[EL] CA Republicans Plan Referendum Against Redistricting Plans

Tue Aug 16 10:35:23 PDT 2011

As an engaged observer <http://redistricting.lls.edu> of the 
redistricting process, I'm not sure I agree that "Republicans must be 
kicking themselves for backing the citizen redistricting commission" in 
California.  It's true that the party seems to feel aggrieved by the 
results, though the maps seem to have distressed a fair number of 
Democrats as well (largely due to incumbent pairings).  But, since we're 
talking about hindsight, in the absence of the commission, the 
Republicans would have been facing unified Democratic partisan control.  
Unified control hasn't worked out so well for the party out of power in, 
say, Illinois or North Carolina.

And the only real tool that the Republicans would have had to fight an 
over-the-top partisan gerrymander would have been . . .  a referendum.  
So even if partisan electoral success is the sole appropriate metric for 
support of a public policy, it's not clear that rolling the dice on a 
commission (with a referendum as a backup), rather than submitting to 
unified partisan control (with a referendum as a backup) looks like a 
strategic misstep.

Also, if the Republicans' calculation depended on choosing sufficiently 
partisan commissioners who could block any plans which could dilute 
Republican political power in the state, that calculation failed with 
the design of the law, well before the auditors' office.  The ballot 
measures establishing the commission prohibit drawing districts for the 
purpose of favoring a political party, and expressly require commission 
members to apply in an impartial manner the criteria that _were_ 
supposed to drive maps.  The auditors' office, it seems to me, did 
precisely what it was asked to do, in winnowing out the hardest-core 
partisans who would feel compelled to break the law by subordinating 
legally required criteria in order to "block any plan which could 
dilute" any party's political power.

I've heard valid arguments to asking redistricters to consider the 
partisan impact of their plans (and valid arguments to allowing them to 
do so, which is different), and valid arguments to discouraging them 
from doing so.  (There are also ways to consider some partisan impacts 
and not others.)  California's law was designed to accomplish the 
latter, and that design was readily apparent on the face of the ballot 
proposition.  If it's true that some commissioners and not others were 
drawing for partisan purposes -- an allegation I've heard, but not 
observed, and haven't seen supported -- that's troublesome.  But if the 
complaint is that Republican commissioners weren't partisan enough to 
override for partisan purposes the choices that others made without 
focusing on partisanship, I think that misconceives the commission's 
legal mandate.

