Nicholas Kristof, We Hardly Got To Know Ye

DAVOS/SWITZERLAND, 30JAN10 – Nicholas D. Kristof, Columnist, The New York Times, USA is captured during the session ‘Redesign Your Cause’ of the Annual Meeting 2010 of the World Economic Forum in Davos, Switzerland, January 30, 2010.
Copyright by World Economic Forum
swiss-image.ch/Photo by Monika Flueckiger

Former New York Times columnist and two-time Pulitzer Prize winner Nicholas Kristof originally hails from Yamhill County, Oregon, an area not very far southwest of Portland. He has owned and managed property in Yamhill County continuously for many years (where he and his family make wine and apple cider; they also manage forested parts of the land and lease out other parts to neighboring farms based on judgments about suitability for particular crops, as agribusinesspeople do), and took it upon himself to reside there more frequently than in his home in Scarsdale, New York over the past several years in part to research a book he intends to write about social and economic conditions in, specifically, Yamhill County.

There is no reason to dispute his statements that despite his long career writing for The Gray Lady based in New York, he continues to feel a connection to this area from where he hails, a connection he has never lost throughout his life. I understand; it has been many years since I lived in Wisconsin but I still feel a connection to it, and specifically to the city of Milwaukee, despite having decided that Oregon is now my home. Many people who come from one area and for manifold reasons move to another and call the new place “home” still maintain family, economic, emotional, and identity connections to the place they came from.

Kristof decided at some point that he wanted to run for Governor to succeed the termed-out Kate Brown. One can choose to believe, to varying degrees, how his research into the book about economic conditions of Yamhill County moved him to want to do something about things and thus initiated a political ambition. Regardless of the extent to which one accepts this, Kristof has lots of friends in high places and a high public profile on his own, so he was certainly among the more notable of people to file for candidacy.

Oregon Secretary of State Shemia Fagan, however, questioned whether Kristof was Constitutionally eligible to run. Perhaps most profoundly, he has been registered to vote in New York state and not Oregon since 2000. He has paid taxes in New York; owns a home in Scarsdale where he has lived a majority of the time even while researching his proposed book about Yamhill County; sends his children to public school in Scarsdale; and the list of his ties and contacts with New York is long, as would naturally occur for one who has made New York a primary residence for decades. So Fagan sought additional information from Kristof about these things and evaluated them in light of Article V, Section 2 of Oregon’s Constitution, which provides:

Qualifications of Governor. No person except a citizen of the United States, shall be eligible to the Office of Governor, nor shall any person be eligible to that office who shall not have attained the age of thirty years, and who shall not have been three years next preceding his election, a resident within this State. The minimum age requirement of this section does not apply to a person who succeeds to the office of Governor under section 8a of this Article. [Constitution of 1859; Amendment proposed by H.J.R. 52, 1973, and adopted by the people Nov. 5, 1974] (second use of boldface added for emphasis).¹

Fagan concluded that Kristof does not meet the residency requirement and ruled that he was not qualified to seek candidacy for the Governorship. Kristof appealed directly to the Oregon Supreme Court.² And today, the Supreme Court has issued its ruling. Fagan prevailed: Kristof is not eligible to pursue the Governorship in 2022.

Boiled down to its essence, the Supremes ruled that “residency” as used in the language of the Constitution adopted in 1857 is equivalent to the legal concept of “domicile.” “Domicile” is legally defined in Oregon caselaw as “the fact of a fixed habitation or abode in a particular place, and an intention to remain there permanently or indefinitely,” and that’s close enough to the generally-understood concept across American law to be universal. “Domicile” is understood by lawyers to be a mostly-objective standard of measuring a person’s actions and behavior, rather than a subjective standard based on a person’s feelings, emotions, or intentions. And while you can have multiple homes and reside in more than one place, you can only have one domicile at a time. Kristof’s domicile has not been in Yamhill County for the required three years, so he’s not eligible to seek the office of Governor.

I’ve three thoughts for your consideration as I read the opinion.

