Secretary of State Shemia Fagan Files Supreme Court Brief Defending Decision to Disqualify Nick Kristof

The state’s top elections official provides a fuller explanation of why she excluded the Democrat from the May ballot.

Secretary of State Shemia Fagan today filed her brief with the Oregon Supreme Court explaining and justifying her Jan. 6 decision to disqualify Democratic candidate for governor Nicholas Kristof from the May primary ballot.

In a press conference announcing her decision, Fagan told reporters Jan. 6 that the Oregon Department of Justice, which advised state agencies and represents them in court, had provided only verbal counsel. Fagan presumably incorporated DOJ’s advice in the three-page letter her agency sent to Kristof informing him he did not meet the three-year residency requirement the Oregon Constitution says candidates for governor must meet.

Today, the Justice Department gave a more complete explanation of why officials believe Kristof doesn’t meet the residency requirement.

The term “residency” is not defined in the constitution and is at the heart of the disagreement between Fagan and Kristof, the former New York Times journalist and first-time candidate who has raised far more money for his campaign than his two leading opponents, House Speaker Tina Kotek (D-Portland) and State Treasurer Tobias Read, have raised combined.

The 70-page brief DOJ filed on Fagan’s behalf today details what DOJ thinks the relevant section of the constitution means. (Disclosure: Attorney General Ellen Rosenblum, whose name is on the state’s brief, is married to Richard Meeker, the co-owner of WW’s parent company.)

“The text, context, and history of Article V, section 2, indicate that, to be a ‘resident within’ Oregon for three years preceding the election, a person must have been domiciled in Oregon during that period,” the state’s brief says. “A person can only have one domicile at any given time.”

In other words, a person may own property in more than one state, DOJ is arguing, but can only have one legal “residence.”

The state believes that for part of the three-year period, Kristof’s domicile or legal residence was elsewhere.

“Although [Kristof] lived in Oregon beginning at age 12 and until he left for college, and he continues to have ties here, his conduct shows that he was domiciled in New York—not Oregon—until at least December 2020,” the state’s brief continues.

Kristof appealed his disqualification from the ballot directly to the Oregon Supreme Court and he filed his opening brief with the court Jan 14.

He contends his name should be on the ballot because he has always considered Oregon his home, even while living other places. Kristof’s conception of where his residence was, his attorneys say, is what the constitutional requirement was mean to capture.

“Kristof satisfies the residency requirement because he has long viewed and treated Oregon as his home,” Kristof’s brief, filed by the Perkins Coie firm, says. “Not only has he claimed the Kristof farm as his home for 50 years, but he was raised there, spent all but one summer there since the 1970s, built himself and his family living quarters there in 1994, has managed the farm since 2010, and has leased the farm since 2018.”

The state disagrees, building its argument upon the undisputed fact that as recently as November 2020, Kristof voted in New York.

“For two decades, plaintiff voted in New York, held a New York driver’s license, owned a primary residence in New York, lived and worked in New York, paid income taxes in New York, and sent his children to public schools in New York,” the state’s brief says. “Most telling is plaintiff’s voting record: Even for the November 2020 election, when he was apparently physically present in Oregon and Oregon voters faced important choices in Yamhill County and statewide, plaintiff voted by absentee ballot in New York.”

Kristof has argued that his fundraising—about $2.7 million so far—and the widespread support he’s received from Oregon voters (about 6,000 contributions) supports his contention that it should be the voters who decide on his fitness to hold office, rather than a partisan elected official, such as Fagan.

In a statement, Fagan today dismissed that line of argument and called Kristof’s contention that he should qualify because he’s always considered Oregon his home an impossibly “subjective” standard.

“The rules are the rules, and they apply equally to all candidates for office in Oregon,” Fagan said. “I stand by the determination of the experts in the Oregon Elections Division that Mr. Kristof does not currently meet the constitutional requirements to run or serve as Oregon governor.”

Kristof now has until Jan. 26 to respond to the state’s filing. After that, the Supreme Court will consider the case based on the competing briefs, without oral arguments.