McGeorge School of Law

Proposition 77

Proposition 77:
Redistricting.

By

James Lynch
JD and Governmental Affairs Certificate, McGeorge School of Law, University of the Pacific
to be conferred May, 2006
B.A., History, University of California at San Diego, 2003
B.A., Political Science, University of California at San Diego, 2003

and

Melissa Maradiegue
JD, McGeorge School of Law, University of the Pacific
to be conferred May, 2007
B.A., Anthropology and English, University of California at Berkeley, 1999

Copyright © 2005 by University of the McGeorge School of Law


Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion


I. Executive Summary

Proposition 77 would remove from the California Legislature the power to redistrict and reapportion Senate, Assembly, Congressional and Board of Equalization (“BOE”) districts and hand that power to a panel of three Special Masters comprised of retired California state and federal judges. The proposition establishes specific criteria for the drawing of those districts beyond what is currently required by Article XXI of the California Constitution. Additionally, Proposition 77 would require mid-decade redistricting with new boundaries in place for the 2006 statewide elections, a process that will be difficult to accomplish in a short time, though proponents insist it can be done.

Proposition 77 comes from a long line of attempts to alter the redistricting and reapportionment process in California. Proposition 77 represents the fifth time in the last 25 years that reformers have sought to change the way redistricting and reapportionment are done in California. Three times Californians have rejected proposals for redistricting reform at the ballot box and a fourth time the California Supreme Court removed a proposal from the ballot for violation of the single-subject rule.

Proposition 77 has already faced legal challenges on its way to the ballot and is likely to face even more challenges if it passes. Because two different versions of the initiative were submitted to the Attorney General and circulated for signatures, two lower courts barred Proposition 77 from appearing on the November 2005 Special Election ballot before the California Supreme Court stayed the decision of the lower court. If Proposition 77 passes, more litigation should be expected. Opponents may claim that the proposition violates an implied federal constitutional ban on multiple redistricting in a single decade, or that Proposition 77 violates the federal Voting Rights Act because it changes voting procedures, and the use of old census data could be used to dilute minority voting strength without preclearance from the U.S. Attorney General or the U.S. District Court for the District of Columbia. Additional legal challenges could come from opponents arguing that removing the redistricting power from the legislature is such a fundamental change to the government that it amounts to a constitutional revision and thus is outside the power reserved to the people by the initiative process. Constitutional revisions only can be made by a vote of the legislature submitted to the people or through a constitutional convention.

II. The Law

A. Background

After what was perceived as a “harsh partisan gerrymander” in 1981, redistricting reform has been a common theme for California ballots over the last 23 years. Alan Heslop, Claremont McKenna College, Rose Institute, Redistricting Reform in California, (April 2004). Three times redistricting reform constitutional amendments have appeared before California voters, and a fourth time the California Supreme Court struck down an initiative constitutional amendment for violating the single subject rule before the measure reached the voters. Elizabeth Garrett, University of Southern California, Initiative & Referendum Institute, Redistricting: Another California Revolution?, (February 2, 2005). Of the three measures that made it to a vote, all failed.

The first of the redistricting initiatives was in 1982. Proposition 14 would have given redistricting and reapportionment power to an independent commission of at least ten members: four selected by a panel of judges, six by the two major parties (three members by each party), and a final seat chosen by any other party with at least 10 percent of the members of the legislature. Proposition 14 also established criteria for drawing the boundaries of BOE, Assembly, Senate and Congressional districts. These criteria included minority representation; nesting of BOE, Assembly and Senate districts; population variance of no more than 2 percent; compactness and contiguity; use of whole census tracts; and the minimized division of cities, counties and regions. Heslop, . Each plan to be developed by the commission was subject to referendum, and if the commission were to fail in developing a plan that could meet the criteria, the California Supreme Court would be required to redistrict. Id. Proposition 14 failed, garnering less than 46 percent of the vote that year. Id.

Proposition 39 in 1984 did not fare any better. Proposition 39 was born of a failed special election to draw boundaries by initiative statute, and effectively repeal the legislatively drawn districts which were signed into law by then Governor Jerry Brown in 1982, but had yet to be used. The special election failed because the California Supreme Court struck down the initiative statute that would have appeared on the ballot because it violated the California Constitution Article XXI’s once-a-decade rule. Legis. v. Deukmejian, 34 Cal. 3d 658 (1983). The next year, Proposition 39 qualified for the ballot. It would have created an independent commission of ten members. Eight voting members were to be selected by lot from a pool of retired state appellate judges, four judges selected by each major party. Heslop, . The governor and a leader of the other major party would each appoint a non-voting member to the commission. Proposition 39 had many of the same criteria for districts as Proposition 14 before it, but also included promotion of competitive districts, federal population standards, and restrictions on crossing county boundaries by district lines more than once. Id. Again, each plan was subject to referendum, but failure of the commission required that the commission be reconstituted until a plan was achieved. Id. Proposition 39 failed with approximately 55 percent of voters saying “No.” Interestingly, one reason suggested for Proposition 39’s failure was Governor Deukmejian’s need to work with the legislature for find solutions, rather than using the initiative process to enact reforms. Id.

In 1990, two redistricting measures faced the voters of California, Proposition 118 and Proposition 119. Proposition 118 would have changed the way that the legislature conducted redistricting and reapportionment by requiring a two-thirds vote of the Assembly and the Senate. The initiative would have established strict criteria for districts with population variance of no more than 1 percent, specific limits on district lines crossing county boundaries, specific definitions of compactness and contiguity, and a minimization of districts bisecting cities and census tracts. Additionally, the Legislature could not draw boundaries to favor any incumbent or political party. Heslop, . Violations of the criteria were subject to judicial review and the courts could authorize deviations while leaving the conforming portions of the plan intact. Id.

Alternatively, Proposition 119 would have created a bipartisan commission to conduct redistricting. The commission would have had twelve members chosen by a panel of three retired appellate judges, five of the members of the commission to come from each major political party, and the other two members from other parties. Id. Proposition 119 would have required that BOE, Senate and Assembly be nested in one another and that the population variance among districts be less than 1 percent. Id. Additionally, the commission would have to respect county and city boundaries to the maximum extent possible in drawing districts. Unlike the previous redistricting initiatives, Proposition 119 would have required, to the extent possible, the party affiliation of voters within a district reflect the proportion of voters registered with the major parties throughout the state within a 2 percent variance. Id. Both Proposition 118 and Proposition 119 failed at the ballot box, with 67 percent opposing Proposition 118 and 64 percent opposing Proposition 119. Garrett, .

