[EL] CA Republicans Plan Referendum Against Redistricting Plans

Tue Aug 16 12:13:28 PDT 2011

I'm not sure it's exactly right to say that the alternative to the commission would have been an aggressive pro-Democratic gerrymander.  The Republicans used the threat of a referendum 10 years ago to get maps they could live with, and by signing onto the deal they gave it a 2/3 vote that made it immune to referendum.  They could have pursued a similar strategy this time around.

As for the districts that have been drawn, the basic problem for the Republicans is the changing politics and demographics of the state.  Vlad Kogan at UCSD and I have been looking at the partisanship of the new districts, and my own take on the results is that their competitiveness drives the great majority of the partisan outcomes we see.  That is, the Democrats have done better over the last 10 years, but because the districts have been uncompetitive, Dems haven't claimed more seats.  The new districts are more competitive (though only just, in some cases), and so Dems now have the potential to pick up those seats.  Thus, only something approximating the incumbent-protection gerrymander of the past 10 years would have completely protected Republican interests, and the party was unlikely to get such a result under any system *except* one where the legislature drew the lines.  (My reading of the law is that any court-appointed redistricting authority would be required to follow the same procedures as the commission, so it's likely that they would produce a similar partisan result.)

Eric McGhee
Research Fellow

PUBLIC POLICY
INSTITUTE OF CALIFORNIA
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Any opinions expressed in this message are those of the author alone and do not necessarily reflect any position of the Public Policy Institute of California.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, August 16, 2011 10:45 AM
To: Justin Levitt
Cc: law-election at department-lists.uci.edu
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<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."

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Posted in citizen commissions<http://electionlawblog.org/?cat=7>, redistricting<http://electionlawblog.org/?cat=6>, referendum<http://electionlawblog.org/?cat=56> | Comments Off

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Justin Levitt

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Rick Hasen
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