[EL] FW: CRC asks Attorney General to Change "Misleading and Inaccurate" Referendum Language
David A. Holtzman
David at HoltzmanLaw.com
Mon Aug 29 23:31:22 PDT 2011
I just looked at that section (Section 9 of Article II) of the
California Constitution, and did not see a restriction precluding
"substantially similar" follow-up laws after laws are overturned by
referendums.I suppose that's in case law.If so, which cases?What were
the criteria used to assess similarity, and how were they divined?
Can the wishes of referendum instigators really constrain replacement
law?Whether or not those wishes are put to the voters as part of the
referendum?
Is referendum really a twofer, providing both (1) a block against a
statute and (2) a temporary constitution-level constraint on legislative
power?
Here, it looks like Prop. 11 may have trumped or limited any "no
substantially similar follow-up" rule by affirmatively requiring a
follow-up map, making the CRC map the baseline, and requiring adherence
to Prop. 11-enacted criteria that are now part of the state
Constitution.Post-Prop. 11, redistricting policy is no longer a
wide-open playing field, as the subject matter of other referenda may be.
The "manner" of referendum mentioned below could simply be
procedure.That's all I got from reading Section 9 of Article II.
Now, if the referendum blocks the map, what's to stop the Court from
requiring a district-less election while new district lines are being
prepared?A statewide, single transferable vote (STV), 20-winner election
would be fair.(Or make it 40 winners by STV if the Court can justify
kicking 20 State Senators out of office halfway through their terms.)
- dah
--
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com
On 8/29/2011 6:15 PM, Fredric Woocher wrote:
> I agree with Justin as to his analysis of the second issue -- what
> might occur in the interim for the next election if a referendum
> petition were to qualify, but I think he and (especially) the
> Redistricting Commission are giving too much deference to the
> boundaries that the Commission drew in the event that the referendum
> were to pass and the task of redrawing the lines were put before the
> Supreme Court's special masters. The whole purpose of a referendum is
> for the voters to reject what the Legislature -- or in this case, the
> Commission -- has enacted. Indeed, with a typical referendum, it
> would be unlawful for the Legislature to respond by enacting another
> measure that is substantially similar to what it had previously
> enacted and the voters rejected in the referendum vote. Article XXI,
> section 2(i), states that the Commission's maps "shall be subject to
> referendum in the same manner that a statute is subject to referendum
> pursuant to Section 9 of Article II." That would appear to mean that
> the same principles apply to whatever replacement maps are to be drawn
> following a successful referendum -- that is, they are not to be
> substantially similar to the original maps adopted by the Commission.
> The Commission's argument that the maps can only be "adjusted" by the
> special masters "in accordance with the redistricting criteria
> requirements set forth in subdivisions (d), (e), and (f)" also seems
> to place too much weight on the last phrase. Subdivisions (d) - (f)
> merely set forth the general legal requirements that apply to any and
> all maps that might result from the redistricting process; there are
> obviously many different maps that can comply with those
> requirements. For the Commission to suggest, as it did in its press
> release at least, that only minor tinkering could be done to the lines
> it drew because those lines were established in accordance with the
> general legal criteria overstates their case. And I don't think the
> mere use of the word "adjusts" would constrain a court to hew closely
> to the lines drawn by the Commission, since as mentioned above, that
> would defeat the very purpose of the referendum in the first place.
> Typically, the proper response to a successful referendum vote would
> be either to abandon the proposed legislation altogether or to amend
> it in a manner that responds to the complaints of those who opposed
> it. Obviously, this poses an interesting dilemma for the special
> masters who might be called upon to draw new boundaries if the
> referendum were successful. Obviously, they cannot abandon the effort
> altogether, and if the stated objection is that the maps are too
> heavily weighted in favor of Democratic partisan interests, they would
> be prohibited by the terms of the Constitution from taking that into
> account (at least explicitly) in re-drawing the lines. So, I'm not
> sure how they would or should respond. But I don't think making only
> minor tinkering to the Commission's boundaries is required, or even
> necessarily permitted.
> In any event, I certainly don't see how the sentence in the Summary
> stating that the petition will "place the revised State Senate
> boundaries on the ballot and prevent them from taking effect unless
> approved by the voters at the next statewide election" is misleading.
> That is certainly the outcome that would result in the long term if
> the referendum were to qualify and be passed by the voters.
