In one of its first acts, the new Citizens Redistricting
Commission has decided to ignore the United States and California Constitutions
by in effect repealing the historical "one person one vote" rule that has been
law in America for 47 years.
They did this by telling their staff to draw districts that
will clearly violate constitutional population standards. This is so their final maps can over
represent liberal areas of California that are losing population, such as Los
Angeles and the Bay Area, and then under represent the more conservative inland
areas of California that are growing.
In his famous "one person – one vote" ruling in 1964, Chief
Justice Earl Warren said this was unconstitutional. "Legislators represent people, not trees or
acres; legislators are elected by voters, not farms or cities." This is the heart of equal representation,
districts must be equally populated. No
one questioned this for 47 years until the Commission voted to ignore it last
Thursday night.
At issue is how much population deviation is allowed between
different districts. The Supreme Court
has made it clear that in the case of congressional districts, no deviation is
allowed; they must be as equal as you can make them. But the Supreme Court has allowed states to
adopt a slightly different standard for state legislative districts.
In 1965, the California Supreme Court applied the new "one
person one vote" standard in its famous Silver v. Brown decision. California legislative districts were allowed
to deviate by no more than two percent
In 1973, in a case called Legislature v Reinecke, the Court further refined the standard:
"Population of Senate and Assembly districts should be within one percent of
the ideal except in unusual circumstances, and in no event should a deviation
greater than two percent be permitted."
In 1981, the Attorney General was asked to opine on the new
constitutional language that said districts should have "reasonably equal
populations." The Attorney General said
that districts must adhere to the Reinecke
case standard. This was repeated by the
Supreme Court Masters in 1991 when they drew new districts: "We have been
directed by the Supreme Court to follow the Reinecke
standards." In 2001, the legislature
applied this standard to the current districts.
In fact, the legislature tried to keep population deviations under 1,000
people, and in many cases the deviations were well under 1,000.
So you would think the law would be clear to the new
Citizens Redistricting Commission, but you would be wrong. On April 28, the Commission voted to allow
deviations up to five percent among legislative districts. A five percent deviation will amount to
46,567 people in Senate districts and 23,284 people in Assembly districts. That’s a lot of folks. Apply this standard in a growth area like
Riverside County and you can effectively disenfranchise 200,000 people.
So why would the Commission be doing this? The five percent deviation is the brainchild
of Commissioner Maria Blanco, who is among the most left wing members of the
Commission. Blanco’s allies among
liberal activist groups have discovered that they cannot maintain all the
existing Democratic and inner urban legislators because of slow population
growth. So they want a mechanism to
under populate Los Angeles and the Bay Area at the expense of growing inland
areas such as San Joaquin County, San Bernardino County and Riverside County.
There is also a partisan aspect to all this. Most of the current Democratic seats are
under populated; most of the current Republican seats are over populated. This scheme will deny political representation
to areas of growth, generally Republican areas, and over represent areas of
declining growth, generally Democratic.
But forget the partisan implications; the real issue is the
cavalier disregard of the constitution and court precedence by this
Commission. Not once in 47 years has any
judge anywhere said California can have districts with this huge level of
deviation. Equal population has meant
equal population ever since Chief Justice Warren said so.
But Blanco manipulated nine of her colleagues into going
along with this effort to nullify federal and state law. And this is not the only case. At a hearing last week their new attorney, a
former justice of the state court of appeal, suggested that they divide the
state into its natural geographic regions.
Commissioner Vincent Barabba curtly dismissed this advice, but in fact
it is very hard to meet the constitutional criteria if you do not respect the
state’s diverse geography. Again, the
Commission seems almost contemptuous of the limitations placed on it by the
constitution and a long body of redistricting law.
Will Commissioner Blanco’s power grab work? Not likely.
When communities realize they are being denied representation they will
scream bloody murder. A plan that
discriminates against hundreds of thousands of Californians in growing counties
will not hold up in court. Does anyone
expect the current California Supreme Court to throw out nearly half a century
of its precedent that no one has ever questioned?
Sorry, Commissioner Blanco, but nullification of
constitutional standards went out with the Civil War. You lose.