To all the chaos that has surrounded Oregon’s quest for transportation funding in the last year, add this: Absolutely no one knows what happens next.

A gas-tax hike and other fee increases Democrats scrambled to approve in a special session last year are on hold, after Republicans succeeded in forcing a vote set for this November. That has prompted Gov. Tina Kotek to ask lawmakers to scrap the taxes – and the rest of House Bill 3991, the bill that included them – in order to start fresh in 2027.

But the state’s lawyers can’t say for sure whether lawmakers have authority to repeal taxes when they’re already set for a vote. The Oregon Journalism Project reported Thursday that a 1935 legal opinion from a former Oregon attorney general suggested voters must weigh in once a law is kicked to the ballot.

The Oregon Department of Justice is looking into that opinion.

“Since 1935, the relevant portion of the constitution has been amended and there is additional case law bearing on the issue,” DOJ spokeswoman Jenny Hansson said in a statement Thursday. “We have not analyzed whether the 1935 opinion’s conclusions remain valid in light of more recent legal developments.”

News of the nearly century-old analysis was hailed by Republicans, many of whom are eager for Oregon voters to see unpopular taxes on the ballot alongside the Democrats that approved them.

“This attorney general opinion makes the law unmistakably clear,” said Senate Minority Leader Bruce Starr, R-Dundee, who helped lead the campaign to refer taxes to the ballot. “Once the people invoke the referendum, the Legislature has no authority to repeal it out from under them.”

But the 1935 opinion is unlikely to be the final word.

In 1986, the Oregon Court of Appeals took an opposite stance. It ruled in the case of Martin v. Ervin that Multnomah County commissioners were within their rights to repeal an ordinance that was subsequently referred to voters.

“Repeal by the enacting body achieves the goal that a successful referendum would have produced,” that opinion read.

At least one recent legal examination also doesn’t jibe with the 1935 opinion. The Legislature’s chief attorney, Dexter Johnson, wrote in a Jan. 9 opinion of his own that it is “likely that the Legislative Assembly can repeal HB 3991 in the 2026 session.”

Johnson’s reasoning details state legal precedent that has concluded the Legislature and the citizens of Oregon are “coordinate legislative bodies.”

“Each may amend or repeal the enactments of the other,” the opinion says. “It follows from this reasoning that the legislature may repeal one of its own enactments notwithstanding whether the people have referred the enactment or portions of it to the ballot.”

The confusion doesn’t end there. Even if lawmakers do get legal cover and repeal the taxes as Kotek has asked, the next steps would be murky.

Johnson’s opinion concludes that the impact of such a repeal “would be to render the referendum election as moot and so the election would not take place.”

In fact, Oregon law doesn’t appear to offer a clear answer for what would happen if the bill was scrapped. Johnson’s conclusion is based on his reasoning that, if lawmakers repealed HB 3991, it “ceases to be an Act, which means there is no basis to conduct a referendum on it or on any part thereof.” That would allow Secretary of State Tobias Read to order the tax vote off the ballot, Johnson wrote.

But he added: “While we believe the Secretary would be on solid legal ground for taking these actions, proponents of the referendum may disagree.”

And disagree they do.

State Rep. Ed Diehl, R-Scio, who asked Johnson for the analysis, was another leader of the campaign to refer HB 3991’s taxes to voters. He told OPB on Thursday that Johnson’s opinion “really misses the mark.”

“Dexter contorted himself to come up with his conclusion,” Diehl said. “There’s no mechanism in statute that gives the Secretary of State that authority.”

Diehl said he’s conferred with private attorneys who disagree with Johnson’s conclusions, and that he and his allies would sue if Read attempted to scrap the tax vote.

“The voters said, ‘I want to vote on it,’” Diehl said. “It’s their turn to vote at it.”

One other pertinent voice that’s unclear about next steps? Read, the state’s top elections official.

“Clearly, there are a lot of open questions about this. We’re working with the Attorney General to figure out what would happen in this hypothetical scenario,” Tess Seger, a spokeswoman for the Secretary of State’s Office, said in an email. “As of right now, the referendum has qualified and will be on the November ballot.”

News Source : https://www.opb.org/article/2026/01/16/oregon-gas-tax-legal-confusion/