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Attorney general says federal judge has rewritten state Constitution and seeks 9th Circuit review.

COURTESY ILLUSTRATION - A citizen initiative to change the state's redistricting process got a federal court ruling giving it extra time to gather signatures.Oregon went to a federal appeals court Wednesday, July 15, to block a judge's order requiring a lower threshold to qualify an initiative measure to set up an independent redistricting commission.

Judge Michael McShane's order, which he released Monday, July 13, in U.S. District Court in Eugene, sided with measure advocates. They argued that the coronavirus pandemic deprived them of the chance to gather the 149,360 signatures required to qualify the constitutional amendment for the Nov. 3 ballot.

McShane ruled that either Secretary of State Bev Clarno accept the signatures already submitted by the regular deadline of July 2 — a total far short of the number required — or give advocates until Aug. 17 to submit a lesser number of valid signatures equal to 39% of the requirement.

Advocates estimate they gathered 64,000 signatures through direct-mail and volunteer efforts in one month.

Attorney General Ellen Rosenblum went to the U.S. 9th Circuit Court of Appeals to seek an emergency stay of McShane's order. She said McShane's order effectively supersedes the signature requirements set forth in the Oregon Constitution.

"Whether a federal judge can rewrite the state constitution's procedures for constitutional amendments is a question that goes to the heart of the state's power to create its own laws," Rosenblum said. "Any final decision made in this case could have long-reaching impacts for the state and on future ballot initiatives.

"We are seeking clarity from the federal appellate court (the 9th Circuit) on a critical, time-sensitive issue pertaining to state sovereignty. While Secretary Clarno did not ask us to appeal Judge McShane's ruling, the secretary deferred to our view that the overall interests of the state require us to file this appeal."

'Rewrite state election rules'

The Oregon Constitution sets the signature requirement for proposed constitutional amendments at 8% of the votes cast for governor in the most recent election, which was in 2018.

McShane's order concludes:

"The secretary of state has a vital interest in regulating the petition processes. It is also important that the federal courts not take it upon themselves to rewrite state election rules, particularly on the eve of an election.

BEVERLY CLARNO"But when these rules collide with unprecedented conditions that burden First Amendment access to the ballot box, their application must temper in favor of the Constitution. Because the right to petition the government is at the core of First Amendment protections, which includes the right of initiative, the current signature requirements in Oregon law are unconstitutional as applied to these specific plaintiffs seeking to engage in direct democracy under these most unusual of times."

In a statement Tuesday night, July 14, before the state's appeals, Clarno said she opted for the extension of time to Aug. 17 and the reduced signature threshold (to 58,250) as specified in McShane's order. She said the order was limited to just the redistricting petition, which proposes to amend the Oregon Constitution to set up a 12-member commission to redraw legislative and congressional district boundaries after every 10-year population census.

The Legislature has those tasks. If lawmakers fail to pass a legislative redistricting plan by July 1 after the census year, the task falls to the secretary of state. The Supreme Court hears any challenges to the plan; the new districts must take effect by Dec. 15. If lawmakers fail to pass a congressional redistricting plan, the task falls to the U.S. District Court, which chooses among plans submitted to the court.

Forging ahead

Although the 2011 Legislature completed both redistricting plans without a legal challenge — the first time in a century for legislative redistricting, and the first since 1980 for congressional redistricting — a coalition known as People Not Politicians seeks to change the entire process.

Among the coalition members are the League of Women Voters of Oregon, Common Cause Oregon, Oregon Farm Bureau Federation, Eugene/Springfield NAACP, Independent Party and Progressive Party.

Four members from Oregon's two largest political parties — currently the Democratic and Republican parties — would hold eight seats on the proposed redistricting commission. Four others would come from the smaller parties or no party. Major political party or candidate donors, public officials, party officials and family members would be ineligible.

California, Washington and Arizona moved toward independent redistrict commissions in 2010, and Arizona's process withstood a challenge in the U.S. Supreme Court in 2016.

"People Not Politicians is fighting to enact redistricting reform before Oregon draws new maps in 2021," Norman Turrill of Portland, a longtime member of the League of Women Voters of Portland and one of the plaintiffs, said in a statement after the District Court ruling. "We forged ahead through this COVID crisis and implemented an unprecedented signature-gathering program, bringing in tens of thousands of petitions from Oregonians in barely over one month."

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