Oregon DOJ asks state Supreme Court to back Fagan on Kristof disqualification
SALEM, Ore. (KTVZ) — The Oregon Department of Justice filed a brief with the Oregon Supreme Court Thursday on behalf of Secretary of State Shemia Fagan, asking the court to uphold the Elections Division’s Jan. 6 disqualification of Nicholas Kristof as candidate for Oregon governor.
Article V, section 2, of the Oregon Constitution states that a candidate must be a “resident within” Oregon for the three years before the general election.
“My focus throughout this process has been to make sure Oregonians can trust the accuracy of their ballots,” Secretary Fagan said. “I have a duty to Oregon voters to make sure every candidate on their ballot is qualified to serve.”
Secretary Fagan continued:
“The Court’s decision in this case will establish precedent for hundreds of decisions local elections officials make every year about what it means to be a “resident” for purposes of running for political office. It’s clear that the framers of the Oregon Constitution understood that residency means an Oregon “domicile,” and that you can only have one domicile at a time. Not only do the objective facts demonstrate that Mr. Kristof was not domiciled in Oregon until late 2020, his legal arguments are impossible to square with an equitable standard for future candidates. They would create irrational results; for example, under the rule Mr. Kristof proposes, a person would be eligible to run for Governor, or serve as Governor, in two different states at the same time.”
In the brief, Secretary Fagan makes the following points:
- At issue is the definition of “resident within” Oregon. When the Constitution was written, residency meant domicile (living permanently) in Oregon. Contemporaneous legal definitions, case law, and even the own words of delegates at Oregon’s Constitutional Convention support this commonsense definition. This long-established standard was placed in the Constitution to ensure candidates had some stake in our state’s political and civic life. It’s clear they did not intend to allow a person to serve if they had been a permanent resident of another state during the years just before their election. The brief refers to this as the “domicile test."
- Objective facts demonstrate that Mr. Kristof fails the domicile test. Until December 2020, Mr. Kristof’s primary residence — his legal domicile — was in New York. These facts include: Voting in New York from 1999 through the November 2020 election; Centering his professional and personal life in New York, where he owned a home he used as a base for his job at the New York Times, where he returned to after international travel, and where he enrolled his children in school; Maintaining a driver’s license in New York even though New York law only requires in-state licenses for permanent residents; and Paying income taxes in New York from 1999 to 2020. Based on all the facts before them, elections officials correctly determined Mr. Kristof did not meet the residency requirements to run for Governor of Oregon in 2022 and should not appear on the ballot.
- Mr. Kristof makes three arguments for his inclusion on the ballot, but all fail to identify a workable standard that applies fairly to everyone. The Secretary’s brief states:
1) [Mr. Kristof] repeatedly [invokes] his status as a “frontrunner” in the gubernatorial race, as a person who has raised millions of dollars, and as a person who has numerous supporters...Embedded in this “frontrunner” standard is [Mr. Kristof’s] argument that the Court should “let the voters decide.” But this court should strongly reject the implication that a person’s popularity, wealth, or political clout is relevant to whether they are “resident within” Oregon. The Elections Division and local elections officials apply the same rule to all candidates no matter how known or unknown they are, and regardless of how many residences they own, if they own a residence at all, or if they are houseless. Adopting the rule [Mr. Kristof] appears to propose would enable a grave injustice, in which “the voters decide” for well-resourced and well-connected candidates, and other candidates are held to a more exacting standard. (Page 31)
2) [Mr. Kristof] contends that a person who owns homes in multiple states could be “resident within” Oregon without being domiciled there. But that rule produces irrational results. It would allow a person to be elected Governor of Oregon while continuing to vote and live out of state. Even more counterintuitively, that person could run for Governor of two different states at the same time. Construing residency so broadly that it allowed those scenarios would undermine the reasons for adopting any residency requirement at all. (Page 31)
3) [Mr. Kristof also] suggests that he should be considered “resident within” Oregon because he feels a deep connection to the state … But no filing officer could ever make consistent, fair determinations about a candidate’s qualifications for office based on such subjective, transitory facts. (Page 32) - The Elections Division’s decision to disqualify Mr. Kristof was made by an experienced elections professional who has served Oregon for nearly two decades, working on residency determinations under the last six Secretaries of State. Her decision was based on the objective facts he provided and which were publicly available and known to the Elections Division. The decision was not unusual. On the contrary, it is a common, and often uncontroversial occurrence for elections officials to determine that a candidate does not meet residency and/or other requirements and cannot appear on the ballot. The Elections Division disqualified ten other candidates in the past year, including six other candidates for Governor.
"The rules are the rules and they apply equally to all candidates for office in Oregon,” Secretary Fagan said. “I stand by the determination of the experts in the Oregon Elections Division that Mr. Kristof does not currently meet the Constitutional requirements to run or serve as Oregon Governor.”
