(1) A qualifying district is in violation of ORS § 255.405 if it is shown that:

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(a) Electors in the qualifying district exhibit polarized voting; and

(b) Members of a protected class do not have an equal opportunity to elect candidates of their choice or an equal opportunity to influence the outcome of an election as a result of the dilution or abridgment of the rights of electors who are members of that protected class.

(2) Subject to ORS § 255.424, a violation of ORS § 255.405 may be alleged by the filing of an action in either the circuit court of Marion County or the circuit court of any county in which the qualifying district is located by an individual who:

(a) Is an elector;

(b) Is a member of a protected class; and

(c) Resides within the boundaries of the qualifying district.

(3) An action filed under this section:

(a) Is subject to the filing fee described in ORS § 21.145; and

(b) Must be tried and decided by a judge.

(4) The fact that members of a protected class are not geographically compact or concentrated to constitute a majority in a proposed or existing qualifying district may not preclude a judge from finding a violation of ORS § 255.405 but may be a factor in determining an appropriate remedy.

(5) In determining whether polarized voting exists, a court shall analyze qualifying district elections in which at least one candidate is a member of a protected class or in which other electoral choices would affect the rights and privileges of members of a protected class. Elections conducted prior to the filing of an action under this section are more probative to establishing the existence of polarized voting than elections conducted after the filing of an action.

(6) Proof of intent on the part of electors, elected officials or a board of a qualifying district to discriminate against a protected class is not required for a judge to find a violation of ORS § 255.405.

(7) Factors that are probative to establishing a violation of ORS § 255.405, but that are not necessary to establish a violation, include:

(a) A history of discrimination;

(b) The use of voting practices or procedures that may enhance dilutive effects in elections;

(c) The denial of access to the processes that determine which groups of candidates receive financial support in an election;

(d) The extent to which members of a protected class bear the effects of past discrimination in areas of education, employment and health in a manner that hinders the ability of members of the protected class to participate effectively in the political process; and

(e) The use of overt or subtle racial appeals in political campaigns.

(8)(a) If a judge finds that a qualifying district has violated ORS § 255.405, a court may order any remedy the court determines is necessary to cure the violation, including but not limited to requiring the board of the qualifying district to adopt a new electoral system that is tailored to remedy the violation, in compliance with ORS § 255.405 (1)(b).

(b) A court order requiring the board of a qualifying district to adopt a new electoral system:

(A) May not apply to the first qualifying district election held after the court order; and

(B) Shall, unless otherwise ordered by the court, apply to qualifying district elections held after the election described in subparagraph (A) of this paragraph.

(9) The court shall award any individual who prevails in an action brought under this section reasonable attorney fees, costs and expenses. A qualifying district that prevails in an action brought under this section is not entitled to costs or expenses and may be awarded reasonable attorney fees only if a judge finds that the action was brought in bad faith or for purposes of harassment. [2019 c.449 § 4]

[1975 c.766 § 25; 1977 c.460 § 1; 1977 c.508 § 12; 1979 c.190 § 195; renumbered 251.255]