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An Oregon poll to watch

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(Information about icitizen From their website):

“The icitizen Oregon Poll provides a non-partisan, representative read of public opinion on pressing legislative and social issues in Oregon. This installment of the Oregon Poll examines November general election matchups, key ballot measures, as well as attitudes towards the state, the economy, and personal finances.”

Presidential Race: Hillary Clinton over Donald Trump: It’s 46% Clinton, 32% Trump, and 22% undecided. Clinton has held her base, and is outperforming voter registration by 3%. Independents are split.

Governors Race: While statewide, Democrats outnumber Republicans by 11%, Governor Kate Brown leads Dr. Bud Pierce by just seven points. It’s 42% Brown, 35% Pierce, and 23% undecided. However, if you take leaners into account, Brown leads 47% to 37% with 17% undecided. Dr. Pierce beats Brown among independent voters by 10 points but that won’t be enough. If Dr. Pierce is to win he’ll need to change some Brown leaners around because it’s highly unlikely he can win 85% of the undecideds. Brown is weak but at this point Pierce is either going to have to hope for some scandal, or come up with a better reason for his candidacy.

Oregon Secretary of State: Democrat Brad Avakian leads Republican Dennis Richardson in the race for Secretary of State 36% to 32%, with 32% undecided. Avakian is under performing and Richardson is over performing in relation to voter registrations. A full 15% of Democrats, 15% of Republicans and 46% of Independents/Others are undecided. However if the leaners all vote as they lean, and the Republican and Democratic undecideds all vote their party, Richardson would have to win 85% of the independent undecided voters to win.

State Treasurer: This is the big surprise in that it’s anybody’s race. In a three-way race it’s Democrat Tobias Read with 26%, Republican Jeff Gudman at 19% and Independent Party candidate Chris Telfer at 14% with 43% undecided. Adding in leaners and it’s Read with 31%, Gudman with 23% and Telfer with 17% with 29% undecided. Gudman seems very week based on the fact that a full 31% of Republicans are undecided. Assuming those undecided Republicans are considering Telfer, not Read, Telfer could be poised to vault over Gudman and challenge Read if she can establish herself as the Democratic Alternative.

Initiative Position 28 (IP28) which would impose a 2.5% business gross receipts revenues on Oregon sales in excess of $25 million, shows 65% in favor, 19% opposed, and 16% unsure. When voters were provided with messaging in support and against the measure, support went down to 55%. So that should be considered the initial voter support level. Common wisdom is that a tax measure needs 56-57% support initially to have a chance. IP 28 has a chance. If its as close as it appears it could be, this race will suck up a substantial portion of available Democratic donor dollars. Meaning if any of the State wide races becomes more competitive, the Democrat may not be able to count on a late influx of Public employee union funds.

The Race to Watch: State Treasurer. It appears to be the most unpredictable, the highest number of undecideds. There are three viable candidates, and Republican voters could shift support to Independent Telfer unless Gudman gets some traction. Because of the largely non partisan duties of Sate Treasurer, many moderate Democrats may be willing to support a qualified Independent candidate. And, if the anti establishment anger of the electorate continues, it could be a race that voters choose to vent their frustration.

Oregon voter status quo?

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“Phase one” of Motor Voter, which registered just the people who had new DMV contact starting January 1, 2016, showed that of those who chose to join a party a majority opted for the Democratic Party. It was thought by some that Motor Voter would be a boon to the Democrats and the data foretold a coming Democratic super majority.

Then “phase two” of motor voter started. In phase two, the Secretary of State went back to 2014 DMV contacts and registered those people as well. Phase two statistics came out this week and they showed that the Republican Party outpaced the Democrats in new motor voter membership.

Of course, only 18,230 of the 206,554 new motor voters (or 8.8%) joined a party anyway, but assuming those that didn’t join a party are either not going to vote, or are fairly represented politically with those that did affiliate with a political party, will motor voter make fundamental changes in Oregon’s political landscape? The answer is no. At least not as between the Democratic and Republican balance (or imbalance) of power.

There is evidence that more voters are opting for the Independent Party or minor political parties. But it’s not a groundswell yet. And there’s no way of knowing if there is an actual groundswell of voters who are going to opt out of party membership, or if the number of non affiliated voters is simply a function of motor voter having separated the act of registration from the act of selecting a political party.

The raw data doesn’t tell us a lot about trends, since it only includes voters who registered with a party under motor voter. And because of the way motor voter works, many more voters remain NAV. Clearly using the pre motor voter and post motor voter NAV numbers is very misleading.

