The unconstitutional proposal to create an independent redistricting commission in Oregon
The constitutional amendment proposing an independent commission to draw state legislative lines in Oregon likely runs afoul of the state constitution's separate-vote requirement
Last year, a group of Oregon voters formed People Not Politicians, and announced that they would attempt to put an initiated constitutional amendment on the ballot in 2024 to create an independent redistricting commission. Earlier this month, they released the text of their proposed constitutional amendment.
After reading the language in its entirety, and cross-referencing the changes it proposes with the current provisions of the Oregon Constitution, I think that there’s an extremely strong case that the proposed amendment violates the state constitution’s separate-vote requirement.
I’ll note at the outset that I’m no fan of subject-matter restrictions for initiated amendments or statutes. The most common such restriction, the single-subject requirement, has been applied by state supreme courts inconsistently and absurdly. As former California Supreme Court Justice Carlos Moreno once said, “almost any two legislative measures may be considered part of the same subject if that subject is defined with enough abstraction.” And on the other hand, if the subject is defined too precisely, almost any two seemingly related measures could be considered to be different subjects, too. There’s no principled way to apply such a restriction.
I’m also not a fan of gerrymandering, regardless of which party or state does it.
But, even with those caveats in mind, the amendment proposed by People Not Politicians presents an egregious violation of the Oregon Constitution’s requirements. In my view, the changes it proposes are not “closely related,” and therefore, it likely violates Article XVII, Section 1, of the Oregon Constitution.
The Oregon Constitution, like most state constitutions, imposes a single-subject requirement for voter-initiated constitutional amendments in Article IV, Section 1(2). Separately, it also includes what is known as the separate-vote requirement in Article XVII, Section 1, which reads, in relevant part:
When two or more amendments shall be submitted . . . to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.
In a series of opinions, beginning in earnest with Armatta v. Kitzhaber in 1998, the Oregon Supreme Court has clarified the difference between the single-subject and separate-vote requirements. “The single-subject requirement . . . focuses upon the content of a proposed law or amendment, by requiring that it embrace only one subject and matters properly connected therewith.” This requirement only applies to voter-initiated amendments, not amendments proposed by the legislature. On the other hand, the separate-vote requirement “focuses upon the form of submission of an amendment, as well as the potential change to the existing constitution, by requiring that two or more constitutional amendments be voted on separately.”
The way to determine whether an amendment violates the separate-vote requirement, “is to determine whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related.” In evaluating the “changes,” the court in Lehman v. Bradbury explained that it looks “not only at the explicit changes but also at the implicit changes that a measure would make to the constitution[.]”
Armatta presented a pretty classic example of a separate-vote violation. There, voters proposed a constitutional amendment that set out to create a victims’ bill of rights—which contained fourteen separate rights. The Oregon Supreme Court determined that the changes would have modified several different provisions in the Bill of Rights “encompassing six separate, individual rights (pertaining to search and seizure, unanimous jury verdicts, waiver of jury trial, former jeopardy, self-incrimination, and bail), in addition to limiting the legislature's ability to establish juror qualifications in criminal cases.”
It then concluded that some of these these changes were “not closely related.” While most of provisions “are related in the sense that they pertain to constitutional rights that might be implicated during a criminal investigation or prosecution,” this wasn’t a close enough relationship:
For example, the right of all people to be free from unreasonable searches and seizures under Article I, section 9, has virtually nothing to do with the right of the criminally accused to have a unanimous verdict rendered in a murder case under Article I, section 11. The two provisions involve separate constitutional rights, granted to different groups of persons.
Accordingly, it held that the proposed amendment was unconstitutional and struck it.
With that context in mind, let’s consider the changes proposed by People Not Politicians’ constitutional amendment. At the outset, I’ll note that I’m summarizing, not fully describing, the proposed amendment, which is 11 pages long.
The amendment creates a twelve-member Citizens Redistricting Commission, which is constituted of randomly selected citizens. Citizens can apply to sit on the Commission—a process administered by the Secretary of State—so long as they comply with a long list of requirements. Once the applications are received, the state’s Chief Administrative Law Judge designates a Review Panel of judges to review the applications, exclude the disqualified candidates, and randomly select six commissioners. Once selected, the six commissioners select six more based on an additional set of criteria.
The Governor has the power to remove a Commissioner “in the event of substantial neglect of duty or gross misconduct in office.” If the Governor does so, the Commissioner can challenge the removal in state circuit court. “The circuit court’s determination shall take precedence over other matters before the circuit court,” and its decision can be appealed to the Supreme Court, “which shall accord the highest priority to the matter.” Additionally, the Commissioners, while serving, cannot be discriminated against by their employer for their service on the Commission; if their employment is interrupted because of their service, they must be restored to their previous employment status.
