Nesting not an easy option for California Supreme Court- Updated

Following the 2001 round of redistricting, the Superior Court in Sacramento (later affirmed by the California Appeals Court) said in Andal vs Davis that the State Supreme Court’s highly controversial 1982 Assembly v. Deukmejian redistricting decision, established significant deference to legislative action in redistricting as the appropriate judicial position. (The State Supreme Court did not hear the Andal case). In 2011, the Redistricting Commission is the “legislative” body. But Proposition 20, adopted by California voters in 2010, requires a significantly larger role for the Court in redistricting than the courts appeared to want in their earlier decisions.

One option for the State Supreme Court combines the intervention of Proposition 20 with the deference of Andal: nesting pairs of the Commission’s Assembly Districts into individual State Senate Districts. This simple solution offers the added advantage of increased competitiveness and resolving a number of the most controversial elements of the Commission’s State Senate plan.

Unfortunately, this option stumbles in one key area: Latino representation. In today’s State Senate, Latinos represent every district that is over 38 percent Latino in Citizen Voting Age Population (CVAP). And today Latinos represent none of the districts under 38 percent Latino in CVAP. One of the common criticisms of the Commission’s State Senate plan is that it failed to increase the number of districts Latinos were likely to win. The Commission did, however, increase the number of districts where Latinos are 38 percent of CVAP or more: from eight in the existing State Senate Districts to nine in the Commission’s adopted plan. Nesting Assembly Districts enables the drawing of a only six Districts with Latino CVAP over 38 percent. Four more nested districts would be between 35 and 38 percent in Latino CVAP. If the existing Senate District 12 (37.7% Latino CVAP) is an example, these four give Latinos a chance to win the seat. But the odds of victory in those seats are probably not high enough for a Court to consider them compliant with Section 2 of the Voting Rights Act.

[An alternative nesting approach, described below, would add one majority-Latino CVAP district at the expense of two 35-38 percent districts. The general result, a lack of clarity regarding compliance with Section 2 of the Voting Rights Act, remains the same in both cases.]

Status of the Referendum

A random check of signatures for the referendum on the California Redistricting Commission’s State Senate plan indicates it has enough signatures to eventually qualify, though not by a sufficient margin to avoid a full count.

Proposition 20 and the Court’s Role in Redistricting

If a referendum is “likely” to qualify, Proposition 20 requires that the plan be suspended and the Court’s intervention to put a plan in place for the 2012 elections.

Proposition 20 said the following:

(2) . . . Any registered voter in this state may also file a petition for a writ of mandate or writ of prohibition to seek relief where a certified final map is subject to a referendum measure that is likely to qualify and stay the timely implementation of the map.

(3) The California Supreme Court shall give priority to ruling on a petition for a writ of mandate or a writ of prohibition filed pursuant to paragraph (2). If the court determines that a final certified map violates this Constitution, the United States Constitution, or any federal or state statute, the court shall fashion the relief that it deems appropriate, including, but not limited to, the relief set forth in subdivision (j) of Section 2.

The final clause is a reference to this language:

(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). Upon its approval of the masters’ map, the court shall certify the resulting map to the Secretary of State, which map shall constitute the certified final map for the subject type of district.

Court Precedents

When the Legislature and the Governor deadlocked over redistricting plans in 1973 and 1991, the Court rejected plans adopted by the Legislature but vetoed by the Governor and engaged Special Masters to draw new redistricting plans that the Court put in place.

When referendums qualified to overturn Assembly, State Senate, and Congressional redistricting plans in 1981, the Court overturned the rule that qualifying a referendum suspends the law in question. Despite the qualification of the referendum, the Court, led by controversial Chief Justice Rose Bird (who was later removed from office by the voters) ordered that the plan adopted by the Legislature and signed into law by then-Governor Brown be used for the 1982 elections. The voters in 1982 approved the referendum and officially threw out the redistricting plans, but it was too late: the plans were used in the 1982 election and led to significant gains for the party that drew them (in this case, the Democratic Party, though it is worth noting that the Republican Party also uses redistricting to increase its power in states where it has control).

The authors of Proposition 20 stated that they specifically crafted the passages cited above to prevent the Court from implementing a plan that faces a qualified referendum. The authors went even further by requiring the Court draw a new plan when it is only “likely” that a referendum will qualify (even before the official qualification). In a twist of fate, the attorney who wrote those provisions is now an attorney for the Commission, making it hard for the Commission to argue otherwise.