So, In order to normalize the percentages, I went back to pre motor voter registration records and found that the “average” percentage of voters under our old system who chose to remain NAV was 23.4%. Therefore I included an additional 23.4% as NAV’s to accurately reflect that historical average. And here is what we find.

If there is a trend, it’s that the Democratic party is still slightly weakened, and the Independent Party is growing in strength. As a percentage motor voter shows a 30% growth in affiliation for the Independent Party (from 4.9% to 6.4%). However, that rate of growth isn’t reflected in the statewide statistics, since so many motor voters are being registered NAV it will dilute all parties market shares. And the Democratic weakness in new motor voters is likely being offset by the influx of voters who wanted to participate in the historic May Democratic Primary and the November general elections.

Here are the main impacts motor voter will have on voting

More people will be able to vote. We’ll see how many of the phase two motor voters will actually vote in November, but few would argue that having more people vote is a bad thing.
Membership in political parties will plummet over time. Because motor voter divorces the act of registration from the act of selecting party membership, after this historic election, it seems pretty clear that all political parties will shrink in size.
The Independent Party is likely to revert to minor party status after 2020 and some minor parties may be dissolved by State action. Minor and major party status is based in whole or in part on what percentage of total voters a political party represents. With motor voter causing 90% of voters to register as NAV, largely due to separating registration from party selection, we’re going to see total voters spike, and party membership plummet. With 200,000 new motor voters, the IPO would have had to gain 10,000 new members to retain it’s 5% share and major party status. Over the past two months, the IPO has gained less than 1,000 new members. Even though as you can see in the tables above, it’s actually growing at a faster rate as a share of total party voters than the Democratic and Republican Parties.
But here’s the biggest problem. Motor voter will cause a crisis in Oregon Democracy.

Many voters already feel that the political elite don’t listen to them. Now with motor voter reducing the Democratic and Republican membership to their more vocal and active partisans, Oregon’s closed primary system, and safe Democratic and Republican districts, we’re going to have fewer and fewer voters actually deciding our legislative races. And those that remain in the major parties and vote in the partisan primaries are going to more and more consist of the Party’s financial base and the most politically orthodox.

While such a system works in favor of insiders, the financial base, and those already elected to office, it doesn’t lead to faith in our election system.

Sneak peek

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Starting July 4th, 2016 (Ironically Independence Day) the Independent Party of Oregon will begin it’s own online presidential preference poll. In addition, the Party is including it’s annual member survey in conjunction with the Presidential poll.

There are three things to note about this poll/survey.

The Presidential poll will include Clinton, Sanders, Trump, Libertarian candidate Gary Johnson and Green Party candidate Jill Stein. In addition, it will allow voters to chose “None of the above”
The Presidential poll will be done by approval voting, allowing a voter to select all candidates they may be satisfied with. This will allow a voter for example, to vote for Stein, Sanders and Clinton, so that the can select their real favorite without worrying about Trump benefiting from them voting for a minor party candidate.
The vote and even the survey is open to non affiliated voters as well as Independent Party members. This is a true i/Independent preference poll
For the first time, the IPO will be surveying members on social issues.

HERE’S A SNEAK PREVIEW OF THE IPO VOTERS PAMPHLET AND THE SURVEY QUESTIONS.

The Pamphlet also has instructions on how both party members and non affiliated voters can participate in the election/survey.

Motor voter, reviewed

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The Bus Project, a Democratic oriented get out the vote organization, is extolling the virtues of Motor Voter based on the primary voting results. Their press releases have been picked up by national news organizations and the press is including this misleading graphic.

The graphic is false.

It purports to show the great success of Oregon Motor Voter program and claims that automatically-registered voters had good turnout numbers in the May 2016 Oregon primary election. But it is based on several fundamental errors. And it entirely omits the turnout result for 84% of all Automatic registrants–the non-affiliated voters, of whom only 6% turned out to vote in the primary election (compared with 23% of traditionally-registered non-affiliated voters).

The graph seems to say that a higher percentage of Automatic registrants turned out that Traditional registrants. But, in fact, the overall turnout of the Automatic registrants was 18.7%. The overall turnout of all registrants together was 53.7%. That means that the turnout of the Traditional registrants was in excess of 53.7%. So how could that graph be correct? It is not.

