Multnomah County wrestles with preschool measures, legal issues
In an unusually complicated situation mixing politics and legalities, Multnomah County's elected board of commissioners is weighing whether to flip the script on Oregon's initiative system — which is enshrined in the Oregon Constitution to let voters bypass elected officials to make their own laws.
On Thursday, Aug. 27, the commissioners will consider whether to shunt a fully qualified preschool funding initiative off the November ballot to instead let voters consider the version board members would prefer.
Either way, voters will have the opportunity to impose a new income tax and to establish a program to reduce societal inequities by ensuring less affluent families have full access to free preschool — rather than effectively giving a head start to the privileged.
But depending on how things go, the vote the commissioners take on Thursday could spark litigation, overturn the will of the voters or affect the success of the potent idea at the ballot.
The situation is not ideal, as board Chair Deborah Kafoury acknowledged to the Portland Tribune last Friday, Aug. 21.
"I think we're all … weighing what is the least — I don't want to say 'bad' option because I think we all agree … that having a government-funded preschool program would be a game changer in our community," she said.
A belated compromise
The odd situation is the product of two competing drives — one led by the Portland Chapter of the Democratic Socialists of America, the other by County Commissioner Jessica Vega Pederson.
For two years, they've sought roughly the same goal, with the Democratic Socialists-led measure — called "UPNow" for Universal Preschool Now — going the more ambitious route of seeking a higher income tax rate and broader access to free preschool, while ensuring those working in the preschool system are paid a wage roughly comparable to kindergarten teachers.
They recently came together, with Vega Pederson modifying the more moderate framework crafted by a county task force, called Preschool for All, so that it largely mirrors the UPNow version. The major difference: the compromise uses more of a sliding scale for the income tax and is implemented gradually.
On Aug. 6, the board unanimously approved referring the compromise measure to the November ballot with support from the UPNow proponents.
But there's a big catch: what now happens to the version that UPNow petitioners previously supported?
Two measures, or one
The problem is that UPNow proponents already had gathered and turned in 32,000 signatures to qualify their measure for the ballot, as was confirmed by the Multnomah County Office of Elections on July 22.
During an Aug. 6 board meeting, Vega Pederson and petitioners agreed that they want only one measure — the compromise one — to appear on the ballot.
But once the necessary signatures are turned in, petitioners lose control of their measure, according to elections lawyers consulted by the Portland Tribune. The petitioners can't just change their mind, they said.
Eric Sample of the county elections office says that once a measure qualifies, commissioners "can either adopt it or refer it to the ballot."
That means the board of commissioners, having already referred to the Preschool for All measure to the ballot, are left to make a decision on what to do with the second, UPNow, measure.
On its face, initiative law seems to offer a potential way out. As Sample pointed out, once the necessary signatures for an initiative are gathered, the county board can refer the measure to the ballot — or bypass that entirely and adopt the measure directly into county ordinance without a vote.
That option now has the county board considering whether, rather than referring the UPNow measure, they could adopt it and then immediately repeal it, amend it or put it on hold for some later election.
As Kafoury put it, "We have a series of options that include … enacting or adopting and then suspending the universal preschool measure, only to send it out to the voters at a later date. Or we could enact it/adopt it and then repeal it, so it's gone. Or we could refer it and there would be two measures on the ballot, as the 32,000 people who signed the petition wanted us to do."
Why don't Vega Pederson and the UPNow proponents want to put both measures on the ballot?
"I think it's more clarity for voters to have one measure that everybody's talking to and getting behind. We have heard loud and clear that … coalitions only want one on the ballot and they want that to be Preschool for All," Vega Pederson said, citing input from the Multnomah County Attorney, Jenny Madkour. "This is the strongest thing to put forward. We do have the legal authority to put it forward and adopt and amend the other one."
But Jill Gibson, an elections lawyer who works with conservative causes, said that "when a measure gets the required number of signatures, the people have the right to vote on the measure at an election, unless the county decides to enact the law. A county council does not have the authority to take that right away from the people."
