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Oregon Secretary of State Shemia Fagan, the state’s top elections official, will decide as soon as this week whether Democratic candidate for governor Nicholas Kristof meets the constitutional residency requirement to appear on the May primary ballot.
It’s a fraught question, as Kristof, the former New York Times journalist who grew up in Yamhill, has gone from being something of a novelty candidate to the dominant fundraiser in the Democratic primary. His $2.5 million war chest is $1 million more than his two leading rivals, House Speaker Tina Kotek (D-Portland) and State Treasurer Tobias Read, have raised combined.
At issue is an ambiguous phrase in the Oregon Constitution that sets out the residency requirement for candidates for governor: “No person shall be eligible to the Office of Governor who shall not have been three years next preceding his election, a resident within this State.”
On Jan. 3, Kristof submitted 100 pages of documents to Fagan’s office in support of his contention that he meets the requirement. The next day, trial lawyer and former state Rep. Nick Kahl (D-Portland), submitted a 17-page rebuttal, arguing Kristof does not qualify (Kahl supports Kotek but says he wrote his memo of his own volition.)
A spokesperson for Fagan says the secretary will make her ruling, informed by a legal opinion from the Oregon Department of Justice, as soon as this week. Lawyers on both sides expect Fagan’s ruling will be appealed and swiftly make its way to the Oregon Supreme Court.
Here’s what each side is contending.
KRISTOF QUALIFIES
Strongest Argument: Kristof’s attorney Misha Isaak, a former counsel to Gov. Kate Brown, says the issue of residence turns on where Kristof considers his home to be. Kristof left Oregon after high school but has owned property here since the early 1990s and has returned every year. In effect, Isaak argues, Kristof never left—while he lived all over the world and maintained a home in New York for 20 years, he always considered Oregon his home and intended to return permanently.
Best Example: In a 1916 Oregon Supreme Court case that Isaak cites, the court determined that whether a person votes in another state—Kristof cast his ballot in New York in 2020—”is of no consequence.”
Killer Quote: “Either Mr. Kristof was always an Oregon resident because he always considered it to be his home—as he maintains,” Isaak writes. “Or he has been an Oregon resident since 2018, when he began living here more regularly to write his book about Oregon people and issues and to manage the overhaul of his farm.”
KRISTOF DOESN’T QUALIFY
Strongest Argument: Kahl points out a fact WW first reported in August—that Kristof voted in New York elections in 2020. When he signed his New York ballot, Kristof certified that “I have not qualified nor do I intend to vote elsewhere.” Kahl says acknowledging he wasn’t “qualified” to vote elsewhere (i.e., in Oregon) means Kristof could not have been an Oregon resident.
Best Example: Although Kristof’s supporters say residency requirements are archaic and discriminatory, Kahl notes that more than 40 states employ them and cites what he believes is an analogous and chilling precedent: In 1935, the North Dakota Supreme Court removed Gov. Thomas Moodie from office after determining he didn’t meet the state’s residency requirement, in part because he’d recently voted in Minnesota. “While registering and voting in a particular place is not conclusive,” the court found, “it is strong circumstantial proof of residence.”
Killer Quote: “By nearly every objective measure, Mr. Kristof resided in New York until late 2020,” Kahl writes. “Therefore, he is not qualified to serve as governor of Oregon.”