Oregon lawmakers tap outside attorneys to help oversee political maps

Feb 21, 2021
Originally published on February 19, 2021 4:42 pm

As they work to regain control of their oversight of key political maps this year, Oregon lawmakers are pulling in outside help.

In a brief hearing Friday, a legislative committee approved a motion to contract with the law firm Markowitz Herbold. The Legislature will pay the firm up to $100,000 to explore options for sidestepping constitutional deadlines that could shut it out of political redistricting. A petition before the state’s Supreme Court appears likely to follow, though no one quite knows what to expect.

“We’ve never confronted this before. Never,” said Senate President Peter Courtney, D-Salem, a veteran of four prior redistricting efforts. “This has never happened. We’re trying to get an answer from the courts as fast as we can.”

Every 10 years, states rely on data from the U.S. Census to rejigger the districts held by state lawmakers and members of Congress. But this year, COVID-19 and other hiccups have severely delayed that data, creating big problems for Oregon and other states.

Under the Oregon Constitution, the Legislature is the primary entity responsible for drawing new legislative boundaries. But lawmakers are required to finish their work by July 1. If they don’t succeed, the job goes to the secretary of state, who has until August 15 to complete the job.

But as things currently stand, neither lawmakers nor Secretary of State Shemia Fagan will have a chance to weigh in. The U.S. Census Bureau announced last week that states could not expect block-by-block population counts until Sept 30, roughly six months later than normal.

As of now, no one is certain what that means for Oregon’s redistricting process, a highly political affair that can dictate which party holds sway by helping determine the partisan makeup of districts.

“We’re in uncharted territory,” House Speaker Tina Kotek, D-Portland, said.

Lawmakers likely have more leeway when it comes to redrawing U.S. congressional districts, as opposed to state legislative boundaries because they are not bound by the state Constitution in doing so.

Asking courts for relief is just one option that has been floated around the country for coming to grips with the census delays. California proved a model for the approach in the summer of 2020, when it succeeded in convincing the California Supreme Court to extend a constitutional deadline.

“What the California Supreme Court ultimately did is they said, ‘The California Constitution has deadlines in it that are based on the presumption that the census data is received by April 1,’” Ben Williams, a policy specialist with the National Conference of State Legislatures, told Oregon House members earlier this month. “So they are just starting the clock on all of those deadlines the date the redistricting data is received.”

Other states have gone in different directions. New Jersey — a rare state that holds legislative elections in odd years and so is even more reliant on prompt redistricting data — had the foresight to ask voters to approve changes to its constitutional deadlines last year.

If it runs short of options, Oregon could attempt something similar, legislative counsel Dexter Johnson told lawmakers Friday. But the effort would be extremely rushed, requiring the Legislature to fast-track a ballot referral to voters, then wait nearly two months before holding a special election.

“That path is very narrow at the moment,” Johnson said. “It’s still available, but there is not a lot of spare time in referring a proposed constitutional amendment that would address the timeline problem.”

Some states have moved back the dates of their primary elections, in order to provide more time for redistricting to take shape. And other states, Williams said, have floated a novel “two-step” solution, in which states move forward with redistricting using the “best data available” rather than precise census data, in order to meet legal deadlines. Then states would in theory go back and revise their maps once they received census data.

“What exactly is the best data available if not the redistricting data from the Census Bureau? We don’t know,” Williams said.

Friday’s hearing of the Legislative Counsel Committee took up only one question: Whether to appoint the Portland-based law firm Markowitz Herbold to explore the state’s options for redistricting. The firm was tapped by Kotek and Courtney on the recommendation of legislative attorneys, Johnson told lawmakers and approved after an “emergency finding” that time was running short.

When asked about the selection process by state Rep. Kim Wallan, R-Medford, Johnson said the firm employed the state’s former solicitor general, Anna Joyce.

“It is due to her experience in bringing or defending state constitutional challenges that the law firm was selected,” Johnson told lawmakers.

Legislators were not shown a copy of the contract with Markowitz Herbold prior to approving the appointment.

Johnson said the agreement included a not-to-exceed limit of $100,000, though such limits can be amended. Joyce will be paid $540 per hour for her services, with other attorneys at the firm earning upwards of $400 an hour.

Copyright 2021 Oregon Public Broadcasting. To see more, visit Oregon Public Broadcasting.