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In court filing, Fagan says waiting for census-block data will throw off 2022 primary election.

Secretary of State Shemia Fagan says lawmakers should use data compiled by Portland State University, rather than wait on delayed data from the U.S. Census Bureau, to redraw legislative district lines.

Fagan made her argument in a response filed with the Oregon Supreme Court, which is the final arbiter of both legislative and congressional redistricting plans.

Plans are required after each 10-year federal census to ensure that districts have equal populations. But the Census Bureau has informed states that pandemic-related problems will delay release of census-block data until Sept. 30, three months after Oregon's constitutional deadline for lawmakers to complete legislative redistricting.

Lawmakers went to the high court March 10 to ask the justices for 90 days after delivery of the federal data — until the end of December — to complete redistricting.

Fagan said last week that such an extended deadline, plus the time required to allow legal challenges to any legislative plan, would throw off the 2022 primary election now scheduled for May 17. The nominal filing deadline for the primary is March 8.

Fagan said in a statement:

"As detailed in our response, moving the 2022 May primary would strain county and state resources and risk significant voter confusion at a time when it is more important than ever for us to build and maintain public trust in our elections," she said in her official response filed with the court.

"We owe it to Oregonians to do everything we can to fulfill our constitutional obligation on time and without impacting the 2022 elections."

Under the Oregon Constitution, the secretary of state gets the task of legislative redistricting if lawmakers fail to complete it by July 1.

Substitute data

One of the Legislature's lawyers has advised a legislative committee that Oregon has never redrawn legislative or congressional district lines based on anything other than federal census-block data, which is drawn from an actual population count.

But Fagan suggested that lawmakers use the estimates compiled annually by the Population Research Center at Portland State University, which also is the repository of census data. The center's estimates, which as of July 1, are used to distribute some state funds to cities and counties.

Her argument to the court:

"What matters is whether the districts reflect actual population; while the census may be the most accurate and well-accepted evidence of population, it is not the only source of accurate or reliable information," such as the Population Research Center.

"Even if all of that data is not yet compiled, there are several months to do so before the July 1 deadline. And when the census data becomes available, it will be straightforward to compare it to the data the Legislative Assembly used and determine if any corrections must be made to the map. That review can occur on the schedule the Constitution sets, which will ensure that the final map is in place by January 2022 as the Constitution requires."

Unlike other states, Oregon does not specify that federal census data must be used in redistricting. The Oregon Constitution says only that after each 10-year federal census, "the number of senators and representatives shall be fixed by law and apportioned among legislative districts according to population."

For the House and Senate plans adopted by the 2011 Legislature, following the 2020 Census, the range for each was about 3 percentage points.

Congressional lines

Unlike legislative districts, the Oregon Constitution is silent about congressional redistricting. State law does specify the same deadline of July 1 for lawmakers to complete congressional redistricting.

If they do not meet it, the Supreme Court is empowered to name a special panel to do it. The secretary of state has no role in congressional redistricting.

Oregon is expected to gain a sixth seat in the U.S. House because of population growth in the past decade. The Census Bureau says it will announce the apportionment of U.S. House seats by the end of April.

The special panel is a departure from how congressional redistricting has been done in the past if lawmakers fail to do so. That task used to go to U.S. District Court, but lawmakers changed the procedure in 2013.

Unlike legislative redistricting, courts have disallowed any real differences among the populations within U.S. House districts. For Oregon's 2011 plan, based on the 2010 census, the difference between any of the five districts was just two people.

Lawmakers completed both legislative and congressional redistricting plans in 2011 without court challenges. For legislative redistricting, it was the first time in a century. For congressional redistricting, it was the first time since 1981, after Oregon gained a fifth U.S. House seat.

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