In 2001, facing the Andal v Davis lawsuit over whether the redistricting plans signed into law illegally divided Santa Clara and other cities, the courts adopted a posture of deference to the redistricting decisions of the legislature:

“This Court’s role in this process is to give deference to the Legislative process and to determine whether there was a reasonable basis for the Legislature’s action, . . . The redistricting plans carry a strong presumption of constitutionality. Petitioners have the burden of proving that the redistricting plans are unconstitutional. There is no merit to petitioners’ contention that once they have made a certain showing of lack of contiguity or lack geographical integrity, the burden shifts to respondents to justify the plan. . . .

“The Court . . finds that as to each redistricting plan . . . the petitioners have failed to prove that the Legislature acted arbitrarily or capriciously in enacting the plan; or that the redistricting plan, as drawn, demonstrates a manifest abuse of discretion and is palpably arbitrary; or that the redistricting plan fails to reflect reasonable efforts to comply with the criteria . . .”

In any lawsuit, an “arbitrary and capricious” standard is tough to meet, but it is especially so in a redistricting case where internal legislative communications are protected by legislative process immunity.

It was clear in this ruling, and one assumes that it remains true, that whenever possible the California courts prefer to avoid what former U.S. Supreme Court Justice Frankfurter famously called the “political thicket” of redistricting.

Fulfilling the Court’s Role and Remaining Deferential

“Nesting” the Commission’s Assembly Districts into State Senate Districts is an initially appealing way for the Court to act as instructed under Proposition 20 while still remaining deferential to the Commission’s legislative decisions.

“Nesting” refers to the practice of combining two entire Assembly Districts into a single State Senate District. Since the Legislature is comprised of 40 State Senate Districts and 80 Assembly Districts, the populations can match up precisely.

There is extensive precedent for this approach:

1. The Assembly plan, despite its many flaws, currently faces no legal or referendum challenges;

2. The Court in 1991 and 1973 adopted plans that “nested” two Assembly districts into each State Senate district.

3. When they approved Proposition 11 in 2008 creating the Redistricting Commission, voters included the following criterion:

“(6) To the extent practicable, and where this does not conflict with the criteria above, each Senate district shall be comprised of two whole, complete, and adjacent Assembly districts, and each Board of Equalization district shall be comprised of 10 whole, complete, and adjacent Senate districts.”

The Commission, in a series of controversial decisions, decided not to nest its districts in many places, and those places are the centers of most of the controversies surrounding the plan. For example, one Inland Empire State Senate District starts in Rancho Cucamonga and areas bordering LA County, wraps around north and east of San Bernardino, then stretches south to take in Menifee (nearly in San Diego County). Another spot where the State Senate District is not nested is along the Ventura – Santa Barbara coast, where the lines were adjusted in ways that politically benefit a candidate who one Commissioner supported with campaign donations that were not disclosed in the Commissioner’s application and interview process. A nested plan eliminates these controversial elements of the Commission’s State Senate plan.

Partisan impact

Competitiveness is not a criterion under the state constitution, so it is almost certainly not going to be a consideration of the Court. Yet the partisan impact of whatever redistricting plan is adopted remains a significant topic of public interest and has significant public policy impacts.

For analysis of the competitive nature of each State Senate District, we looked at the Statewide Database’s data on total turnout in the 2010 General election. Seats where the Democratic percentage of turnout exceeded the Republican percentage by five percent or more were labeled safe Democratic. Seats where the Republican percentage of turnout exceeded the Democratic percentage by five percent or more were labeled safe Republican. Seats with turnout advantages of five percent or less were labeled competitive, though leaning toward the party with higher turnout.

Nested Plan versus Commission Plan

When the Assembly Districts are nested into State Senate Districts, we see the following changes in the partisan makeup of the plan:

• Two Senate Districts drawn by the Commission as safe Democratic seats become competitive, though they still lean Democratic (19 and 21).

• Two Senate Districts drawn by the Commission as safe Republican becomes competitive, leaning Republican (4 and 22).

• One District drawn as competitive by the Commission becomes safe Republican (25), and

• One District drawn as competitive by the Commission becomes safe Democratic (34).

The net result is that each party loses two safe seats and the number of competitive seats increases by two (from six to eight).

The Democratic Party retains a significant chance of winning the 27 seats required for a two-thirds majority of the State Senate, as the final plan includes a total of 10 safe Republican seats, 3 competitive seats that lean Republican, 5 competitive seats that lean Democratic, and 22 safe Democratic seats.

The Democratic Party is virtually guaranteed a majority of the State Senate for the foreseeable future, but whether the Party wins two-thirds control would be decided by the voters in the eight competitive seats.

Nested Plan versus 2001 Plan

Given the bipartisan gerrymander nature of the 2001 Senate Districts, it is no surprise to find that both the Commission and the Nested plans significantly improve the competitiveness of the Senate Districts. Where the Commission drew 23 safe Democratic seats and the nested plan provides 22, the 2001 plan contains 26 safe Democratic seats. Where the Commission drew 11 safe Republican seats and the nested plan provides 10, the 2001 plan contains 12. And the 2001 plan contains only two competitive seats, while the Commission drew six and the nested plan provides eight.

