The Fagan Files, Part I

Oregon's Secretary of State forced out election director because she wouldn't bend election rules for fellow Democrat

Oregon Secretary of State Shemia Fagan, displaying her “VOTE” tattoo. (Photo courtesy, Oregon Secretary of State’s office).

Oregon Secretary of State Shemia Fagan earned her reputation as a young progressive star by quickly ascending from school board to State Representative to State Senator to her current statewide office in less than a decade. During her rise, Fagan has combined her evident ambition with a focus on progressive issues like rent control and a flair for espousing the merits of election integrity on social media.

Fagan’s rise has run into its first set of serious roadblocks two years into her Secretary of State tenure. Twin, related problems find themselves lodged firmly in Fagan’s office, and each highlights the tension of a deeply partisan Democrat holding an office with critical non-partisan election and campaign finance regulatory functions.

This is the first in a two-part series on Fagan’s recent troubles. Today, I will recount Fagan’s de facto termination of the director of the Elections Division, why she says she did it, why her explanation confesses a violation of state law, and the broader implications of her actions for her ability to conduct state elections in a neutral, fair and lawful manner. In the second part of the series, we’ll look at a ticking timebomb, with state and national political implications, making its way through the machinery of Fagan’s troubled Elections Division.

On December 9, 2022, State Elections Division Director Deborah Scroggin resigned from the role to which Fagan had appointed her just 18 months prior. The timing of her resignation was curious, coming just a month after the apparently successful completion of the state’s first election under Scroggin’s direction. The Associated Press, which broke the resignation story, attributed it to Scroggin’s professed weariness of combatting “election dis and misinformation.” The AP story cited a resignation letter from Scroggin to Fagan, which states the resignation would not be effective until January 20, 2023.

That explanation, which fit comfortably within Fagan’s oft-professed concern for the plight of Democracy and election integrity, turns out not to have been the entire story. Scroggin, according to a Willamette Week report of January 4, claims that Fagan asked her to resign. Communications between Scroggins and Fagan, obtained by Willamette Week, show a history of disputes between the two public officials.

One point of disagreement arose over the late filing by Loretta Smith, Democrat candidate for Oregon’s new 6th Congressional District, of a statement for the May 2022 voter pamphlet. The Elections Division publishes the Voter Pamphlet for each election, and publishes statements from candidates pursuant to quite exacting rules regarding length, portrait photo size, and payment of the required fee.

According to Willamette Week, Smith attempted to file her voter pamphlet statement just before the Elections Division deadline of 5 pm March 10, 2022. However, that filing was rejected because of problems with the credit card Smith used. She resubmitted just after the 5 pm deadline, using a different credit card.

The Elections Division requires payment concurrent with the filing of the statement in order for the statement to be deemed filed. It rejected Smith’s statement pursuant to that rule. Fagan, upon hearing of the rejection, intervened. Scroggin objected to running the statement because it was filed late and contrary to Secretary of State rules. Fagan disagreed, and overruled Scroggin and directed that Smith’s statement run in the Voter’s Pamphlet.

Fagan told Willamette Week that her request for Scroggin’s resignation arose from the latter’s failure to adopt Fagan’s vision of “customer service” in the voter pamphlet incident and others.

Whomever Fagan may believe is her agency’s “customer,” Fagan’s acceptance of Smith’s statement broke sharply with past practices and constitute a violation of the Oregon Administrative Rules that govern state elections. Within those rules is incorporated a document called the “State Voter Pamphlet Manual,” which in turn refers to a tome called the  “ORESTAR User’s Manual: Voters’ Pamphlet Filing,” which governs how candidates can, and cannot, submit voter pamphlet statements for publication. One proviso: “If the Candidate Statement filing is fee-based, the filing fee must be paid online by credit card at the time of filing.” (Emphasis added.) Smith’s filing was fee-based. She did not pay with the filing prior to the 5 pm deadline.

Pursuant to the rules adopted by Fagan’s office, that office should have rejected Smith’s statement. Importantly, the same administrative rules that incorporate the State Voter Pamphlet Manual “and associated forms” do not provide discretion to the Secretary of State, or the Elections Division Director, to change those rules on the fly. Fagan is, as much as any candidate, bound by the rules duly adopted by her office through the procedures set forth in Oregon law. She likely broke the law when she overruled Scroggin to accept Smith’s filing. To date, I am unaware of any investigation by the Elections Division, the Oregon Department of Justice of the Marion County District Attorney’s office into Fagan’s conduct.

Fagan’s having fudged Oregon election rules to allow a filing that was made minutes late may seem a minor infraction. However, consider whether Fagan would have intervened on behalf of a Republican candidate in Smith’s position? Would a Republican campaign have been a “customer” requiring “service” in Fagan’s view? I suspect not. Moreover, as Scroggin herself pointed out to Willamette Week, it is with the fair, consistent and bipartisan application of election and campaign finance rules that we foster trust and faith in our democratic systems.

Furthermore, the fact that Fagan is willing, eager even, to violate the rules of her own office to help a fellow Democrat, and force the resignation of a subordinate who objected to that violation, has enormous implications for another investigation pending before the Elections Division. That investigation focuses on a last-minute $500,000 donation to the Democratic Party of Oregon from a close associate of alleged crypto-fraudster and mega-Democrat donor Sam Bankman-Fried. Democrats used the cash infusion to help push Fagan ally Tina Kotek to victory in November’s governor election.

The $500,000 donation, Fagan’s claim that she can fairly oversee the investigation into it, and its dire financial implications for the Democratic Party of Oregon are the subject of Part 2 of this series.

Stay tuned.