Oregon Justice Department lawyers urge state Supreme Court to keep Kristof off ballot

By JULIA SHUMWAY/Oregon capital Chronicle

Nick Kristof’s actions over the past two decades establish that he was a resident of New York until December 2020 and isn’t qualified to run for governor in Oregon this year, according to a legal filing to the Oregon Supreme Court on Thursday by Secretary of State Shemia Fagan.

Fagan said Kristof hadn’t made the case that he has been a resident in Oregon for the time that constitutional drafters wanted – three years prior to the November 2022 election. She said Kristof’s arguments would allow someone to be elected Oregon governor but live elsewhere or even serve as the governor of two states at once.

The 70-page brief filed Thursday by the Oregon Justice Department was the work of Oregon Solicitor General Benjamin Gutman and three assistant attorneys general, who urged the justices to ensure rules apply equally to all candidates.

Kristof took his case to the high court after Fagan’s office determined he wasn’t qualified to be on the ballot this year to run for governor. He wants her decision overturned, and soon – county clerks need to set ballots for the primary election by mid-March.

Because of that approaching deadline, the Supreme Court is expected to rule late this month or early next month whether Kristof, who now lives at his family’s farm outside the rural community of Yamhill, meets the three-year  requirement in the Oregon Constitution.

The court’s ruling could affect hundreds of decisions each year by state and local election officials, who must determine whether candidates for various offices meet residency requirements.

“If Oregonians are to trust their elections, rules that govern minimum qualifications for office must apply equally to all potential candidates, regardless of their status, fundraising, or popularity,” Fagan’s filing said.

New York or Oregon?

Before Fagan notified Kristof that he did not qualify to run for governor on Jan. 6, he was a front-runner in the Democratic primary to replace term-limited Gov. Kate Brown. His residency has been in question since before he filed to run, as he spent most of his adult life living and working in New York.

Kristof and a team of attorneys from Democratic election law firm Perkins Coie have argued that he has always been a resident of Oregon, and that voters, not election officials, should decide whether he belongs on the ballot or in the governor’s mansion.

According to Fagan’s filing, election officials considered Kristof’s November 2020 vote in New York the most telling in the decision to exclude him from the ballot. Kristof registered to vote in New York in 2000 and didn’t register in Oregon until December 2020.

In an affidavit, he described his New York registration as a matter of “convenience,” reasoning that he would likely be in New York for elections, but said that he subsequently cast his New York ballot by mail from the Yamhill farm.

Fagan’s filing said that argument made “little sense in light of Oregon’s convenient and established vote-by-mail system, which easily allows Oregon voters to receive their ballots anywhere in the world.”

“It would have been just as convenient, if not more convenient, to vote by mail in Oregon from his Yamhill home where Yamhill County voters were considering important issues,” it continued. “But he did not, because he was domiciled in New York.”

In his own legal filings, Kristof referred repeatedly to his fundraising and presumed popularity with voters. He has raised more than $2.6 million for his campaign. That’s a higher sum than any other Democratic candidate, and more than any other candidate but Betsy Johnson, a former state senator now running without any party affiliation.

“The Elections Division and local elections officials apply the same rule to all candidates no matter how known or unknown they are, and regardless of how many residences they own, if they own a residence at all, or if they are houseless,” the legal filing said. “Adopting the rule plaintiff appears to propose would enable a grave injustice, in which ‘the voters decide’ for well-resourced and well-connected candidates, and other candidates are held to a more exacting standard.”

Fagan and the state’s attorneys also objected to Kristof’s argument that he has always been an Oregon resident because of his deep emotional connections to the state. Election officers can’t make consistent, fair decisions about what’s in a candidate’s head, they wrote.

Kristof asserted that he never intended to “abandon” his family farm, but the state’s attorneys say his decisions to buy a home in New York in 1999, register to vote in New York in 2000 and pay income taxes in New York from 1999 until at least 2020 demonstrate a clear intent to abandon Yamhill.

“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 legal filing said.

The public schools are relevant because New York provides public education solely to residents of a school district, according to the state’s legal filings. The New York City Department of Education lists tuition charges comparable to college tuition for non-residents attending public schools in one of the city’s five boroughs.

Constitutional questions

Kristof, through his attorneys, has argued that the Oregon Constitution’s residency requirements are a relic of a racist and xenophobic past, and that the state’s founders used the residency requirements to bar Chinese immigrants and Black people from engaging in politics. Barring Kristof and others with multiple homes from running for office would prevent university students, homeless people, migrant workers, members of the military and others from having a voice in Oregon politics, they argued.

In response, the state’s attorneys wrote that any historian will find racist or xenophobic statements by the state’s delegates to the 1857 Oregon Constitutional  Convention – but those statements have little to do with the residency requirement itself.

The historical record also shows that the state’s founders debated an amendment that would remove the three-year residency requirement, with supporters of the amendment arguing, as Kristof has, that the choice should be left up to voters. One delegate referred to the requirement as “shackles” put on the people of Oregon.

Delegates to that convention ultimately decided to reject the amendment, keeping the three-year residency requirement. They also added a similar three-year residency requirement for Oregon Supreme Court justices, which was not in the original draft of the state constitution, according to the state’s filing.

“As they saw it, an “office of value” should be filled by a person who had resided in Oregon with some stake in the political and civic life here,” the filing said. “The debate over the residency requirements shows that the delegates intended to establish a test that would not allow the election of a person who remained a resident of another state.”

Continuing campaign

Kristof has continued to campaign and fundraise since Fagan disqualified him Jan. 6. He has raised just less than $100,000 in the past two weeks, according to campaign finance records.

More than half of that sum came from LinkedIn cofounder Reid Hoffman, who contributed $50,000 on Jan. 16. The campaign returned money to three donors – $10,000 to New York psychotherapist Gail Sinai, $1,000 to New York public relations agency head Richard Edelman and $1,000 to television actor Nick Weschler – after Kristof was disqualified.

His campaign reported spending $75,000 in the same period, including more than $19,000 on consulting services from a Washington, D.C., firm and $10,000 on web development to a firm in Arizona.

The campaign also paid Kristof $730 for mileage on Jan. 13. That filing listed the candidate’s address as a post office box in Portland.

Kristof has criss-crossed the state since his disqualification, posting frequent photos on his campaign and personal Twitter pages of interactions with Oregonians in Bend, Eugene, Portland and Salem. He’s on the north coast this week, meeting with voters in Clatsop County.

• Oregon Capital Chronicle is a nonprofit Salem-based news service that focuses its reporting on Oregon state government, politics and policy.