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Supreme Court Takes Away Extended Deadline and Lower Signature Threshold for Oregon Redistricting Initiative

Not helping democracy amidst pandemic is the United States Supreme Court. On Tuesday, or the fifth time this year, the high Court reversed a lower court’s order intended to cut voters some slack due to the obstacles to political action created by the coronavirus that Republicans like Donald Trump and Kristi Noem are unwilling to tackle.

Wait—coronavirus makes it harder for people to participate in elections, and Republicans choose not to fight coronavirus. Could there be a connection?

In Tuesday’s ruling, the Supreme Court blocked an Oregon District court order that extended the deadline and lowered the number of signatures necessary to place an initiated constitutional amendment on Oregon’s November ballot. Oregon law requires that amendment initiators submit signatures from 8% of qualified electors (based on how many people voted in the last gubernatorial election) by four months prior to the election. Backers of an amendment to create a citizens’ redistricting commission to draw the maps for Congressional and legislative districts needed about 150,000 signatures by July 2, due to the difficulty of circulating petitions amidst sensible public health precautions, the amendment sponsors collected only 64,000 signatures. They sued and got the District Court to lower the signature threshold to under 58,000 and extend the petition deadline to August 17, giving the petitioners a fair shot at collecting some cushion signatures and making the ballot.

But Oregon’s Democratic officials—Democrats, dagnabit!—put power over principle and fought the coronavirus accommodation:

Following the 2020 Census, Democrats in the Legislature and governor’s office are poised to have sole control over those changes for the first time in modern Oregon history. Control over redistricting could help Democrats maintain their three-fifths supermajority in the Legislature, which allows them to raise taxes without needing Republican votes. It also helps give Democrats a better shot at winning a new congressional seat that Oregon is expected to get after redistricting.

The redistricting measure is sponsored by a coalition of government watchdog groups and business organizations that are politically close to Republicans. The two chief sponsors represent the Oregon League of Women Voters and the Oregon Farm Bureau [Jeff Mapes, “Oregon Attorney General Takes Fight Against Redistricting Initiative to US Supreme Court,” Oregon Public Broadcasting, updated 2020.07.30].

Oregon’s redistricting reformers can still fight for leniency in appeals court, but time is not on their side; they’d need the appeals court and possibly the Supreme Court to rule on the merits of the signature and deadline accommodations by September 3, when the Oregon Secretary of State must finalize measures for the statewide ballot.

Amy Howe of SCOTUS Blog lists this Oregon ruling among the five that the Supreme Court has issued this year in stubborn refusal to bend democratic processes for the contingencies of coronavirus and notes a sixth case, another Republican effort to make absentee voting harder, is on their docket:

Tuesday’s order was the most recent in a series of rulings by the Supreme Court in which the justices have intervened to block lower-court orders that would have loosened state election procedures in light of the pandemic. On July 30, the justices put on hold rulings by a federal court in Idaho that would have given a group backing a ballot initiative in that state more time to collect signatures for an initiative and required the state to accept electronic signatures. The justices have also blocked a ruling in Alabama that would have made it easier for voters to cast absentee ballots, denied a request from the Texas Democratic Party to allow voters to cast ballots by mail without an excuse and froze an order that had extended the deadline for the submission of absentee ballots in Wisconsin’s April election. The justices are currently considering a request by the Republican National Committee and Rhode Island’s Republican Party to reinstate that state’s witness requirements for absentee ballots [Amy Howe, “Court Reinstates Oregon Ballot-Initiative Rules,” SCOTUS Blog, 2020.08.11].

Yes, the rule of law must persist, even during a national emergency. But the rule of law is based on democracy, on the ability of citizens to participate and legitimate the law. When a contagious disease turns the normal safeguards of the democratic system into undue burdens the suppress participation, the courts should give wide berth to states making good-faith efforts to restore that participation.

Related Appeals: For those of you waiting to hear what the Eighth Circuit has to say about South Dakota’s and my cross-appeals of the HB 1094 lawsuit, note that advocates for democracy in Oregon are contending that the state could reasonably, practically set its petition deadline at August 17 and that two and a half weeks is enough time for the Secretary of State to validate 58,000 signatures. In my suit against South Dakota’s petition laws, I’m contending that there’s no need for the state to set the petition deadline a full year prior to the election and that the Secretary of State doesn’t need nine months to validate 34,000 signatures.

14 Comments

  1. leslie 2020-08-13

    Mark Joseph Stern
    Aug 11
    After Kavanaugh replaced Kennedy, the Supreme Court began issuing far more unsigned 5–4 orders that have dragged the law far to the right without much public attention. Read
    @steve_vladeck
    on the alarming growth of this “shadow docket”: https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html…
    @Slate

    The Alarming Growth of the Supreme Court’s “Shadow Docket”
    slate.com

    @steve_vladeck
    Aug 11
    Via
    @slate

    How the increasing number of sharply divisive rulings on #SCOTUS’s “shadow docket” is both a very big deal in its own right and a growing controversy for the Court.

    @Slate Aug 11
    These decisions, often no longer than one sentence, are becoming disturbingly common.

