Oregon voters will not decide Nov. 3 if they want an independent commission to redraw legislative and congressional district lines after every 10-year census.
That's the apparent result of a decision released Tuesday by a panel of the U.S. 9th Circuit Court of Appeals.
Thursday, which is 60 days before the general election, is the absolute deadline for Secretary of State Bev Clarno to make the lineup final. There will be two legislative referrals and two initiative measures, the lowest total for an Oregon general election since 1966.
The court's decision also means that even if advocates eventually qualify the ballot initiative for the 2022 general election, it will have no effect on the Oregon Legislature's authority to redraw legislative and congressional district boundaries after 2020 Census information becomes available in 2021.
A spokeswoman for Attorney General Ellen Rosenblum confirmed Wednesday that the measure will not appear on the ballot.
The appeals court panel, on a 2-1 vote, did not decide directly whether the measure sponsored by the People Not Politicians coalition qualified for a statewide election. Instead, the panel sent the case back to U.S. District Court, where Judge Michael McShane ruled July 13 that the coalition could qualify the measure with a signature threshold that is 39% of the number required under the Oregon Constitution, if the signatures were submitted by Aug. 17.
The coalition gathered an estimated 64,000 of the 149,360 signatures normally required before it went to court, basing its arguments for ballot access on signature-gathering difficulties related to the coronavirus pandemic.
Though the coalition submitted more signatures to Clarno to meet the lower threshold by an Aug. 17 deadline, the Oregon Department of Justice went to federal appeals courts for a stay to keep the measure off the ballot. The 9th Circuit denied the state's request on July 23. But on Aug. 11, the U.S. Supreme Court blocked further action until the 9th Circuit panel could hear arguments from both sides on the state's appeal of McShane's ruling. The panel did so Aug. 13.
The majority on the 9th Circuit panel said this:
"The practical effect of the stay is that even if we affirm the district court's injunction, the Supreme Court is not likely to lift the stay until after the September 3 deadline to place the Initiative on the November 2020 ballot, likely rendering this action moot as to this election cycle."
The majority of the panel — Judges Mary Helen Murguia and Johnnie Rawlinson — decided that even if this case is moot for the 2020 election, the same issues of ballot access could arise again if the pandemic continues into 2022, and the district court should have a chance to weigh in.
Judge Ryan Nelson dissented.
Although Clarno did not request the state's appeal, she consented to a request by Rosenblum to do so. Rosenblum argued that McShane's order effectively superseded the state constitutional requirement, which is 8% of the votes cast for governor in the most recent election (2018) for proposed constitutional amendments.
Norman Turrill of Portland, a representative of the League of Women Voters of Oregon and chief petitioner for the measure, said this in a statement released Wednesday: "People Not Politicians … has run an extraordinary campaign under unprecedented circumstances of a public health pandemic. More importantly, tens of thousands of Oregonians have raised their hands to say that they want a redistricting process that puts people, not politicians, in charge of drawing district lines. … We will pursue our case at the District Court and continue our efforts to ensure an impartial and open redistricting for Oregonians."
Among the coalition members are the League of Women Voters of Oregon, Common Cause Oregon, Oregon Farm Bureau Federation, Eugene/Springfield NAACP, Independent Party and Progressive Party.
The redistricting measure proposes a 12-member commission to redraw legislative and congressional district boundaries after every 10-year population census.
The Legislature now has those tasks. If lawmakers fail to pass a legislative redistricting plan by July 1 after the census year, the task falls to the secretary of state. The Supreme Court hears any challenges to the plan; the new districts must take effect by Dec. 15. If lawmakers fail to pass a congressional redistricting plan, the task falls to the U.S. District Court, which chooses among plans submitted to the court.
The 2011 Legislature completed both redistricting plans without a legal challenge. It was the first time in a century for legislative redistricting, and the first since 1980 for congressional redistricting.