Warning of a “constitutional crisis,” the Oregon Legislative Assembly is asking the state’s Supreme Court to give it more time this year to redraw the state’s legislative districts — and to block the secretary of state from attempting to do so in the meantime.
In a petition without precedent in the state, House Speaker Tina Kotek and Senate President Peter Courtney filed a petition Wednesday against Secretary of State Shemia Fagan, a fellow Democrat.
Among their requests: that justices override the state Constitution to grant them until as late as Dec. 30 to come up with new maps for House and Senate districts, and to bar Fagan from trying to create maps of her own until the Legislature has completed its work.
Fagan said Wednesday she agreed with the approach of filing the court case, but would oppose lawmakers’ strategy. Rather than pushing back redistricting and potentially disrupting the 2022 primary elections, Fagan said lawmakers should press ahead with drawing maps without waiting for current population data.
The bizarre case arises from the chaos Oregon and other states have been thrown into this year, after the U.S. Census Bureau announced long delays in delivering data from the 2020 Census.
In a typical year following a census, the bureau would deliver that information by April 1, giving Oregon lawmakers plenty of time to redraw legislative districts before a July 1 constitutional deadline. If lawmakers were unable to successfully pass new maps — whether because of partisan disagreements, a governor’s veto, or litigation — the process would then go to Fagan, who would have until Aug. 15 to come up with her own plan.
This year, because of COVID-19 and other factors, the Census Bureau has said the data won’t be delivered until as late as Sept. 30, well after both the Legislature and Fagan are required to finish their work.
“For Oregon, that delay — absent intervention by this Court — creates a constitutional crisis,” the legislative petition says. “With the redistricting data delayed until well beyond the constitutionally mandated reapportionment deadlines, the Legislative Assembly and Secretary of State have two choices: fail to carry out their constitutional duty to reapportion or move forward with outdated data, which in turn creates a risk that a reapportionment violates the Equal Protection Clause and Voting Rights Act.”
Lawmakers have signaled since February that their top option for trying to retain control of redistricting was asking for Supreme Court intervention, and a legislative committee hired an outside attorney to help craft a strategy on Feb. 19. What wasn’t clear was the form that strategy would take, or that Fagan would be named as a respondent.
Kotek and Courtney, the state’s two most powerful lawmakers, downplayed the optics of the lawsuit on Wednesday.
“While the Secretary of State is named as a defendant in this petition, we want to be clear that this is part of the normal process for seeking relief from the Courts,” they said in a statement. “We all share the need for clarity on how to proceed in these unprecedented times.”
Fagan agreed, issuing a statement of her own saying she’d been in regular contact with lawmakers.
“Though the name of this petition may suggest we are adversarial, the caption is merely a formality to provide clarity to a process in which both the Oregon Legislature and Secretary of State have a Constitutional obligation to Oregonians,” the statement said.
Those pledges of agreement, however, belied fundamentally different views between lawmakers and the secretary about how Oregon should proceed.
Fagan noted she has “significant concerns” about the timelines that could be required under the legislative proposal, and will argue for a solution far different than what the Legislature wants.
Lawmakers have asked the Supreme Court to grant them three months from the day they receive census data to complete their work. If they’re unable to pass maps, that could put the process in Fagan’s hands in late December, and push the process into 2022.
“Such a move would likely have cascading effects and require the Legislature or the Court to move the 2022 primary election to an uncertain date,” Fagan said. “I have consulted with our Elections Director and the county clerks. I share their concerns that disrupting 2022 election dates would lead to a significant disruption and voter confusion over next year’s elections.”
Rather than such a delay, Fagan told reporters Wednesday she would press lawmakers to move forward with redistricting immediately, using less current population data than the 2020 Census would provide. She said her staff has spoken with Portland State University’s Population Research Center about using alternative data sets that would be able to achieve reasonably equal districts.
“We have every confidence that, with that data, the Legislature can do their jobs,” she said. If there were problems with districts using alternative data, Fagan said, “Oregonians would then have an opportunity to petition the court in the event that there are any tweaks that would need to be made.”
Fagan did not directly answer a question about whether she’d heard from lawmakers that they would agree to such an approach. “Essentially we’re giving the court two different options,” she said.
Fagan is being represented in the case by the state’s Department of Justice.
It’s common for the Secretary of State to play a significant role in redrawing legislative maps in Oregon — 2011 was the only time in recent memory lawmakers successfully passed a plan of their own. This year, with Democrats firmly in control of the Legislature and governor’s office, they appear poised to dominate the process.
While on the campaign trail for her position last year, Fagan pledged to create a nonpartisan “people’s commission” to assist her, should the job of drawing legislative maps fall to the Secretary of State’s Office. But Fagan said Wednesday she had not begun creating that commission, and would not start until the Legislature fails to pass new maps.
Under that approach, Fagan would only have a month and a half to both form a commission and come up with a new redistricting plan.
“It’s going to be a tall order, but that’s what I committed to Oregonians and that’s what we would do if it falls to us,” she said. “At this point, creating a complete side process to the Legislature would essentially split folks away from the Legislature’s process.”