First, the graph for “Independent Voters” is wrong. The numbers graphed are only for members of the Independent Party of Oregon, not for non-affiliated voters — who comprise 84% of all Automatic registrants. So the graph entirely omits 84% of all of the Automatic registrants and bases its conclusions on a population of only 16% of the Automatic registrants–the most politically motivated ones (because they bothered to join a party). In fact those 84% of all Automatic registrants had turnout rates of under 10% for every age category other under 60 (and only 13% above that). All of their turnout rates were about 70% lower than those of Traditional non-affiliated registrants.

Second, and maybe more misleading, even the very limited data on the graph (omitting 84% of all Automatic registrants) is misleading. The “increases” on the graph are in fact very small populations, while the “decreases” are in fact very big populations.

The Republican columns, for example, count as “Automatic” only those few persons who returned the postcard to the Secretary of State, choosing to register Republican. That was only a grand total of 2,671 persons out of 51,558 automatic registrants. (For the Democrats, it was only 4,776.) Yes, those who affirmatively returned the postcard to join a party then usually voted in the primary. But in fact 42,571 of the 51,558 Automatic registrants did not join a party, and the vast majority of them (94%) did not turn out in the primary at all.

And, under the traditional system, those few Automatic registrants do voted in the primary most likely would have registered to vote during the DMV process anyway, when they could also have joined a party. Under the new system, they are not allowed to register and choose and party during the DMV process. The result is that 84% Automatic registrants are not joining parties at all.

The fact is, motor voter probably decreased voting in the partisan primaries.

Through April, about 56,000 people were registered through motor voter, but only about 9,000 took the time to select a party after receiving a postcard from the State informing them they were registered. It’s that decoupling of registration from party registration that is the big flaw in motor voter.

Under prior law (the Federal Motor Voter Act of 1994) DMV was required to ask everyone if they’d like to register to vote. The DMV client was then given a card and they’d fill it out and give it to DMV to send to the elections department. Statistically about 75% of those voters would select a party at that time as well. Lets say that if those 56,000 automatically registered voters had been asked at DMV if they wanted to register, that 25% said yes and filled out a registratin card, and that 75% selected a party designation. That would be 14,000 new voters and 10,500 would have selected a political party and had been eligible to vote in the partisan primary. Remember, under Motor voter, only about 9,000 selected a party.

And while it’s great that many more people will be eligible to vote in November, 90% of the races in Oregon are actually decided in the partisan primary. Democrats are the overwhelming favorites Statewide and in the tri-county deep blue districts. And Republicans are dominant in most rural parts of Oregon.

So, all these new automatically registered motor voters who didn’t have the chance to select a political party may be able to rejoice about voting in November, but for most Oregon races, their vote has little power. In fact, it’s meaningless.

While I believe the intent behind Motor Voter was good, decoupling the act of voter registration from the selection of a political party in a State like Oregon with closed primaries and gerrymandered safe districts could be one of the most undemocratic acts we’ve seen here.

Perhaps the Bus Project should take a closer look at the unintended consequences of Motor Voter and propose some fixes in redistricting, primary reform, or other democracy reforms that would empower the voters that they are so keen on registering.

POTUS changing parties

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The Secretary of State has issued press releases about the number of voters switching their registratoins to the Democratic or Republican Parties presumably to participate in their contested primaries. Here are the changes in party registration from August, 2015 to the primary election of May 2016.

Democratic 818,399 to 932,892 (change) 114,493 + 14%
Republican 643,928 to 679,889 (change) 35,961 + 5.6%
Non Affiliated 530,061 to 679,889 (change) (46,795) (8.8%)
Ind. Party 109,681 to 103,353 (change) (6,328) (5.8%)

While it seems like an unusual wave of voters to the Democratic and Republican parties, compare these changes to the changes from August 2007 to May 2008 the last time Oregon had a contested primary, though it was only the Democratic Primary that was contested, unlike this year when both Democratic and Republican Primaries appeared to the contested until just yesterday.

(Notes: The IPO was a nascent party in 2007 so it’s number is irrelevant. In 2008 some members of the Pacific Green Party split and formed the Progressive Party of Oregon. I noted the Pacific Green Party in this table as Progressive+ Green so that the historical comparisons are more informative)

Observations:

The Democratic Party’s increase in membership is consistent with contested primary POTUS years. The GOP membership increased when there was a contested primary (2016) but decreased when there was no contested primary (2008)

The left leaning minor parties are losing more members in 2016 than they did in 2018. Factors may include the fact that Sanders is a more attractive candidate than Obama was in 2008 to the far left, as well as the fact that motor voter is taking a heavy toll on party membership across the board. And these two factors are taking a heavy toll on the left leaning minor parties.

