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A not-too-early start

A not-too-early start

May 19, 2023

When should a challenger to an Idaho legislator, or an outsider seeking to overcome the odds in running for a major office in the state, start their campaign?

It’s an easy answer: Yesterday.

By which I mean, a lot earlier than most candidates tend to get started. In the case of a legislative candidate, there’s a case to be made for waiting to go public until after the off-year legislative session is complete. Since that session is done for the year (well, maybe not, but at least so far as we know) there’s no reason not to get a campaign in order.

For statewide office, the time frame for an effective outsider campaign should be much longer. Much.

The work of a challenger – that mostly means Democrats in Idaho, of course, but also to a degree Republican primary challengers – is more vast and difficult, if the serious objective is to win, than most candidates imagine at first. Lots of time is needed to research the political situation (in microscopic detail), to develop local support and organizations and through all that, funding and external support. There is such a thing as local and grass roots support and campaigning, but people who lack the advantages of fame and money need a lot of what else can make that happen: Time.

Which is why some note ought to be given to a gubernatorial candidate who did launch her campaign, in a formal sense at least, this month. For governor. In the election to be held in 2026.

If that sounds wildly premature, reread the above paragraphs.

The candidate in question is Terri Pickens, who was the Democratic nominee for Idaho lieutenant governor in 2022. An attorney (and you pick up her professional demeanor quickly), she was born and raised in Pocatello, attended the University of Idaho at Moscow, and has practiced law in Lewiston and Boise. Running for lieutenant governor last year, she was unopposed in the Democratic primary but lost the general election to Republican Scott Bedke, taking 30.5% of the vote.

In the long tale of Idaho general election contests, none of that is especially remarkable.

What she’s done now, starting with filing paperwork to run in an election three and a half years out, is unusual. So is her ambitious plan to start work on building that campaign right away, and through the next three years: She has said the filing is not just a statement of intent to run, but the beginning of a campaign to be built out over the next thousand days or so.

She has a statement of intent that sounds strong enough to represent a starting point and call to action: “This year, we saw some of the meanest, most extreme, cruel laws proposed and enacted in Idaho. Lawmakers are dead set on taking away our freedoms. I am taking time to see how much support is out there for a governor candidate who understands that freedom isn't just a word on a flag. With enough support to give me a credible shot at winning, I will run for governor and I will win.”

Of course, the unknowns for that far out are considerable. There’s no certainty, for example, who the Republican nominee will be. Will incumbent Brad Little run - and if he does can he hold off Attorney General Raul Labrador, who’s widely presumed to be a candidate then? Or might someone else materialize? We’re talking about years into the future, after all. A lot of water will pass under bridges between here and there.

None of this is a prediction that Pickens will win: Democrats have lost eight straight elections for governor of Idaho since their last win, and none were even very close. There’s not a lot of recent history to back up a favorable prediction.

But trend lines never last forever. And if someone eventually is going to break this one, then this is how you do it: Starting far earlier and campaigning overwhelmingly. Keep a watch on this.

 

Verbal overkill

Verbal overkill

May 16, 2023

The nearly universal condemnation of CNN for allowing Donald Trump more than an hour of prime time to spew his oft-repeated lies is well-deserved.

Criticism ranged from "an evening of B.S." to "Fox Lite."

Just because the guy who's been a most-vocal critic of your network now wants to talk to you doesn't mean it's necessary to broadcast the verbal slime for which he's so well-known.

What possessed the "powers-that-be" at CNN to give unfettered license to flood their network with a torrent of lies we'll never know.  Ratings?  Sponsorships?

Then - offering a fig leaf of an apology - the despicable mess was followed the next day with Anderson Cooper being sent out with a meaningless mea culpa and an impossible attempt to explain a bad decision.

A professional co-hort of mine - now reporting from that great newsroom in the sky - often reminded me "It's not the reporter's job to judge the veracity of the interviewee.  That's up to your audience."

Under normal conditions in a normal interview, that's all well and good.  But, that co-hort never faced an interviewee like DJT.

One thing is certain.  Those of us who watch CNN will never look at the network the same way.  Founder Ted Turner envisioned his creation as a straight-up journalistic broadcasting company with no underlying message - unlike his competitors.  The evening with Trump earned CNN the brickbats has received.  It also betrayed Turner's goals.

