The Redistricting Commission: Now To The Courts

Tony Quinn
Political Analyst

Act One is over: The Redistricting Commission has adopted
its plans; all that remains is final certification August 15.  Act Two now awaits: court action against the
plans.

The
constitution gives the California Supreme Court "original and exclusive
jurisdiction in all proceedings in which a certified final map is challenged,"
and the Commission has "sole legal standing to defend any action regarding a
certified final map."  Additionally, the
maps must be submitted to the United States Department of Justice for
pre-clearance to show they do not regress minority voting opportunities in four
counties that fall under Section 5 of the Voting Rights Act.  Further, the maps could be challenged in
federal court for violating Section 2 of the Voting Rights Act by providing
insufficient opportunities for minorities to win elections.  Communities could sue under the state
constitution over how their areas are divided up.

While
there are many opportunities for legal challenge, as practical matter only one
of the four maps is likely to be seriously challenged, and even that is
uncertain.  The Assembly map is very
incumbent friendly, both parties are satisfied, and the current political
balance is pretty much retained.  Take
Assembly off the table.  The same is true
of the congressional map; a number of incumbents in both parties are given bad
districts, but that does not rise to a constitutional challenge, so take
Congress off the table.  The Board of
Equalization map pretty much retains the current Board structure; no challenge
there.

The Senate
plan is the one map that could be challenged, for two reasons.  First, the map achieves the remarkable feat
of actually reducing the number of Latino Senate seats in a state where Latinos
account for 90 percent of the past decade’s growth, and the Senate map has the
political effect of delivering a two thirds majority to Senate Democrats.

These
facts are beyond challenge; the current Senate districts include six "effective
Latino districts", the new maps only five, according to the National
Association of Latino Elected and Appointed Officials.  NALEO, deeply involved with the Commission’s
map drawing, is certainly an authoritative voice on this matter.  Secondly, every independent analysis of the
maps finds a sure two thirds Senate majority for the Democrats in 2013; my own
analysis shows only 11 safe Republican Senate seats in 2013, down four from
their numbers today.  They would have to win
two very marginal districts just to get to 13 GOP senators.  Democrats are assured 27 seats at a minimum.

These two
phenomena are interrelated.  "Democrats
on California’s Central Coast were handed a rare prize last week when the
Citizens Redistricting Commission created a Senate district with no incumbent
and a 12-percentage point Democratic voter registration edge," writes Timm
Herdt in the Ventura Star.  He is right,
and it was not by accident.  The commission
pushed one GOP Senate seat way north and made it safely Democratic, the seat of
Ventura County Republican Sen. Tony Strickland was moved far into Los Angeles
County where he cannot win, and the new Democratic seat created out of the
middle.  Thus, a three seat Democratic
gain.

But this
required diluting Latinos in the San Fernando Valley to defeat Strickland, and
prevented the formation of a new Latino Senate seat in Monterey and Santa Clara
Counties.  This latter district could be
the source of a challenge to Justice Department for pre-clearance as Monterey
County is a Voting Rights Act county.

The
Commission was told that the current Monterey to Merced County Senate seat had
to be retained as both counties are VRA Section 5 counties.  But the seat they retained was the product of
the 2001 bipartisan gerrymander, and its effect over the decade has been to
prevent the election of a Latino to the Senate. 
Had the Commission instead combined the Latinos in Monterey (Salinas)
with east San Jose, a sure Latino Senate seat would have emerged.  The overlapping Assembly districts have had
Latino representatives for years.   

The Voting
Rights Act says you should not regress minorities in Section 5 counties; well
that is what happened here.  Whether it
is challenged remains to be seen.  The
same is true in Los Angeles.  In order to
defeat Strickland, the Commission had to dilute Latinos from the east San
Fernando Valley seat now represented by Democratic Sen. Alex Padilla.  As NALEO points out, the "effective Latino
percentage" in this district fell from 47 percent to 38 percent.

These
issues could be taken to the California Supreme Court as well as the federal
courts, but a much faster route to the California court is a referendum against
the Senate plan.  Proposition 20 in 2010
re-wrote the referendum law as far as the commission’s plans are concerned.

A
referendum proponent would have 90 days to gather 505,000 valid signatures
against the maps.  Once they are turned
into the counties, about November 15, any voter could petition the Supreme
Court for a writ of mandate on the grounds the referendum is "likely to qualify
and stay the timely implementation of the map." 

So what
would the court do if faced with a "likely to qualify" referendum.   It has three possible actions.  It could simply leave the current Senate
districts in place for two more years. 
This was done in 1971 when Gov. Reagan vetoed the legislature’s 1971
map.  This remedy is thought unlikely
because the old plans are now unconstitutional, and the court will have
sufficient time to craft an alternative.

A second
remedy is to impose the commission’s Senate plan despite the referendum, as was
done by the court headed by Chief Justice Rose Bird in 1981.  But as Dan Walters of the Sacramento Bee has
pointed out, that decision, viewed as highly partisan, "fueled a drive to oust
Bird in the 1986 election."  That indeed
happened, and since then the court has been careful to avoid the pitfalls of
the political thicket.  Also, the
constitution now speaks of a referred plan being stayed (suspended until the
voters act), so that remedy is probably not available.

The most
likely remedy is the 1991 solution: appoint a Special Court Master and give
that master two months to draw temporary Senate districts for the 2012
election.  The calendar gives the court
enough time for this remedy.

The master
would likely be one to three retired Court of Appeal justices, as was the case
in 1973 and 1991.  The master would hire
a technical staff to prepare the maps. 
The master would have two advantages not available in the past; the
commission has engaged in numerous public hearings so the master will know how
affected communities feel about the Senate districts.  Second, the commission has already drawn the
Voting Rights Act districts in Southern California, and many won’t need to be
redrawn.  The heavily Latino district
running from Pomona to San Bernardino is certainly required under the Voting
Rights Act, and would have to be retained.

Finally, the Master would have a very
easy road map: the 1991 plan that was universally praised for its
fairness.  Looking at those old districts
it is probable the San Jose-Salinas Latino seat would emerge, the central coast
would include marginal districts, not safe Democratic ones, and areas like the
San Fernando Valley would not be chopped up for partisan purposes.            

When will
the curtain rise on redistricting Act Two; or will there even be an Act
Two?  We are likely to learn that before
the end of hot August nights.

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