The Libertarian Party seems to regularly have about 10% of it’s members re-register (as Republican I assume) to participate in the POTUS primary, then those voters re-register as Libertarians later. They appear to have a solid loyal party base.

If you assume approximately 60% of NAV’s lean left and 40% lean right, then you can infer that Non affiliated voters are re-registering with a major party in about the same numbers for 2016 (with a contested GOP primary) as they did in 2008 (when only the Democratic primary was contested)

Though not reflected in this table, the IPO announced this week that over 20,000 NAV’s had requested an IPO ballot. So, even though the IPO lost over 6,000 registered member, it will have 20,000 more voters who will be participating in it’s primary election. If you added those 20,000 voters into the IPO’s May registration totals, the IPO will have an actual increase of 13,000 voters, or about 12%.

IPO legislative endorsements

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The Independent Party of Oregon leaderships strategy of focusing on State Legislative races will expand beyond helping it’s own candidates in races this primary season according to a high ranking Party leader.

The source said that the IPO will be reaching out to a handful of incumbent Representatives . This group of Representatives purportedly includes both Democrats and Republicans.

“These are districts where the incumbent has been supportive of our party and legislative priorities and where no Independent candidate has filed” said the source. “So, our strategy is to reward these elected officials and if they want to get the IPO write in nomination, we’ll help them.”

There are IPO candidates in 9 of the 60 Oregon house races this year, but the IPO is also recruiting people to mount write in candidacies in some races where no IPO candidate filed before the deadline.

“In those safe districts where the less dominant party doesn’t even field a candidate, we don’t want the dominant candidate to win our nomination by write in, because voters end up with a single choice in November. And that’s no choice at all.” Said the source. “So, for instance in Multnomah County, we may recruit a moderate, or even a Bernie Sanders type candidate to run as a write in for our nomination. And in a deep red district with a far right incumbent, we may recruit a local Mayor, City Council person, or School Board Member to be the IPO write in candidate. We’ll particularly focus on districts where the incumbent has been hostile to the growth of a third party option.”

The IPO wants to be active in all House races, according to the source. So in Districts where there is no IPO candidate and no effort to recruit an IPO member for write in, but there is Democratic and Republican competition, The IPO may send questionnaires to the candidates to determine their level of support for the Party, it’s members and their priorities. With that information, the IPO source says leadership will evaluate the answers and determine whether to get involved in those races by helping the Democratic or Republican candidate get the IPO write in nomination.”

“We’ve got to be strategic.” said the source “We don’t have a big money donor base, or a lot of candidates yet. But we still want the voices of independent voters to have influence in these primaries. Influencing the write in outcomes is no different than cross nominating, which is allowed under Oregon law”

“You have to be creative in a closed primary State where the two major parties control the rules.” said the source. “We’re using their rules to open up the system for all voters, and to provide as many choices as we can in November.”

Could Trump win Oregon?

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Last year, the Independent Party, having reached major party status, notified the Secretary of State that it was opting out of the Presidential election. The IPO is a state based party with no ability to convene a national convention or participate in any other Party’s election. It made no sense to waste taxpayer time or money.

Recently the IPO leadership learned from a County elections officer that the Secretary of State had ordered the Counties to include a write in line for the IPO for President. The IPO sent a letter to the Secretary of State asking her to not to do that, but to either honor it’s legal request to opt out of the Presidential election or if she insisted on including the Presidential race, to list all viable major party candidates, as well as the Green Party candidate and the Libertarian Party candidate. Listing all candidates would benefit the taxpayers sd county elections officers wouldn’t have to hand count all the write in votes. And it would give independent voters – including those non affiliated voters who opted to participate in the IPO’s open primary, a voice for the first time ever. Wouldn’t it have been nice to see how many independent voters supported Sanders, Cruz, Stein, Johnson, Trump, Kasich, or Clinton.

The Secretary of State refused both of the IPO’s requests, and based on an opinion it received from the Oregon Attorney Generals office, the Secretary is now claiming that not only will there be just a write in line for the IPO’s May Presidential preference poll, but that whoever wins the IPO’s nomination through write in vote WILL be the IPO’s nominee on the November ballot. Based on a rebuttal I’ve seen from the IPO’s attorneys, the AG’s opinion seems weak. But, the Secretary seems intent on adopting the analysis, and absent a lawsuit by the IPO, the winner of the IPO’s preference poll will be it’s nominee.

