[EL] CA Republicans Plan Referendum Against Redistricting Plans

Tue Aug 16 10:53:48 PDT 2011

Had the legislature retained control over redistricting, that issue almost certainly would have played into the negotiations over the budget and the tax extension ballot measure. You can decide if that would have been a good thing or a bad thing. I think things might have turned out somewhat differently on both fronts. That's politics. And every attempt to take politics out of politics seems to have a string of unintended and unanticipated consequences.
Larry
  ----- Original Message ----- 
  From: Rick Hasen 
  To: Justin Levitt 
  Cc: law-election at department-lists.uci.edu 
  Sent: Tuesday, August 16, 2011 10:45 AM
  Subject: Re: [EL] CA Republicans Plan Referendum Against Redistricting Plans

  You may be right on the politics; it is not clear to me that Republicans in CA would have done worse had the Legislature retained the power to redistrict---even with Jerry Brown as governor.  The Dems could well have overreached on VRA grounds (especially in keeping White Democratic districts to the detriment of Latinos), causing a lawsuit to upset the plans.  But maybe not.  You follow this much more closely than I do.

  As far as why Republicans backed this plan as written given that the auditors dinged people with any political history, I would suspect the calculation was still that partisanship would play, if only subconsciously, into commissioners' views of the plans.  It would be interesting if anyone on the list has insight into the actual Republican calculations for supporting Prop. 11 (and the follow on congressional extension).

  On 8/16/2011 10:35 AM, Justin Levitt wrote: 
    As an engaged observer 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 
      Posted on August 15, 2011 by Rick Hasen 
      The big question, 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 straight 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 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.”

      Posted in citizen commissions, redistricting, referendum | 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

  -- 
  Rick Hasen
  Professor of Law and Political Science
  UC Irvine School of Law
  401 E. Peltason Dr., Suite 1000
  Irvine, CA 92697-8000
  949.824.3072 - office
  949.824.0495 - fax
  rhasen at law.uci.edu
  http://law.uci.edu/faculty/page1_r_hasen.html
  http://electionlawblog.org

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