In general terms, there's a large whiff of distrust and anger in the unending criticism directed at nearly all media these days.  Much of such anger is well-founded.  CNN's escapade with Trump just added fuel to that argument.

The CNN venture only served one purpose as far as Trump is concerned: his love and lust for publicity.  Good, bad or sideways.  He doesn't seem to care.  Just get his disgusting mug on the tube.

I don't know why that guy isn't wearing an orange jumpsuit in someone's crossbar hotel.  His culpability in one crime or another is well-known.  So far, his less-than-honest conduct has resulted in him simply writing sizeable checks.  Surely some of the current legal activity will result in his presence in one or more courtrooms on criminal charges.  In courtrooms where writing a check won't do.

National media would be well-advised at this time to stop putting this guy on the front page or on the nightly news.  If the rumors emanating from Georgia to New York City to New York State that indictments are coming, keeping him out of the spotlight is even more important.  To us as consumers.  To Trump as the star.

The CNN outing must have been watched by some of those prosecutors.  Watched and recorded.  Recorded for use as some of those legal eagles are building their various cases for prosecution.

Trump is his own worst enemy.   He suffers from verbal diarrhea in the first degree.  It's apparent some of the things he says - often words volunteered - are self-incriminating.

The $5-million verdict in the E. Jean Carroll case came after her legal team played a video of Trump running off at the mouth in what is described as the "Access Hollywood" tape.  The one in which he said "You grab 'em by the p - - - y."

In the long run, the corporate team at CNN did themselves no favor by letting a relative lightweight reporter be run over by DJT.  By giving him a platform.  By dousing the viewing audience in verbal doses of lies, upon lies, upon lies.  The young reporter was outgunned from the git-go.

The national media seems unable to deal with Trump from any position of control.  He's simply given a microphone and everyone stands back.

At our house, the mute button on the remote control is getting a lot more use recently.  A lot.  CNN would have been well-advised to do the same.

 

Who’s afraid of ranked choice?

Who’s afraid of ranked choice?

May 15, 2023

Idahoans will have the opportunity in November of 2024 to open up our elections so that every eligible voter can participate in choosing their public officials. There will be an “Open Primaries” initiative on the ballot to establish a primary election where all candidates run on a single ticket, allowing every voter to select from the entire field. The four top vote-getters will be placed on the general election ballot, where all voters can vote for the candidates in their order of preference.

A candidate who receives an outright majority of the vote in the initial vote count wins the office. If there is no majority winner, the candidate receiving the fewest first-choice votes is eliminated and the votes of those who made that candidate their first choice then go to their second-choice candidate in a second count. If a candidate gets a majority in the second count, they win. If not, the process repeats until a candidate gets a majority. The beauty of this system is that every voter has a better chance of influencing the election–if their first choice does not win, their second choice might. The system is often called ranked choice voting.

This is similar to the system in Alaska, which gained wide approval from voters in the 2022 election. Voters surveyed said it was easy to use. It gave them more choices in the primary and more influence in selecting leaders. It has reportedly had a moderating effect on Alaskan politics–something that Idaho desperately needs.

The initiative is supported by a coalition of groups and individuals, including former Republican Speaker of the House of Representatives Bruce Newcomb and long-time Idaho Falls news anchor Karole Honas, an independent. Newcomb said the system “will give us better elections and better leadership.” Honas says “opening up the primary will force candidates to consider the perspectives of a broader group of voters in order to win.” The Alaska experience shows that both of them are absolutely correct.

The support coalition includes a national veteran’s group, Veterans for Political Innovation (VPI), and its Idaho affiliate, of which I am a member. The group supports open primaries across the country, based on the belief that veterans put themselves at risk to make participation in government open to all Americans, regardless of party.

VPI co-founder Todd Connor welcomed the Idaho initiative, saying, "Idaho has an exciting opportunity, and arguably a moral obligation, to open up their election systems to allow more people to vote and have a voice, have more options at the ballot box, and do something different to combat the toxic polarization that Americans are tired of and that is destroying our country in real time.  Military veterans, 50% of whom identify as independent, expect better politics and Idaho has an opportunity to get this right.  We're honored to support this effort."

