Kate Brown found a way to call her own competence into question

by Jack Roberts 

Knute Buehler, the lone Republican candidate for secretary of state, just got a significant in-kind contribution from an unlikely source — his opponent, Secretary of State Kate Brown.

Generally, the job of secretary of state is so nondescript that there is scarcely any basis for judging an incumbent’s job performance other than typos in the Oregon Blue Book. That may explain why it appears that no Oregon secretary of state has ever been defeated in a race for re-election.

This year, however, Brown may have found a way to call her own competence into question by her surprise announcement that the election for commissioner of the Bureau of Labor and Industries won’t appear on the May ballot as everyone expected, but instead will only appear at the general election in November.

When I say “everyone expected” the race to be on the May ballot, that includes the two candidates — incumbent commissioner Brad Avakian and his challenger, state Sen. Bruce Starr, R-Hillsboro — along with the news media, which just weeks ago ran numerous stories stating that the two-person race would be decided in May. To top it off, it also includes the secretary of state herself, whose website listed the office of labor commissioner as one of the races that would be on the May ballot.

Since the office became nonpartisan in 1995, this race has always been on the ballot in May, and only if no one received a majority would there be a runoff in November. In 1998, for example, the first election after the office of labor commissioner became nonpartisan, I was the incumbent commissioner seeking re-election against a single opponent and that race was decided in May.

Brown maintains that the Legislature inadvertently changed the rules for this election in 2009 when an amendment to House Bill 2095, an omnibus election reform bill, attempted to correct an earlier legislative oversight that had disrupted the historical election cycle in which the labor commissioner was elected the same year as the governor. The amendment stated that “the term of office of the Commissioner of the Bureau of Labor and Industries elected at the general election held on the first Tuesday after the first Monday in November 2012 shall be two years.”

The obvious intent of this provision was to limit the term of the commissioner elected in 2012 to two years rather than the normal four years in order to restore the traditional cycle. But Brown, without public notice and while her website still listed the race as appearing on the May ballot, quietly eliminated the primary and moved the race to November.

The secretary of state’s spokeswoman, Andrea Cantu-Schomus, further confused matters by stating that the race would still have been on the ballot in May if more than two candidates had filed. Yet even with multiple candidates, it’s possible for one candidate to receive a majority — as Dan Gardner demonstrated when he was elected labor commissioner in the May 2002 primary by a clear majority in a four-way race.

There are two reasonable interpretations of the 2009 statutory change:

1. The method of electing the labor commissioner remains unchanged, but the term is shortened to two years for this election only; or

2. The method remains the same except that, if one candidate gets the majority in May, that candidate alone appears on the ballot in November, which is the way nonpartisan races are run in many cities and counties throughout Oregon.

What the statute doesn’t do is give the secretary of state the authority to unilaterally eliminate the primary and advance both candidates to the November general election, where this already low-profile race will be buried beneath the presidential, legislative and other higher-spending campaigns. Yet that is what Brown did.

On Wednesday, Circuit Court Judge Steven Price refused to issue the temporary restraining order Starr sought to block the move to November, but the judge specifically did not find that Brown’s interpretation of the statute was correct. He simply determined that Starr could not meet the unusually high standards for an injunction, in particular by demonstrating irreparable harm if the election were moved.

I’m not convinced that moving the election helps or hurts either candidate. I do believe it harms the electoral process, which the secretary of state is charged with defending. That’s why Brown’s competence is suddenly an issue in her re-election bid, which will also be on the ballot this November.

Jack Roberts is a Eugene businessman and former Oregon labor commissioner.

This originally ran as a guest column in the Oregonian and appears in Oregon Catalyst with the permission of the author