The latest attempt at redistricting by initiative came in 1999, when Proposition 24 qualified for the March 2000 ballot. Proposition 24 would have transferred redistricting power from the state Legislature to the California Supreme Court. Id. This initiative would have required that the Court appoint a panel of three Special Masters “reflecting the cultural and ethnic diversity of California” who would hold hearings and receive evidence and arguments regarding proposed redistricting plans. Sen. of the St. of Cal. v. Jones, 21 Cal. 4th 1142, 1149 (1999) [“Senate”]. Any plan adopted by the Court would be submitted to the people for voter approval. Garrett, . Proposition 24 required that population variance be in accordance with federal law, be contiguous and as compact as possible, and be respectful of the geographic integrity of cities, counties, and geographic regions without violating the other criteria. Senate, 21 Cal. 4th at 1149. Additionally, Proposition 24 would have cut legislators’ pay and required voter approval for any subsequent pay raises. Id. at 1147. These two provisions (redistricting and legislative compensation) were determined to be distinct subjects for the purposes of applying the Constitution’s single subject rule. The California Supreme Court prohibited the Secretary of State from placing Proposition 24 on the ballot because the Court said that it violated the single-subject rule, requiring that initiative provisions be reasonably germane to one another. Id. at 1146.

B. Existing Law

The current law governing the decennial redrawing of California’s political boundary lines is found in both the U.S. and California State Constitution, as well as in federal and state case law that has interpreted the constitutions.

1. Constitutionally Derived law - Federal and State

The United States Constitution requires that states construct their own internal political districts. U.S. Const. art. I, § 4. The Constitution also requires that states, in drawing their districts, comply with the 14th Amendment’s Equal Protection clause, ensuring that no citizen is racially discriminated against in the redistricting process. Shaw v. Reno, 509 U.S. 630, 642 (1993); U.S. Const. amend. XIV. Article XXI of the California Constitution sets forth the procedure for the drawing of California’s political districts, including Senatorial, Assembly, Congressional, and Board of Equalization districts. Cal. Const. art. XXI, § 1. It requires the California Legislature to adjust these district boundary lines the year following the year in which the national census is taken, which occurs at 10-year intervals. Id. The Legislature last adjusted California’s district boundaries in 2001 after the 2000 census, and the next adjustment is scheduled to occur in 2011 after the 2010 census is taken. California State Senate Reapportionment Information , (accessed Aug. 25, 2005). Article XXI requires that in drawing the district boundary lines, the Legislature is to conform to the following standards:

(a) Each member of the Senate, Assembly, Congress, and the Board of Equalization shall be elected from a single-member district.
(b) The population of all districts of a particular type shall be reasonably equal.
(c) Every district shall be contiguous.
(d) Districts of each type shall be numbered consecutively commencing at the northern boundary of the State and ending at the southern boundary.
(e) The geographical integrity of any city, county, or city and county, or of any geographical region shall be respected to the extent possible without violating the requirements of any other subdivision of this section.

Cal. Const. art. XXI, § 1.

Some of these standards have been specifically addressed in court decisions, clarifying their meaning and import for the Legislature to consider while engaged in the redistricting process. Legis. of the St. of Cal. v. Reinecke, 10 Cal.3d 396, 411-412 (1973) [“Reinecke”] (clarifying “reasonable equality” of district populations); Cano v. Davis, 211 F. Supp. 2d 1208, 1222 (2002) [“Cano”] (clarifying standards of “compactness” and “contiguity” in districts). Subsection (a) requires that the listed elected officials be elected from single-member districts, meaning that each district shall be drawn with the understanding that the district as drawn will then have the authority to elect only one person (a single-member) to serve as its representative in the capacity for which that district has been created. Subsection (b) requires that each of the types of districts as enumerated in subsection (a) will be “reasonably equal.” Reasonable equality has been interpreted to regard population numbers included in the respective districts, maintaining that each should be relatively even with the others. Reinecke, 10 Cal.3d at 411-412. The court in Reinecke held that even the policy of maintaining the integrity of political subdivisions would not justify the deviation from an ideal population by more than 2 percent, especially when such deviation is widespread throughout the state. Id.

Past federal requirements of compactness and contiguity in redistricting have been adopted into the state courts’ understanding of the policies underlying the required contiguity of subsection (c), as well as the geographic integrity requirement of subsection (e). Vieth v. Jubelirer, 541 U.S. 267, 276 (2004) [“Vieth”]. What both requirements contemplate is the importance of maintaining geographic unity among districts. In doing so, what each seeks to avoid is the racial gerrymandering that can be facilitated by allowing the Legislature to pick and choose various population segments throughout the state and group them into a single district.

2. The Legislative Redistricting Process

Article XXI of the California Constitution requires redistricting to be conducted through the legislative process. Cal. Const. art. XXI, § 1. Thus “redistricting is introduced, moved through the hearing process, passed out of the Legislature and sent to the Governor much like any other bill.” California State Senate, Reapportionment Information , (accessed August 25, 2005). “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 draws the Assembly plan. The congressional plan is a result of collaboration between both houses.” Id. During the hearing process, members of the public are given the opportunity to submit redistricting maps and comments for the Legislature’s consideration. The hearings are held across the state to allow public participation and input. Id. After the hearing process is complete, the legislative plans are submitted to the Governor’s office for final approval and signature. “The Governor has veto power over both legislative and congressional plans.” Public Interest Guide to Redistricting, California’s Redistricting Information ,

C. The Effects of Proposition 77

Proposition 77 proposes to replace the current Article XXI with an entirely new constitutional provision setting forth a new method for adjusting California’s political district boundary lines. Unlike most proposed constitutional amendments, Proposition 77 does not merely change parts of the existing law, rather it suggests complete removal and replacement of the existing law. Proposition 77, § 2.

1. Power Shift from Legislature to Special Masters

The new Article XXI proposed by Proposition 77 would remove redistricting power from the Legislature, and instead create a panel of three “Special Masters” composed of retired judges to redraw California’s district boundaries. Upon passage of Proposition 77, the Legislature would within 20 days be required to create the first panel of Special Masters, which would immediately begin its work of redrawing California’s districts for the June 2006 election. Proposition 77, § 2. Keeping in mind the 20 day deadline, the Judicial Council would first nominate 24 retired California or federal judges who are willing to serve as Special Masters. To qualify for this pool, the judges must have never held an elected partisan public office or political party office and must not have changed their party affiliation since their appointment or election to judicial office. They also must not have received income from the Legislature, Congress, a political party, or a partisan candidate during the past year. Upon selection to the pool, the judges will pledge in writing that they will not run for election in any of the districts they are adjusting for at least five years. Within the pool of judges, no more than twelve can be of the same party affiliation, and both the Democratic and Republican parties must be equally represented. From the pool, the Speaker of the Assembly, the Minority Leader of the Assembly, the President pro Tempore of the Senate, and the Minority Leader of the Senate will each nominate three judges, who are not of the same political party as the legislator making the nomination, to the panel of Special Masters, reducing the pool to twelve. Each legislator will then be allowed one peremptory strike to remove one judge nominated by another legislator, further reducing the pool to eight. The Chief Clerk of the Assembly will then randomly draw, by lot, three judges to serve as Special Masters. If the drawing fails to produce at least one Republican and one Democratic Special Master, the drawing will be repeated. Id.