But what about our Electoral College?

The May primary doesn’t elect nominees. It is a preference poll for the Major Parties. Each Party has rules that they must follow, and for the Democratic and Republican Parties, their rules state that the winner of the May primary preference poll is appointed delegates to their national convention at which point, those delegates vote for the winner of the primary preference poll at their conventions. Then, that conventions nominates delegates from each State to represent their Party nominees in the electoral college. In November, the voters of Oregon voter for the slate of electoral college delegates.

So, while Hillary Clinton's name may be on the November ballot as the Democratic nominee, you aren’t voting for her directly, you’re voting for her delegates that the Democratic Party has named. These are her electors who then convene in early December, and cast their votes for President.

Electors are selected by the Party, not the presumptive nominee:

In a year when a President and Vice President of the United States are to be nominated and elected, each political party nominating candidates for those offices shall select a number of candidates for elector of President and Vice President equal to the total number of Senators and Representatives to which this state is entitled in Congress. [Oregon Revised Statutes 248.355]

So, after the May Presidential preference poll, the Secretary of State is stating that the IPO’s write in winner is it’s nominee. By law, the IPO will select the electors for the nominee according to its Party rules. If Ms. Clinton were to win the IPO preference poll, the IPO could select the same electors as the Democratic Party selected to represent her candidacy, but it doesn’t need to. Oregon Law states:

The names of the electors shall not be printed on the general election ballot. A vote for the candidates for President and Vice President shall be a vote for the electors supporting those candidates and selected as provided by law. The general election ballot shall state that electors of President and Vice President are being elected and that a vote for the candidates for President and Vice President shall be a vote for the electors supporting those candidates. [ORS 248.360]S

Since its the electors who are on the November ballot, if Ms. Clinton and the IPO name separate electors the IPO would need a separate line for it’s slate of electors in November.

So, the November ballot may include three options for voters.

Hillary Clinton, Democrat (with list of electors)
Donald Trump, Republican (with list of electors)
Hillary Clinton, Independent (with list of electors)
The votes “for” Ms. Clinton could not be cumulative, because we’re not voting for Ms. Clinton directly, we’re voting for two separate slates of electors.

If Mr. Trump wins the IPO preference poll and the Secretary of State insists that he SHALL be the IPO nominee, he would be the person receiving two ballot lines.

If some Clinton supporters vote for her as a Democrat, and others vote for her because they prefer an Independent Clinton, then Trump electors could win a plurality of Oregon votes, throwing Oregon to Trump.

And, what if Bernie Sanders wins the IPO preference poll? Then he could be on the ballot for the IPO’s nomination in November.

So, what’s going to happen?

If the Republican nominee were the IPO winner he could offer to negotiate with the IPO on the slate of electoral college delegates, naming at least one of the slate of electoral delegates from the Independent Party. In which case, that fusion candidate could have a single slate of electors, wouldn’t split the vote, and would be listed on the Oregon ballot as the nominee of both the Republican and Independent Party on a single line.

If the winner of the Democratic nomination also won the IPO nomination they could decline the nomination of the IPO [ORS 249.180]. And that could be expected from the since this is a safe blue state and there is apparently nothing to gain by running just as a Democrat. However declining is a big risk for the Democrat.

What if the IPO write in winner declines the IPO nomination?

While it may make sense for Clinton to decline the IPO nomination if she were to win the Democratic nomination, thus avoiding either a split for her, that doesn’t necessarily reduce her risk.

Declining creates a vacancy for a major party nomination and by law two things could happen.

The IPO could select a new nominee by party rule. So, the IPO nominating caucus could select a new nominee to be the Independent candidate on the ballot. If this were the case, it could select a nominee that agreed to include at leat one IPO member as an electoral delegate.

The IPO may decline to nominate anyone for President, and decline to name electors. In which case, the Secretary and Attorney Generals Office will again need to determine if they can require that there should be a write in line for not only an IPO Presidential candidate, but also the 7 electors that would represent the IPO at an electoral college vote
What a Waste. And, open to Manipulation

The most likely scenario is that the IPO ends up with no nominee because no major candidate is willing to risk splitting their vote because of the separate slate of electors the IPO would nominate. There is a small chance that if the the Republican nominee won the IPO preference poll, he could negotiate with the IPO on a slate of electors. If so, then this decision by the Secretary of State, based on what the IPO says is a faulty legal analysis, will cost the taxpayers a lot of money, create massive headaches for county election officials, and could end up moving Oregon to the red column.