Reclaim Idaho, which ran two previous initiatives with broad voter support–Medicaid expansion, which passed with 60%, and an education measure that forced the Legislature to increase public education spending by well over $300 million–will shoulder the burden of getting the voter initiative on the ballot.

The disruptive wing of the GOP, which brought us Dorothy Moon, Janice McGeachin and Priscilla Giddings, will fight the initiative tooth and nail. They understand it will loosen their stranglehold on the Republican Party and allow more reasonable and pragmatic people to defeat the troublemaking extremists.

In a recent article appropriately titled, “Why conservatives should not fear ranked choice voting,” the reliably conservative Cato Institute has debunked the claims of Moon and other extremists that the system would harm conservative candidates.  The article concludes that ranked choice voting “tends to help the sorts of candidates who appeal to many kinds of voters, not just a narrow, super‐committed base.” That is exactly the objective of the “Open Primaries” initiative. Conservative need not fear the initiative, but disruptive extremists probably should.

 

A letter and a reply

A letter and a reply

May 12, 2023

The letter, a remarkable document, was a serious cry of desperation wrapped inside a legal argument. What kind of response it will or should get is something people all over Idaho should think about.

The message dated May 1 came from Tarie A. Zimmerman, a member of the elected governing board for North Idaho College, and addressed to the state Board of Education:

“During my brief tenure on the NIC Board, it has been controlled by a three-member majority that appear to be determined to destroy NIC. I have worked, to the best of my ability, to combat these efforts, but to no avail. We are at a critical point and without intervention from Idaho State Board of Education … I believe accreditation will be lost forever.”

That strong language is not hyperbole. The only way the actions of the governing majority on that board make any sense is if they specifically are intended to demolish the 90-year-old community college. The whole gory story of those activities is book-length at this point.

Conditions - caused not by administrators, teachers, students or finances but rather specifically the extremist majority on the governing board - have reached the point that NIC’s accreditation may be yanked within a few months, which could mark the effective end of the college. (A speculation: It might also allow the beautiful lakeside campus to be sold off for commercial development, making someone a mint, but that’s another subject.)

Zimmerman asked: Can something, anything, be done to keep the college from being deliberately driven off the cliff? Her words: “this letter is a request that the Board take action to intervene in the governance and affairs of NIC to prevent NIC’s impending loss of accreditation.”

The state board apparently has not even responded to the letter, much less acted on it.

The usual rule is that elected officials (like the NIC board) have more authority than appointed ones (like the state board) because theirs comes right from the voters. The campaign to elect the extremists on the NIC board didn’t argue in favor of killing the college, but given the dynamics of the races and the board’s recent history, what has happened should be no surprise. Would it be reasonable to say that if the voters want to destroy the college, they should be able to?

How about a K-12 counterpart, if a local school board majority wanted to do what the NIC board has done, and basically end schools in a school district? (That isn’t an implausible scenario these days.) State takeovers of local public schools have happened, starting in New Jersey in 1989, with more than half of all states later passing laws allowing for state takeovers.

Short of that, Zimmerman suggested (in a well-crafted legal argument) the state board take over NIC administration at least while accreditation is under review, on grounds the board is responsible for “general supervision of the state educational institutions” per the Idaho Constitution.

What exactly “general supervision” means may be harder to say. In December, a statement from the board opined, “By statute, Idaho community colleges are governed by locally elected boards of trustees, not the State Board of Education.”

But beyond the legal question sits something larger: Does a group of people in Idaho, through their election choices, have the right to put the torch to education in the state? Should state government, charged with overseeing education in the state, simply stand by and do nothing?

The Idaho Constitution (Article IX, Section 1) says “The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” The reference specifically is to public schools, not colleges, but surely the principle applies to higher education as well.

Will the constitution and the statutes be read as the enabler of an education suicide pact?

 

Complaint

Complaint

May 11, 2023

I have only had one occasion to file a complaint against a colleague with the Idaho State Board of Medicine. They rebuffed me with a dismissive, “This is a local standard of care issue, handle it in your community.” My community colleagues had no backbone to address the poor care. I left the community. A year later the person practicing medicine was finally sanctioned for another incident by the Board.

I offer this preface because you need to know, the Idaho BOM and I don’t always see eye to eye. Prior experience tells me this complaint will not be welcome either.

