The Supreme Question: Which Senate Districts for 2012?

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Chief Justice Tani Cantil-Sakauye and her fellow justices could rule on the fate of state Senate political maps by the end of this month. (Photo: AP/Paul Sakuma)

SAN FRANCISCO -- Set aside the lengthy and complicated legal and constitutional points made Tuesday morning in oral arguments in front of the California Supreme Court and you come down to one basic question: will the maps of state Senate districts drawn by an independent citizens commission be used for the June primary and November general elections... or not?

From there, the questions posed and debated by attorneys for more than an hour this morning went something like this: does a voter-approved amendment to the state constitution mandate the high court to intervene now that a referendum is on the radar? And if the Supreme Court justices believe they must intervene, what limitations -- if any -- are there on the interim Senate maps they approve?

It was a debate inside the chambers of the state's highest court that only legal beagles and redistricting junkies would love, a back-and-forth that hinged on both the language of 2010's Proposition 20 and the fact that the first election using the disputed Senate maps is less than five months away.

First up, the meaning of Prop 20. As I've written before, a lot of the legal briefs filed in this case have focused on 47 words inside the constitutional amendment -- and whether the hot-button phrase "likely to qualify" sets a standard for the Supreme Court to block the commission's map... or... whether it simply is part of a sentence that explains how a member of the public gained legal standing to file a lawsuit.

Interestingly, that debate never happened. In fact, it seemed from the outset that the attorney for plaintiff Julie Vandermost won that argument by default. While attorneys for the state disputed the meaning of the phrase in their pleadings, only one did so during oral arguments... and that was near the end of the hearing.

Instead, a main focal point became the meaning of the term "likely," as a way of determining whether the referendum whose signatures are now being counted meets the standard for Supreme Court intervention.

And on this one, the justices and attorneys went around, and around, and around.

"Likely is not certainty," plaintiff's attorney Chuck Bell told the justices. Bell also said the word means "probable." And on this point, he argued the submission of more than 710,000 signatures is sufficient -- even though others believe there's a very real chance a so-called 'full count' for valid signatures will come up short.

But those figures -- including the latest estimates of valid signatures (PDF) -- have changed since the lawsuit was filed.

"When this petition was filed," said Chief Justice Tani Cantil-Sakauye, "we didn't have enough information" on whether the referendum was/is likely to qualify for the November 6 ballot.

But the attorney for the Citizens Redistricting Commission suggested the standard should be more than just a guessing game. "You have to make a finding of fact," said attorney James Brosnahan. "Anybody in here think that we know that it's likely to qualify?"

Brosnahan also told the court that it's too late for alternate maps to be used. But somewhat surprisingly, that point didn't seem to be supported by the attorney for Secretary of State Debra Bowen.

"It is not too late to implement maps where the data is already in a database," said Bowen's attorney, George Waters.

That would seem to undercut part of the overall defense argument, which has so far rested on a one-two punch: the referendum doesn't meet the standard for being deemed "likely to qualify," and even if it does, it's too late to put in place other maps. But the combo argument received a lukewarm response from the court.

"Why would the people of the state of California want to put this court in a straitjacket and, in effect, say you can't adjudicate the merits of the matter?" asked Justice Marvin Baxter.

And so several justices seemed to hint that they may be leaning towards intervening -- and temporarily blocking the commission's map for California's 40 Senate districts.

But then what? What maps will be used?

The plaintiff (also known as the referendum proponent) has suggested three alternatives: the existing 2001 districts with "tweaks," as described by attorney Chuck Bell, Senate maps drawn to "nest" two Assembly districts per Senate district, or a map offered by plaintiff's expert (and former GOP redistricting staffer) Tony Quinn.

The defendants argued that none of those options are acceptable, most notably on the grounds that the scenarios may create districts that are constitutionally illegal.

But here's where things get interesting: could the Supreme Court simply use the same lines drawn by the citizens commission and call the resulting maps "interim" boundaries? That was the question posed by Justice Kathryn Werdegar to the attorney representing Secretary Bowen.

"Is it your opinion that once the commission's map is stayed" and thus blocked, "that map is unavailable?"

No, he said.

The plaintiff's attorney disagrees, but admitted after the hearing that some level of "tweaks" to the commission's Senate map may meet the standard.

So what happens now? There was a sense that the justices will rule before the end of this month -- a good thing, as virtually everyone seems to agree that the window for action is very narrow given the pending election season.

Also a sure bet: this will be a ruling with some real precedent power. Redistricting law, up until now, has centered on the actions of maps drawn by the Legislature through the years, maps drawn without the explicit language in the state constitution that now exists thanks to two voter approved amendments in two years.

As such, this could be an important milestone in understanding just happens when a political campaign seeks to overturn legislative and congressional districts that were drawn, as plaintiff's attorney Bell put it, by a "creature of theirs"... namely, a panel of 14 citizens.

Update 9:52 p.m. I've embedded my courthouse tweets from the hearing using Storify. Meantime, at least one of the political redistricting experts out there that I offered a shout-out has already re-posted his complete state Senate map, the one his group offered to the commission back in the summer.

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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.

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