Ballot Measures on Reapportionment
Reapportionment
in California:
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Table of ContentsI. Introduction |
I. Introduction
The United States Census Bureau conducts a nation-wide census every ten years. This undertaking often reveals a shift in population, and thus affects the composition of legislative bodies whose membership is elected on the basis of population distribution, such as the United State House of Representatives, state senates and assemblies. (Stephen J. Thomas, The Lack of Judicial Direction in Political Gerrymandering: An Invitation To Chaos Following The 1990 Census, 40 Hastings L.J. 1067 [1989].) Each state legislature is responsible for redrawing legislative districts within its state for both state and congressional elections to reflect these population changes. (Id.)
Federal law imposes seven substantive constraints on the apportionment process. Under the Fourteenth Amendment's Equal Protection Clause, a plan must (1) comply with the one person, one vote standard outlined in Reynolds v. Sims; (2) avoid purposeful discrimination against racial minorities; (3) avoid excessive political gerrymandering; and (4) not "subordinate traditional race-neutral districting principles" to racial considerations. (Pamela S. Karlan, The Fire Next Time: Reapportionment After The 2000 Census, 50 Stan. L. Rev. 731, 733 [1998].) Under the Voting Rights Act of 1965, as amended, a plan cannot (5) result in dilution of minority voting strength or (6) reduce minority-voting strength relative to prior levels. (Id. at 733-734.) Finally, federal law requires, at least regarding a state's congressional delegation, that a plan use (7) single-member districts. (Id. at 733-734.)
The criteria for redistricting arises in judicial proceedings in three different settings. The first situation arises when the state has adopted a plan that the court finds insufficient under the population standards or on some other ground. In this situation, courts have been directed not to disturb the state's plan more than necessary to bring it into compliance with the one person, one vote rule, at least where the state's plan is only slightly deficient and can be corrected with a few minor changes. (Daniel Hays Lowenstein, Election Law: Cases and Materials, 103 [1995].)
Under the second situation, the state may have failed to adopt any plan, or one that even approximates population equality. In this case, the court will have to devise its own plan. The Supreme Court has provided little guidance, except to state that the lower courts should avoid both multimember districts and minor population discrepancies, even where they would be upheld in a legislatively adopted plan. (Id. at 103-104.)
Finally, the court may be faced with a plan adopted by the state that satisfies the one person, one vote rule, but that is challenged as unconstitutional because it is unfair to some group within the electorate. Although the Supreme Court has never held that compliance with one person, one vote assumes satisfaction of the Equal Protection Clause; it has set a very high standard for plaintiffs challenging districting schemes on non-population grounds under the Constitution. (Id. at 104 [citing Gaffney v. Cummings, 412 U.S. 735, 751-54 [1973]].) In Reynolds, the U.S. Supreme Court addressed the issue of judicial review when it stated: ". legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having adequate opportunity to do so." (Reynolds, 377 U.S. at 586.)
In California, each house in the California legislature separately draws its own districts. The Elections and Reapportionment Committee draws the state Senate plan. The Committee on Election, Reapportionment and Constitutional Amendments Committee draws the Assembly plan. The congressional plan is a result of collaboration between both houses. The governor has veto power over both legislative and congressional plans.
Whatever criteria one thinks should be employed in drawing district lines, few would deny that most often in legislatures the two overriding criteria are, first, the political well-being of the incumbents and, second, the well-being of the controlling party. The Los Angeles Times explained reapportionment this way, "[l]eft in the hands of the self-interested, the exercise can be wickedly partisan." (Mark Z. Barabak, California and the West GOP Seeks a Reapportionment Strategy Politics: Republicans, fearful of gerrymandering by the Democrat-controlled Legislature when districts are redrawn, may try to change the ground rules, LA Times, Mar. 22, 1999, at A3.) To control the process, a party must have either a majority in both houses and the governorship, or a sufficient majority in both houses, so that a gubernatorial veto can be overridden. (Lowenstein, supra, at 103.)
Gerrymandering is a term often heard when people speak of the reapportionment process. The term originated in Massachusetts when Governor Elbridge Gerry used his office to craft an election district uniquely shaped like a salamander. (Webster's Third New International Dictionary, 952 [unabr. Ed. 1961].) The word is defined as the process of dividing a state or territory into civil or political divisions to accomplish an ulterior purpose such as securing a majority for a given political party. (Black's Law Dictionary, Sixth Edition, 1990.) Many of the United States Supreme Court decisions concerning reapportionment resulted from gerrymandering that either reduced a minority group's representation or served to dilute the impact of a specific groups' vote.
