Brown’s Labored Credibility – A legal opinion shows the Secretary of State mishandled the labor commissioner’s race.
By Nigel Jaquiss, Willamette Week, 03/28/12
State Sen. Bruce Starr (R-Hillsboro) has cause to be irate.
Starr is running for state labor commissioner, a nonpartisan race that suddenly appears partisan. His foe, Democratic incumbent Brad Avakian, is in political trouble, and Starr thinks he had a strong chance of knocking him out in the May primary.
That’s when races for that office have traditionally been held—and that’s when Starr and Avakian assumed this year’s vote would take place.
On March 6, the state filing deadline, Starr joined candidates, lobbyists and elected officials in the Capitol to watch as his name joined other candidates’ on a giant tote board.
But 10 days later, as WW first reported, a Starr staffer checked with the state Elections Division to make sure that office had received Starr’s Voters’ Pamphlet statement for the May primary. It had—and had also received Avakian’s.
But an elections official told Starr’s staffer the labor race would be in November, rather than May.
Without warning, Secretary of State Kate Brown had upended the race by shifting it to the fall, when heavier voter turnout will favor her fellow Democrat, Avakian.
Brown has since been on the defensive, insisting her move was not partisan. She tells WW her staff was following a 2009 law that she says resets the timing of the labor commissioner race. She admits her office did a poor job of telling the candidates—waiting until May ballots were being printed.
“Our staff tracked and followed the  statute but did not apply a political filter,” Brown says.
WW’s review of the legislative record shows lawmakers never discussed moving the race from the May primary—as Brown acknowledges would normally be the case—to November. Nothing in the law or in the legislative debate suggested the secretary of state should cancel the May primary vote for labor commissioner.
A newly released legal opinion underscores the fact that Brown’s office badly misread the law in Avakian’s favor.
When he learned of the change, Starr sought the opinion from Legislative Counsel, a nonpartisan office that drafts legislation and advises lawmakers.
The response from that office was unambiguous—in Starr’s favor.
“We believe that the current law applicable to the nomination or election of nonpartisan candidates requires the office of Commissioner to be placed on the ballot for the nominating election to be held on the date of the primary election in May 2012,” wrote Deputy Legislative Counsel Gina Zejdlik on March 21.
Unfortunately for Starr, Legislative Counsel’s opinion carries no legal weight.
Starr sued Brown in Marion County Circuit Court, where state lawyers said there was insufficient time for a full trial.
Because time was short, Starr’s only available legal remedy was to seek a temporary injunction. But Circuit Judge Steven Price ruled Starr had failed to show he was likely to win at trial or that he’d suffer irreparable harm in a November election.
That ruling did nothing to quell Starr and his Republican colleagues’ anger. “I am incredibly frustrated,” says Starr. “I have a hard time believing politics is not involved.”
Brown and her elections director, Steve Trout, acknowledge the Orestar filing system allowed both candidates to file for the May primary, although that system now shows them running in November.
The labor commissioner race is usually settled in May: Any candidate who gets 50 percent plus one vote wins outright. The race moves to November only if no candidate wins a majority in the primary.
So what would have happened if more than two candidates had filed for labor commissioner, opening the possibility that the race would not be settled in November?
Brown says she would have ordered the race to be held in May after all—an answer that runs counter to the argument she made in court that she had to move the election to November.
“I think she’s just making things up as she goes along,” Starr says.
Dan Meek, a public interest lawyer and no fan of Starr’s, says the secretary of state is trying to have it both ways.
“Any primary election for the office in 2012 must be ‘illegal,’ according to her position,” Meek says. “The fact that only two candidates filed, instead of three or more, does not change the law, although her office contends otherwise.”
Starr says the primary, which has lower voter turnout, offers him his best chance to unseat Avakian, who is still politically bruised from a blowout loss to now-U.S. Rep. Suzanne Bonamici in the race to replace former U.S. Rep. David Wu last fall.
The past two presidential election years show a massive difference in voter turnout between May and November. In May 2008, the primary turnout was 58 percent. In the general, it was 86 percent. The 2004 gap was even wider.
“My whole campaign has been geared toward running in May,” Starr says.
Brown’s insistence that she wasn’t playing politics suggests an alternative explanation: Her Elections Division is inept.
Brown says she learned about the controversy over the labor commissioner race March 19. She says elections director Trout knew a week earlier but was so busy dealing with 300 candidate filings in other races he didn’t tell anyone.
Voters will hear more about the controversy later: Brown is running for re-election and in the fall will face a well-financed GOP challenger, Knute Buehler, a Bend surgeon.
“There is no question why they are angry,” Brown says of Starr and other critics. “In hindsight we could have done a better job in notifying the public. We followed the law. But I think we should have gone above and beyond that.”