# State ex rel Kotek v. Fagan

> Oregon Supreme Court · April 9, 2021 · 367 Or. 803

URL: https://www.frixlaw.com/law-library/cases/10627418

## Case

- **Court:** Oregon Supreme Court
- **Decided:** April 9, 2021
- **Citations:** 367 Or. 803; 484 P.3d 1058
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Walters
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10627418. Public record. Not legal advice.