Redistricting Referendum Timeline Tight... or Impossible?

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Senate Map/CA Redistricting Commission

California's top elections official belives there won't be enough time for a court-appointed panel -- if one is chosen -- to redraw the state's political maps for the 2012 elections.

That's the gist of a legal filing by Secretary of State Debra Bowen in the California Supreme Court fight over the maps drawn by the state's Citizens Redistricting Commission. And it highlights not only a simmering debate over how to interpret the language of 2010's Proposition 20, but the long and bitter history of redistricting fights in California.

There are two redistricting lawsuits pending before the California Supreme Court: one against the new state Senate map and one against the new congressional map. Referendum measures have also been filed against the two sets of maps, although reports suggest that only the effort to nix the Senate maps has any real chance of making the 2012 ballot.

(Note that, under the new law signed by Governor Jerry Brown, a redistricting referendum would be pushed back to the November 6, 2012 ballot. That is, unless it's blocked by -- yep -- a referendum.)

If a majority of voters in an election overturn the Senate map by referendum, or if the California Supreme Court rules it unconstitutional, a panel of court-appointed special masters will likely be tasked to redraw some or all of California's 40 state Senate districts.

But here's what's not so clear: must the Supreme Court appoint the special masters before then? Does Prop 20 require them to take action as soon as the referendum qualifies for the ballot? And there's an even more contentious question being raised: might the Court actually have to appoint the special masters now... before the measure qualifies... given claims that the referendum is "likely" to qualify?

Yes, says the proponent of the Senate referendum, who's also the plaintiff in the lawsuit: Julie Vandermost, an Orange County GOP activist whose efforts are being supported by the California Republican Party. (Vandermost is also the proponent of the referendum filed against the congressional map, a map that's being challenged in court by GOP ex-congressman George Radanovich.)

The Vandermost camp says the high Court must begin the process of reviewing, and perhaps redrawing, the Senate maps sooner rather than later, pointing to these 47 words added to the California Constitution by Prop 20:

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.

That's verbage that only a lawyer could love.

Vandermost's court petition says that because her referendum is "likely to qualify" for the ballot, Prop 20's language compels the selection of a panel of special masters now -- blocking the commission map from being used. "Plainly," says the Vandermost filing, "this Court has broad, swift supervisory authority."

But attorneys for the citizens commission and Secretary of State Bowen say that's a misinterpretation of Prop 20. They argue the language merely defines one of the ways that a voter has legal standing to attempt to block the commission's maps, and that only the actual qualification of a referendum (which requires verification of some or all of the signatures submitted) would "stay" a map's "implementation." They also argue that Vandermost and her Republican backers have not provided any evidence from the signature gathering campaign that the referendum is "likely to qualify," thus calling into question her standing to bring the lawsuit.

By now, you're likely thinking that this dispute is awfully arcane... and admittedly, it is.

But it's also hugely important for the 2012 election cycle. The resolution of these issues leads to a decision about which maps to use for the June 5, 2012 statewide primary: the citizens commission maps? Maps redrawn by court-appointed special masters? Or perhaps the existing circa 2001 maps?

A layman's reading of Prop 20 doesn't seem to offer any ironclad instructions. The only specific mention of maps being redrawn by the Court is in the event the commission's work is found to be unconstitutional or after being rejected by the voters. The passage quoted earlier refers to a possible "stay" of the commission maps, but doesn't elaborate.

What's surprising about Prop 20's murkiness on this issue is that its authors no doubt knew how past California redistricting fights have impacted the first election cycle following the shifting of district lines. In 1972, the Supreme Court allowed voters to elect state legislators using the old district maps (while using a disputed but new congressional map that had actually been vetoed by Governor Ronald Reagan), ruling that "imperfect as they may be," maps overseen by the Court wouldn't be ready in time.

In 1982, the Court allowed the new maps to be used, even though a referendum had qualified to overturn them, because the late date on the calendar made those challenged maps the only "practical alternative."

In 1991, there was time for a redistricting re-do; court-appointed special masters had 65 days to draw districts, and then several more weeks for public comment on their handiwork before the state Supreme Court ratified the new maps on January 27, 1992.

Even though Prop 20's proponents shortened the timeline for the commission to complete its work specifically to give time for any legal challenge, the window still looks to be narrow. Candidates can begin declaring their intent to run for legislative and congressional seats on December 30 -- 76 days from today. Even if the Court pushes back that process, as it did in 1991, this would be the fastest turnaround for drawing as many as 93 new state senatorial and congressional districts.

KQED/John Myers

Of course, mapping software is demonstrably more efficient in 2011. Dave Gilliard, the campaign manager for the GOP Senate map referendum, said in an email Friday that his side believes "the Court will have plenty of time to draw a new Senate map that confirms with the law," even if the campaign uses up its entire allotted time to collect signatures -- which is until November 14.

But Secretary Bowen, in her filing with the Court, says by November 14 it would "be too late [for special masters] to prepare and implement a new Senate map in time for the June 5, 2012 primary."

And attorneys for the Citizens Redistricting Commission argue that, as was the case in 1982, maps that may ultimately be overturned by the voters should nonetheless be used in the interim 2012 election cycle. "The Commission's work could not be approximated or replaced in time for use in the June 2012 election," they write.

So far, the state Supreme Court hasn't set any hearings to consider the redistricting lawsuits. In the meantime, keep your eye on the calendar. With every day that passes, the pressure on candidates and elections officials will no doubt grow... pressure that can only be relieved by some sort of resolution from California's seven Supreme Court justices.

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About John Myers

John Myers is senior editor of KQED's new multimedia California Politics & Government Desk.  He has covered California politics for most of the past two decades -- serving previously as Sacramento bureau chief for KQED News and, most recently, as political editor for KXTV News10 (ABC) in Sacramento. He moderated the only gubernatorial debate of 2014, and was named one of the nation's top statehouse reporters by The Washington Post. Follow him on Twitter @johnmyers.
  • Steven Maviglio

    These Hail Mary efforts by the Republican Party against a map that was approved with the support of REPUBLICANS on the Commission will fail. The referendum campaign will come up short of necessary signatures, and the courts want no part of this mess.

  • John Myers

    I thought I’d add an update to this story. On Monday, October 17, attorneys for Vandermost filed a reply to the filings of the Commission and Secretary Bowen mentioned above.

    That reply argues that the Court has ample time to re-do the Senate maps in time for the June 2012 statewide primary. And it suggests one of two options: modify only the 12 Senate districts being directly challenged on constitutionality, or take the certified (and unchallenged) Assembly map and simply “nest” all of those districts into new Senate districts — thus, create 40 Senate districts by the pairing of nearby Assembly districts.

    You can read the new plaintiff’s filing (PDF) here.