Judge rules gas tax question can go on May ballot, lawmakers did not violate Oregon constitution

A recently passed law that moves a citizen vote on new taxes and fees to pay for transportation to the May primary instead of the November general election does not violate the Oregon Constitution, a judge ruled Wednesday.

Marion County Circuit Court Senior Judge David Leith, appointed by former Democratic Gov. John Kitzhaber, ruled in favor of Secretary of State Tobias Read on Wednesday in the lawsuit brought against him by leaders of the gas tax referendum effort.

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. Their attorney Julie Parrish, a former four-term Republican state lawmaker from West Linn who now works for Portland-based firm Kell, Alterman & Runstein, indicated in a hearing on the case Tuesday she would immediately appeal the decision.

In an email to the Capital Chronicle following the ruling Parrish said “we’re reviewing steps” regarding a potential appeal. Diehl, who is running in the primary for the Republican nomination for governor, echoed Parrish in a statement, saying he and other referendum leaders are “exploring all our options.”

“We feel like it is a travesty of justice,” he wrote. 

Diehl said he and other plaintiffs were “especially concerned” that reporters viewed Leith’s decision before his attorneys received it and that he was calling for an investigation. The decision was posted Wednesday afternoon to Oregon’s online court records database, which lawyers, journalists and anyone else with an account can access. Diehl and Parrish did not immediately respond to Capital Chronicle questions regarding the allegation.

Read in a statement thanked the judge for providing a fast resolution in the case.

“We will continue to follow the law, as set by the Constitution, the Legislature, and the courts,” he wrote. “We will do everything in our power to give every Oregonian the opportunity to weigh in on our shared future: every eligible, registered Oregon voter will be mailed a ballot for the May 19th primary and have an equal chance to weigh in on this referendum.”

Leith said at the Tuesday that hearing he would publish a longer explanation of his opinion by Friday, after he’d had more time to process arguments, but that he knew the parties needed a fast resolution to the constitutional questions.

That’s because content for the state-issued voters’ pamphlet must be submitted by Thursday for any candidate or cause on the May primary ballot. To get their message urging a vote against the taxes in the pamphlet, referendum leaders and any other Oregonians must either present 500 signatures or pay a $1,200 filing fee to the Secretary of State’s Office.

Parrish at the Tuesday hearing argued the compressed timeline disproportionately harms the plaintiffs by limiting the time they have to gather resources and qualify for inclusion in the pamphlet. She also argued it limits the time they have to reach voters, giving them two months instead of seven months to launch a “vote no” campaign on the tax question.

In December, the plaintiffs collected more than three times the signatures required to get the decision on a 6-cent gas tax increase, hikes to car registration and title fees and a temporary doubling of the payroll taxes used for public transit out of the Legislature’s hands and into voters.’

But Democratic lawmakers, with the backing of Gov. Tina Kotek, passed Senate Bill 1599 earlier in March to move the referendum vote from November to May, arguing the state needs to know sooner rather than later if it can collect the new revenue to pay for critical services at the Oregon Department of Transportation.

Referendum leaders argued it was an effort by Kotek, who is running for reelection, to ensure the question about raising taxes wasn’t on the same general election ballot as her. At the hearing, Parrish argued the bill violates the state’s constitutional referendum protections, due process and fair election principles.

Lawyers for the state, in turn, argued that the Oregon Constitution explicitly gives the Legislature the power to decide when a referendum will take place.

A judge on Wednesday in a separate federal lawsuit ordered Read to let Klamath Falls resident Mary Martin submit language against the gas tax for the voters’ pamphlet by the Thursday deadline without meeting fee or signature requirements. Martin, who is on a fixed income and uses a wheelchair, argued that moving the referendum election date and truncating the time she had to submit to the voters pamphlet violates federal discrimination laws for people with disabilities.

SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX