Oregon lawmakers beat deadline to pass redistricting maps

Oregon Gov. Kate Brown signed legislation to create 90 legislative districts as well as add a sixth congressional district. The bills passed largely along party lines. Republican lawmakers say the process is “rigged” to give Democrats an advantage in elections, but showed up to allow the passage. We talk with two legislators a part of the Committees on Congressional Redistricting and State Legislative Rep. Shelly Boshart Davis (R-Albany), is a member of both, and Rep. Andrea Salinas (D-Lake Oswego) is the chair for both.

Doug Spencer teaches law at the University of Colorado and manages the All About Redistricting website. He joins us to share how the Oregon process compares with other states and how redistricting and gerrymandering are now deeply embedded in American politics.

This transcript was created by a computer and edited by a volunteer.

Dave Miller: Oregon has new maps for its legislative and congressional districts. Democratic lawmakers approved the plans which include the boundaries for a new congressional seat yesterday. Governor Kate Brown signed them into law last night. In doing so, Oregon became the first state in the country to finish its congressional redistricting. All of this seemed highly unlikely just a few days ago when Republican state representatives stayed away from the capital to prevent a vote on the maps. Republicans remain deeply unhappy about both the process and the final results.

In a few minutes, we’ll put this Oregon news in a national context, but we start with two state lawmakers who were a part of the process. Shelly Boshart Davis is a Republican Representative from Albany, Millersburg and Tangent, representing District 15. She was a member of the House Committees overseeing congressional and legislative redistricting. Andrea Salinas is a Democratic representative from Lake Oswego District 38, the chair of the House Committees overseeing this redistricting. It’s good to have both of you on Think Out Loud.

Dave Miller: Andrea Salinas first, can you describe the overall process that you and fellow lawmakers used to come up with these maps?

Andrea Salinas: We heard from Oregonians in 10 different hearings over the course of the regular session, and in hearing from Oregonians, we got an idea of where communities of common interests were and what was really important to Oregonians.

The regular session ended on June 30th, and we were waiting for the census data essentially, but trying to set up a process on how we would have an additional 12 more hearings. At first we thought they would be in person, but given the delta variant strain of COVID and the outbreak of cases, we decided to just do virtual hearings. We knew we were going to do an additional 12 hearings after the census data was released.

Prior to that, we had started to essentially figure out what the process would look like going into map drawing... And was there a way that we could, and by we I mean Senator [Kathleen] Taylor, Vice-Chair [Tim] Knopp (at the time), Co-Chair [Shelly] Boshart Davis and myself could come up with some collaborative approach to addressing the state as a whole and maybe just come up with one map.

When the census data was released, I reached out to my Co-Chair. There wasn’t really any response. I clearly had to start drawing maps. I know the Senate was drawing maps together. [I] kept reaching out [with] really no response. Finally, on the day that we had to submit maps, September 3rd, we submitted maps and clearly we were not on the same page at all.

Miller: Let me go to Representative Boshart Davis here before you go further because I know already there are disagreements about the way you would describe the process. So in your words, let’s hear your version of this.

Shelly Boshart Davis: Thank you Dave. I appreciate that. That was something that we hear over and over again. In Chair Salinas’s opening statement, she talked about hours of negotiation and hours of collaboration and then they still push this alternative idea that we didn’t collaborate enough. That’s simply not true.

Republicans knew that redistricting should be a process that takes place in the open with public eyes and input. And that’s how we participated. We were very open about our objective of fairness. We chose not to do what she is alleging us doing. We didn’t want to present one set of maps of the people of Oregon created through secret deal making. Regardless of what other people did, that’s completely not up to me. But the accusation that we didn’t engage meaningfully continues to be offensive to not only myself and my fellow colleagues, but truly offensive to our families and discrediting the hours that we put into this to present their maps to Oregonians from every corner of the state.

Miller: I want to make sure I understand. When you say that you didn’t want to do a secret deal making or map making, are you saying that if you had worked alongside Democrats on the committee to produce a map as a committee as a whole, that that would have been a secret process?

