State ex rel Kotek v. Fagan

803

Original proceeding in mandamus, filed March 10, considered and under

advisement March 30; petition for a writ of mandamus allowed, peremptory writ

to issue April 9, 2021

STATE ex rel Representative Tina KOTEK

and Senator Peter Courtney,

on behalf of the Oregon Legislative Assembly,

Plaintiffs-Relators,

v.

Shemia FAGAN,

Oregon Secretary of State,

Defendant.

(S068364)

484 P3d 1058

Relators, appearing on behalf of the Oregon Legislative Assembly (Legislative

Assembly), filed an original mandamus proceeding, explaining that, due to the

COVID-19 pandemic, the federal government will not meet its statutory dead-

line to produce federal decennial census data in time for either the Legislative

Assembly or the Secretary of State (Secretary) to meet the deadlines for decen-

nial reapportionment of state legislative districts set out in Article IV, section 6,

of the Oregon Constitution. Relators asked the court to issue a writ of mandamus

requiring the Secretary to fulfill her constitutionally specified duties and to do so

on dates ordered by the court, and the Secretary opposed the petition. Held: (1)

The voters’ paramount purposes behind Article IV, section 6, were to (a) ensure

that reapportionment occur in conjunction with each federal census and reflect

the data provided by that census; (b) permit the Legislative Assembly to prepare

and enact a reapportionment plan, but, if it did not, to provide as an alterna-

tive that the Secretary would make a reapportionment plan; and (c) provide for

electors to challenge the reapportionment plan in the Supreme Court; (2) the

court is authorized to issue a writ of mandamus to order the fulfillment of those

constitutional duties; (3) it is not possible for the state to fulfill its duty to create

a reapportionment plan based on federal census data and still comply with the

constitutionally prescribed deadlines; and (4) alternative deadlines will enable

the Legislative Assembly and the Secretary to fulfill their constitutional duties

without significantly affecting the rights of voters or interfering with the 2022

general election cycle.

The petition for a writ of mandamus is allowed. Peremptory writ to issue.

Notwithstanding ORAP 9.25(1), the State Court Administrator shall issue the

peremptory writ and appellate judgment on Monday, April 19, 2021, unless a

petition for reconsideration is electronically filed by 11:59:59 p.m. on Friday,

April 16. Notwithstanding ORAP 9.25(2), if a petition for reconsideration is

filed, a response to the petition may be electronically filed by 11:59:59 p.m. on

Wednesday, April 21. A timely petition for reconsideration shall stay issuance of

the appellate judgment until the court acts on the petition.

En Banc

804 State ex rel Kotek v. Fagan

Anna M. Joyce, Markowitz Herbold PC, Portland, filed

the petition for writ of mandamus and reply in support of

petition for plaintiffs-relators. Also on the petition were

Harry B. Wilson and Stephen F. Deatherage.

P. K. Runkles-Pearson, Assistant Attorney General, Salem,

filed the memorandum in opposition and reply for defen-

dant. Also on the memorandum were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

WALTERS, C. J.

The petition for a writ of mandamus is allowed. Peremptory

writ to issue. Notwithstanding ORAP 9.25(1), the State Court

Administrator shall issue the peremptory writ and appel-

late judgment on Monday, April 19, 2021, unless a petition

for reconsideration is electronically filed by 11:59:59 p.m. on

Friday, April 16. Notwithstanding ORAP 9.25(2), if a peti-

tion for reconsideration is filed, a response to the petition

may be electronically filed by 11:59:59 p.m. on Wednesday,

April 21. A timely petition for reconsideration shall stay

issuance of the appellate judgment until the court acts on

the petition.

Cite as 367 Or 803 (2021) 805

WALTERS, C. J.

The relators in this mandamus proceeding are

Representative Tina Kotek, Speaker of the Oregon House of

Representatives, and Senator Peter Courtney, President of

the Oregon State Senate. Appearing on behalf of the Oregon

Legislative Assembly (Legislative Assembly), they inform us

that the federal government will not meet its statutory dead-

line to produce federal decennial census data and, therefore,

that neither the Legislative Assembly nor the Secretary

of State (Secretary) will be able to meet the deadlines for

decennial reapportionment of state legislative districts set

out in Article IV, section 6, of the Oregon Constitution.1

Relators ask that we exercise our authority under Article

VII (Amended), section 2, of the Oregon Constitution2 and

issue a writ of mandamus requiring the Secretary to fulfill

her constitutionally specified duties and to do so on dates

ordered by the court. Relators served their petition for writ

of mandamus on the Secretary, and she has appeared in

opposition.