She added that an initiative "is not a bargaining chip to be used by campaigns and government leaders. … Hopefully a court would not allow a government to play this kind of game in order to strip voters of their rights."
Dan Meek, an elections lawyer and initiative proponent who works on progressive causes, said that while it is possible for the board to adopt and then repeal a measure, he said it's "an open question" whether such a vote complies with the initiative system set up by the Oregon Constitution. He said such a vote potentially could be overturned in court: "It might or might not, I can't give you a probability on that," he said.
The question, he added, is who would want to sue?
Two bites of the apple
That's where the question gets messy, because it's unclear whether voters are going to support the Preschool for All Measure at the ballot.
Vega Pederson cites polling done in June that she says shows about 70% of voters like the idea of the measure. She thinks the rise of the Black Lives Matter movement will only help.
"I think a lot of people are finally waking up to the fact that we need to make real big systemic changes to change a lot of the racial inequities and systemic racism that has been so pervasive," she said. "This is the kind of path forward to really make a difference in the lives of brown and Black and all children of color and all children who don't have access right now."
Pollster John Horvick of DHM Insights, however, notes that his firm did some polling in January for the Portland Business Alliance that showed similar initial numbers on a preschool measure. But when it was placed on a ballot with other tax measures, support dropped to under 50%.
The compromise measure approved by the county board, called Preschool for All, would impose a 1.5% increase on incomes above $125,000 for individual filers and above $200,000 for joint filers — a tax that would jump by .8% in 2026.
On top of that, the measure would layer on another 1.5% tax on incomes above $250,000 for individual filers and above $400,000 for joint filers. Additionally, the proposed resolution notes, "the board may adjust the income tax rate to fully fund the program."
Vega Pederson said it initially will cost about $125 million per year and will grow to as much as $250 million per year when the program is fully implemented.
The Universal Preschool Now measure, meanwhile, imposes a 3.9% tax on incomes above $165,000 for individual filers and above $190,000 for joint filers. It would generate an estimated $260 million per year.
Horvick said the polling suggests a vote on either measure could go either way.
"Doing things for the kids is popular, taxing rich people is popular. Preschool education, I don't think, is a high priority for most voters. And so if they're forced to make trade-offs or they feel like that, their finances are requiring them to make trade-offs. I think that this particular issue may be more vulnerable," he said.
And the November ballot is going to be jammed with other tax measures such as the Metro regional transportation tax on employers, a library tax measure and a Portland Public Schools tax measure.
Putting two preschool measures on the ballot rather than one could confuse some voters or anger others, Horvick said. But, he added, it's hard to say whether that would outweigh the region's default mode on new tax measures, which is to say "yes." Another big factor is whether there is an organized opposition campaign — though business interests are planning a well-funded campaign against the Metro transportation employer tax that could push voter approval numbers down in general.
Kafoury, for her part, says she's glad the Metro successful homeless tax measure was on the May ballot, and not this November's ballot. If it had been headed for the November ballot, "I'm not sure it would have passed," she said.
Meieran wants both
If the UPNow measure is tabled by the county board in its upcoming meeting but the compromise measure goes to the ballot and loses, that raises the prospect that petitioners would be able to sue the county for having suspended or repealed their measure, rather than implementing it.
Multnomah County Commissioner Sharon Meieran said that, while she would have preferred to put a single measure on the ballot, she's worried that to table the signature-qualified measure would contradict the constitution and set a "dangerous precedent." It also could potentially force the county to go against a thumbs-down from the voters if things go that way in November.
"In addition to these fundamental process issues, I worry that the board could face a situation where voters do not approve the Preschool for All measure; the repeal of Universal Preschool NOW is challenged and upheld; and the county is left to implement a program the voters have specifically told us they do not want, at tremendous cost," Meieran said.
Kafoury declined to say how she will vote, and she doesn't know how the board deliberations will go on Thursday.
One thing she does know?
"There is really nothing that we can do at this point with any of these votes that's not going to be confusing to the voters," she said.
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