The battleground for the "2001 Reapportionment" was won and lost in the 1998 gubernatorial election. The California Republican Party had all but conceded that the legislature would continue to be controlled by the Democrats, thereby leaving their last great hope in the hands of then Republican gubernatorial candidate Attorney General Dan Lungren. Now only time will tell what impact the redistricting of 2001 will have on the major parties.
This article is a review of all California ballot measures relating to reapportionment and provides insight as to what California might expect from the first redistricting plan of the 21st century.
II. History
As adopted in 1879, article IV, section 6 of the California Constitution provided: "[t]he census taken under the direction of the Congress of the United States, in the year one thousand eight hundred and eighty, and every ten years thereafter, shall be the basis of fixing and adjusting the legislative districts; and the Legislature shall, at its first session after the census, adjust such districts and reapportion the representation so as to preserve them as near equal in population as may be." (Legislature of the State of California v. Deukmejian et. al., 34 Cal. 3d 658, 668 [1983].) The words "as near equal in population as may be" have been the lightning rod for much of the debate in California regarding reapportionment. Many in rural California, around the turn of the twentieth century, had watched their representation in the State Capitol erode as the population migrated to two main urban centers - Los Angeles and the San Francisco Bay Area. In an effort to protect their interests, agricultural organizations and community groups led a successful effort to amend the California Constitution to apportion the State Senate on the basis of population and territory. (Legislative Reapportionment. California Voter Guide, 34 [1926].) In doing so, the rural population of California was able to wield powerful control over many issues decided by the legislature. This control lasted for nearly 40 years.
Until 1962, the United States Supreme Court found the issue of political redistricting to be a political question, over which it had no jurisdiction. For this reason, the Court had counseled the judiciary not to enter this "political thicket." (Thomas, supra, at 1071.) This philosophy changed with the Court's decision in Baker v. Carr in 1962. (Baker v. Carr, 369 U.S. 186 [1962].) In Baker, the Court held (a) that the court below "possessed jurisdiction of the subject matter" of malapportionment; (b) that dilution of one's vote due to a legislature's failure to reapportion was a justiciable cause upon which appellants would be entitled to appropriate relief; and (c) appellants had standing to challenge the Tennessee apportionment statutes. (Id. at 197-98.) In finding that the issue did not violate any of the elements of a political question, the Court remanded the issue to the federal district court to determine whether Tennessee's reapportionment statutes violated the Equal Protection Clause.
The Court in Reynolds addressed the merits of a state's redistricting scheme and laid the foundation for what would become known as the one person, one vote rule. The court held that both houses in a bicameral state legislature must be apportioned on the basis of population. The court stated: "[l]egislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." (Reynolds, 377 U.S at 562.)
In 1965, Congress enacted the Voting Rights Act to address serious problems of representation of African Americans at all levels in the South. (Paul L. Mckaskle, The Voting Rights Act And The "Conscientious Redistricter", 30 U.S.F. L. Rev. 1, 4 [1995].) By 1975, the act had been amended to provide coverage to all minority groups, nationwide.
Sections 2 and 5 of the Act are important to the issue of redistricting. Section 2 originally provided that "[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." (Id. at 10.) Section 5 applies only to certain states and counties in which fewer than half of the residents of voting age were registered to vote, or voted, in the Presidential elections of 1964, 1968 or 1972. (Wilson v. Eu, 1 Cal. 4th 707, 745-746 [1992].) Section 5 gives the Attorney General of the United States the power to "pre-clear" any proposed changes in voting procedures within those states or counties. In California, this 'veto' authority applies to Kings, Merced, Monterey, and Yuba counties. (Id. at 746.) In 1982, section 2 of the Act was amended to include language which bans any voting procedure "which results in a denial or abridgement of the right to vote." (Mckaskle, supra, at 12.)
On June 30, 1980, the California electorate approved Proposition 6 that replaced former article IV, section 6 with article XXI. Although, rephrased, article XXI perpetuates the command of article IV, section 6, by providing that the Legislature "shall adjust the boundary lines" of the affected districts in the year following each federal census. (Deukmejian, 34 Cal. 3d. at 672.)
