Vandermost v. Bowen , 53 Cal. 4th 421 ( 2012 )

Filed 1/27/12
IN THE SUPREME COURT OF CALIFORNIA
JULIE VANDERMOST, )
)
Petitioner, )
)
v. )
)
DEBRA BOWEN, )
as Secretary of State, etc., ) S198387
)
Respondent; )
)
CITIZENS REDISTRICTING )
COMMISSION, )
)
Intervener. )
___________________________________ )
On December 9, 2011, we issued an order to show cause in this matter to consider
an election-related question that must be addressed expeditiously to avoid potential
disruption of the statewide primary and general elections to be held in June and
November 2012. A proposed referendum (designated No. 1499), for which petition
signatures have been gathered and submitted to election officials, would require the
electorate to decide, at the November 2012 general election, whether to accept or reject
the California state Senate district map that has been certified by the Citizens
Redistricting Commission (Commission).1 The Commission, a new constitutional entity
1 Under the California Constitution, the referendum power refers to the authority of
the people to require that a statute that has been adopted by the Legislature, or a
redistricting map that has been certified by the Citizens Redistricting Commission, be
(Footnote continued on following page)
1
recently established by the voters to draw voting district boundaries (instead of the
Legislature)2 in light of population changes identified in the national census undertaken
at the beginning of each decade, completed its eight-month-long task in August 2011 and
certified new voting district maps for not only the state Senate, but also for the state
Assembly, the United States Congress, and the State Board of Equalization. The
Secretary of State and county election officials have been using these four Commission-
certified maps since mid-August 2011 in preparation for the upcoming June and
November 2012 elections.
County election officials and the Secretary of State currently also are in the
process of verifying the petitions submitted to determine whether there are sufficient
valid signatures to qualify the proposed referendum for placement on the November 2012
general election ballot. If the referendum qualifies, the state Senate map certified by the
Commission will automatically be stayed, presenting the question of what Senate districts
should be used for the 2012 primary and general elections of the state Senate. In view of
the numerous interconnected election-related events that must occur soon after the end of
January 2012 in order to avoid disrupting the 2012 primary and general elections,3 this
(Footnote continued from previous page)
submitted to a vote of the electorate, and be approved by the electorate before such
measure becomes effective. (Cal. Const., art. II, § 9; id., art. XXI, § 2, subd. (i).) The
initiative power, by contrast, refers to the authority of the people to propose statutes and
constitutional amendments to be submitted to a vote of the electorate, and the authority of
the electorate to adopt or reject the proposed measure. (Cal. Const., art. II, § 8.)
2 See California Constitution, article XXI, sections 1 to 3.
3 The calendar of steps in preparation for the June 5, 2012, Primary Election is
available on the Secretary of State’s Web site, (as of Jan. 27, 2012). Among the
events particularly relevant to the present case are the following: From December 30,
2011, to February 23, 2012, state Senate candidates may obtain, in lieu of paying filing
fees, the requisite number of signatures of registered voters who are eligible to vote for
(Footnote continued on following page)
2
action has been filed requesting this court to decide at this juncture which state Senate
district map should be utilized if the proposed referendum qualifies and triggers a stay of
the Commission’s certified Senate district map.
Petitioner, Julie Vandermost, emphasizes the interest of referendum proponents
and petition signers in insisting on an “up or down” referendum vote by the statewide
electorate before the voting districts that are the subject of the proposed referendum are
utilized as the basis for electing any state senators. Accordingly, she asserts, if the
Commission’s state Senate map is stayed by the qualification of the referendum for the
November 2012 ballot, we should not order the use of the Commission’s state Senate
district map as an interim remedy governing the 2012 primary and general elections.
Indeed, petitioner argues, we should issue an “alternative [or] peremptory writ of
mandate commanding Respondent Debra Bowen, in her capacity as Secretary of State of
the State of California, to . . . refrain from taking any action . . . implementing the
Citizens Redistricting Commission’s certified Senate map.” Moreover, petitioner urges,
we should establish new interim state Senate boundaries by either (1) using the state
(Footnote continued from previous page)
that candidate — in other words, those who are registered in the district in which the
candidate will run (Elec. Code, § 8106); and between February 13, 2012, and March 9,
2012, candidates must file a “Declaration of Candidacy” and nomination papers (id.,
§§ 8020, 8040, 8041) for the district in which he or she will run.
