Constitutional law scholar on likely challenge to Oregon walkout measure

More than 100 bills have been stuck in the Oregon state Senate after Republican senators staged a walkout that began May 3. The political tactic is a strategy to block Democratic legislation on abortion rights, transgender care and gun safety. High profile walkouts that grind business to a halt was exactly what Ballot Measure 113 was aimed at preventing. Passed overwhelmingly by voters last fall, the constitutional amendment says legislators with 10 or more unexcused absences may not run for subsequent elective office.

Most of those participating in the walkouts have already hit the 10 or more mark, and Republicans say they will challenge the law in court. While speech and electoral freedom concerns have been raised, it’s not entirely clear on what basis Measure 113 would be challenged or whether a case would be filed in state or federal court. Norman Williams is a professor at Willamette University and teaches both constitutional and election law. He says only one thing seems all but certain: There will be a challenge of some kind. He joins us to walk us through some of the legal issues and questions that could come before judges.

The following transcript was created by a computer and edited by a volunteer:

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. More than a hundred bills have been stuck in the Oregon state senate after Republican senators staged a walkout at the beginning of this month. This walkout has frustrated Democratic lawmakers and their constituents even more than other high profile ones in recent years because they thought that voters had passed a measure that would prevent walkouts. It turns out they were wrong. Measure 113, which passed with nearly two thirds support, amended Oregon’s constitution to say that legislators with 10 or more unexcused absences cannot run for subsequent elected office. The nearly month-long walkout now means that 10 Republican senators have now reached that threshold. They vowed to challenge the amendment, and what’s more, they say that the text itself doesn’t even prevent them from running in the next election, but the one after that.

Norman Williams is a professor at Willamette University. He teaches constitutional and election law. He joins us now to talk about the potential challenges to and defenses of Measure 113. It’s good to have you on the show.

Norman Williams: Dave, thank you for having me. Pleasure to be here.

Miller: I just want to start with an alternate universe here in which public employee unions pushed for a different constitutional amendment; one to put Oregon in line with a lot of other states and just change the quorum requirement as opposed to the more complicated change. When we’ve talked about this before with a backer during the election in the lead up, what we basically heard was that this polled well. But legally, does it make sense to you as a tactic?

Williams: I think you asked the $64 million question, which is if you really want to end walkouts by the minority political party, the only way to do that without engendering these types of problems is to change the quorum requirement. Oregon is one of only four states in the entire country that has a super majority quorum requirement. 45 states use a majority, one state uses less than a majority, and Congress uses a majority for a quorum requirement, thereby disabling the minority party from just shutting down Congress by walking out. And so the decision to push Measure 113 as disqualifying you from office in the future, rather than as a change to the quorum rule, I think is precisely what is leading to what we’re witnessing now.

Miller: I want to turn to potential challenges at the state level, and we can turn to what might happen at the federal level. Planned Parenthood, Basic Rights Oregon, and the ACLU, which are all in favor of Measure 113, asked for an opinion from the law firm about the strength of a possible state constitutional challenge. And the response they got was that a challenge was unlikely to prevail. What was that reasoning? And do you agree with it?

Williams: I think a facial challenge to Measure 113, meaning that this type of provision is unconstitutional, I think that would be extremely difficult, almost certain to fail, because Measure 113 has amended the state constitution. As a part of the state constitution, it can’t be challenged for violating some other portion of the state constitution, with one exception which is not applicable here, a single subject requirement.

Miller: You mean, by definition, if you amend the state constitution, then that thing that’s now in the constitution, it cannot be unconstitutional, because it is the constitution?

Williams: Under the state constitution, that’s right.

Miller: It could go against the federal constitution.

Williams: Right. And there are a couple of exceptions here in terms of Oregon Supreme Court cases over the past 150 years. But if there’s an inconsistency between two state constitutional provisions, the Oregon Supreme Court interprets the most recent constitutional provision as expressing the people’s will and trumping the prior, essentially creating a carve out to whatever prior provision was on point. And so any challenge saying Measure 113 violates the state constitution I think is destined to fail.

Miller: Well, then let’s turn to the federal side. What arguments might opponents of Measure 113 bring in terms of the US Constitution?

Williams: The two most likely challenges are to be first under the equal protection clause of the 14th Amendment, which has been interpreted by the US Supreme Court to protect the right to vote. And that right to vote that voters possess includes the right to vote for a candidate of the voter’s choice, the right of the candidate to appear on the ballot is viewed as one of the ways in which to protect the underlying right of the voter to vote for who they want.

