Can Election Rules Be Changed After the Election?

That’s what the Oregon state legislature is alleged to have done in the strange and fascinating case of the City of Damascus, in which a petition for review is pending before the Oregon Supreme Court. It’s been called the undead city, because of its unusual history. Briefly, as recounted in that story and ones here and here:

  • In 2013, a vote was held on whether to disincorporate the city. The measure received a simple majority among those voting, but failed to achieve the absolute majority of all registered voters required by state law.
  • In 2015, the legislature passed a law allowing voters to disincorporate the city by simple majority, rather than absolute majority of all voters.
  • In May 2016, voters approved disincorporation by a simple majority.
  • Also in 2016, a circuit court judge declared the election result valid, allowing the disincorporation to proceed in July.

Here’s what happened next, according to an attorney for the city, Ed Trompke:

On May 1, 2019, the Oregon Court of Appeals held that a disincorporation election held in May 2016 in the City of Damascus was not valid to dissolve the City. In response, the Oregon Legislative Assembly adopted SB 226 in June 2019 to overturn the court by retroactively changing the type of majority needed to carry the election (from a majority of the registered voters to a majority of those voting).  

It’s that law which is being challenged before the Oregon Supreme Court. Among its provisions are that a disincorporation measure “shall be approved if a majority of the voters voting on the question in the election votes in favor of disincorporation” and that this “applies to Acts enacted or referred, and elections held, before the effective date of this 2019 Act” (emphasis added).

The city and its supporters argues that the state legislature has “retroactively change[d] the rules applicable to elections in order to reverse the outcome,” citing Bush v. Gore. This is essentially an argument that it violates the “lawlessness principle,” as Rick has called it, drawing on a lecture by Akhil Amar. The principle is that elections should be decided based on the “rules of the game” in place on Election Day. The city and its advocates argues that didn’t happen.

The state’s response appears to acknowledge that the 2019 law applies retroactively to change the rules of the 2016 election, at least as those rules were understood by the Oregon appellate court. It characterizes the statute as authorizing a disincorporation measure “even where the referral occurred prior to the effective date [of the 2019 law].” But the state says this is entirely consistent with the Oregon Constitution and the Fourteenth Amendment’s due process and equal protection clauses.

The federal constitutional issue strikes me as an important one. And it’s a reminder that, nearly twenty years after Bush v. Gore, we’re still fighting over its meaning and import — thanks in no small part to the U.S. Supreme Court’s continuing refusal to acknowledge or clarify it. It remains the case that must not be named, at least in that court.

We may not get clarification of Bush v. Gore from the Damascus case. But perhaps we’ll finally get some clarity on the accuracy of the biblical prophesy: “Damascus will cease to be a city and will become a heap of ruins.” Isaiah 17:1.

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