|Oregon State Bar Bulletin FEBRUARY/MARCH 2011|
This year, the Oregon Legislature will engage in the politically-fraught task of redrawing district lines for the Oregon Legislature and Oregon’s five congressional seats. In the cynical view of many, the process is entirely lawless and dominated by partisan political considerations. Given the stakes involved, it would be surprising if political considerations did not play a role in the districting process. With their own future election prospects on the line, legislators are necessarily self-interested actors. Yet, the district process is not totally lawless. There are federal and state requirements that shape the process, and while those legal requirements could stand improvement, they constrain the process in several, significant ways.
The Districting Process in a Nutshell
In Oregon, the task of drawing the state legislative and congressional districts is entrusted initially to the Oregon Legislature. Article IV, Section 6 of the Oregon Constitution specifies that the Legislature shall redraw state legislative district lines once every 10 years in the year immediately following the U.S. Census. The Census Bureau will make its population data available to the Legislature by April 1, 2011. Following that, the Legislature has until July 1 to adopt a new districting plan. Interestingly, unlike other legislation, the Legislature’s plan is not subject to a popular referendum, nor may the people initiate a districting plan.
If the Legislature fails to enact a plan (or if the governor vetoes the plan and the Legislature fails to override the veto), the task of drawing the state legislative districts falls to the secretary of state. This fall-back process has been used several times in Oregon’s history, including 1971, 1991, and most recently in 2001. In promulgating a plan, the secretary of state is subject to the same substantive rules regarding how to draw the district lines as the Legislature (more on those in a moment), but, in addition, the Oregon Constitution requires that the secretary of state conduct a public hearing at which the public may submit evidence, views and argument. The secretary of state then has until August 15 to promulgate her plan.
In contrast to most lawsuits, any judicial challenge to the districting plan begins in the Oregon Supreme Court, which may review the plan for compliance with the federal and state constitutions and Oregon’s districting statute. Any “elector” may file a petition challenging the redistricting plan. Though the court has never expressly said as much, its actions suggest that it will not engage in sua sponte review of uncontested elements of a districting plan but rather will limit its review exclusively to those alleged flaws raised in the litigants’ petitions.
The Oregon Constitution requires the Oregon Supreme Court to perform its review of the plan in an exceptionally expedited manner. For plans adopted by the Legislature, all challenges must be filed on or before August 1. All briefing, oral argument and the court’s preparation of a final opinion must then be completed within just a few weeks: The court has until September 1 to enter an order confirming the plan or September 15 to enter an order invalidating the plan. Significantly, if the court invalidates the Legislature’s plan, it has no authority to draft its own state legislative districting plan to correct the plan’s flaws. Rather, the task of remedying the defects in the Legislature’s plan falls to the secretary of state, who must file a corrected plan with the court by November 1. The Oregon Supreme Court then reviews the revised plan to ensure its legal compliance. The court must conclude its review of the revised plan by November 15 so as to ensure that, if further corrections are needed, they can be completed in time for legislators to begin their campaigns for the next general election.
If the secretary of state promulgates the initial districting plan, the Oregon Constitution specifies slightly different dates for the court’s review to allow for the fact that the secretary of state’s plan is not due until August 15. Challenges to the plan must be filed with the state supreme court on or before September 15, with all review concluding by December 15.
The foregoing applies only to the Legislature’s drawing of state legislative districts. The drawing of the federal congressional districts is subject to a different legal regime. The U.S. Constitution entrusts the task of drawing the congressional districts to the state legislature in the first instance, but there is no time limit regarding when the Legislature must complete its task, nor does the Oregon Constitution or statutory law impose any deadline. If the Oregon Legislature fails to enact a plan before it adjourns (or if its plan is vetoed by the governor), the task does not fall to the secretary of state as it does with regard to state legislative districts. Rather, it is up to the federal or state court to draw the district lines. Again, that is not unprecedented. In 2001, the Multnomah County Circuit Court ended up drawing the federal congressional district lines.
The first and most salient legal requirement regarding how the Legislature (or secretary of state or court) must draw the district lines involves population. As the U.S. Supreme Court has made clear in a series of cases, the Equal Protection Clause of the 14th Amendment to the U.S. Constitution requires that all state legislative districts be apportioned as nearly as practicable according to their population so as to ensure compliance with the “one person, one vote” principle. In a similar fashion, the Oregon Constitution requires that both the Oregon House of Representatives and Senate be apportioned on the basis of population, and Oregon’s districting statute — O.R.S. § 188.010 — implements that requirement, specifying that legislative districts be of equal population “as nearly as practicable.”
Of course, what is “practicable” is subject to intense debate. The U.S. Supreme Court has interpreted the Equal Protection Clause to permit states to draw state legislative district lines with a maximum deviation of 10 percent — meaning that the difference between the district with the smallest population and the district with the largest population cannot be more than 10 percent of the ideal district population. Plans with a deviation above 10 percent are presumptively discriminatory and must be justified by the state as necessary to effectuate some legitimate districting goal. At the same time, however, the 10 percent figure is not a safe harbor immunizing state districting plans from constitutional challenge. In 2004, the Supreme Court invalidated a districting plan with less than a 10 percent maximum deviation where it appeared that the deviation from perfect population equality was the result not of adherence to traditional districting principles but rather purely partisan considerations.
