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The Potential Disqualification of Gubernatorial Candidate Nicholas Kristof Adds Uncertainty to the May Election

The former journalist’s attorneys hope to plead his case in the Oregon Supreme Court.

It’s hard to remember a time in Oregon politics when three momentous decisions came in such short order as they did last week.

It started Jan. 5, when Senate President Peter Courtney (D-Salem), 78, whose colleagues put him in charge 20 years ago, announced he would retire at year’s end.

The next morning, Secretary of State Shemia Fagan dismissed Democratic candidate for governor Nicholas Kristof’s argument that he meets the state’s residency requirement to run for governor.

Less than two hours later, House Speaker Tina Kotek (D-Portland) announced her resignation from the position she’d held longer than any previous Oregon speaker—in order to concentrate on her own bid for the governor’s mansion.

Lawmakers will replace their leaders: Kotek in January, Courtney next fall. But Kristof’s fate still hangs in the balance.

Fagan handled her decision decisively—less than 72 hours after Kristof, the former New York Times journalist, submitted evidence to substantiate his residency. But her office’s letter disqualifying him acknowledged uncharted territory, admitting, “Oregon courts have not interpreted the constitutional residency requirement for gubernatorial candidates.”

Here are three questions that now loom over the state as Kristof’s appeal likely heads into a courtroom.

How might Kristof’s exit change the governor’s race?

Although a first-time candidate, Kristof grabbed a funding lead over his two top rivals, Kotek and State Treasurer Tobias Read. “They both benefit if he’s off the ballot,” says lobbyist Len Bergstein. Kristof has run as a moderate, so Read, more centrist than Kotek, may inherit some of Kristof’s backers.

But the candidate who could benefit most from Kristof’s departure is Betsy Johnson, the former Democratic state senator who is running as an unaffiliated candidate. “The Democrats go left, the Republicans go right,” Bergstein says, “and she’s alone in the middle.”

How will Kristof’s legal challenge work?

On Jan. 7, Kristof’s attorney Misha Isaak sought immediate review of Fagan’s decision by the Oregon Supreme Court. The court gave the Oregon Department of Justice until Jan. 14 to file a reply.

Before the case proceeds, lawyers say, there may need to be an intermediate step to establish an evidentiary record: The case could be sent down to a circuit court or the Supreme Court could appoint a “special master” to collect evidence, or it could just weigh the existing record.

Isaak is uniquely well suited to plead Kristof’s case to the high court: As counsel to Gov. Kate Brown, he vetted and helped select four of the court’s six justices (the seventh seat is currently vacant).

While Isaak has spelled out Kristof’s case in lengthy memos, the state’s legal argument is less voluminous. Fagan said last week that her Elections Division consulted DOJ “repeatedly” in arriving at its conclusion. But Fagan acknowledged it was based neither on a written DOJ opinion nor on court precedent.

Fagan said Kristof’s having voted in New York in 2020—a fact first reported by WW in August—means he fails Oregon’s three-year residency requirement for gubernatorial candidates. Harry Wilson, an elections lawyer with the Markowitz Herbold firm who has contributed to Kotek and Read, says North Dakota and Indiana have set precedent by making where a candidate voted previously a threshold issue. “Fagan got it right,” Wilson says. “Where you vote really matters.”

Mick Gillette, who served 25 years on the state’s highest court and is now in private practice, says after reading case documents, he’s not sure voting in New York is more important than Kristof’s claim that he’s always considered Oregon home. “The argument that Mr. Kristof has returned to Yamhill County frequently and spent more time there in recent years seems particularly useful,” Gillette says.

Why does Fagan’s decision matter?

Although Fagan, the state’s top elections official, briskly dismissed Kristof’s case, saying it “wasn’t a close call” and “didn’t pass the smell test,” she’s wading into a larger debate about ballot access.

On Dec. 19, Jeanne Atkins, Bill Bradbury and Phil Keisling, all former Democratic secretaries of state, weighed in. “Oregon and its voters would be best served if we continue to make inclusion—and not exclusion—the guiding principle of our participatory democracy,” they wrote in The Oregonian.

Since Fagan’s ruling, the Bend Bulletin and Portland Tribune have editorialized against her decision. “Fagan should let voters decide if they consider [Kristof] enough of an Oregonian to entrust him with the state’s most important leadership role,” the Tribune wrote Jan. 9. Some suspect her decision was motivated by political allegiances—including Kristof, who darkly implied as much in a Jan. 6 press conference. Portland lawyer Nick Kahl, a Kotek supporter who argued in a memo to Fagan’s office that Kristof should be disqualified, says the former journalist’s argument is based on the privilege of being wealthy enough to afford multiple homes and has nothing to do with access to democracy.

“Kristof’s Trump-like claim that he is the victim of a conspiracy by the political elites is pretty ironic, given that he and his funders are about as elite as you can be,” Kahl says. “As is his argument for being allowed on the ballot.”