As we will explain, Article IV, section 6, requires

the Legislative Assembly or the Secretary to reapportion

legislative districts every 10 years on the basis of federal

decennial census data, and includes deadlines to ensure

that a final reapportionment plan is adopted in time for the

next general election cycle. In this case, because the federal

government’s delayed release of the 2020 census data makes

it impossible for the Legislative Assembly and the Secretary

to fulfill their constitutional responsibilities without an

adjustment of those deadlines, and because the deadlines

can be modified without significantly affecting the duties of

the Legislative Assembly or the Secretary, or the rights of

electors, and without interfering with the general election

cycle, we will exercise our authority to compel compliance

with Article IV, section 6, according to a revised schedule set

1

The full text of Article IV, section 6, is set out in Appendix 1 to this opinion.

The deadlines for reapportioning the state into federal congressional dis-

tricts differ and are governed by statute. See ORS 188.125 (setting out different

deadlines and other procedural requirements).

2

Article VII (Amended), section 2, provides, in part, that “the supreme court

may, in its own discretion, take original jurisdiction in mandamus, quo warranto

and habeas corpus proceedings.”

806 State ex rel Kotek v. Fagan

out in Appendix 2 to this opinion. We will issue a peremp-

tory writ directing the Secretary to abide by that schedule.

The reapportionment process is set out in Article IV,

section 6, of the Oregon Constitution. In summary, that sec-

tion directs the Oregon Legislative Assembly to reappor-

tion state legislative districts in the year next following the

federal decennial census. Or Const, Art IV, § 6(1).3 If the

Legislative Assembly fails to enact a reapportionment plan,

then Article IV, section 6, requires the Secretary to make

a plan. Id. § 6(3). In either instance, electors are permit-

ted to challenge the plan, and this court is granted origi-

nal jurisdiction and directed to review any such challenges.

See id. §§ 6(2), 6(3)(b) - (e).

Article IV, section 6, also sets out deadlines for each

of those actions. Relevant here, the Legislative Assembly is

to enact a reapportionment plan by July 1 of the year fol-

lowing the federal decennial census. Id. §§ 6(1), 6(3). If the

Legislative Assembly fails to enact a plan by July 1, then

the Secretary is required to make a reapportionment plan

by August 15. Id. § 6(3)(a). In ordinary circumstances, those

deadlines would give the Legislative Assembly three months

after receipt of the federal census data to enact a plan and, if

it failed to do so, then the deadlines would give the Secretary

an additional 45 days to make her plan. That is because, by

federal law, the United States Secretary of Commerce must

conduct the decennial census in 1980 and every 10 years

thereafter and provide results to the states before April 1

of the following year. 13 USC § 141(a), (c). Thus, in ordinary

circumstances, the State of Oregon would receive federal

census data by March 31, 2021, allowing three months for

the Legislative Assembly to enact a plan by its deadline of

3

Article IV, section 6(1), specifies that reapportionment shall occur in “the

odd-numbered year regular session of the Legislative Assembly next following

an enumeration of the inhabitants by the United States Government.” It is not

disputed that that phrase refers to the “[e]numeration” of inhabitants by the

federal government that is mandated every 10 years by Article I, section 2, of

the United States Constitution. The federal government conducts that “enu-

meration” every 10 years pursuant to the Census Act, 13 USC, § 1 et seq. The

parties understand Article IV, section 6(1), to require reapportionment in the

year next following the federal census conducted under that Act (here, in 2021

following the 2020 federal census), and, for purposes of this case, we accept that

understanding.

Cite as 367 Or 803 (2021) 807

July 1, or, failing that, for the Secretary to make a plan by

her deadline of August 15.

This year, however, is different. Because of the

COVID-19 pandemic, the Census Bureau has announced

that it will not provide 2020 census data to the states until

between August 15 and August 31, 2021.4 Consequently,

assuming that the federal census data is released at the

earliest anticipated date—August 15—it will come after

the constitutional due dates for the plans either enacted or

made by the Legislative Assembly or the Secretary.

Citing that impossibility, relators ask this court to

issue a writ of mandamus. They ask us to extend the dead-

lines for the Legislative Assembly to enact a reapportion-

ment plan, and to enjoin the Secretary from making a plan

until after the Legislative Assembly has had an opportunity

to do so.

The Secretary recognizes the difficulty identified by

relators, but she objects to relators’ proposed solution. She

contends that this court does not have authority to issue a

writ of mandamus and argues that, even if it does, no exten-

sion of the Article IV, section 6, deadlines is warranted.

The Secretary concedes that federal census data “may be

the most accurate and well-accepted evidence of popula-

tion,” but she maintains that that data is not necessary to

prepare a plan. She asserts that the Population Research

Center, housed at Portland State University, could provide

data sufficiently reliable to adopt an initial plan and that

any subsequent changes required in light of federal census

data could be handled during any ensuing judicial review of

an objection to the plan filed in this court.

