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Supreme Court Won’t Ease Oregon’s Referendum Rules During the Pandemic

WASHINGTON — The Supreme Court on Tuesday blocked an injunction easing Oregon’s requirements for placing a referendum on partisan gerrymandering on the November ballot. Citing the coronavirus pandemic, a federal trial judge had lowered the number of signatures required and extended the deadline for gathering them.

The Supreme Court’s brief order was unsigned and gave no reasons, which is typical when the court acts on emergency applications. Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have let the injunction stand.

The Supreme Court’s order effectively stopped an effort to allow Oregonians to vote on a measure requiring an independent commission to draw voting districts instead of the State Legislature.

The Supreme Court has issued at least five other orders in disputes over voting in the last several months, and a theme that runs through them is an impatience with federal judges who make changes to state election procedures, especially when the election is looming.

The measure in Oregon sought to allow voters to respond to a 2019 Supreme Court decision on partisan gerrymandering, the practice in which the party that controls a state legislature draws voting maps to help elect its candidates. By a 5 to 4 vote, with the more conservative justices in the majority, the 2019 ruling said federal courts are powerless to hear challenges to the practice.

But the decision, Rucho v. Common Cause, said there were other avenues beyond federal lawsuits to address such gerrymandering. Several states, Chief Justice John G. Roberts Jr. wrote for the majority, have used ballot measures to create independent commissions to draw voting maps.

Republicans have been the primary beneficiaries of partisan gerrymandering in recent years, but both parties have used it when they control state governments. Oregon’s Legislature is controlled by Democrats.

Oregon’s Constitution requires proponents of ballot measures to gather signatures of voters equal to 8 percent of ballots cast in the most recent governor’s race, or about 150,000, by four months before the election, which this year was July 2.

Gathering signatures while observing social distancing proved challenging for supporters of the gerrymandering measure, and efforts to use other methods were not particularly successful. Groups supporting the measure, including People Not Politicians Oregon, Common Cause and local affiliates of the League of Women Voters and the N.A.A.C.P., said they had collected about 64,000 unverified signatures by the July 2 deadline.

They sued Beverly Clarno, Oregon’s secretary of state, a Republican, saying the pandemic required some accommodations.

Redistricting typically occurs once a decade, after the decennial census. The groups said that depriving voters of a chance to vote in November on how the process is conducted in 2021 would in effect defer the issue for another decade.

On July 13, Judge Michael J. McShane of the Federal District Court in Eugene, Ore., ruled for the supporters of the ballot measure and gave state officials two choices: to put the measure on the ballot or to drop the signature threshold to about 59,000 and extend the deadline.

“Because the right to petition the government is at the core of First Amendment protections, which includes the right of initiative,” Judge McShane wrote, “the current signature requirements in Oregon law are unconstitutional as applied to these specific plaintiffs seeking to engage in direct democracy under these most unusual of times.”

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, refused to stay Judge McShane’s ruling while the appeal moved forward.

Ellen F. Rosenblum, Oregon’s attorney general, a Democrat, asked the Supreme Court to step in.

“The district court,” she wrote, “plucked a new number of signatures and date out of little more than thin air and substituted them for the Oregon Constitution’s signature and deadline requirements.”

The groups countered that the application was improper because Ms. Clarno had chosen not to pursue an appeal and Ms. Rosenblum was not entitled to replace her.

Last year, in a racial gerrymandering case, the Supreme Court dismissed an appeal on the ground that the state officials who filed it were not authorized to do so.

On Friday, Justice Elena Kagan, the member of the Supreme Court assigned to oversee the Ninth Circuit, asked the two sides to submit unusually short briefs — “not to exceed 100 words” — on whether Ms. Clarno had consented to have Ms. Rosenblum represent her.

Ms. Rosenblum wrote that Ms. Clarno had consented in the relevant sense.

“The secretary’s consent to the appearance should not be taken as her personal agreement as a policy matter with the stay application,” Ms. Rosenblum wrote. “The secretary did not request an appeal; she has deferred to the attorney general’s litigation decisions as the state’s chief legal officer.”

The groups supporting the ballot measure responded that deference is not consent. “The attorney general confirms Secretary Clarno did not seek this appeal,” they wrote. “Because the secretary does not want to proceed, the attorney general pursues this appeal for her own interests.”

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