> Fredric D. Woocher
> Strumwasser & Woocher LLP
> 10940 Wilshire Blvd., Ste. 2000
> Los Angeles, CA 90024
> fwoocher at strumwooch.com <mailto:fwoocher at strumwooch.com>
> (310) 576-1233
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
> *Justin Levitt
> *Sent:* Monday, August 29, 2011 5:52 PM
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] FW: CRC asks Attorney General to Change
> "Misleading and Inaccurate" Referendum Language
>
> Prop 11 -- in relevant part, now in article XXI, section 2(j) of the
> California Constitution -- says: "If . . . voters disapprove a
> certified final map in a referendum, the Secretary of State shall
> immediately petition the California Supreme Court for an order
> directing the appointment of special masters to adjust the boundary
> lines of that map in accordance with the redistricting criteria and
> requirements set forth in subdivisions (d), (e), and (f)."
>
> To my knowledge, neither this language nor similar language has been
> construed before. But the commission's press release below seems to
> be relying heavily on text: if voters disapprove the commission's map
> in a referendum, the Supreme Court will _adjust_ "_that_" map to
> arrive at a plan going forward. To me, that confirms the commission's
> reading of the baseline/-- start /with the Commission's lines --//_if_
> a map is voted down in a referendum. But courts haven't had a go at
> the language just yet.
>
> ***
>
> If a referendum effort gathers enough signatures, the situation
> between qualifying for the ballot and the actual ballot vote is a
> little different. California law is clear that once a referendum
> qualifies for the ballot, the underlying law may not be put into
> effect until the referendum vote (specifically, until a referendum
> fails). So if the referendum qualifies, then the state Senate maps
> aren't legally binding.
>
> But in that event, new elections (including filing for primaries and
> the primaries themselves) will need to be conducted from some
> districts. There are three options for the CA Supreme Court, which
> has the authority (and responsibility) to make the decision:
>
> 1. Reverting to the last-existing lines lawfully approved -- the
> 2001-cycle districts. These districts are known to be
> unconstitutionally malapportioned (and likely violate the Voting
> Rights Act as well, given the demographic changes of the last
> decade). The Supreme Court has given courts latitude to leave
> unconstitutional lines in place if absolutely necessary (Upham v.
> Seamon, 456 U.S. 37, 44 (1982)). But only if -- really -- absolutely
> necessary, as in there's not enough time to redraw lines that would
> better comply. This is clearly a last-choice scenario.
>
> 2. Drawing temporary lines (governing elections at least until the
> referendum vote) from scratch, following both federal law and state
> constitutional requirements. It's theoretically possible that the
> court would do this, following their own appointed special masters.
> But though it would be straightforward to just equalize population,
> it's an awful lot of work to ensure compliance with the Voting Rights
> Act, and with the remainder of California's state constitutional
> requirements. An awful lot of work, as the Commission just found
> out. So it's much more likely that the court would spare itself the
> effort by ...
>
> 3. Adopting (or tweaking) the Commission's lines as the temporary
> lines (governing elections at least until the referendum vote). This
> is by far the most likely option, basically mirroring what happened in
> 1982, when the court adopted the legislature's new lines between the
> filing of a referendum and that referendum vote. (Assembly v.
> Deukmejian
> <http://scholar.google.com/scholar_case?case=18427288310672228624>, 30
> Cal. 3d 638 (1982)). This spares the court the work of attempting to
> draw compliant maps, because it at least has the Commission's work
> product as an attempt at legal compliance. It also is a way of
> reflecting the best-known preferences of the California public, at
> least at the time: the public voted for the Commission and its
> procedure, and the only evidence to the contrary are the 5% of voters
> signing the referendum petition. That's not nothing, but the
> Commission's work is still a better gauge of the majority of
> California voters for the time being...
>
> And that option #3 tells me that in the period between qualifying and
> the referendum vote, the Commission's maps should be the baseline as
> well. Here, there's a bit more court interpretation -- the 1982
> /Deukmejian/ decision -- but that was before Prop 11; though the logic
> seems solid to me, a different court might read Prop 11 differently.
>
> Justin
>
> On 8/29/2011 2:06 PM, Eric McGhee wrote:
>>
>> The California Citizens Redistricting Commission has just petitioned
>> the CA AG to stop signature gathering for the referendum against the
>> State Senate maps (see below). That's interesting by itself, but as
>> part of their petition they're arguing that the law constrains the
>> potential maps the CA Supreme Court could draw as relief, should the
>> Court end up hearing the case. As I read it, the commission is
>> saying that the Court is required to treat the commission's maps as
>> the baseline, and to adjust them only enough to correct any legal
>> problems that might be identified.
>>
>> Can anyone on the list comment on this interpretation of the law? Is
>> the Court in fact constrained in this way?