The first question for us, then, is whether we have

authority to provide relief in mandamus. As noted, Article

VII (Amended), section 2, of the Oregon Constitution gives

this court original jurisdiction to issue writs of mandamus.

ORS 34.110 defines a writ of mandamus:

4

See “U.S. Census Bureau Statement on Release of Legacy Format Summary

Redistricting Data File” (Mar 15, 2021), https://www.census.gov/newsroom/

press-releases/2021/statement-legacy-format-redistricting.html (accessed Apr 7,

2021) (data will be released “by mid-to-late August 2021”).

808 State ex rel Kotek v. Fagan

“A writ of mandamus may be issued to any inferior

court, corporation, board, officer or person, to compel the

performance of an act which the law specially enjoins, as a

duty resulting from an office, trust or station[.]”

Accordingly, we have authority to issue a writ to compel the

performance of an act that the law requires the Legislative

Assembly or the Secretary to perform, given their respec-

tive duties regarding reapportionment. In this case, rela-

tors assert that we have authority to order the Legislative

Assembly and the Secretary to wait to perform their reap-

portionment duties until after the federal census data is

received, and to order revised deadlines to enable them to

accomplish those duties. The Secretary responds that we do

not have that authority. In her view, we would not be order-

ing her to do what the law requires, but, instead, would be

commanding what the law prohibits. We agree with the par-

ties that whether this court can order an extension of the

deadlines in Article IV, section 6, depends on the nature of

the reapportionment duties of the Legislative Assembly and

the Secretary. To inform our understanding of that issue, we

begin by looking both to the federal constitutional require-

ments for reapportionment, and to the genesis of Article IV,

section 6.

The Equal Protection Clause of the United States

Constitution imposes a duty on the states to reapportion

state legislative districts by population. See Reynolds v.

Sims, 377 US 533, 568, 84 S Ct 1362, 12 L Ed 2d 506 (1964)

(Equal Protection Clause “requires that the seats in both

houses of a bicameral state legislature must be apportioned

on a population basis”).5 Although reapportionment every

5

In Reynolds, the United States Supreme Court expressed the compelling

nature of that command:

“To the extent that a citizen’s right to vote is debased, he is that much

less a citizen. The fact that an individual lives here or there is not a legiti-

mate reason for overweighting or diluting the efficacy of his vote. The com-

plexions of societies and civilizations change, often with amazing rapidity.

A nation once primarily rural in character becomes predominantly urban.

Representation schemes once fair and equitable become archaic and out-

dated. But the basic principle of representative government remains, and

must remain, unchanged—the weight of a citizen’s vote cannot be made to

depend on where he lives. Population is, of necessity, the starting point for

consideration and the controlling criterion for judgment in legislative appor-

tionment controversies. A citizen, a qualified voter, is no more nor no less so

Cite as 367 Or 803 (2021) 809

10 years is not constitutionally mandated, any longer inter-

val “would assuredly be constitutionally suspect.” Id. at

583-84.

The original Oregon Constitution also contemplated

regular reapportionment of state legislative districts by

population. Article IV, section 5, provided for a state census

every 10 years starting in 1865, and Article IV, section 6,

required the Legislative Assembly to conduct a reapportion-

ment in the year after every census, state or federal. See Or

Const, Art IV, §§ 5, 6 (1857). However, despite the duty to do

so, the Legislative Assembly made no changes to legislative

district boundaries for a period of more than four decades,

between 1911 and 1952. See Official Voters’ Pamphlet,

General Election, Nov 4, 1952, 81 (explanatory statement

noting that last reapportionment had been in 1911).6

In 1952, the voters amended Article IV, section 6, to

require reapportionment after only the federal, as opposed

to the state, census and to require the Secretary to make a

reapportionment plan if the Legislative Assembly failed to

because he lives in the city or on the farm. This is the clear and strong com-

mand of our Constitution’s Equal Protection Clause. This is an essential part

of the concept of a government of laws and not men. This is at the heart of

Lincoln’s vision of ‘government of the people, by the people, [and] for the peo-

ple.’ The Equal Protection Clause demands no less than substantially equal

state legislative representation for all citizens, of all places as well as of all

races.

“* * * * *

“We hold that, as a basic constitutional standard, the Equal Protection

Clause requires that the seats in both houses of a bicameral state legislature

must be apportioned on a population basis.”

