Congressional redistricting judges appear to favor Oregon Democrats

The panel will rule on the state’s new congressional boundaries by Nov. 24

Originally published by Oregon Capital Chronicle. For more coverage related to Oregon state government, politics and policy, visit the Oregon Capital Chronicle website.

Attorneys for a group of four Republicans who once held elective office found a frosty reception Tuesday from the five-judge panel as they contested Oregon’s new congressional boundaries.

After a three-hour hearing, the panel that will decide whether new boundaries drawn by the Legislature in September will last for the next 10 years appeared to favor the state’s attorneys. Judges asked multiple pointed questions of attorneys representing the four Republicans suing over the maps, but quizzed only one of the attorneys for the state justice department who defended the Legislature’s work.

The panel of retired circuit court judges has until Wednesday, Nov. 24, to rule on the new boundaries. Because of growth reflected in the 2020 census, Oregon will have six congressional districts beginning in 2022.

Most analysis of the new districts suggests by voter registration Oregon will have two safe Democratic seats, two that lean Democratic, one safe Republican seat and one tossup district now represented by Democratic U.S. Rep. Kurt Schrader.

Republicans argue that they should have a shot at more seats, based on voter registration numbers and turnout in past elections. About one-third of registered voters are Democrats, one-quarter are Republicans and the rest are unaffiliated or registered with minor parties. Democrats have won nearly all statewide elections over the past decade, generally getting somewhere between 50% and 56% of the vote.

Attorneys for the state and the National Democratic Redistricting Committee argued that any advantage for Democrats doesn’t mean legislative Democrats drew illegal maps. Misha Isaak, an attorney for the national Democratic group who previously served as Gov. Kate Brown’s general counsel, said the court should look at the past five decades of congressional boundaries.

Those boundaries were drawn through either a court order or a bipartisan compromise, and they all had a similar partisan skew, Isaak said. Oregon has had four Democratic representatives and one Republican since the 1990s.

“If this year’s enacted map has a level of partisan skew that is comparable to prior decades, then that is more likely the natural consequence of the political and demographic geography of Oregon than it is a consequence of any intent to draw biased maps,” Isaak said.

Isaak cited comments from Oregon Supreme Court Justice Chris Garrett, who as a state representative oversaw redistricting in 2011 as co-chair of a legislative redistricting committee.

Garrett said during a 2013 hearing that he frequently heard from voters who would prefer to have competitive and fair districts, but he learned that the state couldn’t draw competitive districts while also following legal obligations to make sure districts are connected by communities of interest and transportation links.

The Republicans argued Tuesday that the districts the Legislature drew don’t keep communities of interest intact. Their biggest issue is with the redrawn 5th Congressional District, which stretches from the outskirts of Portland across the Cascades to the city of Bend.

“There were two specific moves made in this map that were not in the prior couple of maps that clearly advantage the party in control. One was going across the Cascades and scooping up Bend,” said Misha Tseytlin, the lead attorney for the plaintiffs and a former solicitor general of Wisconsin. “There’s no magic to gerrymandering. There’s no fancy tricks. You have a district you worry about, so you do something new, you get some more voters that are favorable to your party, and presto, your district is better. That’s all gerrymandering is.”

Republicans also objected to the maps dividing the city of Portland among four different congressional districts. That argument didn’t convince Judge Richard Barron, who noted that about two-thirds of the city is in a single congressional district, with only a few blocks in the new 6th Congressional District and a relatively small area in the 5th Congressional District.

“They surely could have done more, but what we’re saying is what they did was enough, and by far the most logical explanation for why they did those two things was to help the Democrats,” Tseytlin responded.

Publicly available assessments of new districts throughFiveThirtyEight.comand thePrinceton Gerrymandering Projectboth describe Oregon’s congressional districts as a Democratic gerrymander. The panel’s presiding judge, Mary Mertens James, ruled Monday that the panel couldn’t consider those analyses.

She also acceptedall the findingsof retired tax court judge Henry Breithaupt, who the panel appointed to serve as its special master to hear testimony from experts in October. Breithaupt concluded that an expert witness for the Republicans challenging the boundaries was unconvincing, and he agreed with the expert witnesses provided by the state and Democratic redistricting committee that the new congressional boundaries had no statistically significant partisan bias.

Breithaupt also blocked testimony from Rep. Daniel Bonham, R-The Dalles, who served on the initial redistricting committee. House Speaker Tina Kotek, D-Portland, removed Bonham from the committee shortly before a September deadline for the Legislature to draw new congressional and legislative maps, and Bonham testified about his private conversations with other legislators.

Breithaupt ruled that Bonham couldn’t speak about his conversations because the other legislators he spoke with are protected by legislative privilege. The panel will not consider any comments from legislators outside of what they said in public hearings and on the floor of the House or Senate.

Two separate lawsuits over state legislative boundaries are proceeding in the Oregon Supreme Court. No candidates for Congress or state legislative offices can file to run until court challenges are finished, though many have already launched their campaigns.

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