  2. leslie 2020-08-13

    Another example of the Federal Court system struggling with it’s role in the time of Trump. Flynn’s lawyer and DOJ acting Solicitor General Wall arguing to the full appeals court (en banc); they refused to grant DOJ’s motion to drop Flynn’s case.

    “…anyone who had a problem with the Justice Department dropping charges against a friend of the President should seek a political, and not legal, remedy. *** There’s a question about whether there’s been improper political influence,” Wall said. “..:that seems like clearly the sort of thing that should be taken care of through political channels.”

    Yeah, call obstruction of justice “political influence”.

    But those appeals court justices can be sticklers about integrity! For you too, Cory!

  3. leslie 2020-08-13

    Benghazi?

    Russia-gate 2016??

    Pizza-gate???

    Russia-gate again????

    This is getting old.

  4. Debbo 2020-08-13

    It’s disappointing that a Democratic majority state government is opposing a neutral redistricting commission. It’s without a doubt that I can say that the Oregon GOP would do the same if they were in the majority.

    We need a federal constitutional amendment. Actually we need several constitutional amendments.

  5. Drey Samuelson 2020-08-14

    Cory–you wrote: “In my suit against South Dakota’s petition laws, I’m contending that there’s no need for the state to set the petition deadline a full year prior to the election and that the Secretary of State doesn’t need nine months to validate 34,000 signatures.”

    Do you have any idea when the 8th Circuit Court might rule on your lawsuit? Those of us who still believe that the only realistic avenue of change is the ballot initiative have our collective fingers crossed!

  6. Cory Allen Heidelberger Post author | 2020-08-14

    No idea what the Eighth Circuit will say or when they will say it. We can only count on their reading of case law and their following of the crystal-clear precedents allowing states to burden ballot access only when they can demonstrate clear and compelling state interests in doing so and when they take a tailored and minimal approach to that burden. When states around the country show that they can deal with petitions in four months without any sign of the unchecked abuses that South Dakota claims, without evidence, are rampant in the petition process, South Dakota’s case looks pretty weak.

  7. Cory Allen Heidelberger Post author | 2020-08-14

    Debbo, yes, it’s immensley disappointing that any Democratic leaders would choose their partisan power over a valid democratic reform giving better representation to all citizens The Democratic Party is supposed to believe in people power, not partisan gain. We must be consistent in our support for expanded public participation, not only when we stand to benefit from it and use such reforms to rectify our temporary and local minority status but also when such reforms open the door for underrepresented Republicans and independents to gain equity.

  8. Cory Allen Heidelberger Post author | 2020-08-14

    On the good side, over in Rhode Island, Democrats are on the right side of the fight over absentee voting rules. The state removed the witness requirement, the RNC challenged that easing of rules in court, and the Supremes finally gave democracy amidst pandemic a win yesterday, saying it would not block Rhode Island’s change:

    Rhode Island’s Secretary of State Nellie Gorbea, a Democrat, said the Supreme Court’s order means the state will begin sending out absentee ballots Thursday for its September primary.

    “Your health should never be the price of admission to our democracy,” Gorbea said in a statement. “Making it easier to vote safely from home by removing the burden of obtaining two witnesses or a notary is a common-sense step that will protect Rhode Islanders during this pandemic” [Jessica Schneider, “Supreme Court Won’t Block Eased Rules for Rhode Island Absentee Ballots,” CNN, 2020.08.13].

    As Amy Howe at SCOTUSBlog explains, the Supreme Court let Rhode Island’s accommodation stand because it was a product of an agreement between state officials and voting rights groups that challenged the witness requirement.

  9. Debbo 2020-08-15

    Wired Magazine has a fascinating and longish article about error filled voter purges in red states and the guy who is sorting through them. The following quote is an interesting tidbit refuting the dishonest GOP claims (is there any other kind) about voter fraud.

    “In fact, an analysis by the conservative Heritage Foundation of more than 3 billion votes cast in US elections dating back to World War II found just 10 instances of in-person voter fraud. (That’s not a typo. They found 10. That’s 0.000000003 percent.)”

    Here’s the article: is.gd/lWow9u

  10. mike from iowa 2020-08-15

    Quite a read, Debbo. Insightful and reaffirms my thinking that wingnuts are inherently crooked cheats.

  11. jerry 2020-08-15

    Ms. Debbo, did you ever ponder that when right wingers hear the word “fraud”, it describes them to a T. The reason they bite on this so hard is for that reason. As you point out, there is no reason to suspect voter fraud, what we do have to expect and suspect is fraudulent means to prevent voters from having their rights denied to vote.
    Wait until we see what Roger Stone has in mind for this election.

  12. o 2020-08-15

    Jerry, I think it is more than fraud: it is the epitome of white, entitled privilege. These are people who have always had the system work for their advantage, so why not continue manipulating the system to continue providing every advantage to them? At the same time, the voters continually hand the keys to the kingdom to those who have this entitled/privilege mind set — most of the time voting against their own self-interests to perpetuate the privileged privilege.

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