Oregon Statutes 188.125 – Elector challenge of legislative apportionment of state into congressional districts; elector request for court apportionment of state into congressional districts; process; time frame; standard of review
(1) As used in this section:
Terms Used In Oregon Statutes 188.125
- Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Legislative session: That part of a chamber's daily session in which it considers legislative business (bills, resolutions, and actions related thereto).
- United States: includes territories, outlying possessions and the District of Columbia. See Oregon Statutes 174.100
- Veto: The procedure established under the Constitution by which the President/Governor refuses to approve a bill or joint resolution and thus prevents its enactment into law. A regular veto occurs when the President/Governor returns the legislation to the house in which it originated. The President/Governor usually returns a vetoed bill with a message indicating his reasons for rejecting the measure. In Congress, the veto can be overridden only by a two-thirds vote in both the Senate and the House.
(a) ‘Elector’ has the meaning given that term in ORS § 247.002.
(b) ‘Legislatively adopted reapportionment plan’ means a plan for the reapportionment of congressional districts that has passed the Legislative Assembly and that is signed, or allowed to become law without signature, by the Governor.
(2) An elector may file a petition in Marion County Circuit Court on or before August 1 in the year following the federal decennial census to:
(a) Challenge a legislatively adopted reapportionment plan; or
(b) Request a reapportionment of congressional districts if:
(A) The Legislative Assembly failed to pass a reapportionment of congressional districts by July 1 of a regular session of the Legislative Assembly held in that same year; or
(B) The Governor vetoed the reapportionment of congressional districts passed by the Legislative Assembly and the Legislative Assembly did not override the veto.
(3) The Secretary of State shall serve as respondent in any petition filed under subsection (2) of this section.
(4) An elector may file a petition in Marion County Circuit Court on or before August 15 to intervene in a petition filed under subsection (2) of this section.
(5)(a) A petition filed under subsection (2) or (4) of this section may include any materials from the legislative record relating to congressional reapportionment plans.
(b) A petition filed under subsection (2) of this section must include:
(A) The legislatively adopted reapportionment plan that is being challenged and an explanation of the factual and legal defects in the plan.
(B) If no legislatively adopted reapportionment plan was passed, the petition must include the petitioner’s proposed reapportionment plan and an explanation of how the plan complies with all applicable statutes and the United States and Oregon Constitutions.
(c) A petition to intervene filed under subsection (4) of this section must include an explanation of the factual and legal defects with assertions made in a petition filed under subsection (2) of this section.
(6) If an elector files a petition under subsection (2) of this section, the Chief Justice of the Supreme Court shall appoint a special judicial panel. The panel shall consist of one state circuit court judge, senior judge or judge who is serving as a judge pro tempore under ORS § 238.535 (1)(c) from each congressional district in this state. The Chief Justice shall also select one of the appointed judges to preside over the special judicial panel and to make all rulings on procedural and evidentiary matters before the panel.
(7) Jurisdiction is vested in the special judicial panel described in subsection (6) of this section to decide any petitions filed under subsections (2) and (4) of this section. The panel may:
(a) Consolidate some or all petitions filed under subsections (2) and (4) of this section.
(b) Allow amicus curiae to file briefs and participate in oral arguments.
(c) Request that the Chief Justice appoint a special master to receive evidence and to prepare recommended findings of fact. Upon receiving such a request from the special judicial panel, the Chief Justice shall appoint a special master. A special master appointed by the Chief Justice under this paragraph must be a state circuit court judge, senior judge or judge who is serving as a judge pro tempore under ORS § 238.535 (1)(c).
(8) The special judicial panel shall employ the following standards in deciding upon a reapportionment plan:
(a) For a legislatively adopted reapportionment plan, the panel must affirm the plan if the plan complies with all applicable statutes and the United States and Oregon Constitutions. If the panel finds that the legislatively adopted reapportionment plan does not comply with applicable statutes or the United States or Oregon Constitution, the panel may create its own reapportionment plan. A reapportionment plan adopted by the panel under this paragraph must comply with all applicable statutes and the United States and Oregon Constitutions.
(b) If no legislatively adopted reapportionment plan was passed, the panel must consider all plans submitted by petitioners and intervenors, but may create its own reapportionment plan. A reapportionment plan adopted by the panel under this paragraph must comply with all applicable statutes and the United States and Oregon Constitutions.
(9)(a) The special judicial panel shall decide whether to dismiss a petition filed under subsection (2) of this section that challenges a legislatively adopted reapportionment plan by September 1.
(b) If the panel dismisses the petition under this subsection, a party to the action may appeal the decision by filing a notice of appeal with the Supreme Court on or before September 15.
(10)(a) The special judicial panel shall decide all other petitions filed under subsection (2) of this section, including petitions challenging a legislatively adopted reapportionment plan that the panel does not dismiss under subsection (9)(a) of this section, by October 1.
(b) A party to the action may appeal a decision reached under this subsection by filing a notice of appeal with the Supreme Court on or before October 15.