The Secretary of State has submitted a declaration by Jana M. Lean, Chief of the
Elections Division, describing procedures used to implement the new district lines.
According to the declaration, a system known as CalVoter II (CVII) “is used to set up an
election. Throughout the election cycle, which begins more than five months before the
election is held, CVII is used to certify statewide candidates [and] prepare the certified
list of candidates.” The declaration describes the various steps that must be taken to
program CVII, and asserts — apparently assuming those same internal timelines, and no
effort to further expedite them — that “approximately six weeks would be required to
implement any changes to the Senate maps.”
3
Senate district map that the Legislature created in 2001 based on the 2000 census and that
has been used for the last decade; (2) using a map creating new Senate districts by using
the state Assembly districts recently certified by the Commission and combining two
adjacent Assembly districts to form each new Senate district (the “nesting” proposal); or
(3) establishing alternate, court-drawn boundaries as described in a new so-called
“model” map based on a proposal submitted by petitioner’s redistricting consultant.
Finally, petitioner prays for an order directing the Secretary of State to implement
whatever new interim district boundaries we select for the June 5, 2012, Primary Election
and the November 6, 2012, General Election.4
The Secretary of State and the Commission both urge us to hold that even if the
Commission’s certified state Senate district map eventually is stayed by the qualification
of the proposed referendum, the Commission’s map nevertheless should be employed for
the 2012 elections. The Secretary of State stresses the need to avoid disruption of the
election planning process; both the Secretary and the Commission contest the legality of
petitioner’s alternative maps; and the Commission emphasizes that the state Senate
redistricting map it has certified is the product of an open, deliberate, and nonpartisan
process that a majority of California voters created through the exercise of the
constitutional initiative power in 2008 and 2010.
As past decisions establish, if a referendum that is directed at a newly adopted
redistricting map qualifies for the ballot, triggering a stay of the new redistricting map
pending the electorate’s vote on the referendum, this court has the responsibility of
determining which voting district map should be used for the upcoming interim electoral
cycle. (See, e.g., Assembly v. Deukmejian (1982) 30 Cal.3d 638, 657-658; accord,
4 All parties agree that any interim state Senate district map that we decide should
be used for the June 2012 primary election must also be used for the November 2012
general election.
4
Legislature v. Reinecke (1972) 6 Cal.3d 595, 601.) In determining which map should be
used for the interim elections, this court must consider (1) what maps are reasonably and
practically available, and (2) the pros and cons of each potentially viable map in light of
the constitutional scheme and criteria set out in recently amended article XXI of the
California Constitution. If, after so analyzing each of the potential maps, the court
concludes that a map other than the one currently being implemented by election officials
should be used for the upcoming 2012 elections in the event the proposed referendum
qualifies for the ballot, this court would direct election officials to employ a “dual track”
planning process during the remainder of the signature verification process. Officials
would thus be able to proceed with the current district maps if the referendum does not
qualify for the ballot, but would be ready to use the alternative voting districts should the
proposed referendum qualify for the ballot.
As we explain, in the present case four alternative maps have been proposed for
use in the 2012 elections in the event the referendum qualifies for the ballot: the three
maps proposed by petitioner and the Commission’s certified state Senate district map.
After reviewing the pros and cons of each of these proposed alternatives in light of the
constitutional scheme and criteria, we conclude, for the reasons discussed below, that the
Commission’s certified map is clearly the most appropriate map to be used in the 2012
state Senate elections even if the proposed referendum qualifies for the ballot.
Accordingly, after first confirming that we properly may exercise jurisdiction in
this matter and that the petition presents issues sufficiently ripe for review, we conclude
that if the proposed referendum qualifies for the November 2012 general election ballot
and stays the Commission’s certified state Senate map, the Commission’s state Senate
map should be used on an interim basis for the June and November 2012 elections,
pending the outcome of the referendum. If the proposed referendum does not qualify for
the ballot, the Commission’s state Senate map will continue to be used for the 2012
election and future elections until replaced pursuant to article XXI of the state
5
Constitution by new maps drawn by a future newly constituted Commission following
the 2020 census.