Voting Rights Act Compliance

For the Court, the most likely focus is whether a “nested” plan would comply with the Federal Voting Rights Act. There are two provisions of the Federal Voting Rights Act that apply to redistricting: Section 2 and Section 5. This Rose Institute analysis indicates that a “nested” plan complies with Section 5 but raises concerns under Section 2.

Section 5 compliance

Section 5 requires that there be no “retrogression” in the ability of “protected class” populations (Latinos, African Americans, Asian Americans, and Native Americans) to elect the candidates of their choice. Section 5 applies in four California Counties: Yuba, Merced, Kings, and Monterey. Nested Assembly Districts will meet the Section 5 requirements as well or better than the Commission’s adopted State Senate Plan:

The numbering of the nested and Commission districts differs from the existing districts, so the number of the existing Senate District is given in the table above.

In each case, the nested plan complies with the Section 5 retrogression standard as well or better than the Commission’s adopted plan.

Section 2 compliance

Section 2 of the Voting Rights Act is a very complicated section, but it generally boils down to this requirement: in many situations where a district can be drawn around a protected class population in a reasonably compact way, and where that protected class has the ability to elect its preferred candidates in the resulting district, that district usually must be drawn.

The current State Senate includes eight Latinos. In the 2001 plan that elected the current State Senate, there are five Senate Districts where Hispanics are over 50 percent in Citizen Voting Age Population, two just short of fifty percent, and two between 35 and 40 percent. Latinos represent every Senate District over 38 percent Latino in Citizen Voting Age Population, and none of the Districts under 38 percent.

The Commission’s adopted plan keeps five Senate Districts over 50 percent in Citizen Voting Age Population, has none just short of fifty percent, four between 38 and 47 percent, and one between 35 and 38 percent.

The nested plan includes three Senate Districts over 50 percent in Citizen Voting Age Population, two just short of fifty percent, one between 38 and 40 percent, and four between 35 and 38 percent.

The ten Districts over 35 percent Latino in Citizen Voting Age Population in both the Commission and the nested plans represents an increased opportunity to elect Latinos to the legislature relative to the existing 2001 plan (which only includes nine such Districts). But the Latino Democratic candidate in SD 12 (37.7% HCVAP) lost to the Republican in 2010, and Latino groups (in particular, NALEO) have already made clear their opposition to the Commission-adopted plan. Latinos are likely to take an even more negative view of a nested plan.

Alternative Nesting Option

This analysis reached ten Districts over 35 percent Latino by combining ADs 59 and 62 into SD 30, and ADs 63 and 64 into SD 33. An alternative nesting option would combine ADs 59 and 63 (and 30 and 33). This alternative approach would add an additional over-50 percent CVAP Senate District (by combining ADs 59 and 63), but then the combination of ADs 62 and 64 would drop below 35 percent Latino (by Citizen Voting Age Population).

This alternative approach would not impact the safe-Democratic status of both of the resulting State Senate Districts.

Conclusion

Nesting offers the Court an appealing way to act as instructed under Proposition 20 while remaining deferential to the Commission’s legislative decisions. Nesting also is fair in that it reduces the number of safe seats for each party equally while improving the overall competitive nature of the plan. But in 1991, the California Supreme Court redistricting plans placed a heavy emphasis on compliance with the Voting Rights Act. Today, the Court is unlikely to take the position that a plan comprised of nested, Commission-adopted Assembly Districts sufficiently complies with Section 2 of the Voting Rights Act. This leaves the Court facing a decision it certainly would rather not have to make: ignore the intent of Proposition 20 and leave the Commission’s State Senate plan in place despite the referendum (as the Court did in 1981), or engage a Special Master to draw a new plan that the Court implements for the 2012 election (as the Court did in 1973 and 1991).

Addendum

If the Court implements any plan other than the Commission’s adopted plan, the nature of the referendum campaign changes significantly (assuming the referendum does qualify). The Court plan will be used for the 2012 election, with the referendum vote determining which plan is used for the elections in 2014 to 2020.

A traditional referendum is a vote yes or no on the legislation in question. The redistricting referendum will appear on the ballot the same way: yes or no on the Commission’s State Senate redistricting plan. But the real choice for the voters will be to cast “yes” endorsing the Commission plan, or cast a “no” that means keeping the Court plan in place for the rest of the decade. The existence of a Court plan generates very different dynamics for the campaign than a traditional referendum. These differences make it easier for the referendum proponents to win on election day, at least compared to a traditional referendum campaign.