I hereby file a complaint with the Idaho BOM against the Idaho legislature, and our governor, while we’re at it, for the crime of practicing medicine without a license.

It takes quite a bit to get me riled up. I don’t always approve of choices my colleagues make when they provide care, but I can accept that what we do is a “practice”, and the variations within that practice, when studied, can guide us toward best practice.

Indeed, the Idaho Medical Practice Act defines the “practice” of Medicine:

The investigation, diagnosis, treatment, correction, or prevention of or prescription for any human disease, ailment, injury, infirmity, deformity or other condition, physical or mental, by any means or instrumentality that involves the application of principles or techniques of medical science…

Patients come to doctors for many reasons. I do my best to understand their complaints and provide care.

I remember a young woman who came to me with what I thought a trivial complaint. She was young, attractive, but had very coarse and prominent body hair. It darkly covered her forearms. She had a dark mustache she plucked. She said it afflicted all the women in her family, but she had researched an antiandrogenic treatment and asked me to prescribe it. I told her I would study it and get back to her. I did.

The drug blocked the effects of androgens, male sex hormones. It had been developed for the treatment of prostate cancer. But I found studies where it had been used for this young woman’s condition with significant benefit. After a week of study and contemplation, I called her to come back so we could consider this treatment.

I tell you this so you can consider what the Idaho legislature and our governor have just done. They have, by the heavy hand of the law, forbade me from considering a treatment for my patient.

No treatment, other than counseling, for a young person under the age of 18 who suffers from their gender may now be prescribed by a medical practitioner under the penalty of law.

The Idaho legislature and our governor have decided how medicine should be practiced in this state. The Idaho BOM should take heed.

I don’t know the best treatment for gender dysphoria. I have seen patients who struggle with this condition. I do my best to treat them with respect, knowledge, and wisdom. But now, I must also treat them with the consideration of prosecution. Is this the Idaho I love? Is this the community that cares for each other?

There are many issues the struggling youth must address. There are issues their communities must address. But passing laws about what treatments are available doesn’t seem a healthy way to proceed.

The Idaho legislature and our governor have proclaimed they know the best way to practice medicine. The Idaho Board of Medicine needs to assert their authority. Statutes clearly describe the penalties for practicing medicine without a license. Drop that complaint in the Attorney General’s lap. We all know where that would go.

Just because you know the enforcing authority won’t act doesn’t mean you shouldn’t voice your complaint.

 

Not a dirty word

Not a dirty word

May 10, 2023

We all know what’s going to happen in three years … it’s so predictable.

Attorney General Raul Labrador will square off with Lt. Gov. Scott Bedke in an epic Republican primary battle for governor. Or, maybe Gov. Brad Little will run for a third term just to keep Labrador out of there – although I’ll believe that when I see it.

Here’s another option that not a lot of people are talking about. How about putting State Superintendent Debbie Critchfield in the mix? She’s not dropping hints about running, subtle or otherwise. She’s far more interested in the job that she has. But she has qualities that could serve her well in the political world, regardless of where she goes.

For one thing, she’s a politician – and that’s a good thing. Critchfield’s predecessor, Sherri Ybarra, spent eight years saying she was not a politician, and legislators rarely saw her. Critchfield, by contrast, was a fixture in education committee meetings, or anything related to public schools.

“I want to be at the Capitol,” she said. “Everything that happens during those three months … that’s how the schools are going to operate. That’s where they pass the laws and do the budgeting. I can’t imagine being here (at her office) while things are taking place there (at the Capitol).”

Another mark of a good politician – which serves her well as the state superintendent – is the ability to work with those who disagree with her. Sen. Tammy Nichols of Middleton, a leader of the Legislature’s conservative Freedom Caucus, told me she’s more at ease communicating with Critchfield than the governor. That’s probably because Critchfield took the time to attend the senator’s town hall meeting to discuss Nichols’ proposal for Education Savings Accounts, which failed in the Senate.

“I wanted to hear first-hand what it was all about,” Critchfield said.

As it turned out, there’s some common ground with what Critchfield and the senator want in the large scope. Critchfield says Nichol’s plan was not much different from the superintendent’s push for an Empowering Parents grant that is aimed at helping families take charge of learning tools outside the classroom.

