Judge to rule by Monday on fate of measure aimed at overhauling Portland government

Multnomah County Circuit Court Judge Stephen Bushong said he will rule by Monday on the fate of a sweeping November ballot measure aimed at overhauling Portland’s form of government.

The judge heard arguments Thursday on the merits of a lawsuit challenging the scope of the proposal. The Portland Business Alliance sued the city last month, arguing the ballot measure violated the state constitution’s single-subject rule, which requires ballot measures to focus on one topic.

Attorney Steve Elzinga, who represented the city’s main business chamber, accused the charter commission of mushing together a “hodgepodge of unrelated subjects” because members thought it would give the riskier items a better chance at passing.

“The commissioners are trying to force voters to support provisions that they don’t like in order to get provisions that they do like, which is antithetical to the very purpose of the single subject protection,” Elzinga argued.

The measure, as currently drafted, would rewrite Portland’s oft-criticized government structure. The council would swell from five members to a dozen. Members of the reorganized body would be tasked with writing legislation rather than overseeing bureaus. The mayor would no longer be on the council and, instead, oversee executive functions of the city as well as a newly-hired city administrator, who would be responsible for the day-to-day operations of the city’s bureaus.

The measure would also reshape the city’s voting system, breaking the city up into four distinct districts. Each district would be represented by three council members. Voters would elect these council members in the same election cycle through ranked choice voting, a form of voting where people list their preferred candidates in order of preference.

The measure was crafted by the city’s once-a-decade Charter Commission, a 20-person volunteer group appointed by the city to propose changes to the city’s governing document. From the outset, the charter members said they were considering scrapping Portland’s unique commission of government, where council members are elected citywide and oversee a portfolio of bureaus assigned by the mayor. Critics say the structure is deeply flawed, leaving too much political power in the hands of wealthy and white residents, and forcing elected officials to serve as administrators for bureaus they have no experience handling.

After a year of research into what has worked and failed in other cities, the Charter Commission voted 17-3 to refer a package of changes to voters that would both rewrite the city’s form of government and its voting structure.

Both commission members and city attorneys have argued the package complies with Oregon’s single-subject rule. The unifying principle, they argue, is “changing the structure of Portland’s government.” And they maintain that it’s critical the measure not be broken up into separate parts if the changes are to work.

Deputy City Attorney Maja Haium doubled down on the argument Thursday, equating the proposal to a three-legged stool.

“If one measure or one of those basic reforms is not voted on or not approved by the voters, the one or two legs of the stool makes for an ineffective stool,” Haium said. “And that has been a consistent theme of the commission since they began their deliberations 18 months ago.”

Bushong also heard Thursday from two parties that felt the wording of the ballot measure should be simplified. Attorney and election law expert Margaret Olney said while she believes the measure complied with the single-subject rule, she had concerns with the syntax of the ballot title. James Posey, co-founder of the National Association of Minority Contractors of Oregon, said he felt the complex ballot language would be “a clear deterrent” for voters.

Posey, who said he was there to represent the average voter, told the Oregonian/OregonLive he originally filed his legal challenge against the measure after being approached by the former campaign manager of Portland City Council candidate Vadim Mozyrsky, now one of the ballot measure’s most ardent opponents.

“Really, it’s a form of voter suppression to have this come out the way it’s come out, all bundled up together,” Posey said.

Bushong indicated he, too, felt the ballot language was too complex for the average voter with terms like ranked-choice voting, single transferable vote, and instant run-off left undefined.

“This is something that the voters need to understand, and I know that I didn’t know what those terms meant until I looked back at the report and got a more detailed explanation of what they meant,” the judge said. “It might be I’m not as smart as the average voter.”

Next steps

Should Bushong strike the measure down when he rules Monday, there are a few paths to get another measure aimed at restructuring Portland’s government on a future ballot.

Portland’s City Council could vote to refer their own measure to the November ballot. But they’d need to do it by the end of next week and would need at least three council members to support it. Council members are mulling a package that would keep the reforms recommended by the charter commission but break the current proposal up into different parts, as first reported by the Oregonian/OregonLive. The proposals would also come with a trigger that would mean if one part fails, none of it gets implemented. The move seems likely to increase the chances that the entire package goes down.

Alternatively, the City Council could wait and refer something to the ballot at a later date.

Mozyrsky, a former charter commission member who resigned from the commission earlier this month, said he’s hoping the judge will strike down the measure and the City Council will vote to refer their own ballot measure for the May 2023 primary. Mozyrsky was one of three commission members who voted no on the charter commissions package in June, citing concern the group was taking too large a gamble combining multi-member districts with ranked-choice voting.

Mozyrsky said if the measure referred by the commission fails and council doesn’t put something else on the ballot, his coalition Partnership for Common Sense Government, one of several groups opposing the commission’s measure, will raise money to petition for something else on the ballot for May 2024.

Another alternative is to wait for the charter commission to take another stab at a government reform package. The earliest the commission could put something on the ballot is in May 2024 during the next primary election.