Ruling ensures partisan redistricting in 2021
As expected, a constitutional amendment to create an independent commission to redraw legislative and congressional district boundaries won’t appear on the Nov. 3 ballot. That’s a victory for those who want to strictly enforce the Oregon Constitution’s required number of signatures during a pandemic. But it means there is no chance to change the system before the next redistricting, which won’t happen again for 10 more years. And that means next year’s redistricting will almost surely wind up in court before it’s finished.
Backers of the petition drive began their campaign with high hopes and a broad coalition of support, including business groups and good-government organizations such as Common Cause and the League of Women Voters. Then the pandemic shutdown hit, making signature-gathering next to impossible.
The coalition, People not Politicians, collected about 64,000 signatures — the Oregon Constitution required about 150,000 — and sued Secretary of State Bev Clarno, arguing that the coronavirus restrictions made it impossible to meet the threshold. U.S. District Judge Michael McShane agreed, ruling that the requirement violated the group’s First Amendment right to petition the government “in these most unusual of times.” McShane ordered Clarno to either put the measure on the ballot or drop the threshold to less than 59,000 signatures and extend the deadline. Clarno chose the latter option, and eventually verified the lower number of signatures.
Attorney General Ellen Rosenblum appealed. When a three-judge panel of the 9th U.S. Circuit Court of Appeals refused to stay the ruling while the appeal progressed, Rosenblum went to the Supreme Court, arguing that changing the rules violated the Oregon Constitution. The Supreme Court stayed the ruling until a 9th Circuit panel could hear arguments on appeal. That panel did so, then on Tuesday sent the case back to U.S. District Court, noting that the Sept. 3 deadline for measures to make the ballot meant this measure would not qualify in time. The ruling also said the same issues could arise again if the pandemic continues, and the District Court should have a chance to rule on them.
The Oregon Constitution’s requirement that constitutional amendment petitions gather signatures equal to 8% of the votes cast for governor in the most recent election. There is a strong argument to be made that the threshold should not simply be tossed aside, even during a pandemic shutdown. But the practical effect of this ruling means the next redistricting will wind up in court.
The existing process calls for the Legislature to redraw boundaries after each U.S. Census. If lawmakers cannot agree, the task falls to the secretary of state.
With Democrats holding a commanding majority of the Legislature, they have the opportunity for the first time in recent state history to complete the job without Republican votes. That virtually guarantees the Republicans will challenge the resulting legislative district map, throwing the plan into the Oregon Supreme Court.
If Republicans dislike the new congressional district boundaries, they will appeal to U.S. District Court.
District lines are supposed to consider geographic boundaries as well as “communities of interest” to make elections as fair as possible and not benefit one party over the other. Leaving that complex task to whichever party is in power at the moment is not the way to accomplish that.
Eventually, the voters will likely be asked, as they should be, to decide whether a bipartisan, independent commission is preferable to a partisan battle every 10 years. But that won’t happen in time for the 2021 redistricting. And that’s unfortunate.