A team of Special Masters designed the current apportionment plan for California. The California Supreme Court was forced to appoint the Special Masters because the legislature and Governor were unable to come to an agreement in time for the 1992 primary and general elections. The Special Masters were directed to comply with various standards and criteria, including the applicable provisions of the Voting Rights Act of 1965, as amended, the provisions of article XXI, section 1, of the state Constitution, and the criteria developed by the special masters for the reapportionment plans adopted by the court in 1973. (Wilson, 1 Cal. 4th at 713-714.) The plan developed by the Special Masters and adopted by the court consisted of Assembly districts that varied less than 1 percent from the ideal size of 372,000 persons; Senate districts that varied less than 1 percent from the ideal size of 744,000 persons; and Congressional districts that varied less than 0.25 percent from the ideal size of 572,308 persons. (Id. at 770, 782, 788.)
III. Reapportionment Initiatives/Referendums Adopted in California
Population growth is the primary reason for reapportionment. Throughout its history and probably well into its future, California has experienced substantial growth, primarily in three regions of the State - Los Angeles, San Diego, and the San Francisco Bay Area. This being the case, California voters have had to address the issue of reapportionment a total of 15 times since 1926. Many of the battles were fought over the make-up of the State Senate. Due to the growth of urban centers and the belief that its vote did not count for much in statewide elections, rural California sought to keep one house of the legislature representative of all interests in the State. In contrast, the urban centers expected representation based on population and believed they deserved more senators based on the contributions they made. (Legislative Reapportionment. California Official Voter Guide, 34 [1926].)
Only four of the proposed ballot measures were approved by the voters. Of the four measures approved, Proposition 28 (1926) and Proposition 6 (1980), the first and last measures chronologically to be voted upon, have played the largest roles in California's redistricting schemes. Following is a summary of each of the successful measures and the arguments for and against each.
Proposition 28: Legislative Reapportionment
"Prior to November 2, 1926, and since the adoption of the Constitution in 1879, section 6 of article 4 thereof provided, among other things, for the division of the state into senatorial and assembly districts in such manner that 40 senatorial districts and the 80 assembly districts should be as nearly equal in population as may be." (Boggs v. Jordan, 204 Cal. 207, 208-209 [1928].) Proposition 28, an initiative constitutional amendment, specifically addressed the issue of 'nearly equal in population as may be' as it related to the state senate. (Id. at 209.) This proposed constitutional amendment replaced section 6, article 4 of the constitution of California with the Federal Plan of Reapportionment. This language was referred to as the Federal Plan because its provisions resembled those of the federal constitution with respect to representation in the United States Congress. (Legislative Reapportionment. California Official Voter Guide, 34 [1926].) The principle was that representation should be equitably apportioned not according to population alone but according to two factors - population and territory. (Id. ) This constitutional amendment only applied to the State Senate, allowing the Assembly to continue as the representative body of the Legislature based on population. Rural agricultural interests such as the California Farm Bureau Federation, the State Grange, the Farmers Union, and the Agricultural Legislative Committee sponsored this amendment. (Legislative Reapportionment. California Official Voter Guide, 34 [1926].) Chambers of commerce, women's clubs, and civic organizations throughout the state also supported Proposition 28. (Id.) The primary argument in favor of the amendment was stated in the 1926 voter's guide:
"The growth of city population in California and particularly the unprecedented development of the two great urban regions of the state will have the effect, if representation is reapportioned according to present law, of consolidating political power in the inhabitants of 3 per cent of the area of the state to the prejudice of the representative rights of the balance of the population who inhabit 97 percent of the area of the state." (Id.)
"This measure will preserve to rural California and the great agricultural producing areas which comprise it, the control of one house of the state legislature, namely: the Senate. The measure makes no change in assembly districts." (Id.).
The opposition's viewpoint was equally forceful:
"The provision that no county or city and county shall contain more than one senatorial district would limit Alameda, Los Angeles, and San Francisco to one senator each. These three combined have 200,000 more than half of the population of the state, so the result would be that the majority would have only three senators, and the minority would be represented by thirty-seven senators. There is no good reason for the discrimination." (Id. at 35).
At the time Proposition 28 was being considered, twenty-nine other states based their legislative representation on the Federal Reapportionment Plan including New York, Pennsylvania, and Massachusetts. (Id. at 34). This urban versus rural argument had prevented the legislature from meeting its constitutional requirement of reapportioning the state's assembly and senatorial districts in the first session after the 1920 census. In addition to the changes to Senate reapportionment, Proposition 28 created a reapportionment commission. This commission consisted of the Lieutenant Governor, as chairman, and the Attorney General, Surveyor General, Secretary of State, and State Superintendent of Public Instruction. (Id. at 33.) The duties of the commission were to apportion the legislative districts in accordance with the constitution if the legislature failed to do so. (Id.) The reapportionment plan adopted by the commission was immediately effective "as if the act of said reapportionment commission were an act of the legislature, subject, however, to the same provision of referendum as apply to the acts of the legislature." (Id.)