377 US at 567-68 (alteration in original; footnotes omitted).

6

The explanatory statement for the 1952 amendment to Article IV,

section 6, which established the framework used today for reapportionment, pro-

vided, in part:

“At the present time and because the Legislature has failed to make

any reapportionment for over 40 years, some Counties or Districts have

more legislative representation than they are entitled to under the present

Constitution. Others have less representation. This amendment would bring

about an immediate reapportionment on the population basis now provided

by the Constitution and would assure that such a reapportionment would

hereafter be made every ten years.”

Voters’ Pamphlet at 81. Indeed, the ballot title caption for the proposed mea-

sure was “Constitutional Legislative Senator and Representative Apportionment

Enforcement Amendment.” Id.

810 State ex rel Kotek v. Fagan

do so.7 Given the history just discussed, the voters’ purpose

in amending the provision at issue before us seems to have

been two-fold: (1) to ensure that reapportionment occur in

conjunction with each federal census and reflect the data

provided by that census; and (2) to permit the Legislative

Assembly to enact a reapportionment plan, but to provide

an alternative if it did not.

Thus, Article IV, section 6, imposes a duty on the

Legislative Assembly to enact a reapportionment plan based

on federal census data in advance of the next general elec-

tion cycle, and it imposes a similar duty on the Secretary if

the Legislative Assembly fails to act. We are authorized to

issue a writ of mandamus to order the fulfillment of those

constitutional duties, and, as we will explain, we do not see

the deadlines prescribed by that section as prohibiting us

from exercising that authority.

As indicated, the voters’ intent was to require that

reapportionment occur every 10 years based on census data

and in time for the upcoming election cycle. Notably, neither

the text of Article IV, section 6, nor the history of the amend-

ments to that section, indicates that the voters intended the

specified deadlines to serve a purpose other than to provide

a means to those ends. We have been presented with no

reason why the voters who adopted the 1952 amendments

would have been concerned with the exact date by which

the Legislative Assembly or Secretary are required to enact

or make a plan, except as part of a larger framework cal-

culated to result in the adoption of a timely final plan. Nor

is there any indication that the voters would have intended

to require the Legislative Assembly to adhere to the

July 1 deadline for legislative action in the unforeseen event

that federal census data—the impetus for drawing new

7

Although Article IV, section 6, was revised in 1986 (House Joint Resolution

(HJR) 6 (1985), adopted Nov 4, 1986), and the text has undergone minor addi-

tional modifications since, the current version retains all the salient features

first adopted in 1952. The 1986 revision expressly was not intended to change the

overall scheme established in 1952; rather, it merely extended the deadlines and

made certain other changes not relevant to the question before us. See Official

Voters’ Pamphlet, General Election, Nov 4, 1986, 8 (explanatory statement).

Accordingly, we focus on the voters’ purpose in 1952.

In 1972, the voters deleted Article IV, section 5, providing for a state census.

HJR 16 (1971), adopted May 23, 1972.

Cite as 367 Or 803 (2021) 811

district lines in the first place—was not available by that

date.

Instead, the voters’ paramount interests seem to

have been to direct the Legislative Assembly to enact a

reapportionment plan based on census data in advance of

the next general election cycle and to provide an alternative

means by which a plan would still be made if the Legislative

Assembly fails to act. As we see it, the fact that the vot-

ers also adopted deadlines to give effect to those interests

does not deprive us of authority to order that the Legislative

Assembly and the Secretary fulfill the primary duties that

the voters imposed. If it were possible for the State of Oregon

to comply with all the requirements of Article IV, section 6,

we of course would require that it do so. But here, where it

is not possible for the state to create a reapportionment plan

based on federal census data and still comply with the con-

stitutionally prescribed deadlines, and where it is possible

for the state to fulfill its paramount duties in compliance

with modified deadlines, we conclude that we have author-

ity to direct it to do so. Relators ask us to use our manda-

mus authority to require the Secretary to act in accordance

with the duties imposed by Article IV, section 6—to make a

reapportionment plan based on data from the federal cen-

sus, and to wait to do so until the Legislative Assembly has

first had an opportunity to enact a plan. We conclude that

we have authority to make such orders, and we now turn to

the question of whether we should do so.

The Secretary argues that we need not act because

the Legislative Assembly can use available noncensus data

that is sufficiently accurate to enable it to enact an initial

reapportionment plan by the July 1 deadline, which could

then be revised during the judicial review process. We see

substantial flaws in the Secretary’s argument.

