Panel upholds legislators' plan to create six U.S. House seats
A special panel of five retired judges has upheld the congressional redistricting plan pushed through by the Oregon Legislature's Democratic majorities and dismissed a Republican-led challenge to it.
The panel released its decision Wednesday, Nov. 24. It can be appealed to the Oregon Supreme Court, which is the final arbiter, but the panel's findings are likely to weigh heavily against an appeal from prevailing.
The panel referred to Senate Bill 881, which the Legislature gave final approval to on Sept. 27 with no Republican votes in favor.
"The panel concludes that SB 881, the enacted map, reflects Oregon's previous congressional maps in both design and effect, resulted from a robust deliberative process and careful application of neutral criteria set forth (in state law) and provides no significant partisan advantage to either political party.
"To the extent that the process included political posturing and partisan negotiations, such factors are predictable in lawmaking, and did not dominate or derail the efficacy of SB 881 as a lawful construct."
If there is an appeal, it must be filed with the Supreme Court by Monday, Nov. 29. The high court will have until Jan. 3 to decide it. If it decides changes are required, the justices will refer the case back to the special panel, which must report by Jan. 24.
Oregon and 43 other states were required to redraw U.S. House district boundaries to account for population shifts after the 2020 Census. (Six states have just a single seat each in the House.) Oregon gained a seat as a result of the census; the state's current lineup is four Democrats and a Republican, all of whom are expected to run in 2022.
Each new district had to be within five people of the new average of 706,209. Federal courts are stricter about equal populations for U.S. House districts than for state legislative districts.
The lawsuit was filed Oct. 11 by former Secretary of State Bev Clarno of Redmond, a Republican and a former speaker of the Oregon House; Larry Campbell of Eugene, also a Republican and former House speaker; Gary Wilhelms of Tigard, a former House Republican leader and a redistricting consultant to House Republicans in 2001, and Jim Wilcox of The Dalles, a real estate broker.
Secretary of State Shemia Fagan, a Democrat who succeeded Clarno on Jan. 4, was the named defendant in her role as Oregon's chief elections officer.
The lawsuit alleged that the congressional map was a result of a flawed process that tilted the map toward Democrats. The plaintiffs asked that their map be substituted.
According to the nonpartisan website www.fivethirtyeight.com, the plans submitted by both parties to the legislative committees gave clear registration advantages to Democrats in the 1st and 3rd districts and to Republicans in the 2nd District, as they are now. The Democratic map makes the other three districts competitive, but favoring Democrats — and the new 6th being close. The Republican map gives the GOP more competitive hopes in those districts.
The special panel was created by legislation during the 2021 regular session. Its members — all retired circuit judges, one from each of Oregon's current five U.S. House districts — were named by Chief Justice Martha Walters.
Mary James of Marion County led the panel. The others were Richard Barron of Coos County, Paula Brownhill of Clatsop County, William Cramer of Harney/Grant counties, and Katherine Tennyson of Multnomah County.
What the panel said
The panel specifically rejected the lawsuit's claim that because the vote for the congressional redistricting was along party lines, the plan itself was flawed.
"We respect the legislative process in Oregon and decline to adopt the cynical view that all politics are dirty politics. That is simply not the Oregon experience or legacy," the decision said.
"We are not inclined to scrutinize the political mechanisms of the legislative process as a fundamental issue of separation of powers. Such a standard would vest in the minority party absolute control of whether a plan will be presumed to unlawfully favor a political party. A minority party could simply vote against any plan along party lines, regardless of the merits of the plan, and thereby create a presumption of improper purpose. Thus, we conclude that the details of the vote do not tell us anything about the quality of the plan."
The panel also rejected the lawsuit's assertions about Multnomah County being divided among four of the six House districts to give Democrats an advantage.
The current map split Portland along the Willamette River — with the 1st to the west and the 3rd to the east, as it has been for decades — and a sliver in the 5th. Under the new map, 67% remains in the 3rd and 24% in the 1st — the boundary has been moved east into inner Northeast Portland — and only 8% falls within the 5th and new 6th districts.
"Petitioners do not explain how the small and diminutive shares of Portland voters within other districts constitutes gerrymandering or would make a difference in elections," the panel wrote.
The panel's decision was foreshadowed by a Nov. 8 statement by Henry Breithaupt, a retired Oregon Tax Court judge. The panel designated him as a special master to comb through the testimony heard by legislative committees and prepare findings about whether the plan complies with the standards set out in Oregon law.
Reaction to the panel's decision was predictably along party lines.
House Republican Leader Christine Drazan of Canby, who has launched a bid for governor, said this: "This gerrymandered congressional redistricting map is an incumbent protection plan that Democrats desperately fought to keep. Rather than serve the interests of Oregonians, they have served themselves. This is why we need an independent redistricting commission to take this job away from politicians."
If an initiative measure qualifies for the statewide ballot in the 2022 general election, and Oregon voters approve it, the new commission would be empowered to redraw congressional and legislative district lines for the 2024 election.
House Speaker Tina Kotek, who is seeking the Democratic nomination for governor, and Majority Leader Barbara Smith Warner, both Democrats from Portland, had a differing view. Their statement also referred to a Nov. 22 decision by the Oregon Supreme Court to uphold the plan for state legislative redistricting.
"These decisions affirm that the Legislature passed maps that are fair, legal, and constitutional," Kotek and Smith Warner said. "It was a tremendous challenge to complete this constitutional duty in a very condensed timeline, and we appreciate the legislators who worked to get the job done for the people of Oregon."
What senators said
Sen. Kathleen Taylor, D-Milwaukie, led the panel that originated the map in Senate Bill 881.
"The Senate Redistricting Committee worked tirelessly under a very tight schedule to redraw Oregon's congressional districts and add our first new district in 40 years," she said in a statement. "The Legislature has once again succeeded in its duty to give better representation to our communities by redrawing districts in a way that was fair and inclusive of public input."
Senate President Peter Courtney is a Democrat from Salem who has been through five redistricting cycles, the most of any lawmaker in Oregon history. He was Senate president 10 years ago, when lawmakers approved congressional and legislative redistricting plans that were not challenged in court.
"I'm glad that our product was taken to the courts," he said. "This map went through a very thorough and objective review. A panel of judges found the work we've done has followed the law. I think the Legislature can say we did very well."
UPDATED: To add comments by Senate President Peter Courtney and Sen. Kathleen Taylor, D-Milwaukie.
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