Thursday, July 07, 2005

A Primer On 3 Current Proposals: Part 1

So, regular readers know that redistricting reform is a favorite topic here at Phoblographer*. Not only has the site featured regular posts on the subject, but I have at least marginally more direct experience with the mechanics of independent commission redistrictings because I had a very, very small role in the Arizona independent commission process in 2001. More fortunately, however, I have the pleasure of knowing people who know the process and the policy very well, who have worked in the area for anywhere between 10 and 30+ years. Therefore, having duly appointed myself expert-enough for purposes of blogging on the topic, here's the long promised overview and comparison of the two current proposals: the Ted Costa initiative (newly dubbed Proposition 77) and the Legislature's SCA 3.

Caveats: For purposes of this discussion, I'm going to focus on the mechanics of the redistricting proposals, rather than the findings and declarations language (which still has the potential to be important in litigation). Also, for SCA 3, I will largely ignore the several sections of superfluous, um, stuff currently in the bill. Versions considered here are current as of July 7, 2005 (the most recently amended version of SCA 3 and Prop. 77 as it is available from the AG's website - potential court challenges notwithstanding).

First up, the already-qualified, Schwarzenegger support, Ted Costa initiative.

1.) Proposition 77

  • Overview: Amends Article XXI of the California Constitution to vest redistricting authority in a 3-member Special Masters panel comprised of retired judges. Adds more detailed district requirements mandating continguous, compact, nested districts which conform to existing political subdivision boundaries. Disallows consideration of effects of new plan on incumbents, political parties. Provides for redistricting within 20 days of enactment.
Proposition 77's operative language directs a panel of Special Masters to adjust the boundary lines of Senatorial, Assembly, Congressional, and Board of Equalization districts in accordance with the proposition's standards and provisions. (Prop 77, Sec. 1(a))

Who holds the colored pencils?

A panel of 3 retired judges. Special Masters shall pledge not to pursue elected office in Senate, Assembly, Congress, and BoE districts they adjust. They are pledge not to accept state public employment or public office [presumably this means appointment to public office] for 5 years. Exceptions exist for judicial employment, judicial office, or a teaching position. There is no provision defining the pledge or the remedy for its violation. (Prop. 77, Sec. 1(c)(2)(B))

Who chooses them and how?

The Judicial Council selects 24 judges by lottery from retired judges "willing to serve" as Special Masters. The pool can include state and federal judges who have never held political party office or partisan public office, have not changed their party affiliation (voter-reg-wise) since their initial appointment or election to office nor received income in the last 12 months from basically anyone or thing affiliated with the offices whose lines they are about to draw. No more than 12 of the 24 drawn can be from the same party and Dems and Reeps must be equally represented in the pool. (Prop. 77, Sec 1(c)(2)(A)

From the pool of 24, the Speaker, Pro Tem, and Minority Leaders from both houses nominate 3 judges from the opposite political party for appointment. Double nominating is not allowed. The four nominators each have a single preemptory challenge they may exercise against another legislator's nominees.(Prop. 77, Sec. 1(c)(2)(C),(E))

From the 12 remaining judges, the Chief Clerk of the Assembly (that'd be E. Dodson Wilson for the foreseeable future, a man universally loved) draws 3 judges by lot. Provisions exist for securing at least one Dem and one Reep Special Master. (Prop. 77, Sec. 1 (1)(c)(F))

When do they get to draw?

Within 20 days following the Proposition's enactment, the Legislature must appoint the Special Masters so they can adopt a redistricting plan for use in the next set of statewide primary and general elections and until the next required redistricting per the proposition's provisions. Practical effect: If this passes on November 8, by November 28 the Legislature must set the Special Masters selection wheels in motion and by June 2006 we would have new districts. (Prop. 77, Sec. 1(b)).

After the initial redraw, the Special Masters must be appointed by January 15 of the year following a census - in other words, by January 15 of years ending in "1."

How do they have to draw?

Some of the proposed guidelines are already mandated by federal constitutional, statutory, and case law: that district population be as nearly equal as possible, deviating only to the extent allowed by federal law; that districts shall comply with the federal Voting Rights Act; that they follow basic principles of contiguity and compactness.

Section 2(c) mandates a return to nested districts, meaning 10 adjacent Senate districts comprise a BoE district and 2 adjacent Assembly districts comprise a Senate seat. Wonder why that’s important? Ask Johann Klehs, Ellen Corbett, and John Dutra. And their staff. And the state party. Or if you prefer to watch party leadership eat its young and fine legislators knock each other off thus reducing the overall strength of the body, then don’t champion nested districts. Your call.

