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Richard Botteri: 'New York's law defining residency for voting purposes raises an insurmountable obstacle...'

I practiced election law in Oregon for 25 years. In my view, Nick Kristof is not qualified to run for Oregon governor.

Kristof, former national columnist for the New York Times, owns a family farm in Yamhill County, Oregon, where he now resides. He has filed to run for the Democratic Party's nomination for governor on the 2022 primary ballot.

Secretary of State Shemia Fagan, Oregon's chief elections officer, had rejected Kristof's filing, asserting he can not qualify to be elected governor in the 2022 general election, for his failure to be a resident of Oregon for three years prior to such election as required by the Oregon Constitution — that is, to have been an Oregon resident since November 2019.

During the critical period, Kristof has lived and worked in New York and voted there. He did not vote in Oregon.

Yet, he claims he has been an Oregon resident for the required period because he has owned the Yamhill property for more than three years, improved it, has returned there to reside several times, paid taxes on it, and has always considered the property to be his residence to which he would return. He claims that his intention always to return to the Yamhill farm as his permanent residence is sufficient and superior to the concerns raised by Fagan.

The former columnist has now filed a petition in the Oregon Supreme Court asking it to order Fagan to include his name on the 2022 Democratic Party primary ballot.

There is no controlling law in Oregon specifically defining when a person is deemed to be an Oregon resident to meet a residency requirement for election to a public office. There was an Oregon trial court ruling in a candidate residency case that "the question of domicile is largely one of intent." This case will not save Kristof, because New York's law defining residency for voting purposes raises an insurmountable obstacle to his validly declaring his intent to be an Oregon resident for the three-year period.

Kristof voted in the November 2020 election in New York. He voted there as a registered New York voter. He was not registered in Oregon.

New York's election statute defines residence for voting purposes: "The term 'residence' shall be deemed to mean 'that place where a person maintains a fixed, permanent and principal home and to which, wherever temporarily located, always intends to return.'"

How could Kristof validly vote in New York unless he felt his residence in New York was his permanent and principal home and where he always intended to return, at least in 2020?

Regardless of what he is saying now, he expressed his intent in 2020 that New York was his permanent home to which he always intended to return, not his Yamhill farm.

To rule in Kristof's favor, the Oregon Supreme Court must hold he could maintain two mutually contradictory intentions as to his principal home in 2020.

Kristof could only have one principal home in 2020. If he maintained his Yamhill farm to have been his permanent and principal home in 2020, he should have voted in Oregon and not in New York. Though he has now made Oregon his permanent home, his residence change has come too late.

Richard Botteri is a Raleigh Hills resident and retired attorney.


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