EUGENE, Ore. (CN) — A federal judge in Oregon Wednesday ruled against two state senators seeking an injunction to allow them appear on the ballot in 2024 despite a law that prohibits them from doing so because of their unapproved absences during the 2023 legislative session.
U.S. District Judge Ann L. Aiken's order addresses a motion for a preliminary injunction brought by Oregon senators who participated in the longest legislative walkout in Oregon history after the passage of Measure 113.
Passing with 68% of the vote in November 2022, the measure disqualifies Oregon lawmakers from seeking reelection at the end of their terms if they accumulate 10 unapproved absences during a legislative session.
Senator Brian Boquist had 34 absences from scheduled legislative floor sessions in 2023, 30 of which were unexcused and occurred during the walkout between May 3, 2023, and June 25, 2023. Senator Dennis Linthicum had 37 absences during those floor sessions, 32 of which were unexcused and also occurred during the walkout.
Republicans led walkouts from the Oregon Capitol in 2019, 2020 and 2021, a tactic that denied the legislature the quorum it required to decide on bills relating to greenhouse cap-and-trade plans, vaccine and gun regulations and the former state governor’s regulations relating to Covid-19.
A 2023 boycott — spurred by two Democratic-backed bills involving reproductive rights and gun restrictions — resulted in the subsequent disqualification of nine Republican senators and one independent.
Republican senators challenging Measure 113 believe there is a loophole in the law, as it says that those with more than 10 unexecuted absences cannot hold office "for the term following the election after the member's current term is completed," but elections for the office in the state are held before a lawmakers' term expires.
The dispute over what Measure 113 does has been fast-tracked to the Oregon Supreme Court through an Aug. 25 petition challenging a temporary administrative order from Oregon Secretary of State LaVonne Griffin-Valade. The Aug. 8 order clarifies 2024 reelection requirements consistent with the intent of the Oregonians who voted for the measure.
"It is clear voters intended Measure 113 to disqualify legislators from running for reelection if they had 10 or more unexcused absences in a legislative session," Griffin-Valade said in a statement. "My decision honors the voters' intent by enforcing the measure the way it was commonly understood when Oregonians added it to our state constitution.”
The Oregon Supreme Court will hear arguments for the petition on Thursday. The petitioners are five Republican senators penalized under Measure 113, including Tim Knopp, the senate minority leader from Bend; Daniel Bonham of The Dalles; Suzanne Weber of Tillamook; Lynn Findley of Vale; and Linthicum of Klamath Falls.
In a separate federal challenge to the measure on Nov. 6, Linthicum and two other disqualified senators — Boquist, an Independent from Dallas, and Cedric Hayden, a Republican from Fall Creek — sued Oregon Senate President Rob Wagner and Griffin-Valade for violations of their rights to protest under the First and 14th Amendments. The senators requested a preliminary injunction on the same day to prevent Wagner and Griffin-Valade from disqualifying Linthicum and Boquist from reelection in 2024.
“Republican and Democratic party caucuses have both effectively used walkouts as a political tool in Oregon because the state is one of a few in the nation that requires two-thirds of lawmakers to be present for a quorum,” the senators said in the complaint. “All other states require no more than half of lawmakers to be present to vote on bills. Walkouts are a lawful form of political protest.”
During a telephone hearing on Tuesday, Judge Aiken indicated that she would not rule in favor of the senators’ preliminary injunction, and on Wednesday, Aiken issued her order explaining that the senators “failed to carry their burden to establish the requisite elements by a clear showing.”
Aiken disagreed that Wagner retaliated against the protesting senators by marking them absent, writing that legislative walkouts don’t count as constitutionally protected activity under the Free Speech Clause of the First Amendment. While the senators contended that the walkouts were expressive and intended as political speech, Aiken wrote that the walkouts were “not simply protests,” but “an exercise of the senator plaintiffs’ official power and were meant to deprive the legislature of the power to conduct business.”
Unconvinced that the senators were likely to succeed on their case’s merits, Aiken also ruled that they failed to show that they would suffer irreparable harm and that the public interest and balance of equities favored an injunction allowing them to run for office again.
As explained by Aiken, Oregonians passed Measure 113 to curb legislative walkouts, and it “passed by an overwhelming margin, reflecting wide popular support across the state.”
“Here, the senator plaintiffs chose to walk out of the legislature and, in the process, accrued substantially more than the allowed-for unexcused absences,” Aiken wrote. “Their subsequent disqualification is the effect of Measure 113 working as intended by the voters of Oregon.”
Two Oregon Republican voters joined the senators and the Republican central committees for Klamath, Lane and Polk Counties in the lawsuit. Plaintiffs' attorneys Elizabeth Jones of Capitol Legal Services and Vance Day did not immediately respond to a request for comment.
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