2. Approval Process

The Special Masters appointed will create a redistricting plan following specific guidelines set out in Section 2 of the new Article XXI. They would be required to hold public hearings to receive and consider proposed redistricting plans and public comment. One of the hearings will be required to be scheduled after the Special Masters have submitted their proposed redistricting plan, but before the plan is adopted as final. The Special Masters will then unanimously adopt their final plan by single resolution, and it will then become immediately effective. Proposition 77, § 2.

The new district boundaries, which go into effect immediately upon adoption, will be used in the June 2006 Primary Election. In that election, voters will vote on whether to continue the use of the new district boundaries for use in the next statewide election. If the voters reject the new boundaries, a new panel of Special Masters will be convened to create new district boundaries for use in the next election, and to again be voted on in that election. If voters approve the Special Masters’ plan, a new panel of Special Masters will not be convened until the year following the 2010 census. Id.

3. Requirements of District Boundaries

Some of the guidelines the Special Masters will be required to adhere to in adjusting the district boundaries are the same or similar to the guidelines listed in the current Article XXI of the California Constitution. Provisions that remain the same are the provision that “each member of the Senate, Assembly, Congress, and the BOE shall be elected from a single-member district,” the provision that “districts of each type be numbered consecutively” and the provision that “every district shall be contiguous.” Cal. Const., art. XXI. The current Article XXI requirement that “the population of all districts of a particular type shall be reasonably equal” will be changed to read, “the population of all districts of a particular type shall be as nearly equal as practicable.” California Official Voter Information Guide, Text of Proposed Laws, Proposition 77, § 2 (Secretary of State, 2005). The provision then goes on to add, “for congressional districts, the maximum population deviation between districts shall not exceed federal constitutional standards. For state legislative and Board of Equalization districts, the maximum population deviation between districts of the same type shall not exceed 1% or any stricter standard required by federal law.” Proposition 77, § 2. This places a much tighter restriction on population equality than currently demanded by Article XXI.

The current Article XXI requirement that the geographic integrity of cities and counties be respected is mirrored in the new Article XXI. The new Article XXI, however, goes farther than the current Article XXI, adding that the redistricting plan comply with the following criteria in order of importance: “(1) create the most whole counties possible, (2) create the fewest county fragments possible, (3) create the most whole cities possible, and (4) create the fewest city fragments possible.” Proposition 77, § 2.

The new article XXI adds the provision that “every district shall be as compact as practicable … to the extent practicable a contiguous area of population shall not be bypassed to incorporate an area of population more distant.” Proposition 77, § 2. This provision is one that, while not mentioned in the current Article XXI, has been adhered to as the result of decades of case law indicating the importance of compactness. Reinecke, 10 Cal.3d at 411. The new Article XXI also adds the additional provisions that “no census block shall be fragmented unless required to satisfy the requirements of the United States Constitution,” and also the provision that “no consideration shall be given as to the potential effects on incumbents or political parties.” Proposition 77, § 2.

4. Fiscal Impact

The new Article XXI specifies that the Legislature must make legislative funds available to the Special Masters to provide them with the tools necessary to conduct their work. This includes office space, staff, and possibly the hiring of experts in the field of redistricting and computer technology. Funding for the panel would be limited by the Legislative Analyst to one half of the amount spent on the Legislature’s 2001, redistricting effort, adjusted for inflation under the California Consumer Price Index. Proposition 77, § 2. In 2001, the Legislature spent approximately $3 million on redistricting, so the panel would spend $1.5 million on the redistricting to take place between November 2005, and June 2006. Should the redistricting plan fail to gain voter approval in June, up to another $1.5 million would continue to be spent on each additional redistricting effort made until a plan is approved by California voters. California Official Voter Information Guide, Analysis of Proposition 77 (Secretary of State, 2005).

III. Drafting Issues

A. Ambiguity

Opponents of Proposition 77 take the position that the posting of two different versions of the proposition (both the version submitted as a petition to California citizens for signature, and the earlier version mistakenly submitted to the Attorney General) on the Secretary of State website will lead to voter confusion in determining which version is the one they will vote on. What was posted on the Secretary of State website for much of the summer was the typed text of the version of Proposition 77 that was sent to the Attorney General. Over the typed text is a penciled-in editing of the document to reflect the version that was circulated to voters for signatures and which will appear on the June 2006 ballot. Californians familiar with the situation surrounding Proposition 77 will likely realize why the Proposition appears the way it does. Others may not know what to think, as there is no explanation offered on the website to explain the strange version(s) of the text presented. Because this is an ambiguity not of substance, but of form, it is likely that it will be challenged not in regard to the substantive merit of the proposition. Rather, it will most likely serve as evidence that the proposition was unlawfully submitted to the voters and that the improper submission resulted in confusion for voters.

B. Severability

Section three of Proposition 77 contains a severability clause. It states that “If any provision of this measure … is held invalid … that invalidity shall not affect other provisions or applications which can reasonably be given effect in the absence of the invalid provision or application.” Proposition 77, § 3. This type of clause is often contained in initiatives that propose multiple changes to the law. Proposition 77 is more aptly viewed not as an initiative that proposes multiple changes to existing law, rather it seeks to completely replace an existing law with a wholly new law. Because it proposes a constitutional amendment, it contains a single block of text to be adopted as an article into the California Constitution, giving the impression that Proposition 77 is an all-or-nothing proposition. Within this single block of text, there are, however, three major components to Proposition 77 that arguably might be severable should it be determined that one or more of them is invalid. These three major components are the proposal of a new redistricting procedure, including the process for selecting the Special Masters, the guidelines to be followed by the Special Masters in creating new districts, and the requirement that new district lines be drawn in time for the June, 2006 election.

The California Courts adhere to a three-part test to determine whether a portion of an initiative can be severed, leaving the remaining portions valid law. People’s Advocate, Inc. v. Super. Ct. of Sacramento, 181 Cal. App. 3d 316 (1986). The valid, constitutional portions of the initiative must be grammatically, functionally, and volitionally severable from the portions deemed unconstitutional. Id. at 330-332. The grammatical test requires the portion to be severed in a way that makes grammatical sense, “that is, where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase, or even single words.” Id. at 330. Assuming that the severability clause of Proposition 77 refers primarily to the text of the proposed constitutional amendment, there are indeed several places in which clauses could be severed grammatically. Any of the three components of the proposition could be easily extracted from the remainder of the text, leaving the import of the remaining sections intact. The second and third parts of the test deal with whether the remaining sections of the proposition will be capable of application without the severed portion, and whether voters were focused on voting for the portions that would remain law, to the extent that they would have “considered and adopted them in the absence of the invalid portions.” Id. at 333. These last two parts of the test would likely be the focus of an attempt to sever any of the three central provisions of Proposition 77.

