Oregon lawmakers bowed to the inevitable Friday, Feb. 19, on what to do next about redistricting.
A committee voted to hire outside lawyers to advise them how they can proceed with redrawing legislative and congressional district lines without having the necessary census-block data in hand.
The U.S. Census Bureau announced Feb. 12 that such data will be delivered to Oregon and other states around Sept. 30, three months after Oregon's legal deadlines for completing the remapping. The census-block data is only the first step toward redrawing the maps to make district populations as equal as possible.
The action by the Joint Legislative Counsel Committee contemplates a request by the lawyers to the Oregon Supreme Court, which is the final arbiter of both processes. The Oregon Constitution specifies July 1 as the deadline for legislative redistricting; state law sets the same date for congressional redistricting.
Sen. Floyd Prozanski, D-Eugene, said that unlike other states, Oregon had no time to waste if lawmakers are to stand any chance of influencing redistricting, which is required in the year immediately after every 10-year census.
"Even though they may be successful in other states, we may not be, because of the interpretation of our Supreme Court," Prozanski, a lawyer, said. "So we have to get this before the court."
The committee action was simply for the Legislature to hire the Portland firm of Markowitz Herbold, whose cost is capped at $100,000. The money will come from the Legislature's own budget.
Legislative Counsel Dexter Johnson said that firm was recommended because one of the lead lawyers will be Anna Joyce, a former solicitor general in the Oregon Department of Justice. The solicitor general and staff represent state government in state appellate and federal courts.
Under the Oregon Constitution, the secretary of state gets the job of legislative redistricting if lawmakers fail to complete it by July 1. Under state law, the Supreme Court names a special panel to oversee congressional redistricting — a change lawmakers made in 2013 — if lawmakers fail to complete it by July 1.
But the secretary of state has a constitutional deadline of Aug. 15, so the problem with delayed census-block data would still apply.
'Figure out a way'
According to the National Conference of State Legislatures, Oregon is among the states that does not specify the use of census data to draw legislative and congressional district lines.
But the state's population experts have advised lawmakers that use of any other data, such as the annual population estimates issued by Portland State University, is less precise and would be subject to legal challenge. The American Community Survey, also a product of the Census Bureau, is based on questionnaires sent to a sampling of households.
Congressional districts must have virtually no deviation from the average. Oregon expects to be allowed a sixth U.S. House seat as a result of the 2020 Census.
State legislative districts can differ a little from the ideal population size. In the 2010 redrawing, the range for Oregon districts was 3 percentage points, although the ideal standard is 1 point.
Republican lawmakers on the committee asked whether the Legislature can put conditions on Secretary of State Shemia Fagan if the task of legislative redistricting falls to her.
"If the proceedings do not go down a path that allows the Legislature to actually draw the lines, will the fallback be the secretary of state's office and the nonpartisan commission she had committed to pursuing?" House Republican Leader Christine Drazan of Canby asked.
She also raised the possibility of lawmakers asking voters in a special statewide election to change the constitutional deadlines for this year.
But Johnson said the path for the next available election date May 18 "is very narrow at the moment." Lawmakers would have to make everything final eight weeks beforehand, on March 23.
As for lawmakers requiring the secretary of state to follow any legislative instructions about redistricting beyond the standards already laid out in the Constitution and state law, Prozanski said the Constitution does not allow lawmakers to intervene once they are out of the process.
Senate President Peter Courtney, the only lawmaker who has gone through four previous redistricting cycles in Oregon, said lawmakers should be cautious because they may be asked to testify in court if there are legal challenges to whatever plans are finally drawn up.
The Salem Democrat said the circumstances this time were unique. "We are trying to figure out a way to do this at a time when this has never been done," he said.
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