As Nicholas Kristof Makes His Case for Residency, a Former Supreme Court Justice Says He Should Make the Ballot

This afternoon, Democratic candidate Nicholas Kristof will attempt to convince elections officials that his name should be on the 2022 ballot.

It’s a question that many lawyers and political observers expect to end up at the Oregon Supreme Court, which is probably why Kristof’s legal team sought an analysis of the state’s residency requirement from retired Supreme Court Justice R. William Riggs.

In an opinion that runs just over two pages, and is included in Kristof’s supporting documentation, Riggs, who retired from the state’s highest court in 2006, concludes that Kristof, who spent 37 years roaming the world for The New York Times before retiring last year, should be allowed on the ballot.

“It is my independent legal opinion that [Kristof] satisfies the durational residency requirement of Article V, Section 2 of the Oregon Constitution and therefore is eligible for the office of governor,” Riggs wrote.

Kristof, a first-time candidate who grew up in the town of Yamhill, has raised $2.45 million so far for his campaign, about $1 million more than the combined total of two veteran elected officials in the race: House Speaker Tina Kotek (D-Portland), who has raised $814,000, and State Treasurer Tobias Read, who has raised $720,000.

But he still faces a major hurdle: convincing Secretary of State Shemia Fagan, the state’s chief elections officer, that he meets the threshold requirement laid out, somewhat awkwardly, in the Oregon Constitution.

That document says that in order to run for governor, a candidate must “have been three years next preceding his election, a resident within this state.”

WW first raised the question of Kristof’s residency in August, noting that he had voted in New York state, where he had long maintained a residence, in November 2020. Kristof had also listed a New York address when he filled out public documents in Oregon relating to the farm he and his family have long owned in Yamhill.

He told WW then he’d always considered himself an Oregonian in his years away from the state and pointed to his having owned property and paid property and income taxes here to corroborate his claim. Kristof’s campaign hired the Perkins Coie law firm to examine the question, and lawyers there produced a 15-page opinion arguing that he qualified for the ballot.

When Kristof officially filed his candidacy last month, elections officials asked him to substantiate his residency, which he will do in a filing later today. As Kristof’s fundraising made what seemed initially a long-shot candidacy far more credible, his residency status became a big topic of discussion in Democratic circles.

In an op-ed they wrote for The Oregonian last month, three former secretaries of state—Jeanne Atkins, Bill Bradbury and Phil Keisling, all Democrats—suggested Kristof should be allowed on the ballot.

“Each of us, when faced with similar questions as secretary of state, looked first to the individual candidate’s view of residency,” the former secretaries wrote. “It is clear he considers Oregon ‘home.’”

Residency is something of a gray issue. Oregon authorities consider a number of factors, including where one keeps a primary home, votes, has a driver’s license, keeps financial accounts, receives medical care and has other relationships. And although a person may own multiple residences, Oregon law says only one may be considered a legal residence.

One of the state’s most experienced elections lawyers, Greg Chaimov, who retired at the end of 2021, has been clear that he thinks Kristof’s having voted in New York in 2020 and lived there for much of the past two decades is a disqualifier.

“Because a person can’t be a resident of two states for voting purposes, we expect the secretary of state and courts to decide Mr. Kristof was not a resident of Oregon in November 2020,” Chaimov told WW.

Three other lawyers WW consulted provided mixed responses, although all thought that no matter what Fagan’s office decides, the issue will proceed immediately to the state Supreme Court for review.

Fagan is in a tough spot: She won her position in 2021 after a close primary battle with former state Sen. Mark Hass (D-Beaverton), thanks in part to strong support from public employee unions. Those same unions are likely to support Kotek in the governor’s race and would probably rather see Kristof disqualified.

Fagan’s office will rely for legal advice and representation on the Oregon Department of Justice, which is led by Attorney General Ellen Rosenblum, a Democrat who declined after much consideration to run for governor herself next year. (Disclosure: Rosenblum is married to Richard Meeker, the co-owner of WW’s parent company.)

Molly Woon, a spokeswoman for Fagan, says the agency hasn’t yet received Kristof’s submission. When it does, the secretary will forward that material to DOJ for an opinion. “We hope to have a response as soon as possible,” Woon says.