OAG 70-96.

• Case Date: November 12, 1970
• Court: Oregon

Oregon Attorney General Opinions 1970. OAG 70-96. 328OPINION NO. 70-96[35 Or. Op. Atty. Gen. 328]November 12, 1970No. 6781This opinion is issued in response to a question presented by the Honorable Robert F. Smith, Speaker of the House of Representatives.QUESTION PRESENTEDIn view of recent decisions of the Supreme Court of the United States, to what extent may the legislature follow the Oregon constitutional mandate of observing county boundaries in creating legislative districts based on the 1970 federal census?ANSWER GIVENEach legislator must represent as nearly as possible exactly the same population as every other legislator in the same house; any deviation from exact population equality must be justified by legally acceptable reasons. An attempt to follow county lines and to comply insofar as possible with the Oregon Constitution, and other acceptable policy or practical considerations, may be sufficient to justify minor deviations from exact population equality. Multi-member districts are constitutionally suspect. "Floterial" districts are clearly impermissible if any part of the district lacks other representation in the same house. DISCUSSION The Oregon Constitution requires the legislature to 329reapportion the legislative districts of the state every ten years, following the decennial federal census, in accordance with the population principle but subject to limitations which require some substantial deviations from it. Or. Const. art. IV, § 6. Since Oregon's last reapportionment, numerous rulings by the United States Supreme Court and other federal and state courts, indicating that the population principle must be followed very strictly, with little or perhaps no room for deviations based on other considerations, have cast doubt upon the extent to which the legislature may follow the requirements of the Oregon Constitution in its 1971 apportionment. A comprehensive review of these authorities is therefore appropriate for the guidance of the 1971 legislature. OREGON'S APPORTIONMENT FORMULA The formula for apportioning senators and representatives in Oregon is provided in Article IV, Section 6 which reads in part as follows:

"The number of senators and representatives shall . . . be fixed by law and apportioned among the several counties according to the population in each. The ratio of senators and representatives, respectively, shall be determined by dividing the total population of the state by the number of senators and by the number of representatives. The number shall be determined by dividing the total population of each county or district by such representative ratios; and when a fraction exceeding one-half results from such division, such county or district, shall be entitled to a member for such fraction. In case any county does not have the requisite population to entitle it to a member, then such county shall be attached to some adjoining county or counties for senatorial or representative purposes."

330Article IV, Section 7, Oregon Constitution, provides in part:

"A Senatorial district, when more than one county shall constitute the same, shall be composed of contiguous counties, and no county shall be divided in creating such senatorial districts. Senatorial or representative districts comprising not more than one county may be divided into sub-districts from time to time by law."

Thus, apportionment is intended to be by county, and the term "district" as it appears in these and other relevant constitutional provisions must be taken to mean a geographical area consisting of an entire county or two or more entire counties. These provisions have been interpreted to prohibit division of any county to form a representative district or part of a representative district, (although the express prohibition in Article IV, Section 7 applies only to senatorial districts,) and to prohibit the formation of any multi-member district containing more than one county. Application of these requirements to the 1960 census figures resulted in wide population deviations in Oregon's current legislative apportionment, with population of single-member senatorial districts ranging from a low of 29, 917 (Josephine County) to a high of 73,962 (Jackson County), a ratio of 1:2.5. Residents of Yamhill County share their only state senator with Washington County in a "floterial" district with a population of 124,715, each of them having less than one-fourth the senatorial representation of Josephine County residents. Similarly, population of single-member representative districts ranges331 from 18,955 (Tillamook County) to 39,660 (Deschutes, Crook and Jefferson Counties), and residents of Curry County share their only state representative with Coos County in a floterial district with a population of 68,938, each of them having slightly more than one-fourth the representation of Tillamook County residents.(fn1) We must first observe that without any question the formula of apportionment set forth in Article IV, Section 6 of the Oregon Constitution must be considered invalid insofar as it permits such wide deviations from population equality. The Oregon court has already recognized that the formula cannot always be followed literally, since it could provide for a larger or smaller number of senators or representatives than specified in the Oregon Constitution. In Re Legislative Apportionment, 228 Or. 562, 364 P.2d 1004 (1961). Rigid adherence to the requirement that districts be composed of entire counties and groups of entire counties is impossible, since unacceptably large population variations between districts would inevitably result. The legislature should nevertheless follow the mandate of the Oregon Constitution to the extent possible, by creating districts which do not divide counties except when essential to avoid excessive population variations. However, as will be seen, the courts have not provided a clearcut answer to the question of just how much deviation from exact population equality, resulting from use of county boundaries as 332district boundaries, will be permitted. We will review here some of the leading decisions involving state legislative reapportionment. EARLIER CASES Until 1962, state and federal courts almost uniformly refused to consider the validity of apportionment plans adopted by the states, whether for the election of Congressmen or state legislatures, principally on the grounds that...