Oregon Justice Department Urges Supreme Court to Hear Nicholas Kristof’s Appeal ASAP

The Oregon Department of Justice proposes a schedule that could settle Kristof’s appeal by month’s end.

Shemia Fagan arrives at a Portland get-out-the-vote event on Nov. 3, 2020. (Alex Wittwer)
By Nigel Jaquiss

On behalf its client, Secretary of State Shemia Fagan, the Oregon Department of Justice today joined Democratic candidate for governor Nicholas Kristof in asking the Oregon Surpreme Court to hear Kristof’s appeal of his disqualification from the May ballot as soon as possible.

In its filing, the state said, “The secretary of state, defendant in this original mandamus proceeding, agrees with plaintiff-relator that this court should exercise its discretion to hear this proceeding and that it should do so expeditiously.”

On Jan. 6, Fagan, the state’s top elections official, ruled that Kristof did not meet the three-year residency requirement for candidates for governor spelled out in the state’s constitution. Chief among the reasons Fagan cited: Kristof voted in the November 2020 general election in New York.

He had owned a home in Westchester County for the past two decades, voted there, maintained a New York driver’s license and sent his three children to schools there. (The DOJ response also touches on a point of contention between the parties: Although Kristof says he filed Oregon income tax returns in 2019 and 2020, he did not submit those returns to the secretary of state as part of his filing in support of his residency. Kristof has said that’s because elections officials did not ask for the returns. He has declined to make the returns public.)

The DOJ suggested a schedule to the court: Kristof would file his brief by Jan. 14; the state would reply by Jan. 20; Kristof would reply, if necessary, to the state’s reply by Jan. 26; and oral arguments would be heard Jan. 31 or Feb. 1. That schedule would provide resolution well ahead of the March 17 deadline to print ballots.

The court will now respond, informing the parties whether it will agree to hear the case.

If it does, there’s one complication: The Oregon Supreme Court normally reviews lower court decisions, which include an evidentiary record. In this case, there is no such record, so the court could appoint a “special master” (such as a senior judge) to gather a record or, the DOJ suggested, it could send the case back down for the creation of a record, or just rely on the documents both parties submitted for the secretary of state’s process.

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