The Weakness of California’s Congressional Redistricting Criteria

In 2008, California voters adopted Proposition 11, a measure that stripped the state legislature of its power to draw its own districts and transferred that power to an independent redistricting commission.  Proposition 11 left in place the legislature’s power to draw the state’s congressional districts, but established new redistricting criteria for the legislature to follow when redrawing congressional district lines. Unfortunately, the legislature is likely able to circumvent these criteria when drawing congressional districts, and the California Courts historically defer to the legislature’s actions on redistricting. Article 21 of the California Constitution addresses the redistricting process. Before the adoption of Proposition 11 in 2008, Article 21 contained the following required redistricting criteria (adopted by the voters as Proposition 6 in June of 1980):

• The population of all districts . . . shall be reasonably equal.
• Every district shall be contiguous.
• 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.

As amended by Proposition 11 in 2008, Article 21 now requires the Legislature to create a congressional redistricting plan that meets the following criteria:

• The population of all congressional districts shall be reasonably equal
• Districts shall comply with the federal Voting Rights Act.
• Districts shall be geographically contiguous.
• The geographic integrity of any city, county, city and county, neighborhood, or community of interest shall be respected to the extent possible without violating the requirements of any of the preceding subdivisions. Communities of interest shall not include relationships with political parties, incumbents, or political candidates.
• To the extent practicable, and where this does not conflict with the criteria above, districts shall be drawn to encourage geographical compactness such that nearby areas of population are not bypassed for more distant population.

The criteria included in Article 21 are theoretically enforceable by courts, and in the past efforts to challenge redistricting plans for violating previous versions of redistricting criteria in the Constitution have been attempted. But, as the plaintiffs in Nadler v. Schwarzenegger 137 Cal. App. 4th 1327 (2006) learned the hard way, California courts historically adopt a deferential stance toward redistricting plans drawn by the legislature.

In Nadler, a case which involved redistricting before the adoption of Proposition 11, the California Court of Appeals for the Third District declared that the “provision for geographic integrity . . . is the most flexible of the reapportionment standards and provides the greatest discretion to our State Legislature.” More broadly, “a reapportionment plan enacted by the legislature and approved by the Governor is entitled to significant judicial deference. Such a plan is presumptively constitutional…”137 Cal. App. 4th 1327 (2006).

Both before and after Proposition 11, the requirement for geographic integrity requirement is secondary to the requirements of population equality, the federal Voting Rights Act, and contiguity. Given the hierarchy of the standards and the difficulty of divining the motivations behind the drawing of legislative district lines, the court in Nadler adopted a deferential stance, stating “petitioners have the burden of proving that the redistricting plans are unconstitutional. There is no merit to the petitioner’s contentions that once they have made a certain showing of a lack of contiguity or a lack of geographic integrity, the burden shifts to respondents to justify the plan” Petitioners must also show that the legislature acted “arbitrarily and capriciously” in violating these requirements. The Court of Appeals reiterated that position, citing and reaffirming prior precedent declaring that courts “must defer to the legislature’s determination [that facts exist to support legislation] unless it is palpably arbitrary. Consequently we must uphold the challenged legislation so long as the legislature could have rationally determined a set of facts that support it.”(citing Schabarum, supra, 60 Cal.App.4th at 1220).

Other states, such as Florida, proactively involve their courts in redistricting. But in California the courts traditionally limit their involvement to intervention when the legislature and the Governor deadlock, leaving no redistricting plan at all. The criteria changes of Proposition 11, primarily the inclusion of the communities of interest and compactness, do not seem to invite judicial involvement. It is unlikely that California’s courts will be eager to actively enforce the congressional redistricting criteria of Proposition 11.