by Douglas Johnson
The recent (taxpayer-funded ) claims of the California Redistricting Commission stretch reality: in a flashback to the high-profile debate a few years ago over the definition of “is,” the Commission’s claims hinge on an inaccurate definition of the word “that.” Note that the controlling language is in Proposition 20, not Proposition 11:
(j) If the commission does not approve a final map by at least the requisite votes or if voters disapprove a certified final map in a referendum, the Secretary of State shall immediately petition the California Supreme Court for an order directing the appointment of special masters to adjust the boundary lines of that map in accordance with the redistricting criteria and requirements set forth in subdivisions (d), (e), and (f). [emphasis added]
The Commission claims that “of that map” is a reference to the specific Congressional, Assembly, State Senate, or Board of Equalization map drawn by the Commission. But the Commission incorrectly defines “that.” The “of that map” language in Proposition 20 simply differentiates among the jurisdiction covered by the map (Congress, Assembly, State Senate or Board of Equalization). “That” is not a reference to the specific map drawn by the Commission. The meaning of “that” in this case is that if the Commission fails to adopt a Congressional map, or if a referendum against a Congressional map qualifies, the Court will step in to draw a Congressional map and only a Congressional map. Without that provision, it is unclear that qualifying a referendum against the Congressional map does not empower the Court to draw new Congressional, Assembly, State Senate, and Board of Equalization districts. If you read the language with the thought that this provision applies if the Commission never adopts a plan for one or more of those bodies, I believe the language’s intent is clear.
And here’s the trump card for this debate: the Commission’s own attorney agrees with this interpretation. Dan Kolke, one of the Commission’s lead attorneys from Gibson, Dunn & Crutcher, was a key author of Proposition 20. He, along with other proponents of Proposition 20, have repeatedly said how the qualification of a referendum suspends the Commission’s plan and requires a Court-drawn plan for the 2012 election.
Side note #2: the vote on any referended plan will be unique: the court will have drawn an interim plan that will be in place for the 2012 election. In effect, the voters will be choosing which plan will be used for the 2014 – 2020 elections. While the language on the ballot will be yes/no on the Commission’s plan, the real decision will be between the Commission’s plan (“Yes”) and the Court’s plan (“No”). That is likely to generate very different voter decision dynamics than a typical referendum.
The debate on the highly-respected Election Law blog and listserve has included discussion about the Commission adopting a “substantially similar” plan if the referendum succeeds. In fact, there is no ability for the Commission to adopt “substantially similar” (or any other) follow up legislation. The Commission’s authority to draw (or revise) plans ended on August 15th, 2011. Note the specific reference to court-provided relief in Section 3.3(b)(3) — if the Court sides with plaintiffs in a claim against one or more Commission-adopted plans, the relief suggested (though, I admit, not specifically required) is for the Court to draw new plans. While it is theoretically possible that the Court could ignore that suggestion and empower the Commission to make adjustments to a plan, it seems unlikely. And that deadline means the Commission clearly lacks the power to do so on its own (such as following a successful referendum).
Disclosure: nothing to disclose: neither the Rose Institute, my consulting firm, or I personally am a participant in the referendum or in any lawsuits for or against the Commission’s plan, nor did the Institute, consulting firm, or I personally work for the Commission (though the Institute did apply, unsuccessfully, to be the Commission’s consultants, leading to a high-profile debate already familiar to many readers of this list).
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