Proposition 1: Reapportionment of Legislative Districts
Two years after the passage of Proposition 28, California voters passed Proposition 1, a referendum to enact the Boggs Reapportionment Act. (Reapportionment of Legislative Districts. California Official Voter Guide, 5 [1928].) This act was adopted by the state Legislature in 1927 as a result of Proposition 28 and included the details of how California would be apportioned. (Id.) "The law was enacted in obedience to the mandate of the voters who, at the general election of 1926, adopted the Federal Plan of Representatives in the state legislature, by an amendment to the California Constitution, which received a majority of over 74,000 votes and a majority vote in 57 of the 58 counties of the state." (Id.) Senator Frank Boggs, representing the 10th Senatorial District then comprised of San Joaquin and Tuolumne counties, authored the act.
The arguments against the measure give some insight into the make-up of California at this point in history:
"Under the 1920 census, Los Angeles County with a population of 936,455, ., would have one vote in forty of the senate, San Francisco with a population of 506,676, ., would have one vote and Alameda with a population of 344,177, ., would have one vote. These counties combined with a population of 1,787,308, an excess of 147,755 over the other fifty-five counties . would have but three votes out of forty." (Id. at 5-6).
The following passage from the voter's guide depicts the strategy used by the proponents:
The growth of population in California in the last twenty years has made unjust and intolerable the present apportionment of representation in the state legislature. Due to unprecedented development of the two great urban regions of the state, were apportionment to be based on the repealed provisions of the constitution and the federal census of 1920, political power would be consolidated in the inhabitants of 3 per cent of the area of the state. (Id. at 5).
"It (the Boggs Reapportionment Plan) creates a well-balanced legislature in which neither the cities nor the countryside may predominate." (Id).
The Federal Plan of Reapportionment was effectual for nearly 40 years until a decision by the United States Supreme Court held that both houses of a state legislature had to be apportioned on the basis of population.
Proposition 18: Reapportionment Commission
The third successful reapportionment initiative was voted upon in November 1942. Proposition 18 is by far the least controversial of the propositions in this subject area. This proposition was merely an Assembly Constitutional Amendment to clarify a change in law relating to the membership of the reapportionment commission established in 1926 by Proposition 28. (Reapportionment Commission. California Official Voter Guide, 22 [1942].) The office of Surveyor General had been abolished thereby creating a vacancy on the five-member commission. (Id.) Proposition 18 filled the vacancy by appointing the State Controller to the commission. (Id.)
The Interim Years - 1960-1980:
For many years, the United State Supreme Court found legislative district line-drawing to be a matter of "a peculiarly political nature and therefore did not meet the requirements for judicial determination." (Thomas, supra, at 1072). This changed in 1962 with the Court's decision in Baker v. Carr. (Baker, 369 U.S. 186.) The plaintiffs in Baker claimed that Tennessee's apportionment scheme, with legislative districts of varying populations, violated equal protection. (Id. at 193-194.) The plaintiffs charged that, although between 1901 and 1961 Tennessee experienced substantial growth and shifting of its population from the country to the cities, the state legislature had refused to reapportion its legislative districts. (Id. at 192-193.) In finding Tennessee's apportionment scheme to be an issue within its jurisdiction, the Baker Court articulated six factors it used to determine whether an issue is justiciable: (1) is there a "textually demonstrable constitutional commitment" to a coordinate political department; (2) would adjudication of the issue demonstrate a "lack of respect due coordinate branches of government;" (3) is there the absence of "judicially discoverable and manageable standards;" (4) is there a need for the court to avoid an "initial policy determination of a kind clearly for nonjudicial discretion;" (5) is there the unusual need to adhere to a political decision; and (6) is there "the potentiality of embarrassment from multifarious pronouncement ." (Id. at 217.) The Court found none of these factors present in Baker and remanded the case to the federal district court to determine if the apportionment scheme used in Tennessee violated the Equal Protection Clause. (Id. at 237.)