First of all, historically, residency requirements as part of eligibility for public office may or may not have their origins solely in anti-carpetbagging sentiments. But there is undeniably a history of this sort of thing being used to prevent northern reformers from taking political power in former Confederate states going back to the post-Reconstruction era. This is not the only use to which they’ve been put. Oregon doesn’t have this history, exactly, but if you read the opinion, you’ll note some anti-California sentiment dating back to before the Civil War. And as I’m working on for a future post, Oregon’s racial history is nothing to be proud of, and this provision of the Constitution is part of the bag of tricks that people on the wrong side of that history have made ample use of. So maybe this is a legal precept about which we ought to be chary, and to which we should apply very searching standards when testing it against the Federal Constitution, and against core concepts of democratic self-government, precisely because it’s the sort of thing that’s been used maliciously in the past.

But with that noted, the notion that a person ought to have personal knowledge and experience of a State before attempting to govern it is not explicitly racist, and in fact has substantial merit. So maybe not. I haven’t resolved this tension yet, but am leaning towards the idea that even if this concept has been used for bad purposes in the past, it isn’t inconsistent with how we aspire to govern ourselves right now.

Second, Kristof argued, and was joined in amicus briefs by one Republican and one Democrat who preceded Fagan as Secretary of State, that a person’s identity is what really matters here, even if that standard is somewhat more subjective than the legal concept of “domicile.” The standard Kristof suggested was that a “resident” of Oregon is “someone who intends to be at home in Oregon and acts pursuant to that intent.” His amici went even further, and suggested that if you think of yourself as an Oregonian, that subjective identity should be a powerful factor in determining whether you are an Oregon resident so long as there are some substantial actions consistent with residing here. Query if this is a good or bad use of how people choose to identify themselves as opposed to how others identify them — compared to other facets of personal identity, like race or sex.

In other words, what sorts of things ought an individual be able to define their own identity about, and what sorts of things does the culture or larger society define about an individual? Here, Kristof identifies as an Oregonian. But society, in the form of the state’s Supreme Court, imposed a different identity upon him — and that imposition has a legal and political consequence upon him and upon the state as a whole.

Third, by writing a residency requirement into the Constitution, the Framers³ removed the issue from the voters’ consideration. Another thing Kristof and his amici argued was that the voters can be trusted to determine if Kristof is Oregonian enough to be Governor. If the voters think he’s a carpetbagger, and they think carpetbagging is bad, they’ll vote for someone else.⁴ But, the Framers took this issue away from the voters and placed it above the democratic process in 1857.

If we have a default rule that most things should be decided democratically (whether directly through elections or indirectly through a representative process), is this the sort of thing we’re comfortable with not being subject to the democratic process? Some things, I think we ought to be comfortable with. Freedom of speech is the most obvious of these: the government at any level ought not be able to censor speech because it is unpopular, which necessarily means removing the tool of censorship from the powers vested in a democratic majority. We use the Constitution to remove censorship from the democratic process. What is it about free speech that places it above democracy? Is a residency requirement for running for political office like that?

A last thing to note: under this standard, if Kristof relocates himself permanently to his property in Yamhill in the near future, he’d be eligible to run in 2026. Whether he does that is a decision he can make for himself and his family in the future. Is that good enough for him?

1. I have to admit, Readers, that I’m not particularly in love with the way the Framers of the Oregon Constitution chose to word this. That said, the issue of the case at hand is the meaning of the word “resident,” not how that word was used in this awkwardly-structured sentence.
2. Fagan, through the state’s Attorney General, agreed that the matter could and should be heard directly by the state Supreme Court, which I didn’t know was a thing that could be done, but then I’ve only been practicing law here a few years and haven’t yet had occasion to do anything like this.
3. N.b., “Framers” as used in this article refers to the authors and adoptors of the Oregon Constitution, which in this case was originally written in 1857, adopted in 1859 by a state Constitutional convention, and amended by voter initiative in 1974. It doesn’t mean James Madison et. al. because we aren’t talking about the Federal Constitution.
4. In this case, there are at least two other plausible-to-viable candidates in the Democratic primary; Oregon is a majority Democratic state so whoever the Democratic nominee is will have a big advantage, although in my opinion given overall circumstances in 2022, it’s not impossible that whoever the Republicans nominate could win. Query if we’d consider it differently if, hypothetically, Kristof had already won the Democratic nomination and then been determined to be ineligible.