Section 2(f) is the meatiest of the district requirements demands attention to city and county geographic boundaries with specified language on the hierarchy of political subdivision preservation.

As with the other requirement subsections, this one may not spell it out in big letters, but it’s longer than what we have now, and the addition of even a few words of guidance can vastly alter the implementation and – in this litigious state – the outcome of judicial review of a plan.

Also, Section 2(i) demands willful ignorance of incumbents’ addresses. This means no incumbent protection – it’s the “I Can’t See You!” provision that can result in a one-time scramble for prime real estate. For the first cycle, there may be the same kind of power struggle we see with non-nested districts, after that, however, it will even out. If memory serves, the Arizona plan moved at least 5 legislators into the same district. Sucks for them – but the overall plan was great for their constituents.

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

Prop 77 contains plenty of contingency plans for vacancies, lotteries that draw an all Reep or Dem panel, etc. Sec. 1(e) applies specified gift restrictions to the Special Masters and requires them to file a Form 700.

At least one commenter expressed concern over shady lawyers exerting influence on hapless old judges, but any attempt to do so would have to be conducted in public since Sec. 1(f)(1) subjects the Masters to the Bagley-Keene Open Meeting Act (Gov. Code Secs. 11120-11132). Contrast this with the open meeting requirements in the Legislative proposal, below. This proposition also includes an additional mandate that the Masters establish procedures restricting ex parte communications from the public and the legislature on the merits of any plan.

Section 1(g) provides that the lines become effective after unanimous approval by the Masters and adoption by California voters at the next statewide election as provided for in Sec. 1(h). This voter-approval requirement is a bit clumsy. Given California's recently renewed initiative fervor, what's to prevent interests banding together just to cause trouble and dissuade ratification of the new maps? Then again, they already can and do file lawsuits that still hamstring the process. At least this gives a nod to the direct-democracy-delusional out there who still think initiatives represent the "will of the people."

If the people bounce the plan, we call a mulligan and start the whole game over again.

Most of the criticism lobbed at judge-based plans centers around a reluctance to automatically conclude that judges are impartial by virtue of their jobs. I completely agree: judges aren't removed from political pressure or partisan interests. One argument was that the only judges who would volunteer for this gig are the ones crooked enough to game the process or be gamed by it. The selection process, however, seems to be sufficiently randomized after the initial self-selection stage to protect against really gung-ho jurists getting their way. Plus, frankly, one would hope the interested judges are interested because they know a bit about the area of law. California has plenty of Voting Rights Act and federal law considerations that some expertise is a good thing. On the other hand, modern redistricting can be done largely by machine and with Prop. 77's tighter district requirements, their legal wiggle-room for boundary antics is severely limited.

The other major criticism seems to be that judges are old, white men. And pejoratively so at that.

Again, the safety mechanisms here are in both the selection and execution mechanisms. Additionally, though it didn't satisfy some commenters here, this process is intended to last for at least 10 redistrictings. It will only take 2 or 3 more to radically alter the make-up of the bench given current law school trends. And no, that's not to long to "wait." It is, however, too soon to artificially much with undeniable demographic trends.

The additional benefits of this plan will become clearer when we move on to Part 2: The Legislative Proposal. Stay tuned!

5 comments:

Anonymous said...

But which version of the Costa proposal is this?

cd said...

the one to which i linked. the one on file with the AG. and in fact, the one that will appear on the ballot.

i believe i said that.

and said that we were leaving aside the other version that was circulated in the petitions.

Anonymous said...

I was being facetious, but considering what I have been reading about how some of the differences in the versions were abused by petition gatherers to get signatures, I think it is safe to say we don't have to worry about this measure appearing on the ballot anytime soon.

cd said...

Oh, I don't know about that. Check out the substantial compliance doctrine info (here: http://electionlawblog.org/archives/003690.html and other places). I haven't really looked into it that much - but bouncing qualified measures isn't a simple process.

If you have links to articles on documented abuse based on differences in the versions - please pass them on (leave them here or email them to me at christiana at phoblographer dot com).

Doug @ Rose said...

How on earth did someone come up with the claim that "differences in the versions were abused"?

The only even remotely substantive difference was 52 vs 53 days for one step in the process. Not a whole lot of grounds for "abuse".

The State Senate leaders claiming their proposal creates an "Independent" commission -- that's abuse of the English language! Thankfully no one appears to have fallen for it.