I. Background, procedure,
and summary of conclusions
Article XXI of the California Constitution, as amended by ballot measures
approved by the electorate in November 2008 (Prop. 11, the Voters First Act) and
November 2010 (Prop. 20), removes the task of redistricting from the Legislature and
gives it to the newly created Citizens Redistricting Commission. (Cal. Const., art. XXI,
§§ 1 & 2.) The Commission is required to adjust the boundary lines of California’s state
Senate, state Assembly, congressional, and State Board of Equalization voting districts
“[i]n the year following the year in which the national census is taken under the direction
of Congress at the beginning of each decade . . . .” (Id., art. XXI, § 1.)
The membership of the Commission selected to create new districts in light of the
2010 census was finalized in late 2010, and in the first eight months of 2011 the
Commission held more than 70 business meetings and 34 public hearings in 32 cities
throughout the state. The Commission produced draft statewide maps on which it sought
and responded to public comment, and finally, in mid-August 2011, it approved and
certified all four required maps. (We describe the Commission’s structure and process
and the requirements of article XXI in greater detail post, part II.) Two challenges to the
Commission’s certifications were initiated shortly thereafter.
First, and roughly contemporaneously with certification by the Commission, an
organization designated Fairness and Accountability in Redistricting (FAIR), a
Republican-funded entity,5 was established. Under FAIR’s sponsorship, Julie
5 See (as of Jan. 27, 2012). FAIR is not
mentioned in the petition itself, but the petition states: “Republicans have sponsored and
funded the referendum against the Commission’s Senate plan.”
6
Vandermost, a registered California voter and the petitioner in this proceeding, initiated
the process of attempting to qualify a referendum measure, challenging the state Senate
map, for placement on the November 2012 general election ballot.6 After the Attorney
General prepared a title and summary of the proposed referendum for inclusion on the
referendum petitions, FAIR commenced soliciting referendum petition signatures, which
were due for submission by November 13, 2011. (Cal. Const., art. XXI, § 2, subd. (i).)
Second, in September 2011, while the proposed referendum petition was
circulating for signatures, two petitions for writ of mandate were filed in this court
challenging the Commission’s state Senate and congressional district maps on numerous
constitutional and statutory grounds, and seeking to bar the Secretary of State from
implementing either map. (See Cal. Const., art. XXI, § 3, subd. (b)(2) (hereafter article
XXI, § 3(b)(2)) [authorizing such suits].) The petition in Vandermost v. Bowen
(Sept. 16, 2011, S196493), challenged the Commission’s certified state Senate map; the
petition in Radanovich et al. v. Bowen (Sept. 29, 2011, S196852), challenged the
Commission’s certified congressional map. After preliminary briefing (see Cal. Rules of
Court, rule 8.487) and thorough consideration of all the issues raised by petitioners, we
determined that the petitions lacked merit and denied the requested writs on October 26,
2011.7
6 The constitutional provision permits earlier ballot submission of a referendum to
the voters if a special election is called by the Governor. (Cal. Const., art. XXI, § 2,
subd. (i), referring to art. II, § 9, subd. (c); see also Elec. Code, § 9016, as amended by
Stats. 2011, ch. 558, § 1, approved by the Gov. on Oct. 7, 2011 [providing that all
initiatives and referendum measures that are certified for the ballot on or after July 1,
2011, will be placed on the ballot only at a Nov. statewide general election or at a
statewide special election].)
