Are Oregon Voters Too Dumb or Too Smart?

The voters of Oregon voted in 2022 to enact a constitutional amendment (Measure 113) to disqualify representatives from serving in the future if they intentionally absented themselves from the legislature to frustrate the conduct of business therein. In Oregon, as in Wisconsin for example, legislators would periodically use this tactic to stall legislation when they didn't have the votes defeat it.

The ballot measure amended section 15 of Article IV of the Oregon Constitution. The following underlined text was added:^[1]

Section 15. Punishment and expulsion of members. Either house may punish its members for disorderly behavior, and may with the concurrence of two thirds, expel a member; but not a second time for the same cause. 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.[14]

After passage of the measure 10 Republican lawmakers applied this tactic again and the Oregon Secretary of State determined that 5 were disqualified for re-election in the 2024 ballot. They sued, and the Oregon Supreme Court has upheld the disqualification.

Nationally this is being cited as "weaponization"of government. But it is hard to argue with a state constitutional amendment approved by the voters. But was it?

During oral arguments before the Oregon Supreme Court in December, attorneys for the senators and the state wrestled over the grammar and syntax of the language that was added to the state constitution after Measure 113 was approved by voters.

The amendment says a lawmaker is not allowed to run “for the term following the election after the member’s current term is completed.” The debate was over when that ineligibility kicks in: If a senator’s term ends in January 2025, they would typically seek reelection in November 2024. The “election after the member’s current term is completed” would not be until November 2028, the Republican senators argued, so they could run for reelection this year and then hold office for another term before becoming ineligible. The court disagreed, saying that while the language of the amendment was ambiguous, the information provided to voters in the ballot title and explanatory statement made clear that the intent was to bar truant lawmakers from holding office in the next term. “Those other materials expressly and uniformly informed voters that the amendment would apply to a legislator’s immediate next terms of office, indicating that the voters so understood and intended that meaning,” the justices wrote.

So, even if the authors of the measure screwed up, the explanatory information presented to the voters cured it. But that requires the justices to read the minds of all of the eligible voters. According to the Oregon Secretary of State there were 3,003,625 registered voters in November 2022. A total of 1,891,331 votes were cast on the measure. That means 1,112,294 registered voters did not state their preference on the measure. What did they think? How many of them did not vote because they read the language and decided it wouldn't disqualify their preferred candidate from re-election in 2024?

There are also arguments that if the votes cast on the measure were in line with total votes cast in other matters then we can impute that no one simply failed to vote on the measure or that the results of more total votes would not have changed the outcome.

But why is the Oregon Supreme Court engaging in mind reading -- that the voters were persuaded that the measure would be interpreted as set out in the information provided to the voters? Why not implement the amendment as written?

My initial reaction when I first heard of the Oregon Supreme Court decision was that there needed to be more to the story than the "weaponization" angle being pushed by my preferred media. And when I found out there was a constitutional amendment approved by the voters, I thought: Well, this is a bit of an overreach by Republicans trying to relate this to ballot disqualification measures against President Trump. But now that I have looked into the reasoning, it gives me pause. Were Oregon voters too dumb to see the problem with the language, or too smart and decided "no harm, no foul" and didn't vote against it?

Seems to me that the 2022 measure passage sent a message. By its terms it doesn't disqualify anyone from seeking a follow-on term, but affects them for the term after that. If people are unhappy they can amend the amendment to make it work the way they want it to work. It's not the job of the Oregon Supreme Court to read the minds of voters.