For one, the Secretary concedes that census data

is the best evidence of population, and she does not dispute

the central role that Article IV, section 6, accords to federal

census data in plan preparation. If it is possible to wait for

that data and meet other constitutional requirements, then

requiring the enactment or making of a plan without that

812 State ex rel Kotek v. Fagan

data seems to fly in the face of the provisions of Article IV,

section 6.8

A second flaw in the Secretary’s argument is that

requiring a two-step process—the enactment or making of

a plan using noncensus data, with later revisions to align

with census data—would interfere with the electors’ consti-

tutional right to object to a plan prepared by the Legislative

Assembly. Article IV, section 6, gives electors 30 days after

a reapportionment plan is enacted or made to file objections

to the plan. See Or Const, Art IV, §§ 6(2)(a), 6(3)(b) (last

date for objection by electors is August 1 or September 15,

depending on which entity enacted or made plan).9 The

Secretary does not dispute that the constitutional revision

process contemplates that electors will have time to eval-

uate the plan in light of census data and make individu-

ally targeted objections. See Or Const, Art IV, §§ 6(2)(c),

6(3)(d) (both providing that, if plan enacted or made “does

not comply with subsection (1) [of Article IV, section 6,] * * *

and all law applicable thereto,” this court must specify “with

particularity wherein the reapportionment fails to com-

ply”). Thus, as the Secretary also recognizes, if a plan were

enacted or made without federal census data, electors would

be required to file “placeholder” objections for later revi-

sion once the census data becomes available. Beyond that,

this court would be required to engage in a wide-ranging

and potentially unconstrained review of a challenged plan

in an effort to identify problems, all with little or no input

or assistance from interested parties.10 Such a result is not

8

In so noting, we do not suggest that the Legislative Assembly or the Secretary

must rely only on census data in all instances. See Hartung v. Bradbury, 332 Or

570, 599 n 26, 33 P3d 972 (2001) (permitting Secretary to use noncensus data

to correct plan when census data regarding particular census block was indis-

putably in error and reliable, unbiased sources were available). It may be useful

for the Legislative Assembly or the Secretary to prepare draft reapportionment

plans using noncensus data from the Population Research Center before enacting

or making a plan. Given the short time frames involved, we do not wish to dis-

courage or prohibit that use.

9

Not only might the objections have to be made without access to the cen-

sus data, but persons responding to the objection might have to do so without

reference to the data, either. See ORAP 11.35(6)(a) (briefs in opposition are due

10 business days after date objections are due).

10

See Or Const, Art IV, §§ 6(2)(b), 6(3)(c) (Supreme Court’s jurisdiction is to

determine whether challenged plan “complies with subsection (1) of this section

and all law applicable thereto”); id. §§ 6(2)(c), 6(3)(d) (if plan does not comply,

Cite as 367 Or 803 (2021) 813

consistent with the constitutional expectation that electors

should have adequate time to make objections and to have

those objections heard.

Finally, the Secretary’s argument assumes that,

after a reapportionment plan is enacted or made without

the benefit of federal census data, this court will conduct

a review process, during which federal census data can be

considered. However, no such review process will occur if

electors do not file objections to such a plan. We reject the

Secretary’s argument that we should not act because there

is no need to act.

Our final challenge is to determine whether we can

craft deadlines that will enable the Legislative Assembly

and the Secretary to fulfill their constitutional duties with-

out significantly affecting the rights of voters or interfer-

ing with the 2022 general election cycle.11 The Secretary

has represented that candidates for state legislative office

must declare their candidacy by March 8, 2022. See ORS

249.037(1) (declaration of candidacy must be filed at least

70 days before nominating election). For potential candi-

dates to be able to do so, they must have some reasonable

certainty that they have resided in that legislative dis-

trict for the required period of time. See Or Const, Art IV,

§ 8(1)(a)(B) (general requirement is one year before election

date); id. § 8(1)(b) (for general election in year following

reapportionment, candidate must have resided in district

since January 1). Accordingly, a reapportionment plan

must become final before March 8, or it would derail the

primary election scheduled to be held on May 17, 2022. In

addition, any revised deadlines must still allow sufficient

time for participation and review by those with a role in

the process, including electors and, assuming one or more

objections are filed, review by this court.

Supreme Court must issue opinion that specifies “with particularity wherein the

reapportionment fails to comply”).

11

In an effort to identify possible alternative deadlines that would achieve

the requirements of Article IV, section 6, we previously submitted a draft set of

deadlines to the parties. We have considered the parties’ responses, as well as

the federal government’s recently revised announcement that census data will be

available earlier than previously expected. As discussed below, the dates set out

in Appendix 2 of this opinion reflect those considerations.

814 State ex rel Kotek v. Fagan

Attached as Appendix 2 to this opinion are a revised

set of deadlines and a revised set of effective dates that will

meet those objectives. The deadlines set out in Appendix 2

provide participants with substantially the same amount of

time as they would have had under the deadlines set out

in Article IV, section 6, and a plan will be final no later

than February 8, 2022.12 The Legislative Assembly and the

Secretary will have less time to work with the census data

than would be true in an ordinary year, but the Secretary

has assured us that both will have the use of noncensus

population data that should enable their work to begin well

before the census data is delivered.

