Friday, July 08, 2005

Add This One For Good Measure

Or fair to poor measure, as the case may be.

Breaking from our planned 3 part series on current redistricting proposals, we turn our attention to the latest "model redistricting act" brought to us by MALDEF, WCVI, APALC, and California Common Cause. Click here to view their proposal.

At first blush, this seems to mimic, yet miss, traditional legislative writing. There are, of course, many ways to improve upon the current use of language in legislation - this proposal refuses to do so. We'll give them credit for trying - and LegCo would clean it up, were any member to introduce it. In the meantime, however, the plan includes numerous ambiguities, redundancies, and probably some basic mistakes.

Borrowing from the analytical structure with which we view the others (and again, leaving aside the findings sections):

Who holds the colored pencils?

A nine-member Independent Redistricting Commission which "strive[s] to reflect the geographic, racial/ethnic, and gender diversity of California's population." The proposal lists 8 or so prohibitions and restrictions on who is eligible to serve as well as what those chosen are prohibited from doing after their service. On the plus side - this plan is the first to prohibit Commissioners' pursuit of public office for a full ten years after their service. That same subsection, however, seems to prohibit Commissioners' service in an elected or appointed position in any political party. (Section 2(b)(1)(G)) Or it might be excepting that service (poor construction, guys). If it is, as I suspect, just a poorly sequenced prohibition, I'm not sure it's legal. Something about freedom of association or something, I don't know. It's fine to have the prohibition running in the reverse direction - that no current party chairman, etc, can be a Commissioner - but a ten year prohibition on civic engagement? I dunno . . . . The proposal does give consequential teeth where other plans would gum dishonest Commissioners: Section 2(b)(2) requires Commissioners to sign a statement swearing to be good guys "under penalty of perjury." And laws ain't nothing without a remedy.

Who chooses them and how?

Would-be Commissioners file applications with the FPPC (who will no doubt be thrilled to deal with the administration and associated costs of this process). They also must conduct a "facial review" to determine if the applications meet the eligibility requirements. (At this point "facial review" should set off alarms in the heads of term-of-art lovers everywhere).

Here's where we have some fun.

The Speaker gets to nominate 5 from the pool of applications received by the FPPC. They have to reflect California's diversity (at this point, we can turn "spot the potential causes of action" into a drinking game). The Speaker must hand the list of 5 back to the FPPC "along with any supplemental information he or she [that'd be nice, wouldn't it?] has received from the nominees." Uh, when did the nominees get to give supplemental information to the Speaker? One section earlier we're told the FPPC "shall be responsible for receiving applications" (Sec. 2(d)) and now in Sec. 2(e)(1) we get a hint that extra credit assignments are available?

But wait - in subsections e(2)-(5) the Pro Tem, both Minority Leaders, and the Governor all get to nominate 5 people from the same pool (with the same supplemental information) BUT THEIR NOMINEES MUST ALL MEET SEC. 2(b)'s ELIGIBILITY REQUIREMENTS. Oh we know, we know, drafting error, right? Or is it. A court would look at that, and under basic canons of statutory construction, the would seek to give weight to the thing as written and could allow the Speaker to squeak by anyone he wants. No, fine, they would probably construe the eligibility requirements back into his subsection too. But really, no one proof reads anymore? (Those of you about to post comments listing the typos in this post, save it, you aren't that funny).

Just for kicks, Sec. 2(e)(6)(A) lets the Judicial Council nominate 10 names from a pool of retired California federal or state judges it has received from the FPPC (note to FPPC: hey, make a pool of retired judges. or does this mean make a pool from retired judges who might've self nominated? is this all retired judges? willing or not?). Dems and Reeps must be equally represented among no more than 8 nominees. The other nominees must be from a 3d party or no party at all.

Here's where my eyes cross. Everyone have their limes and salt ready?

In Sec. 2(e)(6)(B) (which is improperly formatted in the document, or it's an improperly numbered subpart to (6)(A)), the Judicial Council gets to nominate another 10 people who were "endorsed by non-partisan organizations [501(c)(3)s] . . . whose mission statement as written in their by-laws, or similar document, reflects that they are dedicated to addressing the needs of traditionally under represented populations protected under the Voting Rights Act . . .and the Help America Vote Act . . . from the list it has received from the FPPC." (Hey, FPPC, did you hear that part too?) "Applications with endorsement from a broad array of qualifying organizations shall be given greater weight."

We have just entered legislative fantasyland. And there's something in the back of my mind about race-conscious policy . . . what was that? Down there at the bottom? (And yeah, this would be a constitutional amendment. Which means if it might be in conflict with Prop 209. You know how those get settled, right, if they were both enacted by initiative? If the offending sections can't be severed, you validate the last-in-time.)

Oh, we're so not done yet.

