Sen. Brian Boquist, I-Dallas, is one of the lawmakers arguing that Measure 113 contained a flaw that will enable him to seek reelection.
Kaylee Domzalski / OPB
Sens. Tim Knopp and Brian Boquist are determined to win another term of office, their attorney says, and Measure 113 can’t stop them.
The two senators are among 10 conservative lawmakers who are playing a game of chicken with the state constitution this year. Both men have received more than 10 unexcused absences amid an ongoing walkout that has shut down action in the state Senate for nearly a month.
Theoretically those absences mean Boquist and Knopp’s legislative lives are coming to a close — or at least a yearslong hiatus. Under Ballot Measure 113, approved by voters last year, any lawmaker with 10 or more unexcused absences is barred from running for reelection for at least a term.
The question now is when. That’s something that Republicans have recruited a prominent Portland lawyer to help answer.
On Tuesday, John DiLorenzo, an attorney with Davis Wright Tremaine, sent acting Secretary of State Cheryl Myers a letter asking for a formal determination on a question Republicans have posed for weeks: whether Measure 113 actually grants lawmakers an entire extra term before penalties kick in.
“Senators Knopp and Boquist intend to appear on the May 2024 Primary and November 2024 General election ballots,” DiLorenzo said in the letter. “You must therefore determine whether they will be disqualified from serving by virtue of his having accumulated 10 or more unexcused absences as a result of Measure 113.”
Republicans and DiLorenzo argue that Measure 113 contained a key drafting error and does not do what voters expected when they overwhelmingly approved the law.
While a ballot summary written by the Oregon Department of Justice told voters that a “yes” vote would ensure truant lawmakers can’t hold their seat for “the term following the end of the legislator’s current term,” Republicans say that’s wrong.
The actual text that Measure 113 inserted into the Oregon Constitution says that lawmakers with 10 absences can’t hold office “for the term following the election after the member’s current term is completed.”
But elections in Oregon are held before a lawmaker’s term expires — not after.
Boquist, I-Dallas, and Knopp, R-Bend, are scheduled to end their current terms in January of 2025, months after the 2024 election, DiLorenzo notes. The election that occurs after their current terms expire will occur in 2028.
“It appears from the unambiguous text, that if they are to be disqualified from holding the office of Senator, it would be for the term that begins in January of 2029,” the letter reads. It asks Myers to issue a ruling that “Senators Knopp and Boquist are not barred from seeking reelection to their positions at the Primary and General elections to be held in 2024 nor are they disqualified from serving as State Senators for the term commencing in January of 2025.”
While DiLorenzo says Knopp plans to run for reelection, he has been circumspect with reporters on that point.
Measure 113 was pushed by public-sector labor unions, Democratic allies who were looking to end the walkouts that minority Republicans have put to use more and more since 2019. (Both parties have used the tactic over the decades.)
The measure saw no pushback from Republicans and waltzed to easy passage. DiLorenzo said Tuesday he thinks that allowed the flaw his clients are now arguing for to go unchecked.
“This ballot title never had any [Oregon] Supreme Court review whatsoever,” he said in an interview. “I attribute this to a giant emperor-has-no-clothes circumstance. Somebody at the [attorney general’s] office misread it and thought it meant an earlier election. Nobody cared and nobody commented.”
Margaret Olney, an attorney who wrote the measure and represented the unions who put it forward, said last week that judges considering the matter would look to what voters intended.
“In any challenge, the task for the court will be to interpret the Oregon Constitution consistent with legislative intent,” Olney said. “For ballot measures, that legislative intent is the ballot title and explanatory statement. And that language could not be clearer. Legislators who walk off the job are disqualified from holding office the following term.”
DiLorenzo, who has made a name for himself successfully suing state and local agencies on behalf of clients, disagreed. “The only way the court will consult the voter’s pamphlet is if there is ambiguity in the text,” he said. “I don’t see any ambiguity in the text.”
Republicans have made no secret this year of their plan to challenge Measure 113 in court. But when and how they might do that is unclear.
DiLorenzo said Tuesday he was not necessarily representing conservative lawmakers in a lawsuit, but he said in his letter to the secretary of state’s office that a challenge would likely be made on First Amendment grounds. By penalizing them for walking away in protest, conservative senators believe Measure 113 punishes “protected political speech.”
One legal analysis, from attorneys working for advocacy groups opposed to the walkout, suggested that such a challenge would fail, Willamette Week reported.
The request for a declaratory ruling from elections officials is a way to get the lay of the land prior to any lawsuit, DiLorenzo said.
A spokesman for Myers did not immediately respond Tuesday when asked whether the secretary would issue a ruling as requested. Elections officials have already asked the state DOJ for clarity on exactly how Measure 113 should be enforced.