Boshart Davis: The accusation that we didn’t collaborate is simply not true. We continue to say that we engaged and presented our map and our idea of a map to the public and that’s what we saw on September third. We got hours of feedback and thousands of public testimony at that point.

Miller: Andrea Salinas, let’s go back to you. I’d like you to describe your take on the final map because in the end, I think that’s probably what our listeners care the most about even though it is important to talk about process as well. What’s your description of the congressional map that you came up with?

Salinas: Thank you Dave for the question. As folks know, we’re blessed with an additional congressional seat. And with that, that means essentially that Oregon’s population grew, and it really grew in some significant areas in Washington County, Multnomah County, Marion County and Deschutes County. We started with the current maps, and we went from there. We started with the maps that were passed in 2011 that were uncontested. Fair, reasonable maps. Then we figured out where the growth was, given the census data and the census population that was apportioned to Oregon, and we drew the map from there. That’s where we drew the 6th Congressional District… trying to figure out how we take the additional populations in Washington and Multnomah County and then heading down into Marion County. So that’s where you’ll see the sixth.

Then we needed to divide populations. So, we included the city of Bend, which also saw significant growth and put that into Congressional District 5. And given that we had to push populations out, Congressional District 5 needed to pick up some additional population from that Deschutes area.

In addition, there were communities of common interest along Highway 22, the Santiam Valley and the Santiam Canyon and the wildfires and a lot of different policy concerns. Then going back to the other five congressional districts just ensuring that communities of common interests weren’t divided. And we accomplished that. And I’m very proud of the maps that we presented.

Miller: This is one of the challenges of a conversation like this because we could talk about places, but it’s an inherently visual conversation as well. So I do recommend the people, if you’re curious, go on our website, there are links to the Legislature’s maps, and you can actually see what we’re talking about.

Just briefly, in terms of one of the things that really stands out... It used to be, Representative Salinas, that three of Oregon’s congressional districts either included a piece of Portland in them or were within the Portland metro area. Now, four of Oregon’s six congressional districts are in the Portland metro area and then expand outward. How do you justify that?

Salinas: I would say, that going kind of going back to that 6th congressional district, and that is the fourth district, that people will say, ‘Oh, that includes Portland.’ It includes less than half a percent of Portland in unincorporated Washington county. So it isn’t even in the Multnomah County district, that piece of Portland. What I would say essentially, is I had to start with where the populations grew. And I say this again and again... I don’t get to choose who moves to Portland, how they register to vote or don’t register. We have a lot of non affiliated voters and I don’t get to choose where they move to. But I do have to follow the data, and that’s what this whole process is about.

It’s really about making sure that everyone has equal representation. One person, one vote. And we need to make sure that all districts are equally represented.

Miller: Representative Boshart Davis, what stands out to you most when you look at the congressional map?

Boshart Davis: Earlier you said, in the end, as far as process… we’re here now. I believe the final maps speak for themselves, when you ask, you know, what does it look like?

And Representative Salina’s clearly points out the city of Portland, but if you look at the greater Portland metro area and you see those pizza slices going into that Portland area, that digs into that population. And honestly, this is a 5-1 map. And it’s not just me that’s saying it. This final map speaks for itself. Analysis from every major local news source, national news, independent analysis says these maps are drawn to protect or increase Democrats’ political power and there’s just no way around that.

Miller: What would you have preferred as a system? I mean, the fact is that we are talking in a state where Democrats happen to have 3/5 majorities in the legislature. In plenty of other states, Republicans have sizable majorities and in those states, when lawmakers themselves are in charge of redistricting, Democrats are the ones who are saying, look at the map and look at the analyses and you can see how this is unfair politics. Shelly Boshart Davis, what kind of a system would you like to see in terms of drawing these maps?

