Circuit Court Judge will rule quickly on suit against state over timing of gas tax referendum

Senior Judge David Leith on Tuesday heard roughly an hour-and-a-half of arguments from a lawyer for the plaintiffs and a lawyer for Secretary of State Tobias Read at the Marion County Courthouse in Salem.

Leith said he would issue a judgement by Wednesday, and a longer explanation of his opinion by Friday, on whether a recently passed law that moves the referendum vote on new gas taxes and road fees from the November general election to the May primary violated the Oregon Constitution, as the plaintiffs allege.

They include Right to Vote on the Gas Tax Political Action Committee, two Republican politicians who led the referendum effort — Senate Minority Leader Bruce Starr of Dundee and Rep. Ed Diehl of Scio — and 37 Oregon voters representing each of the state’s 36 counties. About two dozen people, including several plaintiffs, Starr among them, attended the hearing.

A separate, federal, lawsuit brought against Read by Klamath Falls resident Mary Martin and filed on March 5 in U.S. District Court in Eugene, also alleges that moving the referendum election date violates federal discrimination laws for people with disabilities.

Oral arguments in that case will be heard on Wednesday at 10 a.m. in the U.S. District Court in Portland.

The plaintiffs in Marion County Court allege in their March 3 lawsuit that Senate Bill 1599 violates the state’s constitutional referendum protections, due process and fair election principles and that it causes disproportionate harm to the plaintiffs by limiting the time they have to reach voters.

Referendum campaign leaders have until Thursday to present to the Secretary of State’s Office 500 signatures or pay a $1,200 filing fee to get their argument in the Oregon Voters Pamphlet sent out statewide ahead of the May primary.

Attorney Julie Parrish, a former four-term Republican state lawmaker from West Linn who now works for Portland-based firm Kell, Alterman & Runstein, indicated the plaintiffs would appeal if the judge rules against them, meaning they’d also have to move quickly to file with the state’s Appeals Court.

Thomas Castelli, an Oregon Department of Justice attorney representing Read, argued that the Oregon Constitution explicitly gives the State Legislature the power to decide when a referendum will take place, and that the plaintiffs are not being stopped from reaching voters or sharing their message in many ways, including the voters pamphlet.

Leith said neither of the positions presented by both sides was “preposterous” as far as he is concerned. But he pushed back on Parish’s argument that moving the date of the referendum, thereby cutting back the amount of time the opposition thought they had to reach voters before November, unfairly infringed on the plaintiffs’ free speech rights.

Leith said the balance of harms on both sides is equal: He either denies the petition and the court allows the referendum to happen on the preferred date for the state, or he grants the petitioners relief and allows the referendum to happen on the preferred date for the plaintiffs.

He therefore said he’d rule on the merits of the constitutional arguments, not on the balance of the damages.

Capital Chronicle intern Robin Linares contributed to this report.