Ambiguity in Constitutional Change Penalizing Lawmakers for Walkouts May Factor Into Looming Legal Battle

Critics say poorly drafted language makes it unclear exactly when 10 unexcused absences bar future service.

REPRIEVE? Sen. Dennis Linthicum (R-Klamath Falls) has 10 unexcused absences. (Justin Katigbak)

In 2022, progressive groups put Measure 113 on the ballot to stop lawmakers from walking out of the Capitol to block the passage of legislation. (Drafters of the measure chose that step rather than reducing the number of lawmakers required for a quorum. In 45 states, that number is a simple majority. In Oregon, it’s two-thirds.)

The ballot title said: “Amends Constitution: Legislators with ten unexcused absences from floor sessions disqualified from holding next term of office.”

And the relevant portion of the official summary said: “Under measure, legislator who engages in ‘disorderly behavior’ through unexcused absences is disqualified from serving as a Senator or Representative for the term following the end of the legislator’s current term.”

The measure passed 68% to 32% and the Oregon Constitution was amended. But the language placed in the constitution is far from clear.

It says, “Failure to attend, without permission or excuse, ten or more legislative floor sessions called to transact business during a regular or special legislative session shall be deemed disorderly behavior and shall disqualify the member from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.” (Emphasis added.)

As has been widely reported, Oregon Senate Republicans walked out this session and many of them have now reached the threshold of 10 unexcused absences that triggers Measure 113.

The first to be affected are those whose seats come up for reelection in 2024 and whose terms expire in January 2025.

That last part—that their terms end two months after the November 2024 election—may extend their political lives.

The constitution says those senators cannot serve “for the term following the election after the member’s current term is completed.”

The election “after the member’s current term is completed” is in 2028. (State senators serve four-year terms; House members serve two-year terms.)

The Senate Republicans have said they intend to challenge Measure 113 in court, although they haven’t said exactly how. Anticipating that, progressive groups obtained a legal opinion from the Stoel Rives firm knocking down possible arguments that Measure 113 violates lawmakers’ First Amendment rights or their right to run for political office.

Related: As AWOL GOP Senators Consider Challenging New Attendance Law, Legal Memo Says They Have No Case

Steve Kanter, an emeritus professor of constitutional law at Lewis & Clark Law School, says the language inserted in the Oregon Constitution to codify Measure 113 is less than clear about when the injunction against senators would go into effect—in January 2025 or 2029.

“It’s poorly drafted and it’s certainly ambiguous,” Kanter says. “And if [Democrats] try to enforce it, I think there will certainly be court challenges.”

But some lawyers go further, suggesting the constitutional language unintentionally created a loophole that gives senators a four-year reprieve.

Former House Minority Leader Mike McLane (R-Powell Butte), who served as a circuit judge after leaving the Legislature, says the words actually in the constitution, rather than what proponents may have intended or what the Voters’ Pamphlet said, are what matter.

“The Oregon Supreme Court has stated that the best evidence of the intent of those who adopted a constitutional provision is the text,” says McLane, now a lawyer in private practice. He points to a 2019 Willamette University Law Review article by former Oregon Supreme Court Justice Jack Landau called “An Introduction to Oregon Constitutional Interpretation.” In that article, Landau writes: “The ordinary meaning of more recently adopted constitutional provisions is usually determined by reference to a more recently published dictionary. In the case of provisions adopted after 1960, the court has shown a particular preference for Webster’s Third New International Dictionary.”

McLane says if you apply that frame to the constitutional language inserted after Measure 113, there is an obvious conclusion. “When looking at the dictionary meaning or ordinary meaning of the words in Article IV, section 15 (Measure 113),” McLane says, “there isn’t any ambiguity in the words.”

Steve Elzinga, who served as counsel to late Secretary of State Dennis Richardson, a Republican, and now frequently handles election law cases as a lawyer in private practice, agrees with McLane.

“Measure 113′s text was adopted into law, not its ballot title,” Elzinga says. “When text conflicts with a ballot title, the text should control.”

Kelly Simon, legal director for the ACLU of Oregon, disagrees.

“Even if a court entertained the notion that the Oregon Constitution’s wording could be read to have a second meaning, as Republicans now posit, that would only invite the court to resolve any ambiguity based on what the voters intended,” Simon says. “The voters’ intent was crystal clear in the Measure 113 ballot title, ballot summary, and the Voters’ Pamphlet: If a legislator neglects their job in their current term, then they don’t get to keep their job in the next one.”

Republican lawmakers remain off the job but said earlier this week they intend to return to the Capitol on June 25 to pass budget bills.

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