(11) The Supreme Court shall:
(a) Hear any appeal brought under subsection (9) or (10) of this section; and
(b) Employ the following standards in deciding upon a reapportionment plan affirmed or adopted by the special judicial panel:
(A) For a legislatively adopted reapportionment plan, the Supreme Court must affirm the plan if the plan complies with all applicable statutes and the United States and Oregon Constitutions. If the court finds that the legislatively adopted reapportionment plan does not comply with applicable statutes or the United States or Oregon Constitution, the court may create its own reapportionment plan. A reapportionment plan adopted by the Supreme Court under this subparagraph must comply with all applicable statutes and the United States and Oregon Constitutions.
(B) For a reapportionment plan that was adopted unanimously by the special judicial panel, the Supreme Court must affirm the plan if the plan complies with all applicable statutes and the United States and Oregon Constitutions. If the court finds that the unanimously adopted reapportionment plan does not comply with applicable statutes or the United States or Oregon Constitution, the court may create its own reapportionment plan. A reapportionment plan adopted by the Supreme Court under this subparagraph must comply with all applicable statutes and the United States and Oregon Constitutions.
(C) For a reapportionment plan that was created or adopted by the special judicial panel by a less than unanimous decision, the Supreme Court may, in its discretion, try the cause anew upon the record. This review must be based on the record created by the special judicial panel, but the Supreme Court may make its own determinations of law or underlying findings of fact. After conducting its review, the Supreme Court may affirm the panel’s reapportionment plan, amend the panel’s reapportionment plan or adopt a new reapportionment plan. A reapportionment plan decided upon by the Supreme Court under this subparagraph must comply with all applicable statutes and the United States and Oregon Constitutions.
(12) If a party to an action files a notice of appeal with the Supreme Court under subsection (9) of this section:
(a) The Supreme Court shall decide whether to approve the legislatively adopted reapportionment plan without any changes by October 1.
(b) If the Supreme Court determines that the legislatively adopted reapportionment plan must be amended or substituted, by November 1 the court shall direct the special judicial panel to make such changes.
(c) The special judicial panel shall make any required changes and submit a revised reapportionment plan to the Supreme Court by December 1.
(d) The Supreme Court shall review the reapportionment plan revised by the special judicial panel and approve a final reapportionment plan by December 15.
(13) If a party to an action files a notice of appeal with the Supreme Court under subsection (10) of this section:
(a) The Supreme Court shall decide whether to approve a legislatively adopted reapportionment plan or a reapportionment plan that was unanimously adopted by the special judicial panel without any changes by November 1.
(b) The Supreme Court shall decide whether to approve a less than unanimous decision of the special judicial panel without any changes by November 15.
(c) If the Supreme Court determines that changes are required for a reapportionment plan approved by the special judicial panel, by November 15 the Supreme Court shall direct the panel to make such changes.
(d) The special judicial panel shall make any required changes and submit a revised reapportionment plan to the Supreme Court by December 1.
(e) The Supreme Court shall review the reapportionment plan revised by the special judicial panel and approve a final reapportionment plan by December 15.
(14) A final reapportionment plan resulting from a petition filed under subsection (2) or (4) of this section becomes operative on January 1 of the calendar year next following the applicable deadline for deciding on a final reapportionment plan under this section. [2013 c.611 § 2]
[Formerly 250.295; 1981 c.864 § 1; repealed by 1997 c.249 § 56]
[See note following]
After adjournment of the 2001 regular session of the Legislative Assembly, the Multnomah County Circuit Court ordered adoption of congressional district boundaries. The court’s order arose out of Perrin v. Kitzhaber, No. 0107-07021, which held the congressional district boundaries described in 188.135 unconstitutional. The court’s opinion was dated October 19, 2001. The court’s judgment was dated October 30, 2001. The ordered congressional district boundaries were set forth in 188.140 and the text of 188.135 was deleted.
In 2011, the Legislative Assembly amended 188.140 to delete the boundaries ordered by the court in 2001 and adopt new congressional district boundaries.
In 2021, the COVID-19 pandemic prevented the United States Census Bureau from meeting the March 31, 2021, deadline set forth in federal law to provide states with the P.L. 94-171 redistricting data necessary to conduct congressional reapportionment. The United States Census Bureau instead provided Oregon with this redistricting data on August 12, 2021. On September 27, 2021, the Legislative Assembly met in a special legislative session and amended ORS § 188.140 to delete the boundaries established by the Legislative Assembly in 2011 and enact new congressional district boundaries. Petitions were filed with the Marion County Circuit Court challenging the congressional district boundaries enacted by the Legislative Assembly. Pursuant to section 1, chapter 419, Oregon Laws 2021, on November 24, 2021, a five-member special judicial panel held that the congressional district boundaries enacted by the Legislative Assembly complied with all applicable statutes and the United States and Oregon Constitutions and approved the reapportionment enacted by the Legislative Assembly. The petitioners opted not to file a direct appeal to the Oregon Supreme Court in the manner provided by section 1, chapter 419, Oregon Laws 2021.
The plan enacted by the Legislative Assembly on September 27, 2021, and approved by the special judicial panel on November 24, 2021, is printed in ORS § 188.140.