Judicial Redistricting Special Master's Credibility Destroyed

Retired state Judge Henry Breithaupt, appointed to serve as the “special master” in Oregon’s congressional redistricting case, has failed his required due diligence. Breithaupt was tasked with making findings of fact for a five-judge panel that will decide the outcome by Nov. 24.

1. Breithaupt’s report to the five-judge panel included the following: IV. WHETHER SB 881 WAS INTENDED TO FAVOR ANY POLITICAL PARTY, INCUMBANT LEGISLATOR, OR ANY OTHER PERSON: ORS 188.010(2). *1 The law is nothing if it is not about language. Misspellings in legal documents can have disastrous results. ORS 188.010(2) refers to “incumbent” legislators.

A Breithaupt ruling on a Public Records case in 2019 denied public access to certain records in the possession of pubic officials. Several highly respected Public Records advocates challenged Breithaupt’s opinion with strong arguments.*2

2. Breithaupt’s Findings of facts failed to reveal an analysis by Princeton University’s Gerrymandering Project which graded Oregon’s congressional maps with an “F”.*3

3. Breithaupt’s Findings of facts failed to reveal who were the map makers/cartographers that actually created the congressional redistricting maps. One of seven statutory guidelines for creating voting district maps is the following: No district shall be drawn for the purpose of favoring any political party, incumbent legislator or other person.*4 The most credible method to determine if this instruction has been violated is to ask the person(s) who actually created the maps.

“Oregon law requires that district lines are not to be drawn for partisan advantage, so partisan data is not analyzed publicly. But in reality, legislators share this data behind closed doors, and are well aware of how various options will affect party advantage. Oregon needs to end the “wink and a nod” sharing of partisan data behind closed doors and make this information available for public scrutiny.”*5

“The Oregon Supreme Court has shown little willingness to enforce the statutory requirements in any significant manner.”*6

“The court views its task not to ascertain whether there is a superior, alternative districting plan that should or could have been adopted, but rather to determine whether the Legislature or secretary of state ignored one of the constitutional or statutory criteria or whether it applied the criteria in an unreasonable fashion.”*6

It is a certainty that Oregon’s congressional redistricting map, created by the Senate Democratic Caucus Staff, approved by the Legislative Policy & Research Office, LPRO and then winning a majority of votes in the Oregon House and Senate, albeit along strict Party line votes, violated ORS 188.010(2) No district shall be drawn for the purpose of favoring any political party, incumbent legislator or other person. To ascertain whether or not this statutory instruction has been ignored by the map makers/cartographers who created this map within the confines of the Senate Democratic Caucus Staff it is absolutely necessary for any and every legal body making judgments about the legitimacy of the process to question the map makers/cartographers. This can only be done by uncovering the names of the Senate Democratic Caucus Staff persons who actually made the congressional redistricting map and then questioning that person(s) under oath. The most cursory analysis by even an untrained cartographer will recognize immediately that the congressional redistricting map was made with knowledge, advice and instructions based on a data set of the street addresses and party registration of registered voters and or a data set of precinct voting history. Access to both of these data sets is both legal and easy to get. The fact that these data sets are not present as data sets within the maps presented to the LPRO is NOT proof that the map makers/cartographers did not seek out and receive this political data from outside sources.*5

Several red flags have been raised in alert of potential scandal and conspiracy.

1. After many requests neither the Senate Democratic Caucus and its staff, nor the House Democratic Caucus and its staff, nor the House Republican Caucus and its staff have been forthcoming with the names of the persons in those caucuses who actually made the maps submitted to the LPRO. This is surely a sign of a coverup. There can be only one reason, to prevent the map makers/cartographers from being questioned by journalists, lawyers and all the judges involved in reviewing these maps.

2. Other alarm bells began ringing when Cameron Miles, a staff attorney in the Legislative Counsel’s Office, wrote responses to Public Records requests to several members of the legislative leadership stating that they had no access to the names of those who created the congressional and legislative maps. This would mean that none of the legislative leadership would have access to any of the staffers in the House and Senate Republican and Democratic caucuses or any member of the House and Senate Interim Redistricting Committees or staffers from LPRO assigned to the Redistricting committees. Quite unbelievable. It must be concluded that there is a conspiracy to hide the identity of the actual map makers in each caucus led by Cameron D. Miles, staff attorney in cahoots with legislative leadership.

This is especially concerning because one of those leaders is Tina Kotek, who ostensibly represents me in the legislature, is the Speaker of the House and is a declared candidate for governor. House Republican Leader Christine Drazan, who supervises the House Republican caucus staff and is a member of the House Interim Committee On Redistricting claims, through Cameron Miles, that she has no access to information that would identify the map makers/cartographers who created the redistricting maps in her own caucus.

A case for conspiracy and coverup among legislative leaders and Legislative Counsel is readily apparent. The lawyers and judges looking into the validity of these congressional maps will most certainly want to take these revelations into account. Other members of the legal community may want to investigate the process for prosecuting such behavior in state and/or federal courts.

In conclusion, the five-judge panel hearing the contested congressional Redistricting map, the Oregon Supreme Court and the Secretary of State must all recognize that they are under scrutiny. Oregonians deserve and must have transparency in all the legislative and judicial procedures connected to these maps. It is our government and we want to know the truth about what is going on.

Richard Ellmyer

North Portland
Oregon citizen since 1971
Portland Homeowner and Citizen Activist since 1975
NAV, Non-Aligned Voter
Legislative assistant to former state senator Bill McCoy observer and participant in the 1981 reapportionment process.
Senior Policy Advisor to former Multnomah County Commissioner Gladys McCoy 1981-1984
Author of The Ellmyer Report, a newsletter that informs, educates and influences on public policy. Occasionally distributed to more than a quarter of million readers in Oregon and beyond. Facebook, Portland Politics Plus . Contributor: Patch.com

Project Champion and Data Wrangler - Metro/Oregon Public Housing Location Maps https://www.goodgrowthnw.org/m...

*1

https://www.opb.org/pdf/BREITH...

*2

https://www.oregonlive.com/pol...

Oregon’s public records advocate, Ginger McCall, said Thursday that the judge’s position is at odds with the way she, the state archivist, the attorney general’s office, the Oregon League of Cities and “everybody” has interpreted the law and trained local officials to comply with it in the nearly five decades since it went into effect.

Duane Bosworth, a lawyer who has specialized in Oregon public records law for decades and has at times represented The Oregonian/OregonLive on such matters, said the case should be appealed because the judge’s decision is wrong. He said lawyers for the city of West Linn persuaded Breithaupt to misread the statute.

Rep. Karin Power, D-Milwaukie, is a member of Oregon’s public records advisory panel and a leading lawmaker on public records issues. She told The Oregonian/OregonLive Wednesday that if the ruling is not appealed, she also will consider adding clarifying language to the public records law.

*3

https://www.koin.com/news/oreg...

*4

https://oregon.public.law/stat...

ORS 188.010
Criteria for apportionment of state into congressional and legislative districts

(1) Each district, as nearly as practicable, shall:

(a) Be contiguous;

(b) Be of equal population;

(c) Utilize existing geographic or political boundaries;

(d) Not divide communities of common interest; and

(e) Be connected by transportation links.

(2) No district shall be drawn for the purpose of favoring any political party, incumbent legislator or other person.

(3) No district shall be drawn for the purpose of diluting the voting strength of any language or ethnic minority group.

*5

Is gerrymandering a problem in Oregon?

https://www.commoncause.org/or...

*6

Oregon : A Primer

by Norman R. Williams, professor of law at Willamette University College of Law

https://www.osbar.org/publications/bulletin/11febmar/redistricting.html