7 The 126-page petition in Vandermost v. Bowen (Sept. 16, 2011, S196493) sought
issuance of a writ directed to the Secretary of State, as the chief elections officer,
commanding her to refrain from implementing the Commission’s certified maps for the
Senate districts, and to refrain from taking any other action to hold, or to order county
(Footnote continued on following page)
7
Thereafter FAIR completed the signature-gathering process and timely submitted
referendum petition signatures to county election officials immediately prior to the
November 13, 2011 filing deadline. On November 23, 2011, the Secretary of State
confirmed that at least 504,760 “raw” (unverified) referendum petition signatures had
been submitted by FAIR, and ordered county election officials to determine, by random
sampling, the number of qualified signers and to certify that result to the Secretary.8
On December 2, 2011, Vandermost filed the present petition,9 asserting that
approximately 710,000 referendum signatures have been collected, and that in view of
(Footnote continued from previous page)
officials to hold, any election using the Commission’s certified Senate maps. Petitioner
asserted that the maps violate state constitutional criteria for voting districts, set out in
article XXI, section 2, subdivision (d) of the California Constitution, concerning
contiguity, geographic integrity, and compactness, and that they failed to afford
Latino/Hispanic voters an opportunity to elect candidates of choice under sections 2
and 5 of the federal Voting Rights Act (42 U.S.C. § 1973 et seq.). Petitioner also
requested the immediate appointment of special masters to “advise the Court on the
instant petition,” and if the court found the Senate maps to be unconstitutional, she
requested that this court direct the special masters to draw new district boundaries for the
Senate. Although the cover page of the petition requested an emergency stay, the petition
did not set forth a separate plea for emergency relief. In acting on the petition, we
assumed that petitioner sought to stay any action on the part of the Secretary of State to
implement the Commission’s certified state Senate map. Our order denying the petition
read: “The requests of petitioner and real party in interest for judicial notice are granted.
[¶] The motion of real party in interest to strike the declarations of Dr. T. Anthony Quinn
is denied. [¶] The petition for a writ of mandate is denied. [¶] The request for an
emergency stay is denied.”
8 Statutory schedules concerning the timing for such events, and related statutory
procedures, are described post, part III.
9 Petitioner is represented in this matter, as she was in the petition filed in this court
in September, by Charles H. Bell, Jr., of the Sacramento law firm Bell, McAndrews &
Hiltachk, LLP. The firm’s Web site identifies Mr. Bell as general counsel to the
California Republican Party. (See [as of Jan. 27,
2012].)
8
the circumstance that 504,760 valid signatures are required to qualify the proposed
referendum for the November 2012 ballot,10 the referendum is “likely to qualify and stay
timely implementation of the [state Senate] map” and hence she is entitled to seek
“relief” under article XXI, section 3(b)(2).11
The petition seeks immediate relief,12 as well as future contingent relief that would
be triggered in the event the proposed referendum actually qualifies for placement on the
ballot. The contingent relief sought by the petition would take effect only after county
10 See California Constitution, article II, section 9, subdivision (b) (requiring a
petition “certified to have been signed by electors equal in number to 5 percent of the
votes for all candidates for Governor at the last gubernatorial election”).
11 Article XXI, section 3(b)(2) reads in relevant part: “Any registered voter in this
state may . . . 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.”
12 With respect to immediate relief, the petition seeks an order granting
(1) suspension of statutory filing fees (Elec. Code, §§ 8103-8105) and related “in lieu-
filing-fee petition” procedures for candidates who wish to submit signatures in lieu of
paying filing fees (Elec. Code, § 8106, subd. (a)(7)), which procedures would otherwise
have commenced on December 30, 2011; and (2) appointing an expert or special master
or masters to serve in effect in a “standby/advisory” role by advising the court on “the
process of determining interim Senate Districts for 2012.”
The petition also seeks a third form of immediate relief, amounting to a request for
an immediate preliminary stay of the Commission’s Senate map. The petition asserts that
“[t]he [submitted referendum] petitions contain sufficient ‘raw’ signatures to suspend
temporarily the implementation of” the Commission’s state Senate map and it seeks as
immediate relief an order “prohibiting the Secretary of State and county election officials
acting at her direction from implementing” that map “for the June 5, 2012 primary
election, until [a] new interim Senate map [has] been implemented by this Court.”
Elsewhere the petition asserts that the Secretary of State’s November 23, 2011, order
finding an adequate number of raw signatures and directing county election officials to
commence random sampling “immediately suspends the operation of the Commission-
certified Senate maps until such time as the signature verification process is complete.”
Such a preliminary stay of the Commission’s certified state Senate map would force
county election officials to immediately halt preelection planning that they have
undertaken and continue to undertake in preparation for the June 2012 primary election.
