[EL] FW: CRC asks Attorney General to Change "Misleading and Inaccurate" Referendum Language
David A. Holtzman
David at HoltzmanLaw.com
Wed Aug 31 18:00:22 PDT 2011
My main point is that this is new territory, and it's likely that Prop.
11 did NOT import all the case law accompanying prior referenda.Prop. 11
put special restrictions on the outcome of a district map referendum
into the California Constitution.Those restrictions are meant to ensure
that final maps are similar to constitutional but referendized maps in
important ways.So I think the "not substantially similar" criterion has
got to go.
- dah
p.s. If voters want to force more R districts and fewer D districts,
they need to start by collecting the constitutional amendment quantity
of signatures.With that, they could propose their own map!
p.p.s. Minor off-topic point: The more I look at it, the more I see the
commission's work as being legislative, with its maps being treated
procedurally like statutes.So the 501(c)(3) orgs that were lobbying the
commission might face questions....
Disclamer: my posts on this list are not intended to express views or
positions of the League of Women Voters, except where noted.
On 8/31/2011 3:23 PM, Fredric Woocher wrote:
> 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 <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
> *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=_top&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=_top&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=_top&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=_top&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=_top&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 <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
>> *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 <mailto: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>
>> [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
>> <mailto: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
>>
>> Having trouble viewing this email? Click here
>> <http://campaign.r20.constantcontact.com/render?llr=zx6dkreab&v=001AwKjSTzc577SrdOjln6cJ6GEEfriIXlRrjM8OFNSWl_aoDOIoRQUr9U1HvSk1kpgRypc1VEmHpcoq9fJegoC342J-yEVCft3QcEjOahUZX4%3D>
>>
>>
>>
>> <http://s.rs6.net/t?e=Cu7MwoYdvd4&c=1&r=1>
>>
>>
>>
>> <http://s.rs6.net/t?e=Cu7MwoYdvd4&c=3&r=1>
>>
>>
>>
>> <http://s.rs6.net/t?e=Cu7MwoYdvd4&c=4&r=1>
>>
>>
>>
>>
>>
>> <http://s.rs6.net/t?e=Cu7MwoYdvd4&c=5&r=1>
>>
>>
>>
>>
>>
>> <http://myemail.constantcontact.com/CRC-asks-Attorney-General-to-Change--Misleading-and-Inaccurate--Referendum-Language.html?soid=1104387634937&aid=Cu7MwoYdvd4#fblike>
>>
>> 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>.
>>
>>
>> # # # #
>>
>> Follow the Commission on Twitter Follow us on Twitter
>> <http://r20.rs6.net/tn.jsp?llr=zx6dkreab&et=1107377338500&s=1093&e=001qfcrHR9lDF5hJj4orbV7DtG35sjNMPkXXy4np1yao6JdYZuZFAsRhDABtAnU6E2UX8wXsa8MFgnY0BJZz4M3v3NxFg9DOxUXxPE7VR64bmbpawdq6DqR4TaygZf5zmq0> and
>> on Facebook at the California Citizens Redistricting Commission.
>>
>> California's first Citizens Redistricting Commission is a new
>> 14-member Commission charged with redrawing California's Senate,
>> Assembly, State Board of Equalization, and Congressional districts
>> based on information gathered during the 2010 census. The Commission
>> must draw the State Senate, Assembly, State Board of Equalization,
>> and Congressional districts in conformity with strict, nonpartisan
>> rules designed to create districts of relatively equal population
>> that will provide fair representation for all Californians.
>>
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>> --
>> Justin Levitt
>> Associate Professor of Law
>> Loyola Law School | Los Angeles
>> 919 Albany St.
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>> 213-736-7417
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>> david at holtzmanlaw.com
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