The Oregon Supreme Court, in turn, has offered even less guidance regarding the level of population equality required by state law. In theory, Oregon could require greater population equality than that required by the U.S. Constitution, but the Oregon Supreme Court has never read the Oregon Constitution or districting statute to require such. In 1981, the Oregon Supreme Court upheld a districting plan with a maximum population deviation of 5.34 percent, but it did not indicate whether that constituted the outer limits of permissible population deviations under state law. Adding even more uncertainty, the Oregon Supreme Court has declared that population equality is just one of several districting goals under state law and that, within the limits imposed by the U.S. Constitution, population variances can be justified as necessary to implement other districting principles.
Finally, in this regard, federal congressional districts are subject to a different, more demanding rule. The U.S. Constitution requires that the federal congressional district likewise be drawn to ensure population equality among the districts, but, unlike the case with respect to state legislative districts, the U.S. Supreme Court has required a much more rigid adherence to perfect population equality among the districts. Even a maximum deviation of less than 1 percent has been invalidated. Hence, any deviation from perfect population equality must be both de minimis and compelled by some neutral, legitimate districting principle to survive federal constitutional challenge.
Other Districting Requirements
The Oregon Constitution requires that the Oregon House and Senate be divided into single-member districts and that every Senate district be composed of two House districts. The Constitution is otherwise silent, however, regarding how districts are to be drawn.
In 1979, the Oregon Legislature adopted a districting statute to guide the districting process. As specified in the districting statute, districts must 1) be contiguous; 2) be of equal population; 3) utilize existing geographic or political boundaries; 4) respect “communities of common interest”; and 5) be connected by transportation links. Notably, the demand of equal population trumps the other districting principles. As the Oregon Supreme Court has made clear, the other districting goals can be ignored in order to minimize deviations from perfect population equality. In addition, the districting statute prohibits districts from being drawn “for the purpose of favoring any political party, incumbent legislator or other person” or “for the purpose of diluting the voting strength of any language or ethnic minority group.”
Although the 1979 districting statute was adopted with the hopes of constraining the districting process and although the Oregon Constitution expressly authorizes the state supreme court to review districting plans for compliance with the statutory requirements, the Oregon Supreme Court has shown little willingness to enforce the statutory requirements in any significant manner. First, as one might suspect, the Oregon Supreme Court employs a highly deferential test for assessing compliance with the statutory requirements. The court views its task not to ascertain whether there is a superior, alternative districting plan that should or could have been adopted, but rather to determine whether the Legislature or secretary of state ignored one of the constitutional or statutory criteria or whether it applied the criteria in an unreasonable fashion. This deference is the product both of the court’s belief that districting is primarily a task for the political branches and its unwillingness to insert itself into what it believes are essentially partisan disputes between the two major political parties.
Second, the court reads the various criteria as giving the Legislature (or secretary of state) a great deal of leeway. As the court has emphasized, districting plans need only comply with the statutory criteria “as nearly as practicable.” Moreover, the court has accepted the need for districting plans to derogate from one criterion in order to promote or comply with other districting criteria. Finally in this regard, the court has emphasized that particular districts cannot be considered in isolation; rather, the application of the criteria to each district must be assessed in light of how other districts would be affected if the challenged district were redrawn in a manner more consistent with the statutory command.
Third, the Oregon Supreme Court has construed the individual districting criteria in a broad fashion that gives the Legislature a good deal of discretion. For example, with regard to the need to respect preexisting political and geographical boundaries, the court has upheld plans that ignore city and county borders and that even cross the natural geographical divide created by the Cascade range. With regard to county lines in particular, the court has explained that it is permissible to ignore county lines where, at least in the secretary of state’s view, the county border is not a “meaningful dividing line.” Moreover, the Legislature may choose to follow other political borders, such as city limits, or geographic barriers, such as rivers, rather than county lines. Of course, given the multiplicity of political subdivisions and geographic features (and therefore available borders to select among), the court’s ecumenical approach leaves the Legislature with almost unfettered authority to select among the available political and geographic lines and to craft districts that follow different political or geographic boundaries in different places.
The requirement that districts respect “communities of common interest” poses even less of a constraint on the districting process. The 1979 Legislature did not define what it meant by that phrase, and the Oregon Supreme Court has notably failed to infuse the phrase with any content in the intervening decades. In fact, on only one occasion has the court found this requirement to have been violated: in 1991, the court invalidated a district line that assigned three homes in one neighborhood to a different district than the other homes in the neighborhood. Yet, not only did the court fail to provide any general guidance regarding what constitutes a “community of common interest,” it did not even hold that neighborhoods were communities of common interest. Rather, the court rested its decision on the fact that the secretary of state conceded that he had drawn the district line incorrectly. Without that concession, it is far from clear that the court would have intervened. Indeed, districts in urban areas routinely divide neighborhoods.
