"Equal" = tax vote lawsuit silver bullet?
Sec. State Tobias Read, the defendant, arguably admitted one of the premises of tax opponents' lawsuit to block a law that would change referendum vote from Nov to May
An email Secretary of State Tobias Read sent to legislative leaders February 25 (highlights added).
Opponents of Oregon Democrats’ scheme to move the date of the referendum vote from November to May filed a lawsuit yesterday arguing the date switch violates Oregon voters’ constitutional rights to free and equal elections and to free speech.
The suit, brought by State Rep. and gubernatorial candidate Ed Diehl (R), Senate GOP leader Bruce Starr and 36 county captains who collected some 250,000 signatures to put the tax hike on the ballot, asks the court to order Secretary of State Tobias Read (D) to disregard the recently passed date switch law and hold the vote in November.
The 269-page lawsuit immediately highlights Read’s February 25 email to legislative leaders warning them that day’s deadline was previously set by his office to “ensure Oregonians have a fair and equal chance to participate in the voters’ pamphlet process related to this referendum, should it be on the ballot in May.” (Emphasis added). Read wrote that he was concerned about the voter pamphlet process because the date switch law significantly shortens the time people who wish to submit an argument for or against the measure have to collect 500 signatures. The other alternative to get an argument in the voter pamphlet is to pay $1,200.
Plaintiffs in the newly filed lawsuit argue the date switch law violates Article I, Section 2 of the Oregon Constitution guarantees that “all elections shall be free and equal.” (Emphasis added).
The Democrats who enjoy supermajorities in both houses of the legislature, combatting Republican delay tactics and their own members’ reticence to alter the election date that appeared on all petitions signed by a quarter of a million Oregonians, failed to meet Read’s deadline. The House passed the date switch bill March 2, and Governor Tina Kotek (D) signed it into law the same day.
Read’s email is important, perhaps definitively so, because of this sequence of events:
Read emails that failure to meet the February 25 deadline imperils Oregonians’ “fair and equal” access to the voters pamphlet associated with the referendum vote.
Democrats miss February 25 deadline.
Tax hike opponents sue Read in part based upon the theory the date switch law violates Oregonians’ constitutional right to “free and equal” elections.
The tax opponent plaintiffs, then, find themselves in the enviable position of suing a defendant who has more or less admitted the premise of one of their constitutional claims. Read put the legislature and, as it turns out, the judiciary, on notice he could not ensure an equal election process if the date switch law was enacted post-February 25. Yet an equal election is exactly what Oregon Constitution requires.
Read could choose not to contest the suit on the grounds he laid out in his email, or others, though that would not win him many friends among Democratic leadership. If he does defend the date switch law, his lawyers will have a difficult time avoiding the plain meaning of his email while arguing Read can in fact run an equal election on a rushed timeline.
Read ran against and lost to Kotek in the 2022 race for the Democratic gubernatorial nomination. While any continued frostiness between Read and Kotek has been kept out of the public eye, Read did choose to process quickly the referendum signatures late last year. In contrast, Kotek took weeks to sign the original tax hike bill in a failed attempt to frustrate signature gathering efforts.
Rob Wagner, leader of the Senate Democrats, admitted earlier this month, “I don’t think people want to see this on a November ballot.” Foremost among the “people” who don’t want the tax referendum on the November ballot is Kotek herself, whose quest for re-election will culminate on that same ballot.
The lawsuit has been assigned to Marion County Circuit Court Judge Natasha Zimmerman, who was originally appointed to her position in 2023 by . . . Kotek.
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