[EL] FW: CRC asks Attorney General to Change "Misleading and Inaccurate" Referendum Language

Justin Levitt levittj at lls.edu
Mon Aug 29 17:51:37 PDT 2011

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 

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.


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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> 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 
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Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
justin.levitt at lls.edu

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