The requirement that a district be connected by a transportation link has also been rendered largely meaningless by the court. According to the court, the required transportation link need not go entirely within the district. Rather, so long as there is some way to reach each portion of the district by road, that is sufficient. Thus, in 2001, the court upheld House District 23, which includes parts of Linn County south of Albany and parts of Yamhill County, despite the fact that the only way to travel from the northern to the southern portion of the district was to drive through other, adjacent districts. Of course, under the court’s generous reading of the transportation requirement, no district can ever violate that requirement — there are roads reaching every corner of every district.
In a similar fashion, the Oregon Supreme Court has taken a cautious approach to the statutory requirement that the districting plan not favor any political party. According to the court, the mere fact that a plan has the effect of favoring one party (i.e., that party will likely pick up seats that would have remained with the other party under the old apportionment) is insufficient to indicate an illegal, partisan motive. Although the court is surely right that the mere fact that a redistricting plan results in some partisan changes in the Legislature is not sufficient by itself to condemn a districting plan, the court did not suggest that the effect of a redistricting plan is entirely immaterial. The Oregon districting statute bans plans adopted with the “purpose” of favoring a political party, and, in this area of law, the ultimate effect of a legislative plan is among the best evidence of the Legislature’s intent. Legislators (or the secretary of state) are unlikely to confess a partisan motive, after all. Thus, districting plans that result in legislative outcomes that depart significantly from statewide voter results (i.e., one party receives 40 percent of all votes cast statewide in legislative races but it receives 60 percent of the seats in the Oregon House) should and presumably will be carefully scrutinized by the court.
In addition, federal law may provide some assistance in this area. The U.S. Supreme Court has acknowledged that excessively partisan districting plans may violate the Equal Protection Clause and/or the First Amendment. Although the U.S. Supreme Court ruled in 2004 that a federal constitutional challenge to an alleged partisan gerrymander in Pennsylvania was nonjusticiable, Justice Kennedy, who provided the necessary fifth vote for a majority in that case, held out the prospect that future challenges would be justiciable. While identifying when a state legislature has crossed the line into partisan gerrymandering is a difficult task, several lower courts around the nation have performed the inquiry without too much difficulty.
Finally, and in contrast to its treatment of the other statutory requirements, the Oregon Supreme Court has rigorously enforced the statutory requirement that districts be contiguous. As the court has ruled, there may not be any pockets or “floating blocks” that belong to one district but are surrounded by and submerged in another district. Unfortunately, contiguity is not much of a constraint on the drawing of district lines. Indeed, neither the Legislature nor secretary of state has ever intentionally sought to create a noncontiguous district; violations of the contiguity requirement have only taken place as a result of errors made by the U.S. Census Bureau, which has occasionally placed certain census blocks incorrectly in different counties.
A Word on Race
The 15th Amendment prohibits states from denying voting rights on account of race, and the Equal Protection Clause of the 14th Amendment similarly forbids states from drawing district lines with the “predominant purpose” of segregating voters by race. In addition, as noted above, the Oregon districting statute provides that no district shall be drawn with the purpose of diluting the voting strength of any language or ethnic minority. Together, these provisions prohibit districts from being drawn with the purpose of segregating voters by race or undermining the voting power of minority voters.
Significantly, however, neither federal nor state law prohibits the state from taking race into consideration in drawing district lines so long as lines are not drawn with the predominant purpose of segregating voters by race or diluting minority voting strength. In fact, federal law requires states to take affirmative action to protect minority voting power in some circumstances. Specifically, the federal Voting Rights Act requires states, in the proper circumstances, to draw legislative districts to provide racial or ethnic minorities with the opportunity to elect a representative of their choice — so-called “minority-majority districts.”
At present, too little is known to determine whether Oregon would be required to draw a minority-majority district for its African-American or Latino communities. In particular, in 2000, the Latino population, which comprised 8 percent of the state’s population at that time, was spread too diffusely to warrant the creation of such a district. Early reports suggest that the Latino population has grown significantly in the past 10 years, and, depending on the exact geographic distribution of the state’s Latino population and the prevalence of racially polarized voting in those areas, the Legislature may be required to give serious consideration to the creation of a Latino-majority district. Any judgment on this score, however, must await the detailed census data.
Redistricting takes place once every 10 years, but it is of vital importance to all Oregonians. How district lines are drawn will necessarily shape the composition and partisan contours of the Legislature for the next 10 years. Federal and state law impose several important limitations on how the Legislature or secretary of state will engage in that process, but those limitations do not completely constrain the manner in which the Legislature or secretary of state performs their tasks. The districting process is inherently political, and, for that reason, it is naïve to believe that the process can be undertaken in some neutral, apolitical fashion. Yet, it is also for that same reason that voters should insist that the Legislature (or secretary of state) rigorously comply with those legal requirements that already exist and seek judicial review in the appropriate court if they fail to do so. Districting is too important to be left solely to politicians and partisan operatives.
ABOUT THE AUTHOR
The author is a professor of law at Willamette University College of Law, where he teaches both constitutional law and election law.
© 2011 Norman R. Williams