Delayed federal census data puts state in a legal squeeze
Oregon lawmakers — and potentially Secretary of State Shemia Fagan — appear stuck with having to rely on already-delayed federal census data to redraw legislative and congressional district lines for the next decade.
That reliance gives more weight to a pending request by the Legislature's leaders to seek an extension of constitutional deadlines from the Oregon Supreme Court, which has the ultimate authority for legislative redistricting. Senate President Peter Courtney and House Speaker Tina Kotek responded to a suggestion by the Democratic chairs and Republican vice chairs of the redistricting committees.
Members of the Senate committee were told by a U.S. Census Bureau official on Feb. 3 that census-block data, the basis for redrawing legislative and congressional district lines, would become available to states after July 30. That's a month past the July 1 constitutional deadline for Oregon lawmakers to complete legislative redistricting. July 1 is also the deadline for congressional redistricting, but it's in state law that can be changed.
Asked Monday, Feb. 8, by Sen. Bill Hansell, R-Athena, whether other data sources could be used, Dan Gilbert, a senior deputy legislative counsel, said Oregon law did not bind lawmakers to using the federal census.
"I believe that we could, especially in theory, use other data sources, assuming they were of comparable quality," Gilbert said. "If we wanted to, we could go out and create a state census and say the state census is better than the federal census for our purposes and demonstrate why."
But Gilbert also said Oregon lawmakers have not done it any other way before. "I do not think right now we have a data set available to us that we could legitimately argue — at least that I am aware of — is as good as the census data for the purpose of redistricting," he said. "If we tried to make 10-year permanent maps on the basis of what would probably be considered inferior data, they would be subject to challenge."
The letter to Courtney and Kotek was sent by Chairwoman Kathleen Taylor, D-Milwaukie, Vice Chairman Tim Knopp, R-Bend, and their counterparts on the House Redistricting Committee.
"Everything about this is novel," Gilbert said.
House committee members were scheduled to be briefed by the Legislature's lawyers at their meeting Tuesday, Feb. 9.
The Oregon Constitution specifies that "following" the release of U.S. Census data, lawmakers at their "next" odd-numbered-year session must take up redrawing of the 60 House and 30 Senate districts to make their populations as equal as possible. If they do not complete the task by July 1, it goes to the secretary of state.
Sen. Lee Beyer, D-Springfield, asked whether that provision could be interpreted to mean 2023 if the census data comes in after the close of the 2021 session, which is scheduled to end June 29 after 160 days. (The official start on Jan. 19 was delayed by two days.)
Gilbert said that if lawmakers were to let stand the district lines they drew in 2021 for two more years, "it is likely that someone else would do it for us" because of the likelihood of a lawsuit alleging unequal representation. That someone could be the secretary of state, or someone else designated by the Oregon Supreme Court.
Beyer said he was skeptical whether the high court had the authority to waive constitutional deadlines. But he also said there is at least one sitting justice aware of the practical problems involved in redistricting. Justice Chris Garrett, who was appointed to the court at the end of 2018, led the House redistricting committee in 2011 when he was a state representative from Lake Oswego.
Lawmakers also could seek to ask Oregon voters to amend the Constitution to change the deadlines. But Gilbert and Marisa James, another senior deputy legislative counsel, said that option is not practical because lawmakers would have to set up a special statewide election before June 30 — and deadlines for such an election would fall in March,
According to the National Conference of State Legislatures, Oregon is one of six states with early redistricting deadlines. "This option will be tough for states that cannot amend their constitutions before their existing redistricting deadline," the group said in a statement.
Lawmakers also face the task of redrawing congressional district lines in a year when Oregon expects to gain a sixth seat in the U.S. House. Senators were told by a U.S. Census Bureau official at their Feb. 3 hearing that states will learn of their apportionment of House seats by April 30.
A deadline of July 1 also applies to that task. But unlike legislative redistricting, that deadline is written into state law that can be changed. If lawmakers fail to agree on a plan, the matter goes to a special panel named by the Oregon Supreme Court. Lawmakers made that change in state law after the 2011 redistricting, which was not challenged, but would have gone to U.S. District Court if there had been a lawsuit.
NOTE: Updates with House committee meeting scheduled Tuesday, Feb. 9.
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