The proposal to remove redistricting power from the Legislature, and place it in the hands of a panel of Special Masters, while theoretically and perhaps technically distinct from the rest of the proposition, is at the heart of Proposition 77. Accordingly, it appears unlikely that its removal would pass either the functional or volitional test for severability. Were this provision removed from the proposition, it would be impossible for the remaining provisions to stand on their own as the only portion of the California Constitution addressing the redistricting process. It would be impossible to implement redistricting guidelines without a body appointed to apply those guidelines. Thus, if the provision that would fundamentally change the redistricting process giving the redistricting responsibility to Special Masters is declared invalid, the rest of Proposition 77 would necessarily be defeated. Additionally, the volitional test would likely fail as well, because it is unlikely that voters would have been sufficiently focused on other portions of the proposition such that the removal of this section would not have affected voting. It is possible that the requirements placed on the Special Masters during the redistricting process will be challenged. Opponents have already begun to argue that the guidelines the Special Masters will be required to follow do not include of important provisions requiring for example that “communities of interest” be respected. Asian Pacific American Legal Center; League of Women Voters; Mexican American Legal Defense and Education Fund, Position Paper on Proposition 77 November 8, 2005 Ballot California Statewide Special Election, (Sept. 7, 2005). (See discussion below.) Grammatically, this provision is extractable from the rest of the proposition. If it were to be extracted, however, it would leave a very large gap in California’s Constitutional redistricting law. Because Proposition 77 proposes to remove completely the current Article XXI and to replace it with new language, without an articulation of new guidelines to be followed by those in charge of redistricting, a crucial element of the new plan would be missing. Only federal guidelines would govern California’s redistricting process. Under the volitional test, it would again be difficult to believe that voters would likely have foreseen or agreed to the removal of this provision as it is such a crucial element of the proposition.

The provision that requires the immediate redrawing of district boundaries has been singled out by the California Association of Clerks and Election Officials as a particularly difficult provision to fulfill within the short timeframe that the Legislature, Special Masters, and election officials will have to operate. California Association of Clerks and Election Officials, Obstacles to Completing Mid-Decade Redistricting in Time for June 2006 Primary Election (March, 2005). If unable to comply with implementation of the new law for the June 2006 election, it is likely that proponents will seek to sever the remaining portions of the proposition from the 2006 redistricting requirement, maintaining a partial victory, rather than allow the entire proposition to be declared invalid. Grammatically, the 2006 redistricting requirements can be severed from the rest of the text, as they appear largely in a separate section of the proposed Article XXI. Functionally, it would be possible to implement the new redistricting procedure beginning with the 2010 census, merely cutting out the special mid-decade redistricting called for by the proposition. It is with the third, volitional test that problems arise. Whether the voters would have enacted the remainder of the provision, minus the 2006 redistricting measures is a difficult question to answer. The immediate redistricting that would be implemented in the 2006 election is a major element of the proposition, yet at the same time it would seem that if voters are in favor of the new redistricting procedure, they would still hope to see it implemented if not now, at the next election.

Aside from these issues, it appears likely that no section could be cleanly severed without impacting the remaining sections, since the whole of Section 2 of the proposition is concerned with laying out very specific rules guiding the new redistricting procedure. The voters, in considering the new Article XXI would likely view it as a package of new rules governing redistricting, interdependent, and interlocking. It is difficult to imagine that a voter would contemplate the removal of a single piece of what is essentially one law. Proposition 77, § 2.

C. Substantial Compliance

Another drafting issue has already received much attention and, to date, much litigation. This issue concerns substantial compliance with both the California Constitution and the California Elections Code. Proponents of Proposition 77 submitted a version of the proposition to the Attorney General prior to circulating petitions for signatures in at attempt to comply with the requirements of California Constitution article II, § 10(d) and Elections Code § 9002. Both provisions require submission of a proposed initiative to the Attorney General so that the Attorney General can prepare a title and summary of the initiative. Due to a clerical error by the proponents, the draft that was submitted to the Attorney General’s office was different from the draft printed on petitions for voter signatures. Proponents apparently discovered the discrepancy in May 2005, but did not alert the State to the problem until June 13, 2005, three days after the initiative was certified for the ballot by the Secretary of State. Costa v. Super. Ct., No. C050297, slip op. at 9-11 (Cal. App. 3d Dist. Aug. 9, 2005) [“Costa”]. After the proponents disclosed the problem to the Undersecretary of State and the Governor’s Legal Affairs Secretary, the Attorney General filed suit to prevent Proposition 77 from appearing on the ballot. In late July, a superior court ruled in favor of the Attorney General, preventing the initiative from appearing on the ballot. The proponents filed a writ of mandate seeking to overturn the superior court ruling. Id. at 13.

The question in the petition for a writ of mandate before the Third District Court of Appeal was whether the proponents had substantially complied with the constitutional and statutory requirement that they file a copy of their proposed initiative with the Attorney General. Id. at 23. Substantial compliance requires “actual compliance in respect to the substance essential to every reasonable objective of the statute.” Id. at 32. (Internal citations and quotations omitted.) The court examined what every reasonable objective of the article II, § 10(d) and Elections Code § 9002 could be, concluding that one reasonable objective is requiring pre-circulation submission to the Attorney General, and also to “fix the text” of the proposed initiative so that all parties are “on the same page.” Id. at 32-33. Here, because the text could not be fixed since there were two versions, the proponents had not substantially complied. The court further held that proponents had not substantially complied with the constitutional or statutory provisions because the misinformation caused by having two different versions of the initiative could lead to voter confusion. Id. at 34. Moreover, the version of the initiative that was posted on the Secretary of State’s website for much of the summer was a printed text with “handwritten interlineations and cross outs.” Id. at 36. This marked-up text made deciphering the true version of the proposition difficult. The court also found that changes in the way that legislative leaders would pick and strike Special Master candidates was a change in the meaning of the proposition. “Any change in the rules governing the conduct of any person is a change in the meaning.” Id. Furthermore, the court also found that the “Findings and Declarations of Purpose” section in the two different versions were substantially edited, such that determining the legislative intent behind the proposition at a later date could be very difficult. Id. at 36-37. Therefore, because the text could not be fixed and proponents through their negligence had caused the potential for great confusion among voters and elected officials alike, the court ruled that they had not substantially complied with every reasonable objective of article II, § 10(d) and Elections Code § 9002. The court affirmed the superior court ruling barring Proposition 77 from the ballot, despite the objection of Presiding Justice Scotland, who dissented.