Two years later in Reynolds v. Sims, the Court addressed the merits of a state's reapportionment scheme and held that state legislative districts were to be apportioned on a population basis. (Reynolds, 377 U.S. at 568.) Alabama's legislative districts had not been reapportioned in over sixty years, and, as a result, had population differences of up to 41 to 1 in the Senate and up to 16 to 1 in the Assembly. (Thomas, supra, at 1073). The Court reviewed three proposed apportionment plans and held all of them to be constitutionally invalid because legislative districts would not be apportioned on a population basis. (Id). In developing the "one person, one vote" doctrine the Court stated: "[u]ndeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections." (Reynolds, 377 U.S. at 554.) "We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State." (Id. at 568.) "By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a state make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." (Id. at 577.) The Court then upheld the lower court's decision to order reapportionment for the upcoming election as a temporary measure by using the best parts of two proposed plans and to defer a final judgment in order to give the new legislature time to enact a permanent reapportionment plan within the mandated population guidelines. (Id.)
In the early 1970's, the California legislature and the Governor were unable to come to an agreement on a reapportionment plan. The Reapportionment Commission created in 1926 by Proposition 28 was not able to perform its duty because the Legislature was entitled to opportunity to adopt another plan which would meet federal constitutional requirements. (Yorty v. Anderson, 60 Cal.2d 312 [1963].) Therefore, in 1973, the California Supreme Court was faced with the situation of having to develop a redistricting plan for the State. To do so, the court appointed a team of Special Masters to draft a plan. The Masters relied heavily on recent action of the United States Supreme Court and Congress to develop a plan to reapportion California based on the 1970 census. The plan, substantially adopted by the court, listed seven criteria, and the reasons for each, which governed their deliberations (Daniel Hays Lowenstein, Election Law: Cases and Materials, 103, 106-108 [1995].)
1. Districts should be numerically equal in population as nearly as practicable, with strict equality in the case of congressional districts, and reasonable equality in the case of state legislative districts. (Citations omitted). The population of senate and assembly districts should be within 1 percent of the ideal except in unusual circumstances, and in no event should a deviation greater than 2 percent be permitted. (Id. at 106.)
2. A district should be contiguous and compact. Factors to consider include the availability and facility of transportation and communication between the people in a proposed district, between the people and the candidates in the district, and between the people and their elected representatives. (Id.)
3. Counties and cities within a proposed district should be maintained intact, insofar as practicable. (Id.)
4. The integrity of California's basic geographical regions should be preserved insofar as practicable. (Id.)
5. The social and economic interest common to the population of an area should be considered in order that all of the citizens of the district are represented reasonably, fairly and effectively. (Id. at 105-106.)
6. State senatorial district should be formed by combining the adjacent assembly districts. (Id. at 106.)
7. The basis for the reapportionment should be the 1970 census. (Id. at 107.)
In light of the decisions handed down by the United States Supreme Court in Reynolds v. Sims and the Special Master's report to the California Supreme Court in Legislature v. Reinecke, California Constitution, article IV, section 6, needed to be amended before the next reapportionment.
Proposition 6: Reapportionment
California's voters passed Proposition 6, a legislative constitutional amendment on reapportionment in June 1980. The legislative analyst describes the legislature's intent as follows:
" . The Proposition establishes the following standards for redistricting State Senate, Assembly, congressional and Board of Equalization Districts:
1. Each district shall have only one representative.
2. The population of all districts of a particular type shall be reasonably equal.
3. All districts shall be adjoining.
4. Districts shall be numbered consecutively beginning in the northern part of the state.
5. Where possible, the geographical region of a city or county shall not be divided amount different districts."
(Reapportionment. Legislative Constitutional Amendment. California Official Voter Guide, 20 [June 1980].)
Proponents of Proposition 6 included the League of Women Voters of California and the Rose Institute of State and Local Government at Claremont Men's College. (Id.at 22.) The arguments in favor of this proposition were:
- "It removes all invalidated reapportionment provisions from the Constitution.
- It inserts simple, clear instructions to the Legislature on how to redraw Assembly, Senate, congressional and Board of Equalization districts.
- It requires all districts to be reasonably equal in population.
- It requires preservation of the integrity of cities, counties and geographic regions.
- It removes the reference to "persons who are not eligible for citizenship" - a reference which is an unfortunate holdover from a time in history when California blatantly discriminated against the Chinese in this state." (Id.)
