bipartisan group including former Gov. Ted Kulongoski.
The proposed constitutional amendment says, “In primary elections, all candidates shall be listed on a single ballot, regardless of their party affiliations, allowing all eligible voters to vote for the candidates of their choice for: United States senator, representative in Congress, Governor, secretary of state, state treasurer, attorney general, state senator and state representative and any other public office so designated by law.”
The debate now is the title (or caption) for the initiatives, written by the attorney general’s office. The certified version for each of them says, “Changes primary election processes for most partisan offices: single primary ballot, top two candidates advance.”
That may be accurate, but it sounds little like a clear description of what the planned ballot issues would, if passed, actually do. Nor does it sound neutral: It refers to a major election change, but not the nature of the change. By law, titles are supposed to be succinct, but they’re also supposed to be reasonably clear.
The initiative advocates have sued the state, at the Supreme Court, to change the language. They have offered a number of options.
A letter attached to the complaints and signed by four previous secretaries of state (Barbara Roberts, Phil Keisling, Kate Brown and Jeanne Atkins) concluded with this: “Enabling non-affiliated voters to have a say in selecting those candidates, a right which is denied to them currently, is the subject of these initiatives and will be their intended effect if approved by the Oregon electorate. Voters deserve to be informed of the subject and effect of this ‘main thing’ first and foremost.”
Very likely this year’s primary election, set for May 19, will come and go before these cases get resolved in court.
Along the way, and as voters consider who and what to support in the elections the state will have, they may want to think hard about which decisions they’re being allowed to make, and which not. That could become a consideration, owing to outside impacts from Washington, in the general election. But it might be a cause for concern in the primary too.
This column originally appeared in the Oregon Capital Chronicle.