As with Nichols and other conservatives, Critchfield is all for school choice. “Idaho has every possible offering of school choice that you can think of, including educating kids at home – and there are no regulations. To me, that’s the ultimate in school choice. The messaging is that Idaho does not have school choice … yes we do.”

Critchfield knows there will be disagreements here and there. She welcomes one-on-one visits with legislators to discuss those differences – another mark of a good politician.

The legislative session, as rocky as it was on high-profile social issues, turned out to be good for Critchfield, the governor and education in general. Lawmakers provided solid funding for schools and teacher salaries, the governor got through his Idaho Launch program for post-secondary education that was panned by conservatives, and Critchfield got the thumbs up for financial literacy education.

It wasn’t all easy, of course. For instance, getting through a Career Technical Education bill turned out to be tougher than she thought. Her proposal received a warm greeting initially, even from staunch conservatives, but some legislators bailed out when the Idaho Freedom Foundation gave it a negative rating. There will be other battles with the IFF down the road, with plenty of debate about what’s being taught in schools and the government’s role in education.

“There is that faction that will object no matter what we do,” Critchfield says. “We hear about curriculum choices, returning to the fundamental basics and people asking why the government is involved in education. But if we believe in not only our constitution, but if we fundamentally agree on having an educated citizenry, there are certain expectations that we collectively are invested in and I believe public education is one of them. I’m hoping that with a changed leadership and a change in culture at the department that we can provide an overall improved tone about the value of education. We’ve got to restore that value.”

Critchfield wasn’t going to solve all disputes during three months of a legislative session, or a few weeks of visiting educators throughout Idaho. But she’s off to a decent start as the state’s superintendent, which is more than can be said for at least a few of her predecessors over the years.

Chuck Malloy is a long-time Idaho journalist and columnist. He may be reached at ctmalloy@outlook.com

 

 

War

War

May 9, 2023

America was attacked by Japan on December 7, 1941. Just 32 hours later, President Franklin Roosevelt and Congress declared war in response.

The nation became instantly focused on the business of war. Industry turned on a dime and began producing armaments of all descriptions. Commerce quickly set up a war footing and became part of the massive effort. Young men and women signed up for military duty. Civilians of all stripes were either in uniform or became part of the campaign in hundreds of ways at home.

It was war! Two, actually. We won. Both.

We are now under attack again. For those who are repulsed and sickened by the massacres flowing from guns in this country, we are at war again! War!

This is not something politicians can solve with new laws. Even if they had the backbone to write 'em. We've already got more laws dealing with guns than we can prosecute. Laws aren't the answer.

Think about Sandy Hook. El Paso. Dayton. Las Vegas. Orlando. Parkland. Columbine. Allan, Texas. Do you think for a second that the shooters in all these massacres loaded their long guns, stopped at the door and thought about laws they were about to break? Were any of them stopped by legislation?

Banning violent video games - ala Walmart - isn't the answer. All developed nations on earth have violent video games. Are they having as many massacres per capita as us? Any?

Psychiatric or mental treatment won't stop the shooting. As far as we know, only one shooter in all the tragedies listed above had any contact with mental health professionals - Sandy Hook. Medical professionals can't find 'em all before they kill.

We are at war! None of these "answers" being proffered can stop the killing and, taken together, they'll still fail. In wars, there's the battlefield and there's the home front. Not now. We are currently living on the battlefield. Schools, hospitals, churches, mosques, temples, concerts, nightclubs, streets, stores. Where we live, shop, play, worship. We're living on the battlefield.

It's the guns, damn it. It's the guns. You got unlimited and free access to guns? You got killers.

In our state, when arrested for DUI, the state takes the car. Period. That takes care of that. One by one. Separate the driver from the car.

When someone is convicted of a crime while on drugs, our state - and many others - not only lock 'em up but also enters them into a program to separate 'em from drugs. Separate.

But, also in our state, sorry to say, we have open carry laws. More than that, you can carry concealed without any classes, no permit, no training. You can carry in stores, libraries, restaurants, churches and bars. Now, there's a great idea. Bullets and booze. What could go wrong? It's the guns, damn it!