Boshart Davis: Thanks Dave for that question. Oregon should absolutely have an independent redistricting commission. It’s clear after going through this process that lawmakers are much too biased to handle redistricting without benefiting themselves.

Miller: Do you mean that not just for Oregon, but for every state in the country? What I’m saying is, would you say that if you were in control?

Boshart Davis: Oh absolutely. Upfront and personal that I’ve been part of this process. This just robs Oregonians. It’s not a fair representation.

I’d like to mention, there’s two different ways that people can get the independent commission they deserve. One thing that we tried to push for was HJR 7. We tried to push for that to even get a hearing during the 2021 legislative session. The other way is through a ballot measure and I hope that it comes in front of voters in this next election. That effort is currently driven by people, not politicians. It’s an independent group that includes the full spectrum of Oregon voices: Common Cause, League of Women Voters, Independent Party of Oregon, the NAACP, Oregon Farm Bureau and more.

I think it’s notable that Washington and California already have independent commissions. This entire process is a clear example of why Oregon should join our west coast neighbors. It’s clear this is what Oregon wants and watching this up close and personal, I think it’s even more clear.

Miller: Andrea Salinas, this metaphor isn’t perfect. But having lawmakers making their own maps for their own districts... and we’ve been talking about the congressional districts, but you also did it for legislative districts... It’s sort of like employees setting their own parameters for performance reviews. You’re not doing the election yourself, but you’re setting up how the election is going to work. Who can vote for you and who can’t. Should you be doing this, in your mind?

Salinas: Well, first, I would start by saying when we enter into this process, this is not my district. This is the people of House District 38th’s district. They get to choose. I get to run and, I hope, they get to choose between myself and other people who run in that seat.

Miller: They get to vote for you. But in a sense, you get to vote for them.

Salinas: Well, I get to help shape what these districts look like.

Miller: Right. What you’ve said is sort of what I said in a more exact way. But I mean, we’re not simply talking about your district, we’re talking about all these districts that lawmakers are getting to draw the lines for.

Salinas: What I’m saying is that our constituents get to hold us accountable. And what I would question is whether an independent commission is really independent. Right now, we’ve seen in states like Washington where I think all four of their independent commissioners brought separate plans- so, similar to Oregon. California has independent commissions and they’re at a partisan impasse and they can’t agree on a new electoral alliance. We’ve seen the same thing in Michigan. And I keep reading about the same thing that’s happening all over the country.

I’m not convinced that a 90-person legislature isn’t going to be held accountable to the people, but there’s no binding requirement that a commission actually reflects the full diversity of the state. That means it’s entirely possible that the commission could be made up of interest groups that don’t represent Oregon. And this is a very time consuming process. We’ve had six weeks to do it. I’ve spent the greater part of 12 hours a day trying to work on these maps and I don’t necessarily know that low income communities could afford to engage in this type of civic opportunity. I feel like the work would be skewed towards wealthier Oregonians who may have more flexible schedules and could take time off of work and find child care and transportation. So I would really question how independent a commission could be.

Like I said, in a lot of these states, they’re appointed by the governor or they’re appointed by somebody who is not independent. While I think this is an elusive unicorn, I’m not sure that we could build something. It doesn’t mean that people shouldn’t try to figure out if there are other things that we could add to the system that we have.

Miller: Andrea Salinas and Shelly Boshart Davis, thanks very much for starting us off today. Andrea Salinas was the chair of the House committees overseeing congressional and legislative redistricting. She is a Democratic representative from District 38 which includes Lake Oswego.

Shelly Boshart Davis was a member of those committees. She’s a Republican Representative from Albany, Millersberg and Tangent, District 15. If you’re just tuning in, we’re talking right now about Oregon’s newly passed maps for its congressional and legislative districts. They’re going to be in place for the next 10 years if there is not a successful legal challenge against them.

To put this in a national context, I’m joined now by Doug Spencer, he is an associate professor of law at the University of Colorado and he manages the All About Redistricting website. Doug Spencer. Welcome to Think Out Loud.

