The Legislature and Oregon Secretary of State Shemia Fagan appear headed for a showdown over who will control redistricting of legislative and congressional maps to be used in the 2022 election.
The Senate Redistricting Committee heard testimony on Wednesday from U.S. Census Bureau officials that data legally required for the Legislature to draw maps would not be available until after it adjourns July 1.
It was supposed to arrive April 1.
"We have not been able to achieve that," said Kathleen M. Styles, chief of the bureau's department dealing with redistricting.
Styles said data being sent to all states was delayed because of the difficulty of counting the population amid the COVID-19 pandemic, which struck just as the count was getting underway in March.
Regional disasters and demonstrations slowed counts, including the wildfires in California and Oregon, hurricanes in the southeastern U.S., and major civil rights demonstrations during the summer.
Politics came into play, with confusing directives from the Trump administration changing the process of the count, and the transition to the new administration of President Joe Biden.
"This has been a census unlike any other," Styles said.
The data problem is particularly acute for six states, including Oregon, which have constitutionally mandated deadlines for redistricting in 2021. Added to the mix is the likelihood that Oregon's population growth will give it a sixth congressional seat, the boundaries for which would have to be carved out of the current five districts. Oregon last received an additional congressional seat in 1980.
Also at stake is $1.5 trillion in federal aid that is sent to states based on their census numbers.
Oregon has 60 state House districts and 30 Senate districts. Each state Senate district encompasses two House districts within its boundaries. The number of seats remains the same, but the district lines are adjusted to balance populations.
Under the state Constitution, the Legislature was supposed to receive the data by April 1 and had until it adjourned on July 1 to submit maps that would then go to Gov. Kate Brown for approval.
If the maps are not submitted by July 1, the redistricting of legislative districts would be done by the secretary of state, while the congressional districts would be drawn by a five-judge panel.
Fagan reiterated Wednesday that she was preparing the groundwork to draw the maps.
"The Oregon Constitution is clear," the secretary of state said in a statement.
Fagan said the problem had been looming for months as the census missed earlier deadlines to provide basic information on its once-a-decade count of the nation's population.
"The U.S. Census Bureau has been signaling the possibility of delays since last spring" Fagan said. "We won’t be caught off guard."
Fagan said Kathy Wai had joined the Secretary of State's Office this week as redistricting administrator. Wai previously was census justice director at Oregon Futures Lab.
Sen. Tim Knopp, R-Bend, a member of the Senate Redistricting Committee said Fagan's announcement was a surprise.
"I would say the secretary of state is incredibly premature," Knopp said. "I think the idea is to try to have the Legislature do its constitutional duty. The delay is because of COVID-19 and other things beyond our control."
Sen. Kathleen Taylor, D-Milwaukie, chair of the Senate Redistricting Committee, said lawmakers will continue to explore "all options." It will meet with state legal experts during a hearing next week.
Taylor said leaders of the redistricting committees in the Senate and the House are asking legislative leadership to authorize legal help to represent the Legislature before the Oregon Supreme Court.
Knopp said the lawmakers would seek a preemptive judgment from the court extending the deadline for the Legislature to submit a redistricting plan. If approved, the Legislature would hold a special session for redistricting as early as midsummer.
Knopp said neither the Legislature nor Fagan may get what they want. The census delay could stretch past the Aug. 15 deadline for Fagan and the judges panel to submit maps to the committee.
"All the deadlines could pass," Knopp said. "We need a plan in place."
Members of the Senate committee floated possible options, though all would require legal opinions.
"There has been a discussion in Oregon about using other data," Taylor said. "Attorneys say that's questionable since we have always used census block data."
A forecast by Portland State University using preliminary, unofficial data showed House districts would likely grow from the current 63,851 to 71,000, while Senate districts would grow from 127,702 people to 142,000 and each of the congressional districts — including the added sixth seat — would have about 710,000 people.
"Oregon has grown very, very quickly," said Charles Rynerson, a population researcher at Portland State University.
Rynerson said Oregon's population is estimated at just over 4.2 million, up from 3.86 million in the 2010 census. The preliminary U.S. Census number put the nation's population above 331 million, up from 309 million in 2010. Styles said final figures could push the U.S. population as high as 336 million.
Rynerson said the greatest rate of growth since the last census was in the Bend area, along with some eastern suburbs of Portland.
The forecast singled out Senate District 27 — held by Knopp — as one that will likely need a major boundary overhaul.
House District 54, which includes Bend and is represented by freshman Rep. Jason Knopf, D-Bend, was also mentioned as needing a major adjustment.
Sen. Bill Hansell, R-Athena, said that the estimates were enough to begin discussing the rough outlines of districts for 2022.
"We can be in the ballpark," he said. "You can figure out where you have to expand and contract."
But Styles cautioned that the data required for redistricting is a block-by-block count. Federal and state laws are strict about the requirements for district layouts. They also include key measures required under the Civil Rights Act and Voting Rights Act that are not yet available.
For the first time this century, Democrats have control of both chambers of the Legislature and the governorship. That "trifecta" could have paved the way for approval of district maps that only require a majority vote to send to the governor.
Fagan is also a Democrat, but the make-up of the five-judge panel wouldn't be known until a motion until the deadlines are passed.
In 2011, the House was tied 30-30 between Democrats and Republicans, while Democrats had a 16-14 majority in the Senate. The Legislature worked out a largely bi-partisan plan, which was signed into law by the Gov. Ted Kulongoski, a Democrat.
Redistricting didn't go so smooth in 2001. Republicans held majorities in the House and Senate, but Gov. John Kitzhaber was a Democrat. The Legislature approved a redistricting plan, which Kitzhaber vetoed. Secretary of State Bill Bradbury, a Democrat, drafted the maps, which were upheld following court challenges."