Two members of the legislature wrote the arguments against Proposition 6. Senator Bob Wilson, representing the 39th district and chairman of the Senate Committee on Judiciary, wrote: "Our constitution says that when we count people who live in a legislative district for reapportionment we will not count people who cannot become citizens of the United States. This language would be repealed by Proposition 6. It would permit the counting of illegal aliens. It would do this because the people who wrote Proposition 6 made a mistake." (Id. at 23.)
Assemblyman Leroy Greene, representing the 6th district, wrote against Proposition 6 because of contradictions he found in the language 'reasonably equal.' (Id.) He wrote: "What is to be done if the population of a city or county would entitle it to three Assemblymen and 1 ½ Senators? Is the integrity of the city or county respected in the Assembly but not in the Senate? When the court reapportioned the Legislature it divided the state into 80 Assembly and 40 Senate districts. How can this be accomplished in a city with three Assemblymen and 1 ½ Senators if the integrity of cities and counties is to be protected?" (Id.)
IV. Defeated Measures
Since 1926, eleven of the fifteen reapportionment measures placed on the ballot were defeated. A common theme among many of the defeated measures was to remove the authority of redistricting from the legislature and place it in the hands of a 'non-partisan' commission, much like the one originally passed by Proposition 28. Following is a brief summary, in chronological order, of the defeated reapportionment ballot measures:
1926
Proposition 20. Reapportionment Commission. (Initiative constitutional amendment).
This initiative measure proposed to add section 6 ½ to article IV of the Constitution to create a reapportionment commission to adjust senate and assembly districts if the Legislature fails to do so at the first session after each session. Specifically, the commission was to develop a reapportionment plan based on the 1920 census within three months of the amendment taking effect. (Reapportionment Commission. California Official Voter Guide, 40 [Nov. 1928].)
1948
Proposition 13. Senate Reapportionment (Initiative constitutional amendment).
This measure proposed to amend article IV, section 6 of the Constitution to provide that counties shall be represented in the State Senate in proportion to population, but that no county shall have more than ten Senators. This was a classic urban versus rural proposition. The growth of California had left those living primarily in Los Angeles, Alameda, and San Francisco counties feeling underrepresented in the State Senate. Whereas, voters living in the rural areas of California felt as if they had conceded the election of Governor, Lieutenant Governor, both U.S Senators, and many other state wide office holders to the urban populous. (Senate Reapportionment. California Official Voter Guide, 11 [Nov. 1948].)
1960
Proposition 15. Senate Reapportionment (Initiative constitutional amendment).
This initiative measure proposed a new constitutional formula for dividing the State into 40 Senate districts. (Senate Reapportionment. California Official Voter Guide, 20 [Nov. 1962].) The measure required 40 senators to be elected in November 1962, from new senatorial districts. (Id.) The terms of the 20 senators elected from the new odd numbered districts would have expired at the end of 1964. (Id.) One-half of the Senate would thereafter be elected each two years for four-year terms. The opposition argued that Proposition 15 was basically a ploy by an upset Los Angeles County Supervisor who had failed to get a new tax on the defense industry through the State Senate. (Id. at 21.) Those in favor, the Chairman of the Los Angeles Board of Supervisors among others, continued to argue the unfairness of the federal plan of districting passed in 1926. (Id. at 21.) This measure was soundly defeated by a vote of 3,408,090 to 1,876,135 and won support in only one county in the state, Los Angeles. (Id.)
1962
Proposition 23. Senate Reapportionment (Initiative Constitutional Amendment).
This initiative measure proposed to increase the membership of the Senate and the number of senatorial districts from 40 to 50. (Senate Reapportionment. California Official Voter Guide, 30 [Nov. 1962].) The proponents of this measure represented Los Angeles and San Diego counties and argued that the federal plan of districting failed to provide equal representation in the Senate. (Id.) Governor Edmund G. Brown supported the measure. (Id. at 31.) In addition to Proposition 23, the Governor and legislature appointed a blue ribbon committee to study Senate reapportionment. (Id. at 30.) The committee submitted recommendations supporting Senate reapportionment. A bill was introduced containing the recommendations of the committee and was passed by the Assembly, but killed in the Senate. (Id.)
1982
Proposition 10. Reapportionment. Congressional Districts-Referendum Statute.
