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The former executive director of the Oregon ACLU worries about the implications of a ruling against the former New York Times columnist.

PMG FILE PHOTO - Former New York Times columnist Nicholas KrisofThe Oregon Supreme Court's decision in the Nicholas Kristof case (not issued as of this writing) will — for the first time — analyze the meaning of the term "resident" in Oregon's Constitution.

At stake in the case is whether Kristof has been a resident of Oregon for at least the minimum three years which has been a constitutional requirement for gubernatorial candidates since statehood in 1859.

The standard adopted by the justices of our state's highest court could have implications that will not only affect Kristof and those who support his candidacy.

The Oregon Constitution uses the terms "resident" and "residence" in more than a dozen places. One of those requires voters to be residents of the state. That, of course, makes perfect sense.

But if the court adopts the "resident" rule advocated by Secretary of State Shemia Fagan, it could impact more than Kristof's candidacy. It also could require more restrictive voter registration requirements and open the door further to the types of challenges to election results we have seen recently in other states.

Understanding how that could happen is complicated.

After all, Oregon's voting laws are among the most progressive in the nation. We can register to vote electronically or by mail. And we have voted by mail for decades. How could Kristof's desire to be governor possibly have any impact on someone's fundamental right to register to vote or to have their vote be counted?

On the one hand, the answer is simple: If the Oregon Constitution sets a more stringent restriction on voting than is in our current laws, then that constitutional standard would effectively override the laws and practices we now take for granted if the laws were more permissive.

Think about the hundreds of families displaced by recent wildfires. Or those who have fled domestic or sexual violence. Think about the folks whose jobs have disappeared because of the pandemic and who have been, or may soon be, evicted. Will a person without a current "fixed" home because they are now living in an RV or a motor home still have a right to vote? How about the homeless person living in a tent?

The voting rights of all those voters currently are protected by Oregon law and rules, but if the Oregon Supreme Court adopts the more restrictive standard of domicile as it was understood in 1859, the validity of those protections may well be undermined.

The secretary of state and her lawyers have asked the court to interpret "residence" to be identical to the legal term of "domicile." Black's Law Dictionary (of 1891) defines "domicile" as "(t)hat place where a man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning."

Setting aside the prejudices of 1859 that limited voting to only "white male(s)" in Oregon, adopting a domicile requirement for voting could impact the voting rights of many people.

Whatever the Oregon Supreme Court justices say about the candidacy of Nicholas Kristof, I am hoping they will consider the potential collateral damage their ruling might have on the voting rights of thousands of Oregonians and do nothing to undermine the faith that most Oregonians still have in the outcome of our elections.

David Fidanque retired in 2015 after spending 33 years on the staff of the ACLU of Oregon. He lives in Eugene. This column originally was published by the Bend Bulletin.


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