Justice Scotland’s dissent concluded that the proponents had substantially complied with constitutional and statutory provisions because the purpose of those provisions was to obtain an informative title and summary to prevent voters from being misled. Costa, No. C050297, slip op. at 13. Justice Scotland found that voters could not reasonably be confused by the fact that there were two versions of the initiative because only one of those versions was circulated on the petition. Id. at 16. Moreover, Justice Scotland pointed out that the summary for both versions of the proposition that were prepared by the Attorney General are identical. Id. Only the titles are different: “Reapportionment. Initiative Constitutional Amendment” for one version and “Redistricting. Initiative Constitutional Amendment” for the other version. Id. The conclusion drawn from this similarity was that there was no material difference in the two versions. Justice Scotland concluded saying, “In the real world, the differences in wording were insignificant and would not have misled voters who signed the petitions.” Id. at 23

On August 12, 2005, the California Supreme Court granted the proponents’ petition for review, and the Court stayed the Third District Court of Appeal’s ruling. The state Supreme Court said that the lack of a showing that voters were misled by the two versions led the court to hold that it would be inappropriate to undertake a pre-election review. The Court then gave an opportunity to opponents of Proposition 77 to revise their ballot arguments. California Supreme Court, California Appellate Courts, Case Information, Docket Entries (Register of Actions), . Since the stay of the Third District Court of Appeal order only applies to pre-election review of Proposition 77, the California Supreme Court can still hear the argument on the merits and determine whether the proponents have substantially complied with the constitutional and statutory provisions. If the stay of the Court of Appeal ruling is any indication, opponents of Proposition 77 may be facing an uphill battle, as the California Supreme Court appeared to indicate that it would look at voter confusion of the Californians who signed the petitions. Id.

IV. Constitutional Issues

A. Federal Constitutional and Statutory Issues

Legal attacks against Proposition 77 have already begun. The Mexican American Legal Defense and Education Fund (“MALDEF”) filed suit this summer in the U.S. District Court for the Northern District of California. MALDEF, Election on Redistricting Initiative Must Be Postponed, Says MALDEF in Lawsuit, (Jul. 20 2005). More legal challenges may be on the way. Opponents of Proposition 77 may claim that the U.S. Constitution and the federal Voting Rights Act prevent California from redistricting in 2006, should Proposition 77 pass.

In their suit against Proposition 77, MALDEF claims that the method in which the proposition was placed on the ballot, with different versions being submitted to the Attorney General and the people for their signatures, violates Section 5 of the federal Voting Rights Act (“VRA”). Section 5 of the VRA requires that certain jurisdictions must receive pre-clearance for changes that they make to the voting procedures. Pre-clearance is obtained either by application to the U.S. Attorney General or by a declaratory judgment of a three-judge panel of the U.S. District Court for the District of Columbia determining that the proposed changes “will not have the effect of denying or abridging the right to vote on account of race.” 42 U.S.C. 1973c (2003). MALDEF claims that the California Secretary of State’s qualification of Proposition 77 amounted to a de jure and de facto change in California Election Law because the version of proposition that was sent to the State Attorney General was different from the version that was signed by voters. Martinez v. Monterey County, Pl.’s Compl. ¶ 6, (Jul. 19, 2005). (See discussion above.) California has several “covered jurisdictions” that require pre-clearance, including Monterey County, defendant in MALDEF’s lawsuit. U.S. Department of Justice, Civil Rights Division Voting Section Home Page: Section 5 Covered Jurisdictions, (accessed Oct. 5, 2005).

MALDEF makes an interesting and novel case. It will, however, be moot if Proposition 77 fails, or the California Supreme Court declares it invalid for its proponents’ failure to substantially comply with the California Constitution and Government Code. (See discussion of substantial compliance above). To evaluate MALDEF’s claim, the court would have to look at whether, as MALDEF claims, the acts of the Secretary of State amounted to changes in California election law. If the secretary’s acts were changes, then they would be subject to pre-clearance by the U.S. Attorney General or the U.S. District Court for the District of Columbia. Then, in either situation, it would be the state’s burden to show that these changes in the law did not have a discriminatory purpose or effect. Allen v. St. Bd. of Elections, 393 U.S. 544, 572 (1969). MALDEF does not explain how these alleged changes to California initiative law might have a discriminatory purpose or effect. However, the VRA puts the burden of showing no discriminatory purpose or effect on the state. Id. MALDEF’s suit is ongoing as of the writing of this review; the court has taken the issue under submission based on the parties’ briefs. Telephone Interview with Leroy Blankenship, Asst. County Counsel, Monterey County (Oct. 6, 2005) (notes on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy).

Perhaps another attack might come on federal constitutional grounds. Challengers to Proposition 77 may make the argument that the U.S. Constitution, as well as federal statutes, prohibits redistricting more than once per decade. Plaintiffs made a similar argument in Session v. Perry, 298 F. Supp. 2d 451 (E.D. Tex. 2004) [“Session”]. In a per curiam opinion by a three judge panel of Texas’ Eastern District, the court rejected the notion that the U.S. Constitution and federal statutes prohibited a second redistricting by the Texas Legislature after a federal court in Texas had already promulgated a redistricting scheme following the 2000 census. Id. at 458. The court’s scheme was used in the 2002 elections, and in 2003, the Texas Legislature drew new districts in an effort to gain Republican seats. Id. at 458, 472. Plaintiffs in Session argued that the Elections Clause and the Census Clause of the U.S. Constitution implicitly limited a state to one redistricting per decade. Id. at 459, 461. The Session court rejected these arguments saying that such a tortured reading of the Elections Clause, which contains no limiting language on the state legislatures (except through congressional action, which is absent both in Session and with regard to Proposition 77), could not be supported. Id. at 459. Similarly, the court said that the Census Clause could also not support a prohibition on multiple redistricting within a decade. Id. at 461. The court ruled that the Census Clause puts a limitation on the apportionment of seats in the House of Representatives to once every decade, but does not at all limit redistricting of those seats, nor of seats for state office. Id. at 462. Plaintiffs then turned to a federal statutory argument.

