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Panel will weigh statement as it considers GOP challenge to the new map Democratic lawmakers drew for six seats.

FILE - The Portland area has a piece of four of the six new congressional districts in the redistricting map approved by Democrats.A new opinion reinforces support for the new map of Oregon's six U.S. House districts that Democratic majorities pushed through the Legislature — and raises doubts to a Republican-led challenge to it.

The 78-page opinion by Henry Breithaupt, filed Nov. 8, is only advisory to the panel of five retired circuit judges who heard arguments for and against the plan Oct. 27-28. The special panel has until Nov. 24 to decide the lawsuit pending in Marion County Circuit Court, and its decision can be appealed to the Oregon Supreme Court, which has the final say.

The high court must make a plan final no later than Feb. 7, one month before the filing deadline of March 8 for the May 17, 2022, primary. There is a separate process for appeals of the plan for state legislative districts.

Legislation created the special panel, whose members were named by Chief Justice Martha Walters on Sept. 28, the day after lawmakers passed congressional and legislative redistricting plans.

The panel named Breithaupt, who was the Oregon Tax Court judge from 2001 to 2017, as a special master to comb through the testimony heard by the legislative redistricting committees and propose findings about whether the plan enacted in Senate Bill 881 complies with the standards set out in Oregon law.

"SB 881 strikes a balance between the expressed wishes of various Oregonians and the objective criteria of contiguousness, equal population, geographic and political boundaries, and transportation links," Breithaupt wrote in his statement.

He also specified testimony from three expert witnesses, including a Reed College professor, all of whom said the plan does not have a strong tilt toward Democrats as the Republicans allege.

Oregon and most other states were required to redraw U.S. House district boundaries to account for population shifts after the 2020 Census. (Six states have only a single seat 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 them expected to run in 2022.

Each of Oregon's new districts had to come within five people of the ideal average population of 706,209.

'Common interest'

The lawsuit was filed by former Secretary of State Bev Clarno of Redmond, also a former speaker of the Oregon House; Larry Campbell of Eugene, also a 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, is the named defendant in her role as Oregon's chief elections officer.

The lawsuit alleges that the process and the result were unfair, particularly when it came to the legal standard that a plan "not divide communities of common interest."

But Breithaupt said that unlike the other legal standards, that one is more difficult to define objectively.

He wrote:

"The nebulous, overlapping, and interconnected nature of 'communities' makes it difficult to objectively determine the extent to which communities have been divided. However, the redistricting committees held extensive public hearings at which they received oral and written testimony from dozens of Oregonians concerning how their communities should be organized into districts so as to give each community a voice.

"The district plan that the Legislature finally enacted reflected many of the wishes expressed by residents at those hearings, indicating that the legislature considered and responded to the needs of the communities within each district."

Breithaupt's statement included a 33-page recap of some of the public comments that lawmakers heard about communities of common interest, and 10 more pages about how the proposed congressional districts are connected by transportation links.

"The dissatisfaction of some Oregonians with the district plan is not strong evidence that the plan fails to comport" with the community standards, he wrote. "The redistricting committees heard testimony expressing a variety of views, and it was not possible to satisfy them all."

Experts testify

According to the fivethirtyeight.com nonpartisan website, Oregon's proposed plan gives clear advantages to Democrats in the 1st and 3rd districts and to Republicans in the 2nd District, as they are now. It says the other three seats are competitive but favoring Democrats. (The 4th and 5th have Democratic incumbents. The new 6th stretches from southeast Washington County into Yamhill and Polk counties and the portion of Marion County that includes Salem.)

Testimony was presented by four expert witnesses, all professors, and Breithaupt said he agreed with the conclusions of three of them:

• Jonathan Katz of the California Institute of Technology, who said he found "no statistically significant partisan bias in favor of either party with this given configuration of incumbents assuming to be running."

• Paul Gronke of Reed College, who said it was "a significant improvement over plans that have been in place since 1990, and the estimated value falls well within the range of plans that have been in place for a half century."

• Devin Caughey of the Massachusetts Institute of Technology, who concluded that if Democrats and Republicans split the statewide vote evenly, Democrats would win two seats and Republicans four. If Democrats win 58% statewide, as Joe Biden did in the 2020 presidential election, they would win five of six seats. But if Republicans win 58%, Caughey said they are likely to win four of six seats.

Breithaupt raised questions about the methodology and conclusions of a fourth witness, Thomas Brunell of the University of Texas/Dallas, saying they "lack credibility and are therefore unreliable."

He also questioned the alternative redistricting plan put forward by the Republican lawsuit.

"Petitioners have not presented any evidence that the districts are connected by transportation links," he wrote. "Nor have they presented any evidence that their plan does not unnecessarily divide communities of common interest beyond a simple counting of how many counties and cities are 'split' between multiple districts."

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