Justices say lawmakers get first crack at redistricting

By PETER WONG/Oregon Capital Bureau — A decision by the Oregon Supreme Court will enable lawmakers, not Secretary of State Shemia Fagan, to get first crack at redrawing legislative district boundaries despite a pandemic-caused delay in federal census data.

The court, in an opinion issued Friday, gives legislators until Sept. 27 to come up with a plan — even though the Oregon Constitution sets a deadline of July 1. After Sept. 27, if legislators do not come up with a plan, the Constitution gives the task to the secretary of state.

The Census Bureau says it will be late summer before it will release census-block data, which Oregon and other states rely on to redraw their political maps after each 10-year census. Nothing in state law bars Oregon from using other sources of data.

Senate President Peter Courtney and House Speaker Tina Kotek, joined by Republican minority leaders, asked the court for an extension beyond July 1. Fagan said the court lacked the authority to order an extension, and that any delay would interfere with the timetables for the 2022 primary election. The filing deadline for the May 17, 2022, election is March 8.

The justices decided the matter based entirely on written arguments and did not conduct a hearing.

The court’s order takes effect April 19, unless Fagan requests a reconsideration from the court — a request that the court rarely takes up.

The court, in the opinion written by Chief Justice Martha Walters, said the deadlines specified in the Oregon Constitution are less important than the process laid out in amendments that voters approved in 1952 and updated in 1986.

Walters wrote:

“We have been presented with no reason why the voters who adopted the 1952 amendments would have been concerned with the exact date by which the Legislative Assembly or secretary (of state) are required to enact or make a plan, except as part of a larger framework calculated to result in the adoption of a timely final plan.

“Nor is there any indication that the voters would have intended to require the Legislative Assembly to adhere to the July 1 deadline for legislative action in the unforeseen event that federal census data — the impetus for drawing new district lines in the first place — was not available by that date.

“Instead, the voters’ paramount interests seem to have been to direct the Legislative Assembly to enact a reapportionment plan based on census data in advance of the next general election cycle and to provide an alternative means by which a plan would still be made if the Legislative Assembly fails to act.”

Democrats react

Courtney, a Democrat from Salem, and Kotek, a Democrat from Portland, issued this statement after the court announced its decision:

“The Supreme Court has done its job. Now it’s time for the Legislature to do its constitutional duty: to redraw the district boundaries for the state of Oregon in a way that’s fair and accurate. We have full faith in the legislative redistricting committees to lead this work.”

The court said that lawmakers can adopt a plan in a special session, rather than the 2021 regular session, which is scheduled to end June 28. If lawmakers do not meet the new deadline of Sept. 27, the court said that Fagan will have until Oct. 18 to come up with her own plan.

The court also set timelines for legal challenges to either plan. It said a plan must be final by Feb. 1 or Feb. 8, depending on whether lawmakers or the secretary of state draws up a plan.

The timelines do not change the filing deadline for the 2022 primary or the actual date of the election.

Fagan said in a statement afterward:

“Our agency’s core objectives were to prevent moving the 2022 election dates and to preserve robust public input by starting the process with available population data. We appreciate that the Oregon Supreme Court thoughtfully adopted both of our objectives. Representation matters and that is what redistricting is all about. That is why we will continue to engage Oregonians in the Legislature’s public hearings from all corners of the state…. Every Oregonian has a stake in this process, which is why we must continue to work together to ensure all Oregonians have the fair, equitable representation they deserve.”

Republicans comment

Senate Republican Leader Fred Girod of Lyons said he was satisfied that the court left the initial stage of redistricting to the Legislature.

“Oregonians expect their district to be fairly drawn,” he said in a statement. “The most important principles for Republicans are ‘One-Person-One-Vote’ and upholding the Voting Rights Act. Gerrymandering is unacceptable and by keeping this process in the Legislature, we have a chance to come to a bipartisan agreement to draw fair lines.”

House Republican Leader Christine Drazan of Canby restated her support for an independent commission to redraw both legislative and congressional district lines. A proposed initiative failed to qualify for the 2020 general election ballot, although its advocates went to federal court in an attempt to reduce the signature requirements because of the coronavirus pandemic. A measure to create such a commission is pending, but even if lawmakers referred it to voters, it would not come to a statewide election until 2022.

“Oregon needs to commit to a nonpartisan and transparent redistricting process,” Drazan said. “Shockingly, we are the only state on the West Coast that does not currently have an independent redistricting commission. In fact, we’re behind 26 other states in the country that have or are moving to an independent system this year. Oregonians deserve better, and they overwhelmingly support independent redistricting.”

Congress excluded

The court’s decision does not apply directly to congressional redistricting. Although the court is the final arbiter of such a plan if lawmakers do not come up with one — the court appoints a special panel under a law passed in 2013 — the rules governing congressional redistricting are in state law and not the Oregon Constitution.

Oregon expects to gain a sixth U.S. House seat as a result of the 2020 Census.

Lawmakers approved both legislative and congressional redistricting plans in 2011, and neither was challenged in court. For legislative redistricting, it was the first time since 1911 that lawmakers completed the task themselves without intervention by the secretary of state or the court. For congressional redistricting, it was the first time since 1981, when Oregon gained a fifth U.S. House seat after the 1980 Census.