Plaintiffs argued that Title 2, Section 2c of the United States Code prohibited states from redistricting more than once per decade. Id. at 464. Section 2c says that following congressional apportionment after each census, “there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established.” 2 U.S.C. § 2c (2003). Plaintiffs argued that Section 2c was congressional action revoking the power granted to the states by the Elections Clause; that Section 2c only allows redistricting once after the decennial census; and that since the court had already conducted redistricting once in Texas following the 2000 census, the state’s redistricting power had under Section 2c had been “used up.” Session, 298 F. Supp. 2d at 464. The court rejected this formulation on several premises. First, the court disagreed that Congress, through section 2, had revoked authority granted to the states under the Elections Clause; such an interpretation would mean that Congress had preempted a broad power (the power to set the time, place, and manner of elections) by the narrow language of Section 2, despite the fact that Section 2 contains no language purporting to revoke the power. Id. Moreover, the court found that the plain language of Section 2c, while requiring states to redistrict after each census, contained no provision limiting states to one redistricting per decade. Id. at 465.

Session might be distinguishable from the case of Proposition 77, and as it is an opinion of the Texas federal district court is has no binding effect. In Session, the Texas Legislature had redistricted after a federal court had imposed district lines. Id. at 458. Proposition 77, however, would require a second redistricting for this decade, but the first redistricting was done by the California Legislature, not the courts. In Session, the court noted that “While no court has ... explicitly addressed whether states have the power to [enact a second redistricting in one decade] under the Constitution, innumerable decisions have ... invited a state to do so after the court has drawn a map in a remedial role.” Id. at 460. Again, the districts in California were drawn by the Legislature, not a court. Furthermore, the Colorado Supreme Court has recognized that the U.S. Constitution and Title 2, Section 2c, as well as the VRA, do place restrictions on redistricting (a seemingly more expansive view of those federal laws that was given in Session). People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1234-1235 ( Colo. 2003); Patrick Marecki, Student Author, Mid-Decade Congressional Redistricting in a Red and Blue Nation, 57 Vand. L. Rev. 1935, 1943 (2004). However, the court in People ex rel. Salazar based its decision firmly on the Colorado Constitution, and not on federal law. Still, another court looking at this question might find the Colorado Supreme Courts’ dicta persuasive. Despite the apparent shutting of the door to this inquiry in Session, the question of whether the U.S. Constitution and federal statutes prevent multiple redistricting in the same decade by a legislature remains unresolved. Marecki, 57 Vand. L. Rev. at 1943. A federal district court in California may elect to analyze the issue consistent with Salazar, and not with Session.

Finally, Proposition 77 might face another VRA challenge based on the 2006 redistricting requirement. The issue is whether the VRA would permit a state to conduct a mid-decade redistricting using old census data to draw the lines. Many cases have required a second redistricting after court action or have invited legislatures to redistrict after courts have already drawn lines. Session, 298 F. Supp. 2d at 460 (see footnote 14). However, this particular question of using old census data (now about five and a half years old) to redraw lines after the legislature has already drawn valid lines appears to have never been presented to a court. Courts operate and maintain the judicial fiction that valid district lines based on population data from one census remain valid until the next decennial census. Georgia v. Ashcroft, 539 U.S. 461, 489 (2003) (see footnote 2). Section 2 of the VRA prohibits states from imposing a “standard, practice, or procedure ... in any manner which results in a denial or abridgement of the right ... to vote on account of race.” 42 U.S.C. 1973(a). Use of outdated census data could potentially result in the abridgement of the “one person, one vote” rule because the population of a given district would no longer be accurate given growth between the 2000 census and 2006 redistricting. The courts have never been presented with the question of a second “legislative” redistricting based on data from a single census. As a means of maintaining stability, a court might maintain the legal fiction in this case. However, given that population is projected to increase from 2000 to 2010, it seems plausible that a court would discard the legal fiction where a state is redistricting out of desire (popular initiative), not necessity (such as a court order, or in response to judicially created districts).

Changing district lines mid-decade without consideration to population growth could dilute minority-voting strength in numerous districts leading to a challenge of Proposition 77 under Section 5 of the VRA. By 2010, California’s population is projected to grow by about five million people. California Department of Finance, Demographic Research Unit, Population Projections by Race/Ethnicity for California and Its Counties 2000-2050: Population Projections, (May 2004). In that time, California’s Hispanic population will grow by about four million people. Id. Any new district drawn that does not account for these changes in population growth might be seen as diluting minority vote strength. If the court decides to abandon the legal fiction in this case where a state is voluntarily choosing to redistrict mid-decade, it might strike down the 2006 redistricting requirement in the proposition as unworkable, likely severing that section from the proposition. Again, no case has presented this question to a court, making any outcome predictions uncertain.

B. State Constitutional Issues

Proposition 77 raises one key state constitutional issue: whether the redistricting reforms amount to a constitutional revision or merely a constitutional amendment. The California Constitution does not reserve to the people the power to make a constitutional “revision,” whereas the right of the people to make constitutional “amendments” and statutes is guaranteed by Article XVIII. McFadden v. Jordan, 32 Cal. 2d 330, 348 (1948) [“McFadden”]. If Proposition 77 is seen as a change so fundamental as to be a change to the basic scheme of government in California, then Proposition 77 goes beyond the bounds of the initiative process. Raven v. Deukmejian, 52 Cal. 3d 336, 351-52 (1990) [“Raven”].

In Raven, the California Supreme Court struck down a provision of 1990’s Proposition 115 that would have “vest[ed] all judicial interpretive power, as to fundamental criminal defense rights in the United States Supreme Court.” Id. at 352. (Emphasis in original.) The California Supreme Court found this to be an unacceptable constitutional revision because it “substantially alter[s] the substance and integrity of the state Constitution.” Id. The Raven court said that either quantitative or qualitative changes to the constitution could amount to revisions. Since the people do not have the power to make constitutional revisions through the initiative process, that provision of Proposition 115 was struck. Id. Only the legislature or a constitutional convention may propose revisions to the constitution. Cal. Const. art. XVIII, §§ 1-2. The changes to the California Constitution contained in Proposition 77 affect only article XXI. This likely would not meet the quantitative prong of Raven. See McFadden, 32 Cal. 2d at 345 (where the California Supreme Court struck down an initiative that would have substantially altered or deleted 15 of the 25 articles of the constitution at the time). Additionally, Proposition 77 replaces the one section now in article XXI with three different sections. However, a greater case might be made on the qualitative front.

If passed, Proposition 77 would remove an entire class of legislation (the power to redistrict and reapportion) from the Legislature and place it in the hands of a commission made up of retired judges. The question for the court would be whether this shift in power amounts to a “fundamental change in our preexisting governmental plan.” Gerald F. Uelmen, Handling Hot Potatoes: Judicial Review of California Initiatives After Senate v. Jones, 41 Santa Clara L. Rev. 999, 1017 (2001). In Raven, the Court struck the questionable provision because it would have shifted all judicial interpretive power from the California Supreme Court to the United States Supreme Court. Proposition 77 does not remove all legislative power from the legislature, but removes one particular type of power from the legislature: the power to redistrict and reapportion the state. That power is not then vested in another branch of government, but a quasi-independent commission. It appears quasi-independent because the members of the commission are still governed by some judicial rules and are nominated by members of the Legislature. This is a much closer question than issues before the Court in either Raven or McFadden.

