1935 Oregon Attorney General Casts Doubt on Governor Kotek’s Attempted Repeal of Gas Tax

Oregon — 1935, the Oregon Legislative Assembly adopted Senate Bill 9, relating to student fees in state institutions of higher learning. Within 90 days after the passage of SB9, a referendum petition was filed with the Secretary of State which referred the matter to voters. This has happened several times throughout Oregon history, most notably in 2025 when 250,000 Oregonians signed a ballot measure to repeal the gas tax.

Earlier this month, Governor Tina Kotek delivered a stark warning about the state of Oregon’s transportation system, outlining what she described as a necessary three-step response: “redirect, repeal, and rebuild.” The plan was to repeal the bill in the 2026 legislative session, which the ballot measure’s chief petitioners opposed. State Representative Ed Diehl posted the following message on social media:

To Governor Tina Kotek, Representative Julie Fahey, and Oregon Secretary of State Tobias Read,

Oregonians followed the Constitution. They gathered the signatures. The referendum qualified. The people earned a vote.

There is no statutory mechanism to erase that vote simply because the Legislature later repeals the underlying law.

Repeal may affect the legal consequences of the election—but it does not undo the voters’ constitutional right to approve or reject an Act of the Legislature.

Removing a certified referendum from the ballot would be an unprecedented expansion of executive authority, denying voters due process after they lawfully invoked their rights. It would invite years of litigation, deepen public distrust, and set a dangerous precedent that any future referendum can be canceled if those in power dislike the outcome.

This issue does not belong in the courts.

It belongs with the people.

Respect the process. Let Oregonians vote. Settle this at the ballot — not through backroom maneuvering and emergency court filings.

Today, Salem was abuzz with revelations of an Attorney General opinion from 1935 advising that the legislature cannot veto a bill once it has been placed on the ballot by citizens. 17 Oregon Opinion Attorney General 564 (Or.A.G.), 1935 WL 32232 states the following:

The filing of a petition for referendum is a matter preliminary to the legislative act… That is, when a legislative act is pending under a referendum, until the people act upon it, it ceases to be an act and is nothing more than a bill pending for legislative action. The right of the people to a referendum vote on a statute enacted by the legislature can not be defeated by a subsequent repeal of the act referred.

Rep. Diehl was quick to respond:

BREAKING: Constitutional Guarantee: Once Referred to the People, No Legislative Repeal Allowed!

This Oregon Attorney General opinion is explicit: The legislature cannot repeal an act that has been referred to the people.

The people deserve the right to vote on the Governor’s transportation tax and fee hike!

And our constitution protects that right.

Oregon Senate Republicans also commented:

🚨 BREAKING: A 1935 Oregon Attorney General opinion just blew up Governor Tina Kotek’s push to repeal her signature transportation tax package. Once a referendum is invoked, the Legislature has NO legal authority to repeal it. The Constitution requires an election. 250,000+ Oregonians demanded a vote and the law says they will get one.

A spokesperson at the Oregon Department of Justice  told Wiillamette Week that the opinion will be reviewed in light of legal developments since 1935. The opinion itself was based on case law from Missouri. Readers can review the opinion for themselves.