And then secondly, a free speech challenge, that these senators are expressing their opposition to the measures currently before the Senate, and therefore disqualifying them from office in the future is punishing them for their free expression. Those are the two most likely federal constitutional challenges.

Miller: Do you think either or both of those have merit? Do you think a judge would think they have merit?

Williams: I think as a straight up facial challenge to Measure 113, they’re going to be difficult. There are some other constitutional challenges that are more limited that I think the state needs to be worried about. But arguing that on the face of it Measure 113 violates the free speech rights or equal protection rights of either legislators or their supporters are gonna be difficult.

Let’s start with the right to vote. The US Supreme Court has long made clear that states have a great degree of latitude to set qualifications for state office, and every state does. You have to be a citizen to be a governor or a legislator, you have to be of a certain age for legislators here in Oregon. You have to be a resident of the district that you intend to represent. So state constitutions, in every state, set qualifications for office. And those qualifications will disable voters from supporting individuals who don’t meet those qualifications. And so I think a straight up equal protection challenge to Measure 113 is going to be very difficult to persuade a federal court as to why this particular disqualification is different than an age disqualification or a citizenship disqualification which similarly limit the choices available to voters.

And let me just add, we as a state saw this just last year when Nicholas Kristoff wanted to run for governor here in Oregon, and the Secretary of State’s office took the position that Mr Kristoff was not a bona fide resident of Oregon for long enough to qualify to run in the Democratic primary.

Miller: They basically said “you may be a son of Yamhill County, but you’ve been living in New York and voting in New York.”

Williams: Exactly. So we as a state have recent experience with individuals being disqualified from running for office.

Miller: But you did say that if the state has to defend this law against challenges, there are more limited arguments that may be more challenging to defend. What were you thinking about?

Williams: It’s not a straight up challenge to Measure 113 on its face, but it’d be more particularized as to whether the Senate President’s decisions regarding what qualify as excused absences and what are unexcused absences, whether the Senate President is making those decisions in a legal way, or potentially violating the federal rights, both constitutional and statutory, of individual senators.

What strikes is that both in the Oregon House of Representatives and in the Oregon Senate, there’s no guidelines as for what qualifies as an excused or unexcused absence. School districts here in Oregon have more detailed rules about what qualify as excused and unexcused absences for students than what we have for Oregon legislators. And the fact that it’s going to be a lone individual, the Senate President or the Speaker of the House, making that decision is also I think going to give federal courts pause about a lone individual with no guidance regarding what qualifies as an excused or unexcused absence making this type of significant decision, I do think is going to be grist for a federal court lawsuit.

Miller: I want to turn to one more big wrinkle here, which is the timing. The constitutional amendment reads that 10 or more unexcused absences “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.” The wrinkle is that elections happen in November, but terms aren’t complete until the following January. So even though it seems pretty clear what the intent of voters was, the plain language of our current constitution says that a senator elected this past November could seemingly run for and serve another four year term in another 3.5 years. What do judges do when there is such a discrepancy between the text, in this case the text of the constitution, and the intent of the voters who amended that constitution?

Williams: My answer is going to be, we’ll see. The Oregon Supreme Court has two different lines of cases here. One line of cases say if the text is unambiguous, the text governs. They have another line of cases that say in interpreting the Oregon Constitution, we must always give effect to the will of the voters, the will of Oregonians. And Measure 113 is a great example of a measure where the text says one thing, and the intent of the voters was clearly different. And it will ultimately be for the Oregon Supreme Court to decide whether it’s the text or the voters’ intent that governs here. And again, there are cases where the Oregon Supreme Court has gone one way in the past, and cases where they’ve gone a different way on that issue. So it’ll be interesting to see.

Miller: How common is it for a constitutional amendment to be written in such a sloppy way, and for it to have so many of us not even realize it?

Williams: It happens more often than I think a lot of us would like. This is kind of why we have courts, is to resolve ambiguities, unintended and intended, in constitutions and statutes. It’s unfortunate, and part of the lack of clarity here or the unintended clarity here, was a product of, there wasn’t really a debate on it. There were only arguments in favor of this, there was no organized opposition to it pointing out this problem. So in part because it was so popular, I think this particular drafting error was overlooked in the early stages of the proposal.

Miller: Norman Williams, thanks very much for joining us. It was a pleasure to have you on.

Williams: Thank you, Dave.

Miller: Norman Williams is a professor at Willamette University. He teaches election and constitutional law.

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