Oregon voters approved Measure 113 in 2022, amending the state constitution to disqualify any state senator or representative from the next election if they accrue ten or more unexcused absences from legislative floor sessions. In 2023, Senators Dennis Linthicum and Brian Boquist staged a multi-week walkout to protest the Senate's refusal to comply with certain laws regarding legislative summaries. During this period, they each accrued more than thirty unexcused absences. The Oregon Secretary of State disqualified them from the 2024 ballot based on the new constitutional provision. The Senators filed suit under 42 U.S.C. § 1983, arguing that their walkout was a form of protest protected by the First Amendment and that the disqualification constituted unconstitutional retaliation. The district court denied their motion for a preliminary injunction, relying on the Supreme Court's decision in Nevada Commission on Ethics v. Carrigan, which held that legislators have no First Amendment right to use official powers for expressive purposes.
The Ninth Circuit affirmed the district court's denial of the preliminary injunction, focusing on whether the Senators' walkout constituted constitutionally protected activity. The panel held that walkouts to deny a quorum are exercises of legislative power, not personal speech. Citing Nevada Commission on Ethics v. Carrigan, the court explained that a legislator has no right to use governmental mechanics to convey a message. The ability to stymie legislation by absenting oneself is a prerogative of membership in the body, belonging to the people rather than the individual legislator. The court rejected the Senators' argument that their walkout was a personal right to protest, noting that Carrigan explicitly distinguishes between a legislator performing a governmental act and one exercising personal First Amendment rights. The court also found historical support for this conclusion, pointing to the long-standing tradition of legislatures retaining the power to compel the attendance of absent members, including through imprisonment. The court distinguished its prior decision in Boquist v. Courtney, clarifying that Boquist involved personal speech made to a reporter, whereas the walkout here was a governmental act intended to deprive the legislature of the power to conduct business. The court further noted that the disqualification provision is content-neutral and narrowly tailored to serve the significant government interest of ensuring the sound functioning of the state legislature.
The decision affirms the disqualification of Senators Linthicum and Boquist from the 2024 ballot. The ruling clarifies that legislative walkouts used to deny a quorum are not protected speech, meaning legislators cannot use the First Amendment to avoid consequences for failing to attend sessions. The case proceeds with the Senators ineligible for the 2024 election as originally determined by state officials. The decision leaves open the question of whether other forms of legislator speech, distinct from official acts, remain protected, but confirms that using legislative office to frustrate business is not protected.
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