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Saturday, November 27, 2021

Oregon judge skeptical of GOP congressional gerrymandering claims

A special panel will make a final decision based on Judge Henry Breithaupt’s findings later this month

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

Four former Republican elected officials and national Republican forces see Oregon’s new congressional boundaries as an unfair Democratic gerrymander.

The retired tax court judge who heard their legal arguments last week doesn’t buy it.

In a written opinion released late Monday, retired state judge Henry Breithaupt wrote that he largely agreed with a panel of expert witnesses selected by Oregon’s Democratic attorney general and national Democrats that the new boundaries, including a sixth congressional seat added after the 2020 census, comply with state laws governing redistricting and don’t favor Democrats.

Breithaupt doesn’t have the final say on whether the new boundaries can stand – that’s up to a special panel of five retired judges, who will make their own ruling within the next few weeks. But the panel picked Breithaupt as a special master to conduct the hearing and will rely on his summary of two days of oral arguments in the Marion County Courthouse and hundreds of pages of testimony when making its decision about whether to let Oregon’s congressional maps stand.

Most analyses of Oregon’s new congressional lines show by party registration that there would be four Democratic districts, one Republican district and one tossup. The nonpartisan Princeton Gerrymandering Project gave the new boundaries an “F” gradefor giving Democrats and incumbents a significant advantage.

Breithaupt, however, agreed with state experts Jonathan Katz, a professor of social sciences and statistics at the California Institute of Technology; Paul Gronke, a political science professor at Reed College, and Devin Caughey, a political science professor at the Massachusetts Institute of Technology.

“Based on these findings, I agree with Dr. Katz’s conclusion that the Enacted Map ‘shows no statistically significant partisan bias,’” Breithaupt wrote.

Some arguments rested on proportionality: in simple terms, if Democrats win two-thirds of the statewide vote and Republicans win one-third, Oregon should have four Democratic representatives in Congress and two Republicans. Katz rejected that argument.

Gronke, meanwhile, compared the new maps to congressional boundaries over the past 50 years and argued that the new boundaries actually give Republicans a slight advantage. Perceived advantages for Democrats have more to do with geography than partisan intent, he argued, as Democratic voters are concentrated in the Portland area and Willamette Valley and Republican voters are concentrated in central and eastern Oregon.

Mapmakers must follow existing political or geographic lines as much as possible when redrawing congressional boundaries..

Breithaupt had harsh criticism of the sole expert witness called by Republicans, Thomas Brunelle, a University of Texas political science professor.

“Several of Dr. Brunell’s conclusions lack even a minimum of academic or methodological rigor,” he wrote. “He was unprepared to testify about several components of his submissions.”

For instance, Brunell initially used only votes from the 2012, 2016 and 2020 presidential elections to estimate the efficiency gap, or number of wasted votes. Every vote for a losing candidate and every vote for a winning candidate beyond a simple majority is considered wasted, and parties want to keep that number as low as possible.

After Brunell performed a second analysis looking at all statewide elections between 2012 and 2020, his estimated efficiency gap plummeted from nearly 20% to less than 8%. Breithaupt considered that proof that additional data undermined Brunell’s arguments.

Breithaupt declined to consider testimony from state Rep. Daniel Bonham, R-The Dalles, saying he couldn’t waive legislative privilege for other lawmakers.

Bonham initially served on a redistricting committee with an even split between Democrats and Republicans. But with days to go before the deadline for lawmakers to approve new boundaries, House Speaker Tina Kotek disbanded that committee and created a new one with two Democrats and one Republican to push the maps to the full House for a vote.

While he still served on the committee, Bonham said he and House Minority Leader Christine Drazan, R-Canby, met with Senate President Peter Courtney, D-Salem and Sen. Kathleen Taylor, D-Portland and the chair of the Senate’s redistricting committee. Courtney and Taylor “made clear to us that they would not be accepting any Republican changes to the Democrats’ map,” he said in his declaration.

Later, Bonham said he spoke with Democratic state Rep. Marty Wilde of Eugene, who told him that Democratic leaders in the House and Senate knew their congressional map could be invalidated as a partisan gerrymander in court.

Knowing that, and that declining to provide a quorum would result in Democratic Secretary of State Shemia Fagan drawing new legislative boundaries that Republicans suspected would be worse for their interests, House Republicans opted to show up to vote against the new boundaries, knowing they would pass anyway and gambling that the court would accept their arguments, Bonham said.

The state Constitution grants legislators broad legal privilege, protecting them from arrest during the legislative session and from being questioned in court about anything they said in legislative debate. Bonham couldn’t discuss his conversations with other lawmakers who didn’t waive their legislative privilege, Breithaupt ruled.

The special panel has until Nov. 22 to review Breithaupt’s findings and rule on the congressional boundaries. The panel plans to hold a brief hearing on Nov. 15.

Two separate lawsuits over state legislative boundariesare proceeding in the Oregon Supreme Court.

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