[EL] FW: CRC asks Attorney General to Change "Misleading and Inaccurate" Referendum Language
Fredric Woocher
fwoocher at strumwooch.com
Wed Aug 31 15:23:21 PDT 2011
David:
I'm not entirely sure what your underlying point/position is, and I'm
not sure whether it's worth pursuing this discussion further, but in
case there is anyone still out there who is interested in the issue,
there are a couple of statements in your latest email that I believe are
not correct.
First, there is no "consitutionally valid" or "constitutionally invalid"
reason for a referendum. Anyone can file a referendum petition for a
good reason, a bad reason, or no reason at all, and the courts have no
authority to "take the referendum off the ballot" because they believe
its misguided or for an improper purpose. The reserved power of
referendum is "part of" the Constitution; it does not attempt to "trump"
the Constitution. And regardless of what other states might or might
not do, here in California the referendum has been deemed to be an
important right (indeed, "reserved power") of the people, whose exercise
is jealously guarded by the courts. When the proponents of Prop 11 made
the Commission's maps subject to the referendum provision of the
California Constitution, they imported all of the accompanying case law
with it.
Moreover, as noted above, the referendum is not a vote on whether or not
the Commission's plans comply with the redistricting criteria. That
might be the function of a lawsuit challenging the legality of the plan,
but it is not a function of the referendum. One could admit that the
plans drawn by the Commission are perfectly legal, but urge them to be
overturned by the voters simply on the theory that "better" plans could
have been drawn. I would note that in the current circumstance,
however, the argument put forward by the Republican Party in support of
the referendum is that the plans adopted by the Commission in fact do
not comply, at least in spirit if not in letter, with the legal
requirements because they unfairly favor the Democrats and are thus
impermissibly partisan. It's not an argument that I personally agree
with, but it doesn't counter any of your arguments for what constitutes
an invalid referendum.
As to what might happen if the referendum were to qualify, I believe
that in the absence of a compelling showing that the Commission's plans
are not in compliance with the redistricting criteria, it is quite
likely that the Supreme Court would allow those plans to be used in the
interim for the upcoming 2012 elections, much as it did in Assembly v.
Deukmejian and for similar reasons. But there is certainly nothing in
Prop 11 that indicates any mistrust of the courts; the reference to the
appointment of special masters simply recognizes that the Court will not
perform the task of drawing boundaries itself, but will delegate that
task to special masters in the first instance, as it has in the past.
But Prop 11 itself makes it clear that the special masters' boundaries
must be approved by the Court. (See sec. 2(j) ["Upon its approval of
the special masters' map, the court shall certify the resulting map to
the Secretary of State, which map shall constitute the certified final
map for the subject type of district."].)
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: Wednesday, August 31, 2011 2:39 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] FW: CRC asks Attorney General to Change "Misleading
and Inaccurate" Referendum Language
Alright, Fred and I will disagree about the effect of Prop. 11's
limitations on court-drawn districts. I think they give the Court
plenty of reasons to distinguish prior judge-made law on referenda. And
a constitutional amendment like Prop. 11 can indeed trump or limit
judge-made law. The power of referendum, unlike women's suffrage (which
was enacted at the same California election in 1911), is limited in
California to certain types of statutes and is not accepted across the
land as some sort of reserved or universal right of people.
Fairly read, Prop. 11 anticipated that the reason for a referendum would
be non-compliance with its conditions/criteria. Not an imbalance in
safe party seats. So an imbalance in safe party seats may not be a
constitutionally valid reason for a referendum here. If the
instigators' "vote no" argument, or rebuttal against the "vote yes"
argument, mentions party representation, that would be a reason for the
courts to take the referendum off the ballot (or to strike the argument,
or to adopt the map as final despite a successful referendum). The
proper remedy for an imbalance in party representation is to amend the
Constitution again with another initiative that mandates party balance.
