Elden Rosenthal: The Census, Redistricting, and the Rule of Law
The Oregon Supreme Court should resist the invitation to ignore the state's Constitution, doing so would set a troubling and destabilizing precedent.
Oregon trial lawyer, 1972-2017. Member, Board of Directors, Southern Poverty Law Center.
The rule of law is the basis of American society. The understanding that breaking the law will have real consequences, the recognition that law is established by legislatures and interpreted by courts that are open to the public, the ethical obligations placed on lawyers and judges, all of these tenets of the rule of law coalesce into a system of economic stability and social order. The rule of law in America has been at times ignored and abused, but has ultimately, in most circumstances, prevailed. There is no substitute for the rule of law. Unexpectedly, the pandemic’s impact on the census is framing a new challenge for the rule of law.
How do you count the number of people living in the United States? It has been a recurring problem since the Constitution was enacted. Article 1, Section 2 ties the census to the necessity of determining the composition of the U.S. House of Representatives, and leaves most of the details up to Congress. Most, not all. The Constitution originally declared that slaves should be counted as “three fifths” persons, and that most American Indians were to be excluded.
After the Civil War, and the adoption of the Fourteenth Amendment, controversies over the census did not end. Most notable were the events following the 1920 census. The 1920 census count showed for the first time that the majority of Americans lived in urban areas and that over thirteen percent of Americans were foreign-born residents. Congress reacted to this news with alarm, refusing to accept the census numbers. Congress delayed reapportioning itself until 1929, brazenly maintaining rural overrepresentation.
The “three fifths” clause and the delayed implementation of the 1920 results make it clear that the census is inextricably tied up in politics. When we count informs how frequently electoral norms may shift. How soon we incorporate census results informs how federal funds are distributed and how voting districts will be drawn. And, of course, who we count shapes who has power in elections.
That’s why who should be counted is an issue that won’t go away. The Supreme Court in June of 2019 overruled the Trump administration’s effort to include a citizenship question in the census. Chief Justice Roberts joined with the liberal Justices on the Court in holding that the Secretary of Commerce’s asserted justification for the citizenship question was a pretext, that the question was adopted for “unknown” reasons. Political pundits supplied the obvious answer: it was an effort to undercount persons in Blue states.
The census began on time in January of 2020 with the counting of Lizzie Chimiugak Nenguryarr, a 90-year old resident in Toksook Bay, Alaska. But COVID quickly began interfering with the count. For the first time in the Census Bureau’s history the count was not completed on time. Not only is there no count yet upon which Congress can enact a reapportionment bill, but there is also no data for states to use in adjusting local districts for state legislatures. Neither federal nor state office holders know whether “their” districts are safe or will even exist when primaries roll around next year. And nothing unsettles elected officials more than uncertainty about their own reelection.
The reapportionment situation in Oregon is complicated by deadlines in the state constitution. Article IV, section 6 of the Oregon Constitution requires reapportionment to occur during the “odd-numbered year regular session” of the Legislature “next following an enumeration of the inhabitants by the United States Government.” The most recent Census Bureau estimate for when the necessary “enumeration” will be complete is mid-September. By law the regular session of the Oregon legislature may only last 160 days in odd-numbered years. So, June 28 is the last day of the session this year. Additionally, the same section of the Constitution requires the legislature to complete its reapportionment plan by July 1 of the year following the census. In short, the constitutional deadline for legislative action is impossible to meet this year because the data from the Census Bureau will arrive months late.
If the legislature cannot do the job by July 1, as will be the case this year, the Oregon Constitution empowers the Secretary of State to draw the reapportionment map, but there is also a time limit in Article IV, section 6 for the Secretary of State: August 15th. Again, impossible this year.
The Speakers of the Oregon House and the Oregon Senate, concerned that the legislature would be cut out of the redistricting process, filed a lawsuit last week asking the Oregon Supreme Court to extend the constitutional deadlines. To my knowledge, the Oregon Supreme Court has never before intentionally taken action that is explicitly contrary to the Oregon Constitution, unless required to do so by the federal Constitution.
So now what?
The Legislature is hoping the Supreme Court will ignore constitutional niceties and simply extend the deadlines. That seems like the expedient thing to do. But at what cost to the rule of law in Oregon? Will the next crisis then be an excuse to again ignore an explicit mandate contained in the Oregon Constitution? Would an Oregon governor’s declaration of civil insurrection be the basis for suspending freedom of speech? Would an emergent need for government revenue allow the seizure of private property without compensation? These what ifs are admittedly extreme. But if explicit requirements of the Constitution can be ignored because of a pandemic, then why not because of other extreme situations?
Some thoughts:
The Oregon Constitution is burdened with the kind of detail that should be contained in statutory law, not in the constitution. Consider that in addition constitutionalizing mandatory dates for reapportionment, the Oregon Constitution does such things as specifying how lottery revenue must be spent (Article XV, section 4), requiring the Home Care Commission to ensure “adequate hours of service are provide to clients” (Article XV, section 11), and providing that no more than one-fifth of one percent “of the real market value of all property in the state,” may be used to provide funds for the planning and implementation of seismic rehabilitation of emergency services buildings” (Article XI-N, section 1). This level of government detail simply does not belong in a state constitution.
The Supreme Court should resist the invitation to ignore the Oregon Constitution.
The Oregon Constitution places the ultimate responsibility for approving any reapportionment plan on the Oregon Supreme Court. If neither the Legislature nor the Secretary of State completes the job correctly by September 15, then any citizen can ask the Supreme Court to review the reapportionment. The Court then has until November 1 to return the reapportionment plan to the Secretary of State. The reapportionment can then be completed.
The Legislature and the Secretary of State should sit down and work out a plan for getting the reapportionment work done as soon as the data is made available. Set up a commission, or whatever needs to be done to insure that a plan will be completed by December 15th (another date in the Constitution, the date the Oregon Supreme Court must “review the corrected reapportionment”).
The date requirements in the Oregon Constitution should be modified before the next census to provide for reasonable extensions of time if the Governor declares the need based on a future failure of the Census Bureau to provide the results of the decennial census.
Political pressure is undoubtedly pressing on the seven Justices of the Supreme Court to do the expedient thing and permit Oregon to ignore the state’s constitution. The price of doing that is too high. Sometimes things need to be done the hard way. Our nation’s entire political and economic system is grounded and anchored by the rule of law. A central component of the rule of law is adherence to the constitutions of the federal and state governments. Autocracies ignore constitutions and do what is deemed expedient. Constitutional democracies obey the express requirements of the law.
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