How did this happen?

The IPO requested meetings with the Secretary of State Office several times to discuss the transition from minor to major party. This was well before the Special session. Legislative fixes and patches to rules and laws could have been presented to the Oregon Legislative Short Session, and emergency clauses could have been appended so that some of these costly issues could have been worked out.

The Secretary of State’s office declined all requests. That has been shown to be unfortunate. And costly to taxpayers.

Perhaps fixing our election laws this election cycle wasn’t as much of an emergency as the coal ban which goes into full effect 14 years from now.

Top one

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In what would become a first of it’s kind independent voter only “top one” primary, the Independent Party has requested Oregon’s Secretary of State to include all current Republican and Democratic Candidates, as well as non affiliated/independent candidate Michael Bloomberg, Libertarian Gary Johnson and Green Party candidate Dr. Jill Stein on the Independent Party’s May primary ballot. The winner of this “top one primary” would move on to the November general ballot in Oregon as the nominee of the Independent Party. If the Independent top one winner also wins another party’s nomination, that person could list both nominations on the ballot in November.

The Independent Party has already opened it’s primary election to non affiliated voters. Meaning that should the Secretary of State honor the IPO’s request, the 110,000 IPO members as well as any of the 530,000 non affiliated Oregon voters who request an IPO ballot would be able for the first time in history, participate in a Presidential preference poll that included all candidates.

Want to participate?

First, the Secretary of State has to agree to make this a Top One Primary as the IPO requested. If she does then here’s how independent voters get to be heard in this historic race for President.

If you’re already registered with the IPO: IPO ballots will be automatically sent to all registered IPO members. If you’d like to participate you don’t need to do anything – except perhaps let the Secretary of State know that you’d like her to approve the IPO’s Top One primary.

Voters who are currently non affiliated with any party, but who would like to participate in this “top one” preference poll, can either change their registration to Independent Party of Oregon by following this link. Or, alternatively, the Secretary of State has set up a cumbersome mechanism for non affiliated voters to keep their current registration, but get an IPO ballot. You will need to wait for the Secretary of State to send you a postcard in the mail. Then you must make a written request with your local election office to receive the IPO ballot. Then they will mail that to you. Hopefully all this can occur before ballots are due. (The IPO asked the Secretary of State to send an IPO ballot to all non affilaited voters as part of the notice opening it’s primary. That would have encouraged voter participation – a stated Democratic Party priority – and saved taxpayer money. The SoS refused)

The simpler way would be to re-register with the IPO online, then register back to being non affiliated after the election, should you choose to do so. (However, there are good reasons to consider remaining an IPO member. Particularly if you’d like to participate in more elections such as this presidential preference poll)

The Secretary of States response will be due soon, as a decision on ballots needs to be made within one week.

Minimum wage emergency?

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“During my tenure, I was adamant that the governor’s office and his closest advisers not blur the lines between state interest and other matters. My concern was seen as disloyalty. I was viewed as an outsider who did not understand the way that they did business. I was told that as long as things were good it did not matter whether things were right.”

So said a Kitzhbazer staffer to Nkenge Harmon Johnson after she objected to a process abuse. (The Oregonian, 11/3/14)

This isn’t just a case of a rogue Democratic Governors office. It’s endemic in the Oregon Democratic Leadership. If they think a policy is good, then abuse of process is irrelevant.

It’s now become John Oliver-esque with the laugh in your face abuse of the Constitutional emergency clause in regards to Oregon’s new minimum wage legislation.

Article IV, Section 28 of the Oregon Constitution provides that Legislation take effect no sooner than 90 days after the close of the Legislative Session, except in cases of “emergency”.

The reason for the delay is because the Oregon Constitution grants to “The People” the ability to challenge any law passed by the Legislature during that 90 days by gathering signatures and referring it to the people. If citizens gather about 60,000 signatures, the law is stayed and placed on the next general election ballot for an up or down vote.

