Appeals differ for congressional, legislative redistricting
State lawmakers may be finished with drawing new lines for Oregon's congressional and legislative districts for the next decade.
But the process is not quite over.
The Oregon Supreme Court is the ultimate arbiter of the new maps that lawmakers passed in a special session and Gov. Kate Brown signed Monday, Sept. 27, only hours before deadlines set by the court and others. The maps will set the boundaries for districts until the completion of the next U.S. Census in 2030.
Appeals of the congressional and legislative plans will take different routes to reach the seven justices. Though she will not draw the legislative map in place of lawmakers, Secretary of State Shemia Fagan may still have a role in changing it if the court decides changes are necessary.
Chief Justice Martha Walters set the appeals process in motion for the congressional plan Tuesday, Sept. 28, when she signed an order that names the five retired circuit judges who will sit on the special panel to review appeals.
Although neither the congressional nor the legislative plans were challenged in court 10 years ago — a rarity in Oregon history, as was legislative approval of both plans — lawsuits are likely this time around.
The absolute deadline for both plans being final is one month before the March 8 deadline for filing for the May 17, 2022, primary election. The Legislature and the Supreme Court did not change those dates.
Democratic legislative majorities passed a new congressional map in Senate Bill 881, although in amended form from what the Senate originally passed on Sept. 20. Republicans opposed both versions because they argued that Democrats would be favored in five of six U.S. House districts, including the new 6th District that Oregon gained as a result of the 2020 Census. Oregon's current lineup in the U.S. House is four Democrats and one Republican.
The appeal process for a congressional plan is outlined in Senate Bill 259, which lawmakers passed during their regular session. The Oregon Constitution is silent about how congressional district boundaries are redrawn, unlike legislative districts.
Objections to the congressional plan must be filed in Marion County Circuit Court by Oct. 12, and the petitions must specify "factual and legal defects." But the petitions will not be considered by that court.
Instead, the law provides for a five-member panel — one member from each of the current congressional districts — named by Chief Justice Walters.
Walters named five retired judges in her order: Richard Barron of Coos County, Paula Brownhill of Clatsop County, William Cramer of Harney/Grant counties, Mary James of Marion County and Katherine Tennyson of Multnomah County. James was appointed to lead the panel.
The panel can ask Walters to name a special master, also a judge, to receive evidence and make findings of fact if necessary.
The panel will determine whether the congressional plan passed by lawmakers complies with all applicable state and federal laws and constitutional provisions. If the panel decides it does not comply, the members can create their own plan, though the substitute must follow the same legal requirements. If the panel decides the plan does comply, the next step is the Supreme Court.
The panel has until Oct. 22, 10 days after the deadline for filing objections, to set a schedule for considering written and oral arguments. It must decide on those petitions no later than Nov. 24.
Appeals of the panel's decisions then go directly to the Supreme Court by a deadline of Nov. 29, when notices must be filed. Written arguments by the appellants are due Dec. 8, and responses by Dec. 17.
If the panel upholds the Legislature's plan for congressional districts unanimously, the justices will proceed to hear the appeals. The high court can create its own plan if it disagrees with the panel's decision.
But if the panel's vote is less than unanimous, the justices can consider the appeals as if they were starting the process anew, although their deliberations would be based on the record created by the judicial panel. No new evidence can be introduced.
The Supreme Court has until Jan. 3 to decide on the appeals. If the court decides changes are required, the plan goes back to the judicial panel, which must report back to the court by Jan. 24. The high court must make the plan final by Feb. 7, about one month before the March 8 filing deadline for the May 17 primary election.
The Supreme Court set out a timetable for appeals of any legislative redistricting plan when it issued its decision on April 9.
Legislative leaders from both parties had asked the justices for time beyond the July 1 deadline specified in the Oregon Constitution for redistricting, given that the U.S. Census Bureau was going to miss a deadline of March 31 for release of census-block data, the most precise available for redrawing districts based on population shifts.
That data was finally released on Aug. 12, and legislative mapmakers unveiled competing Democratic and Republican plans on Sept. 3.
Now that the Legislature has approved a legislative redistricting plan in Senate Bill 882, objections to it and supporting arguments must be filed directly with the Supreme Court by Oct. 25. The Legislature and the secretary of state are parties to any lawsuits, which have to state why the plan does not comply with the standards outlined in state law and the Oregon Constitution — and how it should be corrected. They have until Nov. 8 to file their responses to the challenges.
Replies by the petitioners must be filed by Nov. 15, though the court is discouraging them.
The justices have until Nov. 22 to decide the lawsuits.
If the court decides no changes are required, the plan takes effect Jan. 1.
If the court decides changes are required, the justices will issue an opinion by Dec. 6 and direct Secretary of State Fagan to make the changes by Jan. 17. The court will have until Jan. 31 to make the changes final, and the plan would take effect the next day.
A corrective role for the secretary of state is not unusual.
After the Legislature approved a legislative redistricting plan in 1981 — a plan that left a Portland district without a senator for two years — the Supreme Court ordered Secretary of State Norma Paulus to correct the plan. She did so and drew a senator out of his district who had blocked election-law changes she sought during the 1981 session. (Voters changed the Oregon Constitution in 1986 to prevent a repeat occurrence of a vacant Senate district.)
After Secretary of State Phil Keisling drew up a legislative redistricting plan in 1991, the Supreme Court rejected three of the challenges, but ordered him in two cases to shift census tracts from one district to another.
After Secretary of State Bill Bradbury drew up a legislative redistricting plan in 2001, the Supreme Court rejected most of the dozen lawsuits brought against it. But the justices did order Bradbury to correct erroneous Census data about the inmate population at the Federal Correctional Institution within the Sheridan city limits. Bradbury had acknowledged the error before the court ruled.
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