One scholar has proposed looking at what is lost in the “elimination of that rational discourse by the use of the initiative process” instead of the slower and more deliberative processes of legislatively- or convention-proposed revisions. Uelmen, 41 Santa Clara L. Rev. at 1019. “The prohibition of constitutional revision preserves our commitment to rational discourse before we make important changes to how we govern ourselves.” Id. at 1017. Applying this standard, Proposition 77 looks more like a revision than a simple amendment. As discussed above, Proposition 77 is replete with drafting problems that likely would have been prevented if the measure had gone through the legislative or convention processes.

Because of the fundamental shift of power away from the legislature to a quasi-independent commission that seems to reside in none of the other branches of government, a court might be inclined to see Proposition 77 as a constitutional revision, as opposed to merely an amendment. As a constitutional revision, Proposition 77 could be struck down as outside the ken of the people’s power of initiative.

V. Public Policy Considerations

A. Proponents' Argument in Favor of Proposition 77

Dubbed the “Voter Empowerment Act” by its authors, proponents of Proposition 77 seek to “Guarantee fair election districts for Californians. Give voters the final say in the process. Reduce special interest influence and money in politics.” California Official Voter Information Guide, Argument in Favor of Proposition 77 (Secretary of State, 2005). Proponents argue that by creating more competitive districts, politicians will heed the voices of the voter as opposed to where “[u]nder the current system, they only pay attention to their campaign contributors.” Id.

By guaranteeing fair election districts, proponents of Proposition 77, including Ted Costa, CEO of People’s Advocate and Governor Arnold Schwarzenegger, appear to mean more competitive districts. A common argument in favor of Proposition 77 is that in 2004, not one of the 153 legislative and congressional seats that were up for a vote changed party. Id. In fact, few of those contests were even close. See California Secretary of State, Statement of the Vote and Supplement to the Statement of the Vote: 2004 Presidential General Election, (accessed September 14, 2005).

Proposition 77 attempts to achieve fair election districts by establishing strict criteria for drawing districts. These criteria do not differ greatly from the criteria currently listed in article XXI, but there are some significant differences. Currently article XXI has five specific criteria as described above. Cal. Const. art. XXI, § 1. Proposition 77 would create Section 2 in article XXI largely expanding on the preexisting criteria. Proposition 77 would require that population variances among districts conform to federal constitution standards. New Section 2 then requires that population variance be less than 1 percent for legislative and BOE districts or meets a stricter federal requirement. Ultimately, this provision likely would not change the outcomes of redistricting because all redistricting must conform to federal constitutional standards regardless of the provision. Similarly, new Section 2 provides that districts shall comply with the United States Constitutional requirements and requirements of the Voting Rights Act. Federal law mandates that districts comply with the U.S. Constitution and the Voting Rights Act.

Perhaps the most important provision of Proposition 77 with regard to criteria is new Section 2(i). That section prohibits the consideration of the potential effects on incumbents and political parties. Moreover, no data regarding the residence of an incumbent or the party affiliation or voting history of the population in a given district can be used to draw district lines except as required by federal law. Proposition 77, § 2. This provision might make the greatest difference in redistricting. Currently, legislators often draw lines to promote incumbency; in particular, the 2001 districts were drawn to protect incumbents. Dan Walters, Congressmen Can Raise Big Bucks to Fight Redistricting Reform, 293 Sacramento Bee A3 (Aug. 22, 2005). This results in districts that are considered “safe”: often where voter registration of one party significantly outnumbers the voter registration in the other parties. Protection of incumbency is often so important to legislators that it can make for some very strange political bedfellows. In fact, the liberal Congressman Howard Berman and the conservative Congressman John Doolittle recently combined forces to defeat Proposition 77. Id. Without consideration to incumbency, more competitive districts might be created.

To achieve more fair districts proponents also point to the fact that a bipartisan commission of retired judges will be creating the districts, and voter approval will follow before the new boundaries are made permanent. However, bipartisanship is not all the proponents want. The 2001 redistricting was a bipartisan effort; congressional maps drawn by Howard Berman’s brother Michael were purportedly taken to Karl Rove for his approval, which was granted. Id. There can be no guarantee that a bipartisan panel of only three retired judges will be truly bipartisan, however, proponents see this as a step in the right direction, since it removes the redistricting power out of the legislature’s hands, where they say there is a conflict of interest for legislators. Argument in Favor of Proposition 77.

B. Opponents' Arguments Against Proposition 77

Not all of the opponents of Proposition 77 are united in their reasons for opposition. Californians for Fair Representation, whose opposing viewpoint appears in the Voter Information Guide, believe that the California Constitution should not be altered in a way that they perceive as experimental. They believe that new redistricting law is not necessary, and are opposed to the continued efforts of those who have for years been proposing redistricting initiatives. Official Voter Information Guide Special Statewide Election, Argument Against Proposition 77 (Secretary of State, 2005).

Some opponents of Proposition 77 agree that in theory, changing the redistricting process is a good idea. They agree that the current redistricting process allows legislators to maintain district lines that will ensure their reelection, and that this is a conflict of interest that continues to be supported by the California Constitution. These opponents to Proposition 77 believe that while a new redistricting process is called for, Proposition 77 fails to ensure voters any more control over the process than they have under the current redistricting law. Asian Pacific American Legal Center; League of Women Voters; Mexican American Legal Defense and Education Fund, Position Paper on Proposition 77 November 8, 2005 Ballot California Statewide Special Election, (Sept. 7, 2005).

1. Three Unelected Judges Will Represent All Californians

Opponents to Proposition 77 argue that it places the entire redistricting power in the hands of three unelected individuals. They argue that because voters elected their legislators, the legislators are most fit to represent their constituents. Opponents claim that because voters will not elect the three retired judges who will become Special Masters, they will not be representative of the voting population. Argument Against Proposition 77. It is true that with only three individuals comprising the panel, many areas of California will assuredly not be represented. In fact, the opponents point out that it may turn out to be the case that all three Special Masters reside in the same region, creating, for example, a situation in which three southern Californians decide the district boundaries of northern California, without any personal stake in the effects of their decisions. Representatives of minority groups opposing Proposition 77 make a related argument. They argue that California’s diversity cannot be fairly reflected by three retired judges, as the vast majority of retired judges are upper-class white males of retirement age. Asian Pacific American Legal Center; League of Women Voters; Mexican American Legal Defense and Education Fund, Position Paper on Proposition 77 November 8, 2005 Ballot California Statewide Special Election, (Sept. 7, 2005). Opponents fear that because of their likely backgrounds, the judges won’t be able to fully understand and empathize with minority issues. In turn, they believe that this may result in the division of minority populations that share common political interests and benefit from voting in the same district. Id.