Doug Spencer: Hi, Dave, thanks for having me.

Miller: Yeah, thanks for joining us. I’m curious. First, just in the big picture, what most stands out to you in the conversation you just heard?

Spencer: You know, I find that the redistricting process can be very contentious and controversial, just like we’ve seen. I would also say that what we’re hearing, what we’re seeing is quite common. This is the way the process works in most states. That’s not to endorse that it’s working the right way. It’s not a good defense to say: ‘Well it seems to be so contentious everywhere, so that makes it an okay process.’

The way that things played out in Oregon is actually a quite common procedure and process and outcome that we’ve seen in many states [in] the last 20-30 years.

Miller: The way it works in Oregon now is that lawmakers are in charge of this, and if they don’t come up with a plan that they can pass and that the governor will sign, then it goes two different ways. A panel of judges would have to come up with the congressional map. And the Secretary of State is in charge of the legislative one.

This year, our Secretary of State has said that she would have a citizen’s panel, a people’s panel, give her some input. How does that system overall compare to other states in the country?

Spencer: So, 35 state legislatures are in charge of drawing their congressional districts around the country. There are 11 independent commissions and then there are, at least in the congressional set, there are six states that only have one congressional seat, so they don’t redistrict. Among these 35 state legislatures, there are a few states, six or seven states that have some kind of backup provisions like this. The legislature fails, then the process gets kicked to a panel of judges or to a backup commission that exists. That’s kind of a stopgap halfway between an independent commission.

The way that the process looks in Oregon is not out of the ordinary; to split the maps and have one go to the Secretary of State and a panel of judges is somewhat unique. Providing some backstop before you either end up with no map and then a judge is drawing a map from scratch, because somebody has to draw it, at least you’re providing opportunities for, as Representative Salinas said, people who are accountable to the people and could be elected, at least in terms of the Secretary of State [who] has some accountability. That’s the idea of pushing these things to those individuals.

Miller: Are independent commissions necessarily less partisan? That was the point made by Republican lawmaker, Shelly Boshart Davis, to which Andrea Salinas was pushing back.

Spencer: When independent commissions draw maps, they draw maps that are much fairer for their populations. That’s been empirically shown over the last multiple cycles in the states that have independent commissions. The independent commissions this cycle, I don’t know if there are any more partisan, but they are polarized and they are deadlocked in a way that we haven’t seen in previous cycles. So it’s true that the independent commission in Michigan produced a Democratic and Republican map. I don’t think that that means that that process is broken. Typically, they would come up with a map together. But what they’re saying is that it’s very challenging in these times to find maps that are going to get everybody on board, and they want to have a conversation among the public who can look at two different writings of maps before they come to a consensus. It’s odd this cycle to see so many commissions not having a consensus before they release maps to the public.

Miller: Redistricting is one of a lot of parts of our country’s political system, where it’s almost as if everybody were a Republican or a Democrat. As opposed to being either members of other parties or being non affiliated voters- two categories that are hugely important that they can have, in some places, a plurality of voters. How are these other voters represented in this process?

Spencer: Short answer is that they’re not. They have proxy representation through members of either the Democratic or Republican party who they more closely align with. I know in Oregon, nearly a third of the voters are unaffiliated. That’s a large number. So, for either the Republicans or Democrats to say that they’re speaking on behalf of those unaffiliated voters, takes some assumptions. But of course, neither of the parties are speaking in the absence of information, there have been statewide elections. The 2018 Governor’s race was very close; Democrats, just eked out 50% of the vote. The 2020 Senate race, of course, was more reflective of maybe the underlying population of 57-40. But there is information that the legislators are using to try to make determinations about how people may vote.

But the bottom line is, if you are unaffiliated and you have different views than are espoused by the Republican or Democratic Party, you are left on the sideline of this process as it currently stands, with the legislature driving the lines.