In light of the impossibility of compliance with the

constitutionally prescribed dates that is presented by the

delay in delivery of the federal census data, we conclude that

a writ of mandamus should issue directing the Secretary to

fulfill her constitutional responsibilities in compliance with

the deadlines set out in Appendix 2 to this opinion.

Certain other changes are also necessary. First, the

census delays leave no doubt that the Legislative Assembly

cannot enact a reapportionment plan during its regular ses-

sion. See Or Const, Art IV, § 6(3) (Legislative Assembly must

enact plan during regular sessions and no later than July 1).

This year’s regular session must end by June 28, 2021,

and the census data will not be received by that date. See

Or Const, Art IV, § 10(1)(a) (regular session of legislature

cannot last longer than 160 days; current regular session

began on January 19). To give the Legislative Assembly its

constitutionally guaranteed opportunity to enact a reap-

portionment plan, relators ask this court to authorize the

Legislative Assembly to enact such a plan during an emer-

gency session, rather than a regular session. We agree that

12

Article IV, section 6(6), provides two different effective dates. The only

effective date affected by this decision is set out in section 6(6)(b), which applies

“[f]or purposes of electing Senators and Representatives to the next term of office

that commences after the applicable deadline for making a final reapportion-

ment under this section.” The other effective date provision, set out in section

6(6)(a), applies in all other instances, and for those purposes, the reapportion-

ment plan is not effective until January 2023. See Or Const, Art IV, § 6(6)(a)

(plan is “operative on the second Monday in January of the next odd-numbered

year after the applicable deadline for making a final reapportionment under this

section”).

Cite as 367 Or 803 (2021) 815

that is appropriate, and we will include that provision in the

writ that is to issue.

Second, relators have asked us to revise the dead-

line in Article IV, section 8(1)(b). That section provides that,

for the general election after a reapportionment, legislative

candidates must become a resident of the districts they seek

to represent by the assumed effective date of the reappor-

tionment: January 1, 2022. Given the potential delay in the

effective date of the reapportionment, we modify that dead-

line so that the residency period runs from the date that the

reapportionment becomes effective under the revised dead-

lines set out in Appendix 2 of this opinion.13

Ordinarily, at this stage of a mandamus proceed-

ing, we would allow the petition and issue an alternative

writ of mandamus. Doing so would trigger further pleading,

briefing, and oral argument before this court. See ORAP

11.15 (describing process). In this case, however, time is of

the essence, and the parties agree that the filings already

before us fully and adequately set out their positions; no

additional briefing is needed. Accordingly, we treat the mat-

ter as fully submitted and ready for decision.

For the reasons discussed above, relators’ petition

for a writ of mandamus is allowed. A peremptory writ of

mandamus shall issue establishing revised deadlines for

performance of the paramount duties described in Article IV,

section 6; permitting the Legislative Assembly to enact a

reapportionment plan during an emergency session; provid-

ing a revised residency timeline under Article IV, section

8(1)(b); and directing the Secretary to perform her duties

under Article IV, section 6, pursuant to the revised dead-

lines set out in Appendix 2.

13

Relators have identified a number of additional statutory deadlines that

they suggest needed to be changed. None of those deadlines runs from the effec-

tive date of the reapportionment; almost all the deadlines are the first date that

some action is permitted, and almost all those first dates precede the currently

prescribed January 1 effective date for a reapportionment. The reason why

persons should be prohibited from taking action earlier is neither obvious nor

explained by relators. Moreover, doing so would in most cases narrow the avail-

able window of time for taking such actions. Accordingly, we decline the invita-

tion to make those additional changes.

816 State ex rel Kotek v. Fagan

The petition for a writ of mandamus is allowed.

Peremptory writ to issue. Notwithstanding ORAP 9.25(1),

the State Court Administrator shall issue the peremptory

writ and appellate judgment on Monday, April 19, 2021,

unless a petition for reconsideration is electronically filed by

11:59:59 p.m. on Friday, April 16. Notwithstanding ORAP

9.25(2), if a petition for reconsideration is filed, a response to

the petition may be electronically filed by 11:59:59 p.m. on

Wednesday, April 21. A timely petition for reconsideration

shall stay issuance of the appellate judgment until the court

acts on the petition.