If any of those legislative or horseshoed slowpokes don't get their names in on time, they forfeit their picks to the Judicial Council who names 5 replacement nominees (no, it doesn't say per late bird, just says 5 period) from the remaining nominees described in (e)(6)(B).

Hiccup.

Psst, FPPC, sorry we can't put all your duties in one place, but you also need to make all those applications public (addresses and phone numbers redacted, of course. Email? Doesn't say, yikes!) under (e)(7)(A).

And Sec. 2(e)(7)(B) has our weary FPPC selecting the 9 Commissioners at random from the submitted nominees - that's from a pool of anywhere between 25 and 45 people. No more than 3 can be from a political party. And one each must be from the Speaker, Pro Tem (note: deduct 2 points for the proposal's use of "Pro Tem" instead of Pro Tempore. I can say Pro Tem, but I'm a blogger), each houses' minority leader, and the Governor. Two each must be from the Judicial Council's two pools in (e)(6)(a) and (e)(6)(b). Or maybe they could even come from (e)(6)(A) and (e)(6)(B) pools.

Dunno what happens if those legislative leaders or the governor forfeits his/her nominees, though. Who wants another shot?

And - if you can follow it: The partisan balance math works in very interesting ways. If the Legislative Majority uses its control over the Judicial Council - and it's hard to imagine that it won't - the JC can avoid the "random" drawing. Because there have to be 3 Dem, 3 Reep, and 3 Indy on the Commission, and because the Legislature will name 2 Dem and 2 Reep, and the Gov must name and Indy, from the JC's pools of retired judges and 501(c)(3) names the JC knows that 2 Indy, 1 Reep, and 1 Dem will be named. The JC can kill the Commission by simply not naming any Reep's or by not naming any Dem's (unlikely but possible), or it can guarantee that its Rep and Dem top picks will be on the Commission by only naming 1 of each (or, similarly, guarantee that its 2 Independents will be chosen by only naming 2 Independents).

When do they get to draw?

I don't know - sometime within 53 days of the release of data or March 1st or when they're ready? After the litigation settles on the 8 million litigable provisions so far? Oh - not right away, if that's what you're asking. After the 2010 census.

How do they have to draw?

Districts must be drawn according to a list of goals in Sec. 4(a). No goal can supercede (a)(1) which says districts shall comply with the US Constitution and the VRA. Phew. I really thought the supremacy clause was in jeopardy there for a minute. And the plan "shall neither disperse nor concentrate minority populations protected under the Voting Rights Act in a manner that has an adverse effect on their political influence."

Okay, sort of clear, but it jumbles VRA law a bit.

Sec. 4(a)(2) which may no supercede (1) but of course does under federal law as I understand it, mandates population equality. Also required: geographic contiguity, nesting (though more clumsily worded than in Prop. 77 - and it includes "except where to do so would violate the VRA" language which would be the case even without the clause), lines should use visible geographic features, and compactness.

Sec. 4(a)(5) is almost good: it mandates respect for communities of interest, defining them as including, but not being limited to "shared socio-economic status characteristics, language needs, [and] educational attainment levels. Communities of interest shall not [sic] be defined as a person or group's presence in a particular district or representation by a particular legislator.

Just like there's no crying in baseball, there's also no italicizing in legislation.

And Sec. 4(b) allows party registration and voting history data to be used by consultants and experts hired by the Commission to "test maps for compliance with the goals set forth in [Sec. 4(a)]." Hmmm. Political party may or may not constitute a "community of interest," but it can be used to test for their preservation. Just let that roll in your noggins for a big. The section also disallows consideration of incumbents' residence. That part is good.

There are also several sections on transparency, public access to documents, and meeting schedules. All important, all good. Largely covered by the Calfornia Public Records Act and Bagley-Keene. There's also a section providing for redistricting centers throughout the state - DIY stores for the gov nerd in us all. Speaking of nerd, Sec. 5(a)(3) actually uses the phrase "fully operational," which should be correctly read in the voice of the Emperor.

And at every turn is the mandate to promote, protect, and publicize compliance with the federal Voting Rights Act, which, again, is always required by law anyway. Unless it's allowed to sunset, as it is currently set to, in 2007, of course.

And there's funding language, and standing and jurisdiction language that I might discuss later.

What are the major drawbacks? Benefits? Other fun trivia?

Pro: Boon to election litigators everywhere.
Con: Boon to election litigators everywhere.

This plan's heart is in the right place. Sadly, however, their drafting pencils were not. The ambiguities, likely conflicts with existing state and federal law, and relative shady nature of Commissioner selection make this proposal hard to love. I know many readers will continue to disagree with my views on the importance of a symbolically representative redistricting body, but such is life. There are good things in the plan: no mid-decade redistricting, the ten-year prohibition on running for office. But they should be incorporated into a different framework - this one just has too many problems.

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