Miller: I saw some line recently that was in an academic article about redistricting, and the basic thing was that there are as many ways to draw a map (I think this was about Massachusetts, but it probably would stand in for any state) that would pass some kind of legal muster as there are stars in a galaxy. Is there any agreed upon gold standard for assessing the fairness of a map, given that there could be so many ways to draw one?

Spencer: No, there’s not. The process of redistricting is a process of trade-offs, so you can have competitive elections. But if every single one of your districts is competitive and your party happens to do really well in one election, you could win all the seats and so you don’t have proportional representation. But, a lot of people feel like proportional representation is the goal that they’re looking for. If they have 60% of the registered votes, they would like 60% of the seats. In order to guarantee that outcome or something similar to it, usually you end up with districts that are not very competitive.

These are competing values at a very core political theory, a philosophical level about what values you ascribe to within your community; [such as] if competitiveness matters more to you or representation matters more to you. There’s no gold standard way to decide what map is fair period. This map is fair according to one particular set of values and the Oregon map looks somewhat proportional. Of course, democrats are getting far more power than they represent in the state, but they have a super majority of the seats as they do at the state legislative level.

Competitive elections would change that, but it would be a different value and you may not end up with the legislature that’s proportional. That’s a trade off that the legislators need to sit down and talk about and make a decision for.

Miller: This is one more case where there’s no technological solution to this. Even with complex computing power. The real question is, what are the values you’re putting into your algorithms? What are you telling the computer to do? The computer alone can’t fix this.

Spencer: That’s right. Two comments about that. One is, going back to Representative Boshart Davis and her comment that the process matters sometimes as much as the outcome... Not only is that the way that people experience and see how their government is working, but because the outcome can go in various different ways. The process and how these competing interests were debated and whether there was compromise is a big part of the story.

Computers can play an important role. What computers can do is generate the universe of all possible maps. Even though it can’t tell you the map that would be the most fair, you can look at the map that currently exists in comparison to a distribution of all the maps that could ever exist, millions and millions and millions of them. If you find out that the map that’s adopted is so rare, it would have only existed in one out of a million simulations, then that’s actually pretty good evidence that the people drawing the maps are doing so in bad faith. The computers can’t tell you how to draw a map, but they can’t tell you how not to draw a map.

Miller: They can tell you when humans have drawn it with something very specific in mind.

Spencer: That’s right. When they’re looking at something besides anything related to the values that I talked about before, not proportionality, not competitiveness, not representation, but just a raw power grab. The computers have shown to be very useful at providing that baseline.

Miller: Have courts actually used a computer analysis as evidence of human malfeasance?

Spencer: Yes, in a couple of instances. In the federal case out of North Carolina, the lower court used exactly this kind of analysis to strike down the maps in North Carolina. That’s the famous case that went to the U.S. Supreme Court and the U.S. Supreme Court didn’t say that this was a bad metric to use. They just said that this isn’t a question that the Federal Court should be involved in. State courts have also been using this. In 2018, the Pennsylvania State Supreme Court relied on this exact kind of computational analysis to invalidate Republican gerrymandering in that state and to adopt a map that was much fairer to their citizens.

Miller: How do other countries, other democracies handle this question of how to draw lines?

Spencer: The countries that look the most like the United States will appoint independent commissions or non partisan bodies that are in charge of drawing the lines. There are also countries that do things vastly different. The United States is locked into single member districts. One of the serious constraints here is that we need to draw six districts in Oregon for the congressional maps and six people have to be elected, one who lives in each of these boundaries.

Other countries may draw three districts and allow you to elect two people from each of those districts, which gives more voice to political minorities and racial and ethnic minorities. They’ve been able to come up with different systems besides just the constraints we put on our system, which is a single member district, geographically bound and the lines are drawn by politicians. That’s a very uniquely American process.

Miller: Doug Spencer, thanks for sorting some of this out for us. I appreciate it.

Spencer: Thank you, Dave.

Miller: Doug Spencer manages the All About Redistricting website for Loyola Law School. He is an associate professor of law at the University of Colorado.

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