Cite as 367 Or 803 (2021) 817

APPENDIX 1—TEXT OF ARTICLE IV, SECTION 6

“(1) At the odd-numbered year regular session of the

Legislative Assembly next following an enumeration of the

inhabitants by the United States Government, the number

of Senators and Representatives shall be fixed by law and

apportioned among legislative districts according to popu-

lation. A senatorial district shall consist of two representa-

tive districts. Any Senator whose term continues through

the next odd-numbered year regular legislative session

after the operative date of the reapportionment shall be

specifically assigned to a senatorial district. The ratio of

Senators and Representatives, respectively, to population

shall be determined by dividing the total population of

the state by the number of Senators and by the number

of Representatives. A reapportionment by the Legislative

Assembly becomes operative as described in subsection (6)

of this section.

“(2) This subsection governs judicial review and cor-

rection of a reapportionment enacted by the Legislative

Assembly.

“(a) Original jurisdiction is vested in the Supreme

Court, upon the petition of any elector of the state filed

with the Supreme Court on or before August 1 of the year

in which the Legislative Assembly enacts a reapportion-

ment, to review any reapportionment so enacted.

“(b) If the Supreme Court determines that the reap-

portionment thus reviewed complies with subsection (1) of

this section and all law applicable thereto, it shall dismiss

the petition by written opinion on or before September 1 of

the same year and the reapportionment becomes operative

as described in subsection (6) of this section.

“(c) If the Supreme Court determines that the reappor-

tionment does not comply with subsection (1) of this section

and all law applicable thereto, the reapportionment shall be

void. In its written opinion, the Supreme Court shall spec-

ify with particularity wherein the reapportionment fails

to comply. The opinion shall further direct the Secretary

of State to draft a reapportionment of the Senators and

Representatives in accordance with the provisions of sub-

section (1) of this section and all law applicable thereto.

The Supreme Court shall file its order with the Secretary

of State on or before September 15. The Secretary of State

shall conduct a hearing on the reapportionment at which

818 State ex rel Kotek v. Fagan

the public may submit evidence, views and argument. The

Secretary of State shall cause a transcription of the hear-

ing to be prepared which, with the evidence, shall become

part of the record. The Secretary of State shall file the

corrected reapportionment with the Supreme Court on or

before November 1 of the same year.

“(d) On or before November 15, the Supreme Court

shall review the corrected reapportionment to assure its

compliance with subsection (1) of this section and all law

applicable thereto and may further correct the reapportion-

ment if the court considers correction to be necessary.

“(e) The corrected reapportionment becomes operative

as described in subsection (6) of this section.

“(3) This subsection governs enactment, judicial review

and correction of a reapportionment if the Legislative

Assembly fails to enact any reapportionment by July 1 of

the year of the odd-numbered year regular session of the

Legislative Assembly next following an enumeration of the

inhabitants by the United States Government.

“(a) The Secretary of State shall make a reapportion-

ment of the Senators and Representatives in accordance

with the provisions of subsection (1) of this section and all

law applicable thereto. The Secretary of State shall con-

duct a hearing on the reapportionment at which the public

may submit evidence, views and argument. The Secretary

of State shall cause a transcription of the hearing to be

prepared which, with the evidence, shall become part of the

record. The reapportionment so made shall be filed with

the Supreme Court by August 15 of the same year. The

reapportionment becomes operative as described in subsec-

tion (6) of this section.

“(b) Original jurisdiction is vested in the Supreme

Court upon the petition of any elector of the state filed with

the Supreme Court on or before September 15 of the same

year to review any reapportionment and the record made

by the Secretary of State.

“(c) If the Supreme Court determines that the reappor-

tionment thus reviewed complies with subsection (1) of this

section and all law applicable thereto, it shall dismiss the

petition by written opinion on or before October 15 of the

same year and the reapportionment becomes operative as

described in subsection (6) of this section.

Cite as 367 Or 803 (2021) 819

“(d) If the Supreme Court determines that the reap-

portionment does not comply with subsection (1) of this

section and all law applicable thereto, the reapportionment

shall be void. The Supreme Court shall return the reappor-

tionment by November 1 to the Secretary of State accom-

panied by a written opinion specifying with particularity

wherein the reapportionment fails to comply. The opinion

shall further direct the Secretary of State to correct the

reapportionment in those particulars, and in no others,

and file the corrected reapportionment with the Supreme

Court on or before December 1 of the same year.

“(e) On or before December 15, the Supreme Court

shall review the corrected reapportionment to assure its

compliance with subsection (1) of this section and all law

applicable thereto and may further correct the reapportion-

ment if the court considers correction to be necessary.

“(f) The reapportionment becomes operative as

described in subsection (6) of this section.

“(4) Any reapportionment that becomes operative as

provided in this section is a law of the state except for pur-

poses of initiative and referendum.