If however, the State faces an impending emergency, then that 90 days can be waived by including an emergency clause. (And apparently 68% of all legislation now carries an emergency clause)

Emergency isn’t defined in the Constitution. So, just as Mitch McConnell can rightly say that there is no requirement in the US Constitution to allow a vote on an Obama appointment to the Supreme Court, Oregon Legislators can append an emergency clause to any legislation without explanation and negate the right of referral. Negating constitutional requirements or rights shouldn’t be taken so lightly perhaps. But I guess it’s politics. And that’s what the Democratic legislators did with the minimum wage bill.

With an emergency clause legislation takes effect immediatly, and if the people are to challenge it, the law will stay in place and the challengers need to go through a longer and more costly process of filing an initiative and petition.

But perhaps there was an emergency in this case?

Without an emergency clause, the minimum wage legislation would have taken effect 90 days after the 2016 legislative session ended, or June 5th, 2016l. If someone challenged the law within this time period by gathering signatures for a referral the minimum wage law would have been stayed until November, 5, 2016 and we’d vote on it.

But the Legislature believed that the wage crisis was an emergency and we had to raise the minimum wage immediately and we couldn’t wait 90 days. No, just kidding.

Because here’s the thing. The law doesn’t raise the Oregon minimum wage until July 1, 2016. That’s a full 115 days after the legislative session ends. So an increase in the minimum wage is such an emergency that we can’t wait 90 days, however we can wait 115 days?

And it’s even more ludicrous. Because the wage increase in July 2016 is only twenty five cents and The larger increases are phased in over 6 years. Some emergency. One that doesn’t start until 115 days after the session, then can be addressed over a 6 year period of time.

For those of us who believe in the spirit of due process, regardless of your position on the minimum wage, it’s beyond frustrating. Because it’s the process of law, and abiding by the spirit (substantive due process) and letter of that process (procedural dues process) that protects our constitutional rights and gives legitimacy to our government. When lawmakers intentionally violate or abuse due process they damage our democracy.

But as far as Oregon Democratic leaders are concerned I guess …as long as things are good it does not matter whether things are right.

Alternative Citizens view

Editors Note: This is a guest opinion on Oregon Outpost by Kyle Markley, an appointed member of the Joint Task Force on Campaigns Finance Reform. Previously, Oregon Outpost published an article by fellow task force member Seth Woolley a longtime supporter of campaign finance reforms. Markley has twice run as a Libertarian for State Representative in the swing district HD30, in 2012 (5.8%) and 2014 (8.9%), and is currently the Vice-Chair of the Libertarian Party of Oregon.

The Joint Task Force on Campaign Finance Reform was charged with analyzing the subject of campaign finance. I believe the Task Force has fallen short of that goal. The report of the Task Force makes many observational findings, but it is not clear which observations the Task Force believes are problems, nor about which of those problems are best solved by government. That is because the Task Force had little debate, and no votes, on those matters.

Furthermore, when the Task Force examined alternative proposals for a Constitutional amendment, the discussion stopped and the voting started too early. We made observations about the different aspects of the proposals, but we did not debate any of those aspects on their merits. It was premature to make a recommendation to the Legislature without having that debate.

As a Libertarian, I cherish the freedom of speech, and particularly the freedom to speak about politics and to criticize the government and elected officials. I believe that political speech violates no one’s rights, and that therefore it is improper for government to suppress it. I furthermore believe in a right to privacy that includes privacy about one’s political beliefs and activities, and consequently oppose mandatory public disclosure of campaign contributors or of independent expenditures. I look back fondly to the founding of this nation, when the Federalist Papers and the Antifederalist Papers were published anonymously to focus the vigorous public debate on ideas, instead of on personalities.

Everyone should have the freedom to express their political ideas, privately or publicly, openly or anonymously, as much or as little as they choose – and the government should protect that right, not create burdensome regulations that stifle political participation.

The accepted rationale behind campaign contribution limits is that large contributions have the potential to give the contributor undue influence over elected officials, creating the potential for corruption. Of course, no one can define what level of influence is “undue” – in a representative government, elected officials should be influenced by the people. Even setting aside the hollow rationale, it is doubtful that a large contribution made in support of a politician’s declared agenda would “influence” their actions if elected, anyway. (If my campaign slogan is “a chicken in every pot”, and then the National Chicken Council gives my campaign a million dollars, they aren’t influencing me – I was already pro-chicken.)

If the problem is rather that government is too cozy with special interests, then the solution is to take away the government’s power to play favorites – not to take away freedom of speech. The government has too much power, not the people.