This referendum provided the voters the opportunity to vote on a congressional reapportionment statute adopted in 1981 by the legislature. (Reapportionment. Congressional Districts-Referendum Statute. California Official Voter Pamphlet, 40 [June 1982].) Arguments against the referendum highlight the political gerrymandering that existed in the plan: "One district.links some San Francisco suburbs with the Sierra Nevada Mountains. (Id. at 43.) A small "finger" from a San Joaquin Valley district runs north to the Oregon border, while another district joins Orange and Los Angeles Counties with a narrow strip of beach running through the Los Angeles Harbor." (Id.)
Proposition 11. Reapportionment. Senate Districts-Referendum Statute.
Like Proposition 10, this referendum was a reapportionment statute adopted by the Legislature in 1981 for the State Senate. (Reapportionment. Senate Districts-Referendum Statute. California Official Voter Pamphlet, 44 [1982].) The primary argument against this referendum was the use of gerrymandering and the fact that the measure ignored the new requirement of 1980's Proposition 6. An example of the districts proposed by this measure include: "Senate district 12 would stretch from near downtown San Jose across the Diablo Mountains and the San Joaquin Valley to the Sierra foothills; Senate district 16 would have linked Kings County with Barstow in San Bernardino County and then crossed the Tehachapis into the Altadena-Pasadena area of Los Angeles County." (Id. at 47.)
Proposition 12. Assembly Districts (Referendum Statute).
This was an assembly-districting plan approved by the Legislature. (Assembly Districts. California Official Voter Guide, at 50 [1982].) This plan did not include the grossly shaped districts of Propositions 10 and 11, but faced opposition because it violated other elements of article XXI of the State Constitution. The opposition had three arguments against the proposed plan: 1) the measure ignored the integrity of city, county and regional boundaries; 2) the measure was not presented to the public but decided upon in the last week of the legislative session "behind closed doors"; and 3) the plan was created to protect incumbents, Democrats and Republicans alike. (Id. at 51.)
Proposition 14. Reapportionment by Districting Commission or Supreme Court (Initiative constitutional amendment).
This measure proposed to amend the State Constitution to transfer from the Legislature to a newly established commission, consisting of at least 10 appointed members, the responsibility for reapportioning Assembly, Senate, Congressional, and Board of Equalization districts. (Reapportionment by Districting Commission or Supreme Court. California Official Voter Guide, at 54 [1982].) The commission would have been required to adopt districting plans for the 1984 through 1990 elections based on the 1980 census. (Id.) Thereafter the commission would be required to meet once each decade, beginning in 1991, to develop new reapportionment plans based on the latest census data. (Id.) The main argument against this measure was that the commission would be made up of appointed officials not accountable to the general electorate and that if the people did not like the plans drawn by the legislature, the people could elect new representatives. (Id. at 57.) The lead opponents included some of California's most well-known legislators - Jesse Unruh, David Roberti, and Willie Brown. (Id.)
1983
"The Sebastiani Initiative."
This initiative measure would have realigned the Assembly, Senate and congressional districts of California and repealed statutes enacted by the Legislature during an Extraordinary Session in 1983. (Deukmejian, 34 Cal.3d at 664.) Although, the measure qualified for the ballot, it was found unconstitutional by the Supreme Court of California and was never submitted to the voters. (Id.) The opponents of this initiative, members of the State Legislature and the California Congressional Delegation, argued that it attempted to redistrict more than once in a decennial period and therefore was in violation of the state constitution. (Id. at 664-65.) The court agreed that the constitution limited redistricting to only once per decade and held for the petitioner legislators. (Id. at 676.)
1984
Proposition 39. Reapportionment (Initiative constitutional amendment and statute).
This measure attempted to create a non-partisan reapportionment commission. (Reapportionment. California Official Voter Guide, at 54 [1984].) The main difference in this measure, as compared to Proposition 14, is the composition of the commission. Under Proposition 39, the President of the University of California would select 8 voting members, four from each of two lists. (Id.) One list would be provided by the Judicial Council and would include retired or voluntarily resigned state appellate court justices. (Id.) The other list would be composed of judges initially appointed by Governors affiliated with the political party which had the largest number registered to vote at the time of the last statewide general election. (Id.) The Governor and another statewide office holder of a different party would each nominate one non-voting member to the commission. (Id.) The leading argument against this measure was the $3.5 million price tag placed upon it by the legislative analyst. (Id. at 57.) Proponents also had a hard time convincing the general public that this commission would, in fact, be non-partisan. (Id. at 56.)
1990
Proposition 118. Legislature. Reapportionment. Ethics. (Initiative constitutional amendment and statute).