“(5) Notwithstanding section 18, Article II of this

Constitution, after the convening of the next odd-numbered

year regular legislative session following the reapportion-

ment, a Senator whose term continues through that legisla-

tive session is subject to recall by the electors of the district

to which the Senator is assigned and not by the electors

of the district existing before the latest reapportionment.

The number of signatures required on the recall petition

is 15 percent of the total votes cast for all candidates for

Governor at the most recent election at which a candidate

for Governor was elected to a full term in the two represen-

tative districts comprising the senatorial district to which

the Senator was assigned.

“(6)(a) Except as provided in paragraph (b) of this

subsection, a reapportionment made under this section

becomes operative on the second Monday in January of the

next odd-numbered year after the applicable deadline for

making a final reapportionment under this section.

“(b) For purposes of electing Senators and Represen-

tatives to the next term of office that commences after the

applicable deadline for making a final reapportionment

820 State ex rel Kotek v. Fagan

under this section, a reapportionment made under this sec-

tion becomes operative on January 1 of the calendar year

next following the applicable deadline for making a final

reapportionment under this section.”

Cite as 367 Or 803 (2021) 821

APPENDIX 2

The Oregon Supreme Court directs that the follow-

ing revised deadlines be used in the State of Oregon reap-

portionment process for 2021:

REAPPORTIONMENT PLAN

BY LEGISLATIVE ASSEMBLY

1. If the Legislative Assembly enacts a plan, the following

revised deadlines apply:

a. The Legislative Assembly will enact a plan on or

before Monday, September 27, 2021, and may do

so in an emergency session rather than its regular

session.

b. Objections by electors are due by Monday, October 25,

2021.

i. Responses by the Legislative Assembly, Secretary

of State, or others, as well as amicus briefs

(discouraged) are due by Monday, November 8,

2021.

ii. Any reply briefs, though discouraged, are due

by Monday, November 15, 2021.

c. If the Supreme Court determines that the initial

plan complies with applicable law:

i. A Supreme Court opinion approving the plan

will be filed by Monday, November 22, 2021;

and

ii. The reapportionment plan will become effec-

tive January 1, 2022, for purposes of Or Const,

Art IV, § 6(6)(b), only.

d. If the Supreme Court determines that the initial

plan requires corrections, a Supreme Court opinion

to that effect will be filed by Monday, December 6,

2021, and the plan will be sent to the Secretary of

State for changes.

i. The revisions by the Secretary of State are due

by Monday, January 17, 2022.

ii. The Supreme Court will approve the revisions

or make any necessary additional corrections

by Monday, January 31, 2022.

822 State ex rel Kotek v. Fagan

iii. The reapportionment plan will become effec-

tive Tuesday, February 1, 2022, for purposes of

Or Const, Art IV, § 6(6)(b), only, and that will

serve as the date for state legislators to estab-

lish residency under Or Const, Art IV, § 8(1)(b).

REAPPORTIONMENT PLAN

BY SECRETARY OF STATE

2. If the Legislative Assembly does not enact a plan by

September 27, 2021, the following revised deadlines apply:

a. If the Legislative Assembly fails to enact a plan by

September 27, 2021, the Secretary of State’s plan

is due by Monday, October 18, 2021.

b. Objections by electors are due by Monday,

November 15, 2021.

i. Responses by the Legislative Assembly,

Secretary of State, or others, as well as amicus

briefs (discouraged) are due by Monday,

November 29, 2021.

ii. Any reply briefs, though discouraged, are due

by Monday, December 6, 2021.

c. If the Supreme Court determines that the initial

plan complies with applicable law:

i. A Supreme Court opinion approving the plan

will be filed by Monday, December 13, 2021.

ii. The reapportionment plan will become effec-

tive January 1, 2022, for purposes of Or Const,

Art IV, § 6(6)(b), only.

d. If the Supreme Court determines that the initial

plan requires corrections, a Supreme Court opinion

to that effect will be filed by Monday, December 27,

2021, and the plan will be returned to the Secretary

of State for changes.

i. The revisions by the Secretary of State are due

by Monday, January 24, 2022.

ii. The Supreme Court will approve the revisions

or make any necessary additional corrections

by Monday, February 7, 2022.

Cite as 367 Or 803 (2021) 823

iii. The reapportionment plan will become effec-

tive Tuesday, February 8, 2022, for purposes

of Or Const, Art IV, § 6(6)(b), only, and that

will serve as the date for state legislators to

establish residency under Or Const, Art IV,

§ 8(1)(b).14

14

Unless otherwise expressly noted or necessarily changed by implication,

all other formal requisites of the reapportionment process remain unchanged.