Justin

On 8/15/2011 9:07 PM, Rick Hasen wrote:
>
>
>     California Republicans Plan Referendum Against Just-Approved
>     Redistricting Plans <http://electionlawblog.org/?p=21959>
>
> Posted on August 15, 2011 <http://electionlawblog.org/?p=21959> by 
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> The big question 
> <http://latimesblogs.latimes.com/california-politics/2011/08/referendum-proposed-to-overturn-redistricting-plan.html>, 
> assuming they raise enough money to qualify the referendum, is how 
> they would sell a rejection of the lines to the voters.  Don't be 
> surprised by ads claiming that the lines are not generous enough to 
> Latinos.
>
> MALDEF, meanwhile, could go 
> <http://latimesblogs.latimes.com/california-politics/2011/08/recalifornia-districting-challenges.html>straight 
> <http://www.atthelectern.com/supreme-court-gears-up-for-redistricting-litigation-as-commission-certifies-maps/> 
> to the CA Supreme Court.
>
> Republicans must be kicking themselves for backing the citizen 
> redistricting commission.  I think the calculation failed at the level 
> of the auditors' office.  That office, which winnowed down the 
> commissioners, did not choose sufficiently partisan Republicans to 
> serve on the commission who could block any plans which could dilute 
> Republican political power in the state.  See the complaint 
> <http://latimesblogs.latimes.com/california-politics/2011/08/redistricting-commissioner-says-panel-decision-tainted-by-politics.html> 
> of the one Republican dissenter on the Commission: "This commission 
> became the citizens' smoke-filled room, where average citizen 
> commissioners engaged in dinner-table deals and partisan 
> gerrymandering --- the very problems that this commission was supposed 
> to prevent."
>
> Share 
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D21959&title=California%20Republicans%20Plan%20Referendum%20Against%20Just-Approved%20Redistricting%20Plans&description=California%20Republicans%20Plan%20Referendum%20Against%20Just-Approved%20Redistricting%20Plans%0APosted%20on%20August%2015%2C%202011%20by%20Rick%20Hasen%0A%0AThe%20big%20question%2C%20assuming%20they%20raise%20enough%20money%20to%20qualify%20the%20referendum%2C%20is%20how%20they%20would%20sell%20a%20rejection%20of%20the%20lines%20to%20the%20voters.%20%20Don%E2%80%99t%20be%20surprised%20by%20ads%20claiming%20that%20the%20lines%20are%20not%20generous%20enough%20to%20Latinos.%0A%0AMALDEF%2C%20meanwhile%2C%20could%20go%20straight%20to%20the%20CA%20Supreme%20Court.%0A%0ARepublicans%20must%20be%20kicking%20themselves%20for%20backing%20the%20citizen%20redistricting%20commission.%20%20I%20think%20the%20calculation%20failed%20at%20the%20level%20of%20the%20auditors%E2%80%99%2%0A0office.%20%20That%20office%2C%20which%20winnowed%20down%20the%20commissioners%2C%20did%20not%20choose%20sufficiently%20partisan%20Republicans%20to%20serve%20on%20the%20commission%20who%20could%20block%20any%20plans%20which%20could%20dilute%20Republican%20political%20power%20in%20the%20state.%20%20See%20the%20complaint%20of%20the%20one%20Republican%20dissenter%20on%20the%20Commission%3A%20%E2%80%9CThis%20commission%20became%20the%20citizens%E2%80%99%20smoke-filled%20room%2C%20where%20average%20citizen%20commissioners%20engaged%20in%20dinner-table%20deals%20and%20partisan%20gerrymandering%20%E2%80%94%20the%20very%20problems%20that%20this%20commission%20was%20supposed%20to%20prevent.%E2%80%9D%0A%0A%20%0AShare%0APosted%20in%20citizen%20commissions%2C%20redistricting%2C%20referendum%09%7C%20Comments%20Off%0A%E2%80%9CGov.%20Rick%20Perry%E2%80%99s%20big%20donors%20fare%20well%20in%20Texas%E2%80%9D%0APosted%20on%20August%2015%2C%202011%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%0A%0A%20%0A%20%20%20Perry%20has%20received%20a%20total%20of%20%2437%20million%20over%20the%20last%20decade%20from%20just%20150%20individuals%20and%20couples%2C%20who%20are%20likely%20to%20form%20the%20backbone%20of%20his%20new%20effort%20to%20win%20the%20Republican%20presidential%20nomination.%20The%20tally%20represented%20more%20than%20a%20third%20of%20the%20%24102%20million%20he%20had%20raised%20as%20governor%20through%20December%2C%20according%20to%20data%20compiled%20by%20the%20watchdog%20group%20Texans%20for%20Public%20Justice.%0A%0A%20%20%20%20Nearly%20half%20of%20those%20mega-donors%20received%20hefty%20business%20contracts%2C%20tax%20breaks%20or%20appointments%20under%20Perry%2C%20according%20to%20a%20Los%20Angeles%20Times%20analysis.%0A%0A%20%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CSpecial%20prosecutor%20named%20in%20Prosser%2FBradley%20altercation%E2%80%9D%0APosted%20on%20August%2015%2C%202011%20by%20Rick%20Hasen%0A%0AThe%20latest%20from%20%0AWisconsin.%0AShare%0APosted%20in%20ethics%20investigations%2C%20judicial%20elections%09%7C%20Comments%20Off%0ATop-Two%20Primary%20Coming%20to%20Arizona%3F%0APosted%20on%20August%2015%2C%202011%20by%20Rick%20Hasen%0A%0ACould%20be.%0AShare%0APosted%20in%20political%20parties%2C%20primaries%09%7C%20Comments%20Off%0A%E2%80%9CU.S.%20attorney%20gathering%20info%20on%20%E2%80%98Run%2C%20Ed%2C%20Run%E2%80%99%E2%80%9D%0APosted%20on%20August%2015%2C%202011%20by%20Rick%20Hasen%0A%0AMurmuring%20in%20SF.%0AShare%0APosted%20in%20Uncategorized%09%7C%20Comments%20Off%0ABe%20Careful%20What%20You%20Wish%20For%20Dept.%0APosted%20on%20August%2015%2C%202011%20by%20Rick%20Hasen%0A%0ADems%20may%20slide%20back%20in%20Round%20Two%20of%20the%20Wisconsin%20recalls.%0AShare%0APosted%20in%20recall%20elections%09%7C%20Comments%20Off%0ABNA%3A%20Tom%20DeLay%20Arguing%20CU%20Should%20Get%20Him%20Off%20the%20Hook%20for%20His%20Money%20Laundering%20Conviction%0APosted%20on%20August%2015%2C%202011%20by%20Rick%2%0A0Hasen%0A%0A%20%20%20%20BNA%3A%0A%0A%20%20%20%20The%20conviction%20of%20former%20U.S.%20House%20Majority%20Leader%20Tom%20DeLay%20%28R-Texas%29%20on%20conspiracy%20and%20money%20laundering%20charges%20was%20unconstitutional%2C%20his%20attorneys%20contend%20in%20a%20brief%20filed%20with%20a%20state%20a>
> Posted in citizen commissions <http://electionlawblog.org/?cat=7>, 
> redistricting <http://electionlawblog.org/?cat=6>, referendum 
> <http://electionlawblog.org/?cat=56> | Comments Off

-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

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