Oregon Secretary of State Shemia Fagan says allowing Nick Kristof to appear on the May ballot for governor would set a dangerous precedent that benefits well-connected political candidates.
That’s the case made in a legal brief to the Oregon Supreme Court, filed Thursday by the Oregon Department of Justice on behalf of Fagan, in the latest in the back-and-forth between the Kristof campaign and the secretary of state’s office.
Fagan recently rejected Kristof’s gubernatorial bid, saying he does not meet the constitutional requirement that the governor must be a resident of Oregon for three years preceding their election. Fagan based that decision on Kristof’s history of owning property in New York and voting in that state as recently as 2020, among other factors.
“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,” Fagan said in a statement accompanying Thursday’s legal filing. “Not only do the objective facts demonstrate that Mr. Kristof was not domiciled in Oregon until late 2020 … 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.”
Considering Kristof a “resident within” Oregon without being domiciled in the state, Fagan continued, would mean a person could be “elected Governor of Oregon while continuing to vote and live out of state … Construing residency so broadly that it allowed those scenarios would undermine the reasons for adopting any residency requirement at all.”
After Fagan initially ruled Kristof ineligible to run, the former New York Times columnist appealed. Kristof hopes the Oregon Supreme Court will overturn Fagan’s ruling well before the March 17 deadline for candidates to qualify for the May primary ballot.
In the latest filing, Fagan and state lawyers argue that when the Oregon Constitution was crafted, residency meant domicile or living permanently in the state.
“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,” she wrote.
The new state brief also pushes back on the notion that Kristof should be considered a resident because he grew up in Oregon and has a deep connection.
“... no filing officer could ever make consistent, fair determinations about a candidate’s qualifications for office based on such subjective, transitory facts,” the brief states.
Lawyers representing Kristof argue that not only does he meet the state’s residency requirements to run for Oregon governor, but denying him the chance to run could lead to voter suppression in future elections in the state.
In the brief filed on behalf of the Pulitzer-Prize winning journalist last week, Kristof’s lawyers note an Oregon court has never addressed what it means to be a resident.
Kristof’s lawyers argue that he was raised in Yamhill and has maintained a home there his entire life, and that Kristof has described Oregon as his home for decades in both his professional writing and in his personal life. They added a historical point: The residency requirement in the Oregon Constitution was designed to exclude those who were unfamiliar with the state. Kristof’s lawyers also contend that Fagan gave “no weight to forty years of published writings in which Kristof” claimed Yamhill was his home.
The brief says this decision violates the constitution because it is overly broad and does not serve to advance the state’s interest in “limiting public office to those who are familiar with the state.”
This interpretation by the state’s election office could prove to deprive voters of their choice of candidate now and in future elections, they argue.
“There are many peripatetic Oregonians who, for various reasons, live in more than one place and may prefer candidates who understand the experience of living in multiple places or changing residences often,” the legal document states. “Such Oregonians come from all walks of life: houseless and housing-insecure persons; university students; seasonal migrant workers; servicemembers; snowbirds; the list goes on. These groups are disserved by the Secretary’s interpretation, contravening the spirit of free and equal elections.”
The brief filed by Kristof’s campaign says he is considered a “frontrunner” in the race and has already raised millions of dollars with many supporters.
On this point, Fagan said, Kristof’s status in the race should not matter.
Inherent in this “frontrunner” idea, the state’s brief says, is the notion that the voters should decide, or that popularity should dictate residency.
“But this court should strongly reject the implication that a person’s popularity, fundraising clout, or political connections are relevant to whether they are a ‘resident within’ Oregon,” the state’s brief reads. “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.”
Documents from both the secretary of state’s office and Kristof are due to the court by Jan. 26. Both sides have asked the court to make a decision quickly.
Kristof has reported raising more than $2.5 million, far more campaign funds than his highest profile Democratic rivals, House Speaker Tina Kotek and state Treasurer Tobias Read.
While he’s able to continue fundraising as he mounts a challenge, Kristof argues in the legal filings that he was a frontrunner in the race prior to Fagan’s decision, but that the secretary “may have predetermined the outcome of the primary election — or at least put a thumb firmly on the scale — even if this Court reverses her decision.”