Case Hinges on Timing of Legislative Disqualification for Unexcused Absences
Measure 113, which voters overwhelmingly approved in 2022 to discourage legislative walkouts, underwent oral arguments last week before the Oregon Supreme Court. The court hearing resembled a middle school grammar class.
Five Republican senators are challenging the Secretary of State’s decision to bar them from running for re-election in 2024 based on their view of the actual wording of Measure 113. The Department of Justice attorney representing the secretary of state said it is more important to focus on what voters believed they were approving rather than an interpretation of the measure’s actual language.
The legal disagreement on language has the quality of an argument over where a comma should go in a sentence.
A federal judge has already rejected a challenge to Measure 113’s disqualification penalty.
What the Measure Says
This is the first paragraph of the measure: “Ballot Measure 113 amends the Oregon Constitution to create a constitutional ban on holding state legislative office, for one term, if a state Senator or Representative is absent without excuse ten or more times from floor session during any one legislative session. The Measure deems the failure to attend without excuse to be disorderly behavior and disqualifies the legislator from holding office after the legislator’s current term ends. A candidate may run for office in the next primary and general elections and win, but cannot hold office under this measure due to ten or more unexcused absences.”
The Republican plaintiffs contend the measure’s wording about disqualification is misleading. The attorney for the Secretary of State argues the ballot measure’s intent is clear.
Under questioning by Chief Justice Meagan Flynn, plaintiff attorney John DiLorenzo said most voters made up their mind based on a ballot title that “was not correct”. Dustin Buehler on behalf of the secretary of state, said the state Voters’ Pamphlet, campaign material and media stories fairly described the measure’s intent.
Almost 1.3 million Oregonians, 68 percent of the 2020 general election turnout, voted for Measure 113.
The Yes/No of the Measure
These 10 words in the “Yes” explanation of Measure 113 – “disqualifying legislators from re-election following the end of their term” – are the source of the disagreement. The Republican senators argue “re-election” refers to an election after their terms end, not in November 2024. The language would have been clearer if it said “disqualifying legislators from serving the next term if they are absent from 10 legislative floor sessions without permission or excuse.”
“This case presents a particularly good example of why a full analysis of text in context, with the benefit of relevant history, is essential to discerning and giving effect to voter intent,” Buehler said. “The question here is whether Measure 113 bars disqualified legislators from their immediate next term of office, or the term after their next term. Contrary to petitioners’ arguments, the text of Measure 113 is susceptible to multiple interpretations on that issue.”
Buehler added, “I’m sure the drafters (of the initiative) wish they could take a mulligan. [But I] encourage the Court not to let semantics get in the way of the voter’s intent.”
DiLorenzo countered, “In the Secretary and amici’s world, the words actually voted into the Constitution are of only secondary importance. They turn the Court’s constitutional methodology on its head. Under their methodology, if the ballot title, yes/no statements and Voters’ Pamphlet materials are clear, the Court need not even bother with the text of the amendment – it can simply apply the yes/no statements as written, even if they flatly contradict the text that the voters adopted.”
“I’m sure the drafters wish they could take a mulligan. But I encourage the Court not to let semantics get in the way of the voter’s intent.”
A Win and a Mulligan
Some observers believe the Supreme Court will side with Secretary of State LaVonne Griffin-Valade and keep the five senators, which includes current Senate Republican Leader Tim Knopp, off the 2024 ballot. Two other Republican senators with more than 10 unexcused absences chose to retire rather than join the Measure 113 challenge.
Regardless how the court rules, backers of Measure 113 are working on a new initiative that would make their previous handiwork less relevant. The new measure would change quorum requirements for the House and Senate to conduct business to a simple majority instead of the current two-thirds – 20 members in the Senate and 40 in the House. That change would make legislative walkouts by minority parties an ineffective strategy to block votes.