[EL] FW: CRC asks Attorney General to Change "Misleading and Inaccurate" Referendum Language
Fredric Woocher
fwoocher at strumwooch.com
Tue Aug 30 11:51:24 PDT 2011
David:
The "substantially similar" or "essentially different" doctrine is
judge-made, but it flows from the very notion of the referendum being a
power "reserved" to the people and thus being a "higher" authority than
the legislative power of the Legislature. The Cal Supreme Court
referenced the doctrine and some of its leading precedents in Assembly
v. Deukmejian (1982) 30 Cal.3d 638, 678, which as you may know involved
a referendum filed against the Legislature's 1981 redistricting plans:
"Since its inception, the right of the people to express their
collective will through the power of the referendum has been vigilantly
protected by the courts. Thus, it has been held that legislative bodies
cannot nullify this power by voting to enact a law identical to a
recently rejected referendum measure. (See Gilbert v. Ashley (1949) 93
Cal.App.2d 414, 415-416, 209 P.2d 50;
<https://web2.westlaw.com/find/default.wl?serialnum=1949114314&tc=-1&rp=
%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=661&tf=-1&findtype=Y&fn=_to
p&mt=Westlaw&vr=2.0&pbc=C3630C7D&ordoc=1982104228> In re ***322
Stratham (1920) 45 Cal.App. 436, 439-440, 187 P. 986.)
<https://web2.westlaw.com/find/default.wl?serialnum=1920189711&tc=-1&rp=
%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=660&tf=-1&findtype=Y&fn=_to
p&mt=Westlaw&vr=2.0&pbc=C3630C7D&ordoc=1982104228> Unless the new
measure is "essentially different" from the rejected provision and is
enacted "not in bad faith, and not with intent to evade the effect of
the referendum petition," it is invalid. ( Id., at p. 440, 187 P. 986;
<https://web2.westlaw.com/find/default.wl?serialnum=1920189711&tc=-1&rp=
%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=660&tf=-1&findtype=Y&fn=_to
p&mt=Westlaw&vr=2.0&pbc=C3630C7D&ordoc=1982104228> see also Reagan v.
City of Sausalito (1962) 210 Cal.App.2d 618, 629-631, 26 Cal.Rptr. 775;
<https://web2.westlaw.com/find/default.wl?serialnum=1962110723&tc=-1&rp=
%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=227&tf=-1&findtype=Y&fn=_to
p&mt=Westlaw&vr=2.0&pbc=C3630C7D&ordoc=1982104228> Martin v. Smith
(1959) 176 Cal.App.2d 115, 118-119, 1 Cal.Rptr. 307.)
<https://web2.westlaw.com/find/default.wl?serialnum=1960107557&tc=-1&rp=
%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=227&tf=-1&findtype=Y&fn=_to
p&mt=Westlaw&vr=2.0&pbc=C3630C7D&ordoc=1982104228> Should the referenda
here be rejected in the primary election, the Legislature will be
governed by these rules in fashioning new reapportionment plans for the
remainder of this decade."
In addition, I don't think the issue is so much what the "referendum
initiators" might have objected to or would have preferred, but what the
electorate who may ultimately pass the referendum had in mind. In that
regard, the ballot arguments and other publicized arguments of the
"initiators" are generally looked to as indicia of legislative intent
and therefore may play a role in the courts' assessment of what features
should be "essentially different" for a new measure to pass muster. But
this is really not a highly developed area of the law, and I think you
raise good questions.
I continue to disagree, however, with the implication in both your email
and in the Commission's press release and letter that there is something
meaningful to be drawn from Prop 11's directive that any maps drawn by
the court-appointed special masters must adhere to the Prop 11-enacted
criteria. Those criteria merely constitute the substantive law that
governs the redrawing of boundaries. To be sure, they must be complied
with in the new maps, but given the looseness in the joints, that does
not in my view impose significant constraints on the special masters.
It certainly cannot be read to "trump" the established law regarding
referenda.
Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
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
David A. Holtzman
Sent: Monday, August 29, 2011 11:31 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] FW: CRC asks Attorney General to Change "Misleading
and Inaccurate" Referendum Language
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
<!--[if !supportLineBreakNewLine]-->--
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
(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
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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
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