The standard Libertarian advice is that people should have as much freedom, and government as little power, as possible. Giving government broad authority is a mistake. It is a responsibility of legislators to define government power narrowly, to prevent it from stifling individual freedom. How is this perspective applied to the topic of campaign finance? Let us assume, for the sake of argument, the standard rationale – that limiting large contributions reduces the risk of quid pro quo corruption.

We can see immediately that there is no justification to limit contributions to ballot measure campaigns: ballot measures are text, not people, so there is plainly no possibility of corruption of elected officials. Campaign contribution limits for ballot measure campaigns would suppress political speech but have no anticorruption effect whatsoever. But limits would reduce the quantity of political speech, taking information away from voters. Surely that is not what we want.

Similarly, recalls in Oregon involve the removal of an official from office, but not the selection of their successor. So recall efforts do not create the potential for corruption of that successor, who may in fact be unknown to the recall committee and its contributors. (In Farris v. Seabrook, the 9th Circuit Court of Appeals followed this reasoning in upholding an injunction against enforcing contribution limits against a recall committee. In that decision, the court noted that no one “has presented any evidence showing that contributions to recall committees in Washington raise the specter of corruption, and certainly not in this case.”)

Independent expenditures related to ballot measure and recalls are yet another step removed, and so again pose no corruption risk that could justify the suppression of political speech. More importantly, expenditures for political speech are a direct exercise of freedom of speech, protected by black-letter Constitutional law. Spending your own money on your own political message is your right.

Even when focused narrowly on contributions to political candidates, it is a mistake to limit all contributions without considering their purpose. Political committees may engage in non-electioneering activities that present no potential for corruption, and those activities should not be limited. For example, in Institute for Justice v. State of Washington, the court ruled that “free legal assistance to a political committee in a federal civil rights lawsuit” cannot be treated as an in-kind campaign contribution. (The Motion for Summary Judgment in that case is worth reading.) In Cozen O’Connor v. Phila. Bd. Of Ethics, the court ruled that litigation over ballot access is distinct from electioneering, and that “forgiveness of the Committee’s legal debt, incurred to defend [the candidate] in ballot challenge litigation, would not constitute a ‘contribution’ that is subject to the Code’s contribution restrictions.”

The pattern in these cases is that the definition of a campaign contribution was too broad, and it took judicial review – meaning lots of time, money, and lawyers – to push the law back to where it belonged. The lesson to learn is that laws should be drafted narrowly in the first place, so they affect only what is intended. The wrong lesson is that there should simply be an exception for legal defense funds – because then you’ve already forgotten that a legal offense fund may be needed for similar reasons, and you’re simply in denial that political committees might engage in any other sort of non-electioneering activity.

It is dangerous for governments to have the power to suppress political speech. The temptation to use that power to benefit incumbent officials is too great – and this risk must be considered against the purported benefits of campaign finance restrictions.

When the government has the power to suppress criticism of government officials, you get lèse-majesté as in Thailand (where a tour guide’s Facebook posts netted a 30-year jail sentence) or Turkey (where a newspaper editor was arrested for tweets critical of the President). Don’t claim that it couldn’t happen here – it already has. In 1798, less than ten years after the ratification of the Bill of Rights, the Sedition Act enabled those same kinds of prosecutions in America. Of course it was unconstitutional. But it happened. Preventing it from happening again requires vigilant defense of your rights.

The Citizens United case, frequently maligned by supporters of campaign limits, was actually a case about protecting the right to criticize government officials. A nonprofit corporation “Citizens United” created a documentary film critical of then-Senator Clinton, and wanted to make it available via video-on-demand shortly before the 2008 primary election in which she was running for President. They wanted to advertise their documentary on broadcast and cable television, which would be considered a corporate independent expenditure – which was totally forbidden (a felony!) in the time shortly before an election.

In other words, there was an association of people pooling their resources for the purpose of publicly criticizing a sitting government official who was running for higher office. But the government had passed a law prohibiting their speech at precisely the time it would have had its greatest impact.

Does suppressing political speech near elections inform the electorate, or keep them ignorant? Does limiting the freedom of people to criticize elected officials make those officials more accountable, or less?

That is the proper context in which to evaluate Hillary Clinton’s stated litmus test for Supreme Court appointments. She said that she will only appoint Justices who would overturn a case which affected her, personally. For that, she deserves unceasing scorn.

I agree that “something needs to be done” about the Citizens United decision – and that thing is reading it. The decision deserves to be widely read. It is an excellent example of the Court standing on principle and defending individual rights against a government and popular opinion that would trample on those rights.