A single challenge has been filed by Republicans to the map of six U.S. House districts that Democratic majorities pushed through the Oregon Legislature two weeks ago.
The deadline for Marion County Circuit Court to receive challenges was Tuesday. The lawsuit was filed the previous day. But a special panel of five retired circuit judges named by Chief Justice Martha Walters, not a sitting circuit judge, will consider whether the congressional plan has "factual and legal defects" and how to remedy them.
The panel has until Oct. 22 to set a schedule for consideration of written (and potentially oral) arguments for and against the plan enacted in Senate Bill 881. Oral arguments are not required. The procedure was set out in separate legislation that passed in the 2021 Legislature, which had to act after the U.S. Census Bureau delayed release of census-block data used in mapmaking past the deadlines.
The panel has until Nov. 24 to decide on the lawsuit filed by four people: Former Secretary of State Bev Clarno of Redmond, also a former speaker of the Oregon House; Larry Campbell of Eugene, also a former House speaker; Gary Wilhelms of Tigard, a former House Republican leader and a redistricting consultant to House Republicans in 2001, and Jim Wilcox of The Dalles, a real estate broker.
Secretary of State Shemia Fagan, a Democrat who succeeded Clarno on Jan. 4, is the named defendant in her role as Oregon's chief elections officer.
One of the two lawyers representing the plaintiffs is Shawn Lindsay, who as a Republican representative from Hillsboro in 2011 was a co-leader of the House redistricting panel, also evenly split between the parties in a 30-30 House. Back then, the congressional and legislative redistricting plans passed the Legislature and were not challenged in court.
Flawed process alleged
In their lawsuit, the plaintiffs said the process was as much at fault as the results. Democrats and Republicans had an equal number of members on the House Redistricting Committee as a result of a tacit compromise during the 2021 session. But the counterpart committee in the Senate did not — there were three Democrats and two Republicans — and after SB 881 passed the Senate on a party-line vote on Sept. 20, House Speaker Tina Kotek created a separate panel of two Democrats and one Republican to advance that bill to a vote of the full House. It passed on a party-line vote Sept. 27.
"The result of this highly partisan process is a clear, egregious partisan gerrymander, as has been widely acknowledged both in Oregon and across the country," the lawsuit says.
"Under the Democrats' gerrymandered map, enacted as SB 881-A, the Democrats are projected to win five of the six congressional seats in Oregon in a typical year. If SB 881-A stands, Oregon's Constitutional and statutory prohibitions against partisan gerrymandering are effectively meaningless."
Based on competing maps that the parties submitted for the congressional districts — Oregon gained a U.S. House seat for the first time in 40 years — each party sought to carve out an advantage for the 2022 election and beyond. That's despite a redistricting standard that says no district shall be drawn for partisan advantage.
Each new district must be within five people of the new average of 706,209. Federal courts have been more strict about equal populations for congressional districts than for state legislative districts.
According to the nonpartisan website fivethirtyeight.com, both parties' plans give clear registration advantages to Democrats in the 1st and 3rd districts and to Republicans in the 2nd District, as they are now. The Democratic map makes the other three districts competitive, but favoring Democrats. The Republican map gives the GOP more competitive hopes in those districts.
The Democratic map gives Democrats a shot at five of Oregon's six seats, one more than they have now. The Republican map gives Republicans a shot at four of the six seats, three more than they have now.
In general, Washington County on Portland's westside and Deschutes County in Central Oregon gained population during the decade faster than the statewide average of 10.6%.
Washington County was at 13.3%, Deschutes County at 25.7%. They are trending Democratic.
But most of Oregon east of the Cascades and south of the Willamette Valley, except for the Rogue Valley, lagged in growth. That vast region usually sides with Republicans.
The Democratic map includes parts of the Portland metropolitan area within four of the six districts, excluding the 2nd and 4th districts. The new 5th would extend into Bend and Redmond; the new 6th would extend from southern Washington County into Yamhill and Polk counties, and part of Marion County including Salem.
The map proposed by Republicans would have confined the 1st District largely to Washington County, though it's not quite large enough population-wise for its own district, and the 3rd District largely to Multnomah County, though it's too large for a single district.
If the panel of retired judges decides that the congressional redistricting plan approved by the Legislature does not comply with state constitutional and statutory requirements, it can create its own plan.
If the panel upholds the plan, any appeal will go to the Oregon Supreme Court, which is the ultimate arbiter of that plan and a legislative redistricting plan. Appeals of the latter go directly to the high court; the filing deadline is Oct. 25.
The high court must make a congressional plan final no later than Feb. 7, one month before the March 8 filing deadline for the May 17, 2022, primary.
The panel for review of the congressional plan consists of Richard Barron of Coos County, Paula Brownhill of Clatsop County, William Cramer of Harney/Grant counties, Mary James of Marion County and Katherine Tennyson of Multnomah County. James was appointed by Chief Justice Walters to lead the panel.