Redistricting: Legal Challenges And A Referendum

Tony Quinn
Editor, California Target Book

The Redistricting Commission has now completed it work and certified its final maps. A referendum has been filed against the Senate plan. As of now, the legal action appears aimed at the Senate plan.

Latino groups have threatened a lawsuit, likely in federal court, against the Senate plan for regressing Latino opportunities. Republicans may file suit in state court against the map plan for violating state constitutional criteria.

Propositions 11 and 20 vest original jurisdiction over legal challenges to the redistricting plans in the State Supreme Court, and the court has issued guidelines for anyone wishing to file an action. A plaintiff has 45 days to file a suit, meaning any lawsuit must be filed before the end of September. The Secretary of State in the past has said she will need final maps by February 1, so October 1 to February 1 is the window for the court to make any changes to the maps.

This four month time period is unprecedented; historically redistricting suits have taken years not months. The only time redistricting plans themselves were seriously challenged in state court was 1981, and that was involved with a referendum. The Supreme Court has never had a specific time frame in which to consider redistricting challenges.

What would the Supreme Court do with a constitutional challenge to the Senate map? No one knows, probably not even the court. One possibility may be for the court to appoint a special master to advise it on the constitutional issues, which are likely to involve how cities, counties and regions were divided up.

The second legal issue is the referendum. Here we do have some idea what the court would do. The law says that a final map is subject to a referendum just like any statute. But Proposition 20 added a special provision not found elsewhere in referendum law. Upon submission (not qualification) of sufficient signatures to trigger a referendum, anyone may petition the court to provide relief on the grounds that “the referendum measure is likely to qualify and stay the timely implementation of the map.”

This is important language because it states the commission map is “stayed” (cannot be used for 2012) and requires the court to act immediately.

The court essentially has three alternatives. It could return to the precedent of 1971 when Gov. Reagan vetoed the legislature’s redistrict plan. It could simply leave the current senate districts in place for 2012 as the court did in 1971. This alternative is thought unlikely because the current districts are now unconstitutional.

The court could apply its 1981 precedent and impose the commission plan as a temporary plan despite the referendum against it. In 1981, the court imposed the legislature’s referred plan for the 1982 election. This is also thought unlikely because the court at that time said it was imposing the referred plan because it had no time to develop its own plan. That is not the case here where Proposition 20 has given the court sufficient time to draw its own plan.

So the third alternative, a court drawn plan, is the most likely alternative. The law specifies that the court should appoint a special master (probably a retired judge) if for some reason a district plan is unconstitutional, and also specifies that this alternative is available in the case of a referendum. The Supreme Court has already informally indicated that it would likely follow this process should a referendum succeed in staying the Senate map.

The next question then is what would the court imposed maps look like. Here again there are two alternatives. The court could simply direct its master to nest the already approved 80 Assembly districts into 40 Senate districts. This would be a quick and easy way to create a temporary Senate plan for the 2012 election.

The second would be to direct its master to draw a new Senate map from scratch. As the final date for a referendum to qualify is November 15, there are two and half months for this process, which is plenty of time.

So the next question is, what would that maps look like? Most likely the court would revert to its precedent of the 1991 court masters plan, explained in great detail in the now controlling Supreme Court case on this whole process, Wilson v. Eu. In September 1991, Gov. Wilson vetoed the legislature’s redistricting plans. The Supreme Court took over the process and drew its own maps. Those maps and court reasoning are available; it is possible to extrapolate what a masters map for 2012 might look like given the 1991 model modified for population changes and Voting Rights Act considerations.

If you compare the 2011 commission Senate map with the 1991 masters map two things stand out. First, the Democrats are almost certainly guaranteed a two thirds majority in 2013 under the commission map. How that occurred is controversial, but the effect is pretty clear; Republicans face a near impossibility in keeping their numbers in the Senate above one third. This is not only my view; it is the consensus view of every unbiased expert who has looked at the Senate map.

Second, a map drawn on the model of the 1991 masters map does not automatically deliver two thirds of the Senate to the Democrats. They may win two thirds under a court map – they did in 1974 with that era’s court map. But it is not guaranteed. A 2012 masters map is likely to have more marginal and competitive districts than the commission map, as was the case with the masters map in the 1990s.

So that is the process and those are the stakes that will play out over the next few months.

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