Oregon Secretary of State Shemia Fagan has taken the unusual step of hiring an experienced lawyer with constitutional law expertise to help her win a court battle with legislative leaders over deadlines, data sets and powers to redraw legislative districts.
P.K. Runkles-Pearson was a partner at long-established Portland firm Miller Nash Graham & Dunn before she was hired as the secretary of state’s in-house general counsel in February, according to her LinkedIn profile. Runkles-Pearson has expertise in state and federal constitutional law, according to her former employer’s website.
None of the prior three secretaries of state had a general counsel. Instead, they relied on the Oregon attorney general to represent them and could get input from other staffers who were lawyers. The attorney general supervises Runkles-Pearson’s work and Runkles-Pearson has been appointed as a special assistant attorney general for work on the redistricting case, a spokesperson for Attorney General Ellen Rosenblum noted.
Runkles-Pearson’s annual salary is $165,936, according to the secretary of state’s Public Information Officer Aaron Fiedler. Fiedler did not directly answer a question about why Fagan chose to hire an in-house attorney to work on redistricting, rather than paying the Department of Justice to do the work, as is the norm.
Now that Runkles-Pearson has been hired, Fagan’s administration is working on figuring out what legal issues in addition to redistricting the general counsel might tackle.
“P.K. Runkles-Pearson was hired as the general counsel for the entire agency and has been working with all seven agency divisions to assess and serve their general counsel needs,” Fiedler wrote in an email. “Included in agency needs are redistricting issues, in consultation with the Oregon Department of Justice.”
Fiedler noted that legal work was part of the job description for former Secretary of State Dennis Richardson’s government and legal affairs director Steven Elzinga, who was a registered lobbyist for the agency. Fiedler also pointed out that former Secretary of State Bev Clarno hired a private law firm to defend her decision to reject three forestry ballot initiatives, although Clarno only did so after the attorney general refused to represent Clarno in the case.
Redrawing Oregon’s legislative districts normally falls to the Legislature, and the state constitution requires the body to finish that work by July 1. That is usually not a problem, as federal law requires the Census Bureau to provide states with the necessary population data by April 1 and that has happened decade after decade. Only if the Legislature fails to agree on how to redraw state House and Senate district lines by the July 1 deadline does that task fall to the secretary of state. Under the state constitution, that officer has until Aug. 15 to complete the task.
But the pandemic and other factors complicated the collection of the once-a-decade tally of the U.S. population in 2020. As a result, the Census Bureau has said it cannot get the required population data to Oregon until Sept. 30.
The secretary of state’s role is among the key issues at stake in the Legislature and secretary’s dispute over how Oregon should handle the conflict between the state’s constitutional redistricting deadlines and pandemic-delayed timeline to receive census data. So are the questions of how well the districts will reflect the state’s current population and potential disruption to 2022 elections.
In a March 10 court filing, the Democratic leaders of the Legislature, Senate President Peter Courtney of Salem and House Speaker Tina Kotek of Portland, asked the Oregon Supreme Court to extend lawmakers’ deadline to finish legislative redistricting until three months after the state receives census data. They also asked the court to order the secretary of state, who is also a Democrat, not to take up the task of legislative redistricting until at least three months after the census data is released – or roughly the last day of 2021. Candidates who run for office in 2022 must file to run by March 8, and many begin lining up financial and political support before that.
“For Oregon, that delay—absent intervention by this court—creates a constitutional crisis,” the legislative leaders’ lawyers wrote. The legislators argued that redrawing legislative districts without the new census data would violate the Equal Protection Clause and Voting Rights Act and noted the census “provides data on race and ethnicity in all the census blocks in Oregon necessary to ensure compliance with the federal Voting Rights Act.”
The Legislature is represented by lawyers from the national firm Markowitz Herbold, who a legislative committee hired last month.
Kotek and Courtney’s proposal would give lawmakers three months with the most accurate and final data, with no role for the secretary of state during that time. That much time with the final data would increase the likelihood that the Legislature could draw maps that satisfy the court and would stand, thus giving the secretary no role.
In the secretary of state’s response, her lawyers wrote that the unprecedented calamity of the last year and the related census delay would not justify the court ignoring Oregon’s constitutional redistricting deadlines. She insists the Legislature can complete the task by its July 1 deadline, using data that from Oregon’s federally-designated census experts at
Portland State University, which is not as accurate as what the Census Bureau plans to send at the end of September.
“There is no dispute that final district lines should be evaluated in light of census data, and that the delay thus poses a significant challenge for the Legislative Assembly in drawing the map,” Runkles-Pearson and the attorney general’s staff wrote. “But it does not justify the extraordinary remedy that (the Legislature) seeks here: an order from this court rewriting the constitution and leaving state legislative district boundaries in limbo until July 1, 2022, and enjoining the secretary of state from carrying out her own constitutional duties in a timely manner.”
Fagan asserted through her lawyers that Oregon officials could draw adequately accurate legislative districts based on yet-to-be-published data the Portland State University Population Research Center.
“Even if all of that data is not yet compiled, there are several months to do so before the July 1 deadline,” lawyers wrote on behalf of the secretary of state. “And when the census data becomes available, it will be straightforward to compare it to the data the Legislative Assembly used and determine if any corrections must be made to the map.”
People who believe the new legislative districts are not fairly apportioned in light of the 2020 census data can file a “placeholder” protest in court by Aug. 1, Fagan’s lawyers wrote.
“If the data (the Legislature) uses turns out to be close enough to the census data, the map will be lawful,” lawyers for Fagan wrote.
Fagan also identified a possible outcome that could yield a role for her as final author of the state’s electoral maps: If a placeholder legal challenge is filed and approved, she could do the redraw using the Sept. 30 solid data from the Census Bureau.
As Fagan’s lawyers noted, “This court could direct the secretary to revise the plan if there are material discrepancies between the data the Legislative Assembly used and the final census data. The secretary would then have until November 1 to make the required corrections and return them to the Supreme Court for final review.”
— Hillary Borrud; [email protected]; @hborrud