Oregon's new Secretary of State chooses politics over the law
Lavonne Griffin-Valade and Oregon DOJ ignore the Oregon Constitution to achieve the goal of barring Republican senators from standing for re-election in 2024.
Because I’m tired of doing all the work around here, please try your hand at the following bar exam-y question:
FACT PATTERN:
Section 15, Article IV of the Oregon Constitution provides, in part, the following, in which “members” are members of the Oregon House of Representatives or Senate:
Failure to attend, without permission or excuse, ten or more legislative floor sessions called to transact business during a regular or special legislative session shall be deemed disorderly behavior and shall disqualify the member from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.
During the 2023 legislative session, Seneca the Senator failed, without permission or excuse, to attend 12 legislative floor sessions.
Seneca, whose current term expires January 13, 2025, wishes to run for re-election in the November 5, 2024, legislative election. If she were to win re-election, her next term would begin January 13, 2025 and conclude in early January 2029.
QUESTION: Does Section 15, Article IV of the Oregon Constitution allow Seneca to run for re-election on November 5, 2024 and, if she wins, begin a new term January 13, 2025?
[Answer will follow this randomly selected archival photo.]
ANSWER: Yes, Section 15, Article IV of the Constitution clearly allows Seneca to run for and serve another term in the Oregon legislature beginning January 13, 2025. Seneca’s “current term” concludes January 13, 2025. The “election after the member’s current term” is the November 2028 election. The “term following the election after the member’s current term” is the one that begins in January 2029. Section 15, Article IV would prevent Seneca from serving in the term beginning in January 2029 but that’s not what you asked.
Oregon’s newly appointed Secretary of State, novelist and Democrat Lavonne Griffin-Valade*, this week got the answer to that pretty straightforward question wrong. Worse, she made her decision in reliance on input from lawyers at the Department of Justice who have taken the bar exam, should know better, but also got it wrong.
Why? Well, instead of Seneca the Senator, the senators at issue were actual Republicans. Griffin-Valade advised by the Oregon Department of Justice, helmed by fellow Democrat Attorney General Ellen Rosenblum, believes the Oregon Constitution does not say what it in fact says. Before our eyes, Oregon’s next big partisan manipulation of state agencies and the law is unfolding. If you’ve liked the duplicitous erasure of the Democratic Party of Oregon’s misreporting of a $500,000 donation from an admitted crypto-fraudster, you’ll love what Oregon DOJ and the Secretary of State are cooking up now.
First, some background. Democrats have become frustrated at the ability of legislative Republicans to block their agenda by fleeing the Capitol and depriving majority Democrats of the quorum they need to conduct business. Republicans used this “walk out” tactic a couple years ago, to block a cap and trade bill that would have given us even higher gas prices than we have right now. Democrats, incensed, decided to fix the problem by putting together a ballot measure to deter legislators from walking out by punishing them for doing so.
The result was Measure 113, which proposed to add to the Oregon Constitution the language banning naughty legislators from serving in “the term following the election after the member’s current term is completed,” as quoted above in the bar exam question. The usual suspects of deep-pocketed Democrat-aligned groups rallied to fund the campaign to pass the measure. Its top donors were the teachers’ union Oregon Education Association and its national organization, the two largest Oregon public employee unions and progressive advocacy group Our Oregon. The “yes” campaign spent about $2.4 million; there was not an organized “no” campaign.
Not surprisingly, Oregon voters approved Measure 113 by a wide margin, 68% to 32% in 2022. There was a problem, though. The folks behind Measure 113 drafted and had approved by the voters of Oregon a constitutional amendment which, kind of hilariously, does not do what they say they thought it would. The Constitution now bars a legislator “from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.” It leaves unaffected the legislator’s ability to stand for and hold office for the term following the member’s current term.
Ten mostly Republican (one Independent) senators, vacated the Capitol during the recently completed 2023 session, forcing the Democrat majority to compromise on gender, abortion and other high-profile bills Democrats preferred to pass in their unalloyed form. Media coverage during the walkout was incredulous as to why the walkout senators were willing to forsake future terms in office, with the voters having just recently approved Measure 113. To be honest, I was confused myself, assuming based on the reporting around the effect of Measure 113 that the walkout senators had offered themselves up as likely martyrs to the cause in 2023.
But then I actually read Section 15 Article IV of the Oregon Constitution, as amended by Measure 113, and, well, you’ve read it yourself. There is, I believe, only one way to interpret the Constitution: that it allows the walkout senators to run for and serve a term beginning in January 2025.
Oregon DOJ avoids this result by ignoring the plain meaning of the Constitution in an attempt to divine voter intent:
DOJ’s analysis inverts the rules governing how courts determine voter intent. A sacrosanct tenet of not only Oregon law but federal law as well is that the inquiry into voter intent begins with the actual text of what they approved. The court’s first job is to read the law, in this case a constitutional provision, and determine whether it can effectuate the text as drafted and approved. Only if the language is ambiguous, i.e. capable of more than one interpretation, does a court broaden its inquiry to context outside the text of the Constitution, such as legislative history or the measure summary.
Here, the text answers the question posed on its own. It is unambiguous on its face. No further inquiry into the presumed state of mind of the voters is not only not required, it is not permitted. Yet that’s just what Griffin-Valade and the DOJ are doing.
DOJ’s interpretation that “the term following the election after the member’s current term is completed” merely means “that legislators may complete their current term, even though the election occurs before the end of the term” requires ignoring what the Constitution actually says. I have read that sentence from the DOJ opinion multiple times, and it still makes no sense to me. It requires amending the actual language approved by the voters to omit “following the election.” But the voters approved the “following the election” provision and the State of Oregon does not have the right to override their choice.
There is a good reason why the American legal system emphasizes, first and foremost, what the law actually says. Without textual primacy, administrative agencies and courts would be free to amend voter- and legislator-approved laws on the fly to deliver the results they want in a given case. That is what Griffin-Valade and DOJ have done, here.
And Oregon courts, who will ultimately decide this issue, might do the same thing. After all, control of the Oregon Senate may hang in the balance, and each and every Oregon Supreme Court Justice was appointed by a Democrat governor. If courts do so, they will upend bedrock tenets of Oregon law to allow the people who control Oregon politics to avoid the effect of what they presented to voters. And they will open the door to more second-guessing of the laws that voters approve.
If courts do what I think is legally required, and allow the senators to stand for and if elected serve another consecutive term, there will be a lot of surprised people in Oregon. Measure 113 did not say and does not do what we’ve been told - by the measure’s backers, the media, the Secretary of State and DOJ - it says and does. Woops!
* An excerpt from one of Valade’s novels, courtesy of Not Tina Kotex’s Twitter account:
Surely someone will appeal the Secretary of State's ruling. Thanks to the author, their appellate brief is largely written. All that remains is to file the appeal before the deadline and see whether or not the court concurs.
However, It is clear that the intent behind the measure was to prohibit legislators who missed too many sessions from running for re-election at the very next election. Is there any evidence in the legislative history or in the media that the proponents of the sanction intended for legislators who accumulated too many unexcused absences to be able to run at the very next election?
Whoever drafted the initiative appears to have confounded the intent with the language "following the election." It would be useful to know who did the drafting and what their qualifications were.
I responded to Ms. Griffin-Valade's welcome email, in part questioning the fact that although she promised not to be political I doubted she could do it after reading her bio. Sure enough her welcome email was nothing but bs..... She has now shown her true colors. So much for an impartial leader that has no intention of running for re-election....