We have a war on our hands. Nothing short of it. All these damned piecemeal approaches will not work if, somewhere out there in this nation of 330-million souls, there are hundreds or even many hundreds of people with mass murder on their minds. They can't be found before they kill. They don't wear tags. They all look like the rest of us. There's absolutely no way to cut 'em all out of the herd before they act.

Politicians don't have the guts to take on the NRA. But, that's one piece of the larger puzzle that has to be solved. The NRA is a cancer on our society that's paid out more than $24-million bucks to members of Congress in the last decade. It's bought them and it's bought their silence and inaction. We're currently successfully bankrupting some hate groups by getting large, court-ordered civil damages for their wrongdoing. It's time the NRA paid up. Seems New York State A.G. is working on that.

If we're to stop the killing - stop the massacres - stop the killers - we have to look at this as a war. Nothing less. It requires us to temporarily turn from other issues and concentrate every resource we own directly on this one murderous problem. We have to go back to December, 1941, and put this nation on a war footing. Focus directly on who's killing us and stop it. Nothing less will end the tragedies that have cost so many innocent lives.

I don't know all the answers, if answers there be. But, I do know this nation (1941-1945) waged massive wars on two fronts and won both. We dedicated ourselves to a single purpose - winning - and we did. If we could stop 'em "over there," we can damn-well stop 'em here. America can still walk and chew gum at the same time.

We've got the money, the brains, the technology. But, so far, we've lacked the will to take this head-on. We're at war. Our streets and homes have become the battlefield. We are living in the midst of the killing. We are safe nowhere.

If that's not war, what the hell is it?

 

Limony Snicket prize

Limony Snicket prize

May 8, 2023

A bright ray of love and compassion has just broken through the ugly cloud of misinformation about transgender kids that was created in the just-concluded legislative session. At a time when extremist legislators, particularly from the northern climes of the state, seemed hell-bent on punishing these kids, a courageous panhandle librarian was selected for a national award for supporting LGBTQ teens, despite backlash from some in her community.

Denise Neujahr, a librarian at the Community Library Network based in Post Falls and Hayden, will receive the American Library Association’s “Lemony Snicket Prize for Noble Librarians Faced with Adversity” in June. The award is for the Rainbow Squad Program she initiated in 2019 to bring LGBTQ kids and their allies together on a monthly basis to interact in a non-threatening atmosphere. Neujahr said the program lets the kids “be themselves without any judgment or bullying, which they experience daily at school, church or home.”

Neujahr’s work is important because of the hysteria raised about transgender youth by some legislative troublemakers this year. Transgender-bashing has become the foremost national culture war issue this year, designed primarily to stoke fear and score political points. In spite of the fact that nobody has been able to point to evidence of a transgender problem in Idaho, legislative miscreants targeted this bullied minority, causing untold grief and dread for them and their families. And it is not as if these kids did not already have more than enough derision, severe depression and suicidal ideation to deal with before the legislators piled on.

Legislators who have claimed to be dead set against the government meddling in family medical decisions, could not wait to prohibit families with trans kids from getting the gender affirming medical care prescribed by their doctors. In fact, the Legislature provided in House Bill 71 (HB 71) that those doctors could spend up to 10 years in prison for providing that care. That will certainly give more doctors a good reason to move out of state, making it more difficult for even the extremists to find a doctor.

Dorothy Moon, the head of the extremist branch of the Idaho GOP, appears to believe that people choose to be in the LGBTQ community, speaking of the “LGBTQ+ ideology.” It is not a choice and it is not an ideology. Rather, according to medical experts, it is biology with an element of genetics. As one expert put it, “The idea that a person’s sex is determined by their anatomy at birth is not true, and we’ve known that it’s not true for decades.” Gender identity “comes from the brain, not the body.”

Moon claims that doctors must be prevented from providing gender affirming care because it is harmful to children. Mainstream doctors in Idaho and across the country say that is flat wrong and attest that gender affirming treatment is essential to the well-being of transgender kids. Indeed, one recent study showed 60% less depression and 73% less suicidality in kids who received such care.

HB 71 will be challenged in court and likely be declared unconstitutional. The state will be stuck with paying substantial attorney fees for both sides. The proponents of the legislation probably knew this would be the result but decided that point scoring with their base was more important, even if it caused immense fear and heartache for transgender kids and their families.