Proposition 118 proposed to change the reapportionment process, the timing for the election of state Senators, and the laws regarding ethical standards for members of the Legislature. (Legislature. Reapportionment. Ethics. California Official Voter Guide, at 44 [1990].) According to the proponents of 118, it would have banned gifts and speaking fees from lobbyists to legislators; closed conflict-of-interest loopholes; not allowed legislators to work as lobbyists for a year after they left office; established strict guidelines to end self-dealing in state and congressional redistricting; and instituted a bipartisan committee to enforce ethical reforms. (Id. at 46.) The opponents of the measure stated in the voter's pamphlet: "[h]idden behind proposition 118's declaration of ethics reform, is the true purpose of the initiative: to give incumbent legislators safe seats that guarantee their reelection." (Id. at 47.) In fact, Proposition 118 would have required a 2/3 vote of the legislature to approve any reapportionment plan. (Id. at 44.)
Proposition 119. Reapportionment by Commission. (Initiative constitutional amendment and statute).
Once again the issue of a commission that would assume the responsibility of the Legislature to reapportion Assembly, Senate, Congressional, and Board of Equalization districts was brought before the electorate. (Reapportionment by Commission. California Official Voter Guide, at 48 [1990].) And, once again the measure failed. The commission would have been composed of 12 members and called the Independent Citizens Redistricting Commission. (Id.) Three retired justices from the California Court of Appeal would appoint the members and alternates from a list of registered California voters nominated by nonprofit, nonpartisan organizations. (Id.) At least five members of the commission would have come from each of the two largest political parties and the two remaining seats to members not associated with either. (Id.) The opposition, representing labor and consumer interests, argued that the commission would be controlled by special interests and have no accountability to the voters. (Id. at 51.)
V. What's next for California?
With the election of Governor Gray Davis in November of 1998, there is nothing standing between Republican legislators, who are in the minority in both houses of the California Legislature, and the sort of partisan remap that eviscerated the state GOP in the early 1980's, the last time Democrats had unchecked control over the process. (Barabak, supra.) During that cycle, a 22-21 Democratic edge in the state's congressional delegation became a 28-17 Democratic "knock-out", especially when one considers that California gained two additional seats after the 1980 census. (Id.)
In 1999, the California Supreme Court dealt yet another blow to the Republicans' hope of influencing the 2001 redistricting when it decided in a 5-2 ruling that Proposition 24 on the March 2000 ballot was unconstitutional. (John Bresnahan & John Mercurio, Court Decision Slows California Republicans, Roll Call, Vol. 1, No. 53, Dec. 16, 1999.) This initiative attempted to place the authority of redistricting in the hands of the court, which had worked well twice before when the Republican Governor and Democrat controlled legislature failed to come to agreement on a plan. However, realizing that the general public was not inclined to focus on an initiative solely addressing reapportionment, the Republican authors added an appetizing incentive - cutting legislators' salaries. In a landmark decision, the court invalidated the measure for violating the State Constitution's single subject rule. This was only the sixth time that the court had removed an initiative from the ballot. (Id.).
Now all that sits between the California Republican Party and the 2001 redistricting are the 2000 elections. With the Senate composed of 25 Democrats and 15 Republicans and an Assembly of 46 Democrats, 32 Republicans and 1 Independent, change in either house appears unlikely.
Computers and technology make it possible today not only to distinguish between Democrats and Republicans, but also to determine which type of Democrat and Republican is desirable for a particular district. (Thomas, supra, at 1076.) Moreover, computer generated redistricting plans can withstand judicial scrutiny if programmed correctly. Not even the guarantee of one person, one vote can protect against the type of political gerrymandering that can all but handcuff any one party for a decade.
One thing is settled: the 2001 reapportionment of California will have national implications. Republicans now hold a slim six-vote margin in the House of Representatives. California's congressional delegation today is composed of 28 Democrats and 24 Republicans. This edge could be extended with the addition of three or four new California seats expected to be added after the census and through the impacts of a partisan-redistricting plan. (Barabak, supra.)
VI. Conclusion
The 1879 California Constitution envisioned that legislative districts should be apportioned on the basis of population. The United States Supreme Court has confirmed that the Equal Protection Clause of the United States Constitution guarantees an individual the opportunity to equitable representation in each state's legislature.
The California electorate has been actively engaged in the issue of reapportionment since 1926 having voted on 15 different ballot measures. Given the amount of continuous activity on this issue, it is unlikely that we have seen the last of such reapportionment propositions.