>>
>> Cheers,
>>
>> Eric
>>
>> 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:*California Citizens Redistricting Commission
>> [mailto:rob.wilcox at crc.ca.gov]
>> *Sent:* Monday, August 29, 2011 12:40 PM
>> *To:* Eric McGhee
>> *Subject:* CRC asks Attorney General to Change "Misleading and
>> Inaccurate" Referendum Language
>>
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>> CRC Header
>>
>> Press Release
>>
>> August 29, 2011
>>
>>
>>
>> For Immediate Release
>> Contact: Rob Wilcox
>>
>> Communications Director
>>
>> 916-709-6358
>>
>> California Citizens Redistricting Commission
>>
>>
>> *Citizens Redistricting Commission *
>>
>> */Asks Attorney General to Change/***
>>
>> */"Misleading and Inaccurate" Language in the/***
>>
>> */Proposed Referendum on the Commission's State Senate Maps/***
>>
>> Sacramento, CA (August 29, 2011) --
>>
>> The California Citizens Redistricting Commission has asked the
>> state's Attorney General to correct misleading and inaccurate
>> information contained in a proposed referendum on the Commission's
>> final certified State Senate maps. The Commission has also requested
>> the proponents of the referendum to hold off on gathering signatures
>> for a short period until the Attorney General fixes the summary
>> language. The Commission also has asked the Secretary of State to
>> wait for the Attorney General's revised summary before notifying and
>> providing copies of the summary to county election officials.
>>
>> "The Summary represents a misunderstanding of Article XXI of the
>> California Constitution. In order to avoid misleading and confusing
>> the voters during the referendum process, and to avert the inevitable
>> inefficiencies and needless costs that would result if the referendum
>> summary is later found to be invalid, we respectfully request that
>> your office revise and reissue the Summary to accurately reflect
>> California law," wrote the Commission's litigation counsel George H.
>> Brown and James Brosnahan in a letter to the office of the state
>> Attorney General.
>>
>> The letters from the Commission point out two problems with the
>> summary of the proposed referendum that would be used by the
>> proponents to gather signatures. First, the summary states that the
>> referendum petition, "if signed by the required number of voters,"
>> will "[p]lace the revised State Senate boundaries on the ballot and
>> prevent them from taking effect unless approved by the voters at the
>> next statewide election." This is misleading because even if the
>> referendum qualifies and the voters reject the Commission's Senate
>> maps in the next statewide election, there is no reason to believe
>> that the Senate maps as drawn by the Commission will not ultimately
>> go into effect. In particular, the Voters First Act specifically
>> amended the California Constitution to provide that if voters reject
>> the Commission's maps in a referendum, the California Supreme Court
>> may appoint special masters to "adjust" the Commission's maps - not
>> start over from a blank slate - and only to the extent necessary to
>> comply with the redistricting criteria set forth in the Constitution.
>> But the Commission scrupulously adhered to these criteria when
>> drawing the maps in the first instance. Accordingly, even if the
>> voters ultimately reject the Commission's Senate maps, the California
>> Supreme Court would be required to allow all of the maps to become
>> effective, unless special masters found specific instances of
>> non-compliance with the redistricting criteria.
>>
>> Second, the Attorney General's summary states that a referendum
>> petition successfully filed with the Secretary of State will
>> "[r]equire court-appointed officials to set interim boundaries for
>> use in the next statewide election." This is wrong. Even if the
>> California Supreme Court exercised its discretion to hear an action
>> concerning interim boundaries for the next election (which is by no
>> means certain), there is no requirement for the Court to appoint
>> special masters or any other officials to assist in this task. More
>> important, there would be no requirement for the Court to "set"
>> boundaries that were any different from the Commission's Senate maps.
>> To the contrary, in analogous circumstances, the California Supreme
>> Court in 1982 allowed the newly drawn maps to apply in the next
>> election, even though a referendum had already qualified and was to
>> be voted on in that same election.
>>
>> For these reasons, the Commission believes that the summary of the
>> proposed referendum is misleading, fails to reflect California law,
>> and brings needless uncertainty to the referendum process. The
>> Commission hopes that the Attorney General will take these issues
>> into account and will promptly revise the summary, and that the
>> proponents refrain from collecting signatures from voters using a
>> misleading petition, which would ultimately prove to be a waste of
>> time and effort.
>>
>> The Commission's letters to the Attorney General, the referendum's
>> proponents and the Secretary of State can be found at the
>> Commission's website at www.wedrawthelines.ca.gov
>> <http://r20.rs6.net/tn.jsp?llr=zx6dkreab&et=1107377338500&s=1093&e=001qfcrHR9lDF5sfjcxkfSmAwGUhq5eanEvWqsYg9PQB12wwSUDq1ENgosIUyyLJMZ4MJK8R9ocC_eLVuwu6Y_e5n31nAAuoNW61BeZb2hTRj9nWA02ZCHGnEa-GPOkOADN>.
>>
>>
>> # # # #
>>
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> --
> 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
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