Once constituted, the Commission begins drawing maps. The Secretary of State “provide[s] staff and office support to the commission” as it undertakes its mission. The state legislature is required to “[a]ppropriate the funds necessary” to allow the Commission to “fulfill [its] obligations.” When making allocations to future commissions, “the appropriation may not be less than the amount appropriated in the previous redistricting cycle.” The legislature must also “[m]ake available a complete and accurate computerized database and precinct shapefiles[] for redistricting to the commission.” Other than making appropriations to the Commission, the legislature may only “enact an Act that directly impacts the functioning of the commission” when the Commission votes for a proposed change, sends the proposed language to the legislature, and the legislature “enacts the exact language provided.”
The maps drawn by the Commission have to comply with a long list of criteria, the most material of which require the creation of competitive districts and preclude the Commission from considering the effect on parties or individual candidates or officeholders. It’s required to hold a series of public meetings as it draws the maps,.
Finally, the Commission is required to submit its maps by August 15 of years ending in -1—that is, the years following the Census and preceding the first election under the new districts. The Oregon Supreme Court “shall adopt rules of procedure for review of redistricting maps,” and this review “shall take precedence over other matters before the Supreme Court.” The Court “may appoint a special master and vest the special master with the powers needed to assist the Supreme Court.”
Whew. Okay.
I laid that out in as much detail as I did to demonstrate how many changes the amendment makes—and how much the changes affect other provisions of the Constitution. This amendment affects the operations, though to varying levels, of all three branches of government.
First, the executive branch changes, which are the least important. The Secretary of State is required to administer the provisions of the amendment, including running the application process for membership on the Commission and providing administrative support. Given that current provisions in the state constitution obligate the Secretary of State to draw state legislative districts in the event that the legislature doesn’t, I don’t think this is significant. The Governor’s power to remove the Commissioners for specific causes is more significant—given that this provides the Governor with a power she doesn’t currently enjoy under the constitution—but probably minor.
Second, the legislative branch changes are pretty significant. The legislature is required to do certain things under this amendment—appropriate funds (and always at a level equal to, or greater than, the first appropriation) and provide precinct files. It’s also prohibited from doing certain other things—like enacting any law affecting the Commission that the Commission itself hasn’t drafted. In effect, the amendment delegates a material amount of legislative power to the Commission.
Third, the judicial branch changes are subtle—but could be the most deleterious to the amendment’s compliance with the separate-vote requirement. Note that, if a Commissioner is removed by the Governor, they can appeal the removal to the local circuit court, which “shall take precedence over other matters” pending before it. Likewise, if the Supreme Court hears an appeal from the removal proceeding, it “shall accord the highest priority to the matter.” And when the Supreme Court reviews the maps for compliance with the Constitution, its “review shall take precedence over other matters before the Supreme Court.”
Those changes represent a stunning modification of judicial authority—and they could affect the judiciary’s other obligations, too. Suppose, for example, that Oregon had an inmate sentenced to death, the execution was looming, and the inmate had filed a last-minute appeal.1 Separately, but unrelatedly, a Commissioner had been removed by the Governor and the removal had been upheld by the circuit court. If the Commissioner appealed to the Supreme Court, the court’s review of the removal “shall take precedence over other matters before” the court—meaning that review of the removal would come before deciding the death-penalty appeals.
Is that an absurd, unlikely hypothetical? Absolutely. But state courts have huge dockets and priorities that pull them in totally different directions. They have to balance their constitutional obligations, like ensuring that defendants have adequately speedy trials, with prudential ones, like ensuring that time-sensitive litigation is resolved quickly and without harm to any party. The way in which this amendment forces courts to alter their priorities is without precedent.
So considering these proposed changes together, are they “closely related”? While most of these changes might fit broadly under a scheme to ensure that legislative redistricting in Oregon happens in a nonpartisan and politically independent way, the breadth of the proposals likely stretches too far. I don’t think that there’s a sufficiently close relationship between (1) a requirement that the Supreme Court give the highest priority to its review of the Commission’s maps and (2) a rule that the Legislative Assembly can only enact legislation affecting the Commission if the Commission previously drafted it. I think that’s true for a number of the provisions that the amendment includes, too.
Of course, I don’t mean to suggest that the Oregon Supreme Court would unequivocally strike this amendment down. But there is an extremely strong case that this amendment is trying to do far too much—and that its provisions lack a sufficiently close relationship to comply with the state constitution’s separate-vote requirement.
Separately, I’m not convinced that these are desirable changes. Adopting a nonpartisan redistricting scheme is likely a good idea. But I’m not persuaded that limiting the Legislative Assembly’s power this much, or reshaping the priorities of the circuit courts and Supreme Court, is defensible.
In any event, there’s a long way to go before the 2024 election. Whether this ends up on the ballot, and whether voters ratify it, remains to be seen.
Oregon does have the death penalty, even if all of its governors for the last few decades have commuted the sentences of death-row inmates.