Michele M. FLETCHALL, Charles E. Lee, Kevin L. Mannix, Becca Uherbelau, David Rogers and Reyna Lopez, Petitioners,
Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.
petitions to review ballot title fled January 22, 2019;
considered and under advisement March 5, 2019.
L. Mannix, Kevin L. Mannix, P.C., Salem, fled the petition
and reply memorandum for petitioners Fletchall, Lee, and
C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC,
Portland, fled the petition and reply memorandum for
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.
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.
A. Masih, Bennett, Hartman, Morris & Kaplan, LLP,
Portland, fled the memorandum for amicus curiae
Or. 99] Case Summary:
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.
ballot title is referred to the Attorney General for
Or. 100] NELSON, J.
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.
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.
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.
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.
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.
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).
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.
Attorney General certified the following ballot title for
"Amends Constitution: Transfers legislative
redistricting to commission; commission over-represents rural
areas; changes redistricting requirements; limits judicial
"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
"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,