A referendum cannot trump the California Constitution. In California, a
referendum can get on the ballot with only 62.5% of the signatures
required for a constitutional amendment.
I know it's usually left to the courts to say "what the law is," and
whether or not the government has complied with it, but the Prop. 11
referendum clause lets the voters say that the Citizens Redistricting
Commission has not complied with the terms of the proposition. It's a
check against a commission that sneaks party-centric or
incumbent-protection thinking, for example, into the maps (perhaps by
commissioners colluding to preserve certain interests), and cannot be
construed as a way to compel a court to engage in such thinking. Given
that we have a democratically elected or confirmed judiciary, it's
reasonable to provide democratic check against judicial inaction, in
case the judiciary is captured by a democratic interest or is just too
slow. Seriously, it may simply reflect a lack of trust that the courts
would act quickly enough (before the next election) to address or
redress any alleged unconstitutional bias.
The provision for the Court to appoint special masters to adjust the
maps after referendum (rather than letting the Court approve a map
prepared by a litigant, amicus or intervenor) is one way that Prop. 11
expresses some distrust of the Court itself.
The referendum provision isn't mentioned at all in the ballot materials
for Prop. 11 (outside of the text of the proposal).
At any rate the sequel to a "successful" referendum would be a matter
for the SoS to initiate. Could the referendum instigators step in if
the SoS refuses to do so, like the Prop. 8 proponents want to do in the
absence of state AG action (to defend Prop. 8 in court)? I suppose
California's tradition of weaker standing requirements than those of the
federal courts would allow that, even though there's no legally
cognizable harm, and no particularized harm, in a set of district maps
that violates no law.
Now I've asked LWV colleagues who specialize in the (LWV-sponsored Prop.
11) redistricting reform a simple question, and have yet to get an
answer. Is the CRC considered executive or legislative? If executive,
it would be an unusual situation for voters to have referendum power to
negate its actions. Case law regarding referenda on legislative action
might not apply.
If legislative, 501(c)(3) nonprofits like the NALEO Educational Fund
could possibly get in trouble for all the effort they've put into trying
to persuade and influence the committee through lobbying and advocacy.
(Such nonprofits can engage in some lobbying, but not too much.) But
case law for referenda of legislation would be more likely to apply.
Note that Prop. 11 opponents suggested that the commission would be
unlike a legislature because it would "give the power of drawing
districts to people who are NEVER ELECTED and NEVER ACCOUNTABLE ... a
new bureaucracy with no accountability."
- dah
p.s. I don't see how translating "that map" as "the map for the type of
district in question" changes anything. (And the language *was* in
proposition 11: "(j) If the commission does not approve a final map by
at least the requisite votes or if voters disapprove a certified final
map in a referendum, the Secretary of State shall immediately petition
the 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). Upon its approval of the masters' map, the court shall
certify the resulting map to the Secretary of State, which map shall
constitute the certified final map for the subject type of district."
[Then no more referenda allowed!])
p.p.s. It's a good point that the Court could have a map drawn shortly
after *qualification* of a referendum. The Court could also decide that
the commission-drawn map complies with the California Constitution
before voters vote on the referendum, and stay the appointment of
masters, or its consideration of masters' handiwork, until after the
referendum. If the Court finds that the commission-drawn map is
constitutional, the prospects for the referendum would dim. The cost
argument (why spend more time and money to make a new map? if it ain't
broke, don't fix it) would be pretty salient. For the sake of judicial
economy (and equity), the Court could find the Redistricting
Commission's map constitutional with a declaratory judgment and pair
that ruling with an injunction against a referendum, because the Court
would approve that map even after a successful referendum.
p.p.s. The reason why it's misleading to say that a referendum petition
would block the commission's map from taking effect until after the
referendum is that the Court could allow the map to be used in the 2012
elections, contemporaneously with the referendum (which by default would
not be put on the ballot until "next general election" [Cal. Const. Art.
