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Fletchall v. Rosenblum

Supreme Court of Oregon, En Banc

June 6, 2019

Michele M. FLETCHALL, Charles E. Lee, Kevin L. Mannix, Becca Uherbelau, David Rogers and Reyna Lopez, Petitioners,
v.
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.

         On petitions to review ballot title fled January 22, 2019; considered and under advisement March 5, 2019.

          Kevin L. Mannix, Kevin L. Mannix, P.C., Salem, fled the petition and reply memorandum for petitioners Fletchall, Lee, and Mannix.

          Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC, Portland, fled the petition and reply memorandum for petitioner Uherbelau.

          Evan R. Christopher, Davis Wright Tremaine LLP, Portland, fled the petition and reply memorandum for petitioners Rogers and Lopez. Also on the petition was Gregory A . Chaimov.

          Jona J. Maukonen, Assistant Attorney General, Salem, fled the answering memorandum for respondent. Also on the memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Aruna A. Masih, Bennett, Hartman, Morris & Kaplan, LLP, Portland, fled the memorandum for amicus curiae Joseph Baessler.

         [365 Or. 99] Case Summary:

         The Attorney General certified a ballot title for Initiative Petition 5 (2020), an initiated measure that, if placed on the ballot and enacted by the people, would repeal and replace Article I V, section 6, of the Oregon Constitution. In its present form, Article IV, section 6, provides for reapportionment of the state's legislative districts after each decennial census by the legislature. Initiative Petition 5 would assign the task of reapportionment by a newly created commission, composed of members who would be appointed by the county commissioners serving within 11 designated geographic areas within the state. Three sets of petitioners challenged the ballot title certified by the Attorney General, arguing that the ballot title's caption, yes and no result statements, and summary failed to appropriately communicate the effects of the initiative. Held: The caption, yes and no result statements, and summary of the certified ballot title do not substantially comply with the requirements set out in ORS 250.035(a) to (d) and must be modified.

         The ballot title is referred to the Attorney General for modification.

         [365 Or. 100] NELSON, J.

         In this ballot title review proceeding, we consider three separate petitions that challenge the Attorney General's certified ballot title for Initiative Petition 5 (2020) (IP 5). For all three petitions, we review the ballot title under the same standard: substantial compliance with ORS 250.035(2). See ORS 250.085(5) (setting out that standard of review). Having considered the various and sometimes conflicting arguments raised in the petitions, we conclude that the ballot title does not substantially comply with ORS 250.035(2). Accordingly, we refer the ballot title to the Attorney General for modification.

         I. BACKGROUND

         In a nutshell, IP 5 would repeal and replace a provision in the Oregon Constitution, Article IV, section 6, that addresses reapportionment of the state's legislative districts, after each decennial census, to take into account changes in the distribution of the state's population.

         In its present form, Article IV, section 6, assigns the task of reapportionment to the legislature, § 6(1), but provides that, if the legislature fails to complete that task by a specified date after the census, the Secretary of State will "make a reapportionment" in the legislature's stead, § (6)(3)(a). It also provides for judicial review of the resulting reapportionment, upon the petition of "any elector," for compliance with the requirements of Article IV, section 6, and "all laws applicable thereto." Or Const, Art IV, § 6(2)(a) - (c); id. § 6(3)(b), (c). The "laws applicable thereto" include ORS 188.010, which directs the legislature (or the Secretary of State) to apportion districts using certain specified criteria, including a requirement that districts be drawn in a way that does not "divide communities of common interest," ORS 188.010(1)(d), and ORS 188.016, which requires the legislature to hold at least 10 public hearings at locations throughout the state prior to proposing a reapportionment plan, and at least five more public hearings before finally adopting the plan that is proposed.

         IP 5 would repeal that current version of Article IV, section 6, and replace it with a new Article IV, section 6, [365 Or. 101] that establishes a "Citizen Commission on Legislative Redistricting" to which the task of reapportionment would fall. The commission created by IP 5 would be composed of 11 members, each of whom would be appointed by all of the county commissioners serving within one of 11 designated geographic areas within the state. Each of the designated geographic areas would be composed of a group of contiguous counties, or, in the case of Washington and Multnomah counties, a single county. The state's population would not be evenly distributed among the 11 areas. As a result, the commission's membership would not equally represent the population of the state but, instead, would give significantly greater representation to rural areas of the state.

         After the issuance of the decennial census, the commission thus constituted would be required to (1) adopt a preliminary redistricting plan by an affirmative vote of the majority of its members; (2) hold at least one public hearing in each congressional district regarding the preliminary plan; and (3) adopt a final plan, again by a majority vote, within a designated time frame.

         The proposed version of Article IV, section 6, specifies criteria for apportionment by the commission. Most notably, it requires the new commission to apportion districts to be "as compact in area as possible," with the "aggregate linear distance of all district boundaries" being "as short as possible." In addition, the districts must be contiguous, of equal population "within a range of two percent plus or minus," and drawn using "existing geographical and political boundaries to the extent practicable." While some of those criteria for apportionment mirror the statutory criteria for apportionment set out in ORS 188.010-which the legislature is required to follow when carrying out the redistricting demanded by the current version of Article IV, section 6-some are different. Most notably, IP 5 would (1) establish the above-mentioned "compactness" requirement, which does not exist in the present reapportionment scheme; (2) expressly permit a small amount of inequality between the populations of districts ("equal within a range of two percent") that is not expressly permitted under current law; and (3) omit the present statutory requirement [365 Or. 102] that each district "not divide communities of common interest." ORS 188.010 (D(d).[1]

         Finally, the proposed version of Article IV, section 6, provides for judicial review of a final redistricting plan adopted by the commission, but only for constitutional errors and only upon a petition filed by 15 electors. It also provides that, if the commission fails to timely adopt a final redistricting plan, this court will prepare a final redistricting plan within a specified time period.

         The Attorney General certified the following ballot title for IP 5:

"Amends Constitution: Transfers legislative redistricting to commission; commission over-represents rural areas; changes redistricting requirements; limits judicial review
"Result of 'Yes' Vote: 'Yes' vote transfers legislative redistricting to commission; commission over-represents rural areas. Changes redistricting requirements; limits "aggregate linear distance" of borders. Fewer hearings. Limits judicial review.
"Result of 'No' Vote: 'No' vote retains redistricting by legislature. Statutory, constitutional criteria. Minimum ten public hearings. Upon default, Secretary of State adopts plan. Elector can seek court review.
"Summary: Amends Constitution. Currently, legislature reapportions legislative districts after census, following at least 10 public hearings. Criteria set by statute and Constitution. If legislature defaults, Secretary of State completes redistricting. Any elector may petition Oregon Supreme Court to review compliance with law; if deficient, court may create plan. Measure replaces current process with 11-member commission. County Commissioners appoint members (excluding recent elected officials, spouses, and some political party officials). Rural areas [365 Or. 103] receive disproportionately high representation. Changes constitutional, statutory requirements; district boundaries must have shortest possible "aggregate linear distance." Five public hearings required. Plan adopted by majority commission vote. Legislature funds commission, ...

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