[EL] CA Republicans Plan Referendum Against Redistricting Plans

[Eric McGhee]

I think these are very good points.  The difference, it seems to me, comes down to one's perception of the odds of certain outcomes.  Would the Republicans have been able to use the referendum threat the way they did in 2001?  Will the courts be able (under the new law) to draw districts with a substantially different partisan effect from the ones the commission has already drawn?  My take on the first is "probably yes," and my take on the second is "probably no," in which case the commission format has had a downside for Republicans even if the process was likely to end up in the courts.  If you disagree with either assessment, then the Republicans are probably better off with a commission.


Eric McGhee  |  Research Fellow  |  PPIC  |  415-291-4439

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: Vladimir Kogan [mailto:vkogan at ucsd.edu]
Sent: Tuesday, August 16, 2011 1:37 PM
To: Justin Levitt; Eric McGhee
Cc: law-election at department-lists.uci.edu
Subject: RE: [EL] CA Republicans Plan Referendum Against Redistricting Plans

I'll add two more points on this:


1.       Eric is absolutely right in pointing that the partisan impact of the California plan could be explained by many factors other than overt partisanship on the part of the of the commissioners. The fact that supposedly "nonpartisan" redistricting criteria like compactness, reducing city/county splits, etc. - all now written into the California state constitution - have clear and predictable implications for the partisan balance of power has been amply documented by Michael McDonald, Jonathan Rodden at Stanford, and certainly many others on this list. So simply showing that Republicans get screwed under these maps is not sufficient to establish that the commission improperly used political considerations in its deliberations.



2.       Justin Levitt is also right that the new commission system is more favorable to Republicans than the status quo prior to Proposition 11. Under the old system, Republicans (or any other minority party/outside group) had two ways to exercise an ex post veto: (1) referendum; (2) court challenge. Both of these are still in place after Prop 11. But now, the Republicans have also gained a potential ex ante veto (enough Republican seats on the commission to block the adoption of any set of maps). Indeed, by specifying that each set of maps is subject to referendum, Proposition 11 no longer allows the Democrats to pick off a few Republican votes and pass the redistricting plan as an "urgency" measure, thus taking a referendum challenge off the table. This is precisely what happened in response to the Republican referendum challenge after the 1980 round of redistricting. In fact, had the new maps been adopted by the legislature by the same vote margin that they were approved by the commission, a referendum would not have been possible under the pre-Prop 11 regime.



A cynical (and probably realistic) reading of Proposition 11 is that it's main purpose was to ensure that any redistricting plan eventually ended up before the state Supreme Court. Either due to a deadlocked commission, a legal challenge, or a referendum. With Republican appointees having a large majority on the court, and the Republican-appointed chief justice apparently already shopping around for special masters (http://www.law.com/jsp/ca/PubArticleFriendlyCA.jsp?id=1202501533652) that was certainly a smart strategy for Republicans.

Vlad
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