Tentative opinion suggests Oregon’s new congressional map could be upheld

By Dirk VanderHart (OPB)
Nov. 2, 2021 12:53 a.m.

A “special master” tasked with making recommendations to a judicial panel does not see proof the new congressional districts were gerrymandered by Democrats, as Republicans allege.

The state is dealing with the fallout after Oregon Democratic lawmakers pushed through new congressional district boundaries in September.

The state is dealing with the fallout after Oregon Democratic lawmakers pushed through new congressional district boundaries in September.

MacGregor Campbell / OPB

New congressional districts passed by Oregon Democrats meet all legal criteria, with little evidence they amount to blatant partisan gerrymandering, a judge has found.


That tentative opinion, released Monday by retired state Judge Henry Breithaupt, is not the final word in an ongoing lawsuit, in which Republicans are seeking to have the new six-district congressional map redrawn. Instead, Breithaupt is acting as a “special master” in the case, tasked with making findings of fact for a five-judge panel that will decide the outcome.

But the findings by Breithaupt suggest Republicans have failed to prove their insistence that Democrats purposefully stacked the congressional maps in their own favor. A lawsuit filed on behalf of former Secretary of State Bev Clarno and three other former Republican elected officials called the map “a clear, egregious partisan gerrymander, as has been widely acknowledged both in Oregon and across the country.”

After nearly 15 hours of hearings last week, Breithaupt was not convinced. His opinion relies heavily on a proposed set of facts suggested by the Oregon Department of Justice, which is representing the Legislature in defending the map.

Breithaupt agreed with the state’s contention that the new maps meet statutory criteria requiring them to be of roughly equal populations and contiguous, and to use existing transportation, political and geographic boundaries. The judge also agreed that an additional factor that must be considered — that lawmakers cannot unduly split communities of common interest — was difficult to determine.

Most damaging to the Republican case, Breithaupt was skeptical of the lone expert the petitioners brought in to testify the new congressional maps were baldly partisan. He found three experts brought in by the state and a national Democratic group helping defend the maps more credible.

Those experts were Paul Gronke, a political science professor at Reed College; Devin Caughey, a political science professor at the Massachusetts Institute of Technology; and Jonathan Katz, a social sciences professor at the California Institute of Technology.

The three men testified to different measurements of potential bias on the congressional map. Some of those benefited Democrats, including an often-used metric called the “efficiency gap.” That measure attempts to quantify which party has the most wasted votes under a plan — either by voting for a candidate who did not win, or by voting for a winning candidate by more than the margin needed for victory.


But other metrics could benefit Republicans, and each of the professors called to defend the maps suggested the congressional plan would not necessarily give Democrats five of the state’s six seats in the U.S. House, as Republicans argue.

One caveat offered by many experts: Because Oregon only has six congressional districts, statistical analysis includes high amounts of uncertainty.

“I agree with Dr. Caughey’s conclusion that ‘[t]here is, in short, little compelling evidence that the Oregon districting plan substantially favors the Democratic Party,’” Breithaupt’s opinion read in part.

Breithaupt was less impressed with Thomas Brunell, a political science professor at the University of Texas at Dallas.

Called by the Republican petitioners in the case, Brunell introduced an analysis that suggested the map was far more biased in Democrats’ favor than the other witnesses. The state countered that Brunell had based that analysis on the 2012, 2016 and 2020 presidential elections, which did not fairly characterize voting patterns for congressional elections, and that his methods would not be accepted by most in the political science realm.

Breithaupt agreed. “While I find Dr. Brunell generally to be a credible witness, the methodology he employs, and therefore the conclusions he reached, lack credibility and are therefore unreliable,” he wrote.

The opinion drafted by the judge is a “tentative” finding of fact, and subject to some changes before being forwarded to other judges if attorneys have objections.

The court challenge to Oregon’s congressional map is the state’s first time operating under a new system for resolving such conflicts. Under a law passed in 2013, a panel of five judges — one from each of the state’s current five congressional districts — are the arbiters of the dispute. That panel has until Nov. 24 to decide whether to dismiss legal challenges to the new map.

The congressional map proposed by Democrats was a major sticking point in the special session lawmakers held to pass new political maps in September. Republicans objected to the plan because it spread ultra-liberal Portland between four of the districts. They also took issue with a rejiggered fifth congressional district that now connects Portland to Bend.

The matter was contentious enough that House Republicans considered abandoning the session completely, after House Speaker Tina Kotek reneged on a deal granting them equal say on the new map. They ultimately returned to the Capitol to oppose the maps, allowing Democrats to pass them in the process.

Most analyses of the map suggest it includes two safe Democratic districts, two districts that lean Democrat, one safe Republican seat, and one theoretical tossup.