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Wednesday, March 21, 2012

Isaac says Kate Brown got it wrong

Is the upcoming election for Oregon labor and industries commissioner in May or November? Until the other day, we all thought it was in May, but Secretary of State Kate Brown has re-read state law and now says the election can't be held until November. A lawsuit ensues.

Portland's own pseudonymous legal pundit, Isaac Laquedem, has taken a look at the law in question, and he opines that Brown's misreading the statute in question. He's got us convinced, anyway.

Comments (16)

Jack, thanks for the vote of confidence. There's a lot more I could have said about the statute and Ms. Brown's error, and some that I'll add in a day or two. One glaring reason that I think Ms. Brown isn't reading the law correctly is that the bill that shortened the Labor Commissioner's term to two years for this election was presession filed in 2009 at the request of then-Secretary of State Bill Bradbury, meaning that Mr. Bradbury and his staff proposed the idea in the first place. If they had believed that the bill prohibited the state from holding the Labor Commissioner election in May 2012, they would have said so long ago.

That's a wrap.
Well done Isaac.

So the only remaining unanswered question is
why did Brown put these candidates on the May ballot then pull this crap.

One explanation is SEIU types
must of had some polling showing the May primary likely to elect the Republican because of the Republican primary attracting more of their voters.
They complained to Brown and she obligingly revised her "interpretation" of the 2009 law to suit their needs.

I presume most people will see it as an indefensible stunt that will go down in infamy.

Sounds like more Oregon politics-as-usual... "the law says what I say it says".

What's the real loss to require a lawsuit? There will still be an election. They will still get their full term and compensation when elected.

Why can't they be ADULTS, just shake hands and agree to suspend their campaign until later?

Seriously. This is utter bull shit. Now they want to file lawsuits? Here's a better idea - if they're going to waste MY money on a lawsuit, just disqualify BOTH of them from the race.

(And then fire the SOS for not doing her job right for putting them on the ballot, and then pulling them from the ballot. She should know better. If she's that incompetent, she should resign.)

Done, done and done. No lawsuit, no waste of tax dollars.

If Brown is correct, then why did she apparently enforce the deadline to file for the office so soon? Shouldn't the filing deadline be much closer to the November election, opening the possibility that more than two candidates would be on the ballot then and none might get a majority of the votes?

Brown's decision seems fraught with unintended consequences.

It says something when even the partisans at BlueOregon are speechless ...

Here's another reason Kate Brown is wrong:

She says that the 2009 law requires that the BOLI election be held in November. OK, but what happens if neither candidate gets a majority in that election?

(Yes, it can happen. Remember the Maurer/Castillo race? With enough write in ballots, it can deny both candidates the 50% + 1 threshold.)

So what happens then? She can't hold a runoff, because remember - her whole point is the election HAS to be in November.

And she can't just say the candidate with the most votes won. Election law requires a runoff if neither gets a majority - that is the whole point of the primary in the first place!

So Korrupt Kate's little stunt here has backed her into quite the corner.

The SOS relies on Section 22a of HB 2095 (2009) as requiring the election to be held in November. The problem with her reading of that section of the bill is that it would override other existing sections of Oregon election law which call for the election to be held in May.

That would be a correct read, if the legislature has specifically provided that the election would be held in November, notwithstanding the statutes that call for a May election. But the section that the SOS relies upon makes no mention of the existing statutes which require the election to be held in May.

Even more telling, the section specifically overrides another section of the same bill and an existing statute that prescribes a four year term for the BOLI Commissioner.

In other words, the legislature certainly demonstrated in the section of HB 2095 that the SOS relies upon that they know how to exempt that section from conflicts with other statutes, but they chose not to exempt the section from the statutes that require the election to be held in May, not November.

Couple that with the fact that it is quite possible that there could have been an election for BOLI Commissioner in November of this year (although that is now much less likely so since only two candidates have filed, something that the 2009 legislature could not have known), it is likely that a court will hold that the section of HB 2095 which the SOS relies upon was not intended to override long established election law requiring the election to be held in May.

A court will strive to interpret two or more statutes in a way that will provide meaning to all, rather than to read one statute in a way that will invalidate another. If the legislature wanted to override existing election law, they would have said so, and Senator Starr's interpretation gives effect to both the statute and the bill language which the SOS relies upon. Thus he has the better argument.

The only thing that makes me think that the SOS is playing politics here is the timing of her announcement. We've known for three years now what HB 2095 requires. If the SOS thought it meant that the election would be postponed to November, she could have said so a long time ago, rather than after the point where she discovered there was a formidable republican challenger in a primary that favors a high republican turnout.


State election law prohibits anyone from filing for a November general election until May 30th.


2012 Filing Dates
General Election November 6, 2012
May 30, 2012 to August 28, 2012

Brown has applied the filing deadline for the May primary to limited the election to the two candidates. Then moved their election to November.

She clearly cannot do this.

Under her new interpretation there are no candidates at all because they cannot file to run for the November election until May 30th. At which time anyone else can file as well.

Brown has committed quite the whopper by several fatal flaws.

I predict she will be overturned within 36 hrs and the May primary will proceed.

Rather oddly, the judge to whom the case was presented ruled against Senator Starr today, apparently on the ground that he couldn't satisfy the high standard required to get a temporary restraining order (not an opinion on the merits).

Hate to be the one to point this out INFO but your prediction came out about 20 minutes after the judge ruled otherwise.

Bigger picture this looks like a fait accompli for Brown. She didn't disclose this controversial switch until she was forced to last Friday and, with ballots going to print in a few days, the court avoided ruling on the merits (because there will still be an election in November and Starr didn't have a right to win outright in May and court didn't look into the obvious underlying motive here).

But insiders know that this was dirty, dirty, dirty.

This is nuts.
Lipstick doesn't stick to this filthy pig.

How does the SoS use part of the May Primary, (the filing period and deadline), then declare this is a November only race for only the candidates who filed for the May primary, then skip right past the filing requirements for November.

Brown's claim is there was not to be a May primary at all. So this isn't like some other races where if there is only two they move to November.

There is now no primary for this race. Only the November general. The filing period for a November election is May 30th-August 28th. Shouldn't anyone interested be able to file to run?

What am I missing?

Ranting and screaming about "filthy pig" is the 100% wrong thing to do when a case is in court. The judge did not see it your way. There are avenues for appeal.

It may walk and talk like a duck. But, don't believe your lying eyes.

Well I wasn't ranting, screaming or referring to the judge as a filthy pig.
It's the Brown interpretation that is the pig that won't hold the lipstick and it appears it will never come under any judicial review at all. Beyond the denial of the restraining order.
So a wrong is left wrong in broad daylight.

I won't losing any sleep over it. It's already yesterday's news.

Now back to our regular scheduled programming on the Clackistanis reliably righting wrongs and spreading. :)

Election laws are only for the little people -- meaning uppity Republicans -- in Oregon.

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