In this combative atmosphere, where facts have played little part in the war against transgender kids, it is encouraging to see people like Denise Neujahr standing up for an oppressed minority group and extending a hand of compassion and inclusion. Despite the ugliness emanating from the Legislature, decency is still alive and well in the Gem State.

 

An election afterthought

An election afterthought

May 7, 2023

Our courts tend to be afterthoughts in our politics and elections, barely considered compared to the higher-profile elected legislators.

Many voters in Oregon pick up their ballots and voter guides at election time, marching through their votes for offices like president, governor, senator and representative, but pause when they hit judges and justices up for election.

Many are unopposed: Should they simply check the box? If they’re opposed: Who to vote for? The campaigns are usually low-key and often the candidates say little that would help voters choose between their options.

But those options do matter, nationally and notably in Oregon, and the evidence is all over the headlines.

The most significant election of the year nationally may have been last month’s state Supreme Court contest in Wisconsin, unusual in the attention it has gotten, the money spent on it and the political impact it may have. But its political contours – a technically nonpartisan race between candidates openly supported by Democratic against Republican interests – are clear.

In Texas, a single federal judge, Matthew Kacsmaryk, has claimed the authority to pull a drug from use nationwide, which inserts him into the center of national politics while that claim is heavily disputed. Oregonians can find the impact of local judges closer to home.

Last year, on a close vote (50.6% approval), Oregon’s voters passed Measure 114, which provides for limits on gun sales, ownership and transfers and related activities. It was challenged swiftly in federal court in Portland, where the Oregon Firearms Federation and Sherman County Sheriff Brad Lohrey sued, arguing the measure violated the Second Amendment to the federal Constitution. On Feb. 20, a federal judge gave the measure a legal go-ahead with some delay so some provisions could be properly carried out.

The measure’s critics have not stopped there, however. Long before the federal judge ruled, on Dec. 2, the Gun Owners of America, the Gun Owners Foundation, Gliff Asmussen, and Joseph Arnold went to state court. They did not file in Portland or in Salem but in the state’s 24th judicial district, which covers Harney and Grant counties and has one elected judge, Robert S. Raschio. Three hours after the federal court ruling cleared a path for the measure, Raschio blocked it – statewide – at his court in Burns.

You didn’t have to read too carefully between the lines of the decision to find an attitude more attuned to Burns than to Portland. Raschio wrote in his Jan. 2 decision, “The court finds that there is less than a one in 1,000,000 chance of a person being a fatality in a mass shooting in Oregon. And even less with an offender who is using large capacity magazines.”

State attorneys have asked the state Supreme Court to intervene, but it has declined, so far. The measure has sat in the Burns courthouse for several months.

The latest effort to overcome the judicial blockade has been a measure in the Oregon Legislature, Senate Bill 348, now working its way through the Senate, which seeks to implement (with some adjustments) the terms of Measure 114. It also includes a striking additional provision: A requirement that any legal challenges to it would have to be run through courts at Marion County in Salem. (This isn’t the first time such a provision has been added to legislation.)

All of this should put to rest the mythology that judges simply and dispassionately apply the law to whatever is brought before them. In the case of Measure 114, one group of plaintiffs, dissatisfied with the results from one court, shopped the case around to another. Another interest, dissatisfied there, determined that the case must go to a third venue.

Courts are powerful. In Oregon appellate court decisions – properly decided or not – effectively have set state policy on issues from public employee retirements to campaign finance to the limits of free speech. And as the recent decisions from Harney County demonstrate, the Supreme Court isn’t the only one that matters.

But we know little about the judges or where they’re coming from. Rachio’s opinion seems to have adopted a number of broad arguments and language from gun rights advocates (somewhat like the federal judge in Amarillo, Texas, seems to have done in the case of the abortion pill). That suggests background steeped in particular social patterns of thought found outside of legal case books; possibly you could find something similar –  though from a different perspective) in the case of judges based in Portland or Eugene.

This may be inevitable; whatever professional training we may have, we all bring some of our own social and experiential baggage to what we do.

But in the case of judges, it may mean we need to take a closer look – and inquire more closely when appointed or elected – so that we know what we’re getting. Because that will vary.