2. No "Communities of Interest" Consideration

Along the same lines as the first argument, many opponents are concerned that Proposition 77 contains no provision for requiring the Special Masters to maintain the redistricting policy of keeping “communities of interest” intact. Id. While it is unconstitutional to decide political boundaries based on race, it has been policy to require that in the redistricting process legislators make it a priority to keep within the same district communities that have common social interests, communities that are of similar economic status, and communities that have a common political interests. See Vieth, 541 U.S. at 361; see also Bush v. Vera , 517 U.S. 952 (Supreme Court recognized keeping together “communities of interest” as a traditional redistricting concern). Opponents of Proposition 77 recognize that it does spell out with great detail the factors the Special Masters must consider in drawing the new boundary lines, and view the fact that it makes no mention of communities of interest as a deliberate attempt to inform the Special Masters that they need not respect this current policy, as it is explicitly left out of their mandate. Argument Against Proposition 77.

3. Outdated Census Information

Proposition 77 requires the redrawing of political districts before the next election in June, 2006. To accomplish this, the Special Masters will necessarily need to use the census information collected in 2000. Opponents argue that this census information is outdated and does not reflect California’s current population. Argument Against Proposition 77. This may result in legal challenges under the Voting Rights Act as discussed above, because it does not reflect California’s rapidly expanding minority populations. A population growth survey by the California Department of Finance shows, for example, that California’s Hispanic population is increasing at an average rate of 212,643 people per year, and that California’s African American population is increasing at an average rate of 41,075 people per year for the period between 2000 and 2003. State of California, Department of Finance, California County Race/ethnic Population Estimates and Components of Change by Year, July 1, 2000 - 2003 (Oct. 5, 2005).

4. Obstacles to Completing Mid-Decade Redistricting

The California Association of Clerks and Election Officials published a whitepaper in March, explaining the obstacles to completing the sort of mid-decade redistricting called for by Proposition 77. While the goal of the whitepaper is not specifically to present an opposing argument to Proposition 77, and in fact it proposes a tight action plan for election officials to attempt to use in the case that Proposition 77 does pass, it highlights several facts that point to the impracticability of successful redistricting in time for the June 2006 Primary Election. California Association of Clerks and Election Officials, Obstacles to Completing Mid-Decade Redistricting in Time for June 2006 Primary Election (March, 2005).

First, it addresses the fact that candidates begin to collect signatures for their nomination in December, with the candidate filing period opening on December 30, 2005, and closing on March 10, 2006. If new boundary lines have not yet been finalized by December, the candidates will not know who will be eligible to sign their nomination documents. This puts in jeopardy the candidates’ qualification abilities, as indeed the result of the redistricting may be that they themselves do not reside in the district in which they intended to run for office. The whitepaper also importantly notes that the administrative process for updating election management information at the county level is also an incredibly cumbersome task, regularly taking months to complete. No deadline for the redistricting is set forth in the new Article XXI. It requires only that the Special Masters establish their own deadlines upon formation of their panel. The whitepaper proposes that “a date certain be established to revert to the existing district boundary lines should key dates be missed due to any number of occurrences. …” Id. While such a date could be established by the Special Masters, no such date certain is guaranteed by the new Article XXI. Id.

Next, the whitepaper addresses the fact that “counties must create the appropriate ballot types/groups to assure that voters within each specific geographic area receive the correct ballot with appropriate contests for that area.” Id. Because this is done after voter registration systems are updated with the revised district boundaries the whitepaper points out that this will add yet another administrative hurdle as new district boundaries would have to be “completed, adopted … and disseminated to counties before the commencement of candidate filing on December 30, 2005 and before counties could complete labor-intensive reprecincting work. …” Id. While implementation of new districts is possible, it seems to be an unavoidable truth that it will place heavy burdens on state election officials.

Lastly, the whitepaper addresses the need to issue sample ballots to voters in time for absentee ballot requests to be made, and then for those absentee ballots to be sent to voters and returned by voters before the June 6, 2006 election. At this point, all of the pre-election preparations must be substantially concluded in order for polling places to be printed on sample ballots. The whitepaper notes that following past reapportionments “20+% of voters” have been assigned to new, unfamiliar polling places, which can easily result in voter confusion and dissatisfaction, which in turn has an effect on election outcomes. Id.

5. Repeated Redistricting too Cumbersome and Expensive

If voters reject the Special Masters’ redrawn district boundaries, per the new Article XXI, a new panel of Special Masters must be appointed to come up with new boundary lines to be voted on at the next election. Each time a panel’s proposed boundary plan fails to gain voter approval, the process is repeated. Opponents argue that this is a major flaw in the proposition. Not only does it require the one-time spending of an extra $1.5 million to complete the mid-decade redistricting in 2006, but it may also require extra spending after every California election. In theory, there could be a new panel of Special Masters selected after every California election for as long as the new Article XXI stands. Each time a panel of Special Masters is created, it costs Californians as much money as the Legislature deems appropriate, up to $1.5 million, for the Special Masters to conduct their work, to provide them with “equipment, office space, and necessary personnel, including counsel and independent experts in the field of redistricting and computer technology” and in theory, this is an expense that Californians may have to bear after each California election. Proposition 77, § 2.

V. Conclusion

If approved by voters in the November 2006 Special Election, Proposition 77 will change the California Constitution, permanently shifting redistricting power away from the Legislature and into the hands of three Special Masters. California citizens will maintain their ability to be heard by those doing the redistricting, though, as now, they will not be part of the approval of the district boundaries before they are initially implemented. It is only after the implementation of the Special Masters’ redistricting plan that voters will be able to reject it. Proponents argue that this is a way to end the self-interested actions of partisan politicians who draw district lines to ensure their own legislative seats. Opponents argue that this is not the right redistricting plan for California, as too much power is given to officials not elected, as the legislature is, by the people of California. Argument Against Proposition 77.

In addition to passing muster on its substantive merits as forwarding a valid constitutional amendment, Proposition 77 will have additional procedural hurdles to overcome if it is to become California law. After the whirlwind of controversy surrounding the procedural missteps that left Proposition 77 on shaky ground on its path to the ballot, the California Supreme Court has ordered that it will indeed go before California voters in the November 2006 Special Election. If Proposition 77 does attain voter approval, its journey to becoming law will likely be far from over. Opponents likely will continue pursuing legal action against Proposition 77. If it passes, the legislators, Special Masters and election officials will have a very difficult race to run in a very short time, and with the threat of litigation added to delay or even slow the start of that race, it is doubtful whether it will be practicable to implement the new amendment in time for the 2006 Primary Election.