II, Sec. 9] -- the November 2012 election). And if the primary goes
smoothly and people start getting used to the new district lines, that
would also dim the prospects for an overturn by referendum.
On 8/30/2011 10:23 PM, Douglas Johnson wrote:
Two key points are missing in this debate so far. Looked at in
detail, these two points reveal the extreme stretch of reality reflected
in the (taxpayer-funded) claims from the California Redistricting
Commission:
1) There is no ability for the Commission to adopt
"substantially similar" (or any other) follow up legislation. The
Commission's authority to draw (or revise) plans ended on August 15th,
2011. Note the specific reference to court-provided relief in Section
3.3(b)(3) -- if the Court sides with plaintiffs in a claim against one
or more Commission-adopted plans, the relief suggested (though, I admit,
not specifically required) is for the Court to draw new plans. While it
is theoretically possible that the Court could ignore that suggestion
and empower the Commission to make adjustments to a plan, it seems
unlikely. And that deadline means the Commission clearly lacks the power
to do so on its own (such as following a successful referendum).
2) In a flashback to the high-profile debate a few years ago
over the definition of "is," the Commission's claims hinge on an
inaccurate definition of the word "that." [Note that the controlling
language is in Proposition 20, not Proposition 11]:
(j) If the commission does not approve a final map by at least
the requisite votes or 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). [emphasis added]
The Commission claims that "of that map" is a reference to the
specific Congressional, Assembly, State Senate, or Board of Equalization
map drawn by the Commission. But the Commission incorrectly defines
"that." The "of that map" language simply differentiates among the
jurisdiction covered by the map (Congress, Assembly, State Senate or
Board of Equalization). "That" is not a reference to the specific map
drawn by the Commission. The meaning of "that" in this case is that if
the Commission fails to adopt a Congressional map, or if a referendum
against a Congressional map qualifies, the Court will step in to draw a
Congressional map and only a Congressional map. Without that provision,
it is unclear that qualifying a referendum against the Congressional map
does not empower the Court to draw new Congressional, Assembly, State
Senate, and Board of Equalization districts. If you read the language
with the thought that this provision applies if the Commission never
adopts a plan for one or more of those bodies, I believe the language's
intent is clear.
And here's the trump card for this debate: the Commission's own
attorney agrees with this interpretation. Dan Kolke, one of the
Commission's lead attorneys from Gibson, Dunn & Crutcher, was a key
author of Proposition 20. He, along with other proponents of Proposition
20, have repeatedly said how the qualification of a referendum suspends
the Commission's plan and requires a Court-drawn plan for the 2012
election.
Side note: the vote on any referended plan will be unique: the
court will have drawn an interim plan that will be in place for the 2012
election. In effect, the voters will be choosing which plan will be used
for the 2014 - 2020 elections. While the language on the ballot will be
yes/no on the Commission's plan, the real decision will be between the
Commission's plan ("Yes") and keeping the Court's plan in place ("No").
That generates very different voter decision dynamics than the usual
referendum.
The Commission's filing appears to be either attorneys
creatively stretching reality with a client that is not paying
attention, or a Commission ignoring the cost to the taxpayers of its
actions.
Just my two cents. Disclosure: nothing to disclose: neither the
Rose Institute, my consulting firm, or I personally am a participant in
the referendum or in any lawsuits for or against the Commission's plan,
nor did the Institute, consulting firm, or I personally work for the
Commission (though the Institute did apply, unsuccessfully, to be the
Commission's consultants, leading to a high-profile debate already
familiar to many readers of this list).
- Doug
Douglas Johnson
Fellow
Rose Institute of State and Local Government
m 310-200-2058
o 909-621-8159
douglas.johnson at cmc.edu
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Fredric Woocher
Sent: Tuesday, August 30, 2011 11:51 AM
To: David A. Holtzman; law-election at department-lists.uci.edu
Subject: Re: [EL] FW: CRC asks Attorney General to Change
"Misleading and Inaccurate" Referendum Language
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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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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