9
election officials and the Secretary of State finish the time-consuming, statutorily
governed process needed to determine whether the proposed referendum actually is
supported by the requisite number of valid signatures and hence qualifies for the ballot —
a process that may take approximately nine to 17 weeks following submission of petition
signatures.13 If the referendum qualifies, the Commission’s certified Senate map would
automatically be stayed by operation of law.14 Petitioner asks that, in the event the
proposed referendum qualifies for the ballot, this court should establish new interim state
Senate district maps for the June and November 2012 state Senate elections by either
(1) using the old state Senate map created by the Legislature in 2001; or (2) creating a
new state Senate map by “nesting” two adjacent Commission-certified Assembly districts
within one Senate district; or (3) establishing a different new state Senate map based on a
proposal by petitioner’s redistricting consultant, addressing alleged “deficiencies . . . in
the Commission’s Senate map.”
On December 9, 2011, we denied the request for all immediate relief pending this
court’s eventual decision in this matter, issued an order to show cause concerning the
prayer for future contingent relief, and granted a motion by the Commission to intervene.
We established an extremely expedited briefing schedule, designed to permit this court to
conduct oral argument by early January 2012, and file an opinion by the end of that
month. We also specified additional issues for briefing, expressly reserving resolution of
the threshold question of jurisdiction for our eventual written decision.15
13 Statutory schedules concerning the timing for such events, and related statutory
procedures, are described post, part III.
14 See post, part III.
15 Our December 9, 2011, order stated:
(Footnote continued on following page)
10
(Footnote continued from previous page)
“In light of the short time frame imposed by the impending 2012 electoral cycle,
and the need to clarify the districts that are to be used in conducting the primary and
general elections for the California Senate in 2012 should the referendum petitions that
have been filed with the Secretary of State prove sufficient to qualify the referendum for
placement on the November 2012 ballot and to stay the Senate redistricting map drawn
and certified by the Citizens Redistricting Commission, the court has determined that it is
appropriate to issue an order to show cause in this matter at this juncture, while reserving
the question of this court’s jurisdiction for resolution in our eventual decision in this
proceeding.
“In addition to addressing issues relating to what relief, if any, this court should
order in the event the referendum regarding the Senate redistricting map qualifies for the
November 2012 ballot, the parties are directed to address the following jurisdictional
issues: (1) What standard or test should this court apply in determining whether a
referendum is ‘likely to qualify’ within the meaning of article XXI, section 3,
subdivision (b)(2) of the California Constitution, for purposes of deciding when a petition
for writ of mandate may be filed in this court under that constitutional provision? (2) Is
this court’s authority to entertain a petition for writ of mandate prior to the formal
qualification of a referendum petition limited to the circumstances set forth in article
XXI, section 3, subdivision (b)(2), or does this court have other authority (including
inherent authority) to entertain such a petition even if it cannot yet be determined whether
such a referendum is ‘likely to qualify’ for placement on the ballot?
“The motion of the Citizens Redistricting Commission to intervene in this
proceeding and for leave to file preliminary opposition is granted.
“To the extent the petition filed in this matter seeks any interim relief pending this
court’s eventual decision in this matter, the request for any such interim relief is denied.
“Petitioner’s request for judicial notice filed on December 2, 2011, is granted.
“To facilitate this court’s conducting of oral argument in this matter as early as the
first two weeks in January 2012, and the filing of an opinion in this matter as early as the
end of January 2012, the court orders an extremely expedited briefing schedule, as
follows:
“Respondent and intervener Citizens Redistricting Commission are each directed
to serve and file a return or opposition to the order to show cause on or before
Wednesday, December 14, 2011.
“Petitioner may serve and file a reply to the return or opposition on or before
Monday, December 19, 2011.
“Any application to file an amicus curiae brief and any amicus curiae brief may be
served and filed on or before Wednesday, December 21, 2011.
(Footnote continued on following page)
11
Having considered the subsequent briefing and oral argument, we conclude as
follows: (1) This court has jurisdiction to entertain this writ proceeding and it is
sufficiently ripe for our review. (2) In the event the referendum eventually qualifies for
presentation to the voters on the November 2012 ballot, triggering a stay of the
Commission’s certified state Senate map by operation of law, election officials are
nonetheless directed to use the boundaries set out in the Commission-certified state
Senate map on an interim basis for the June 2012 primary election and November 2012
general election, pending a vote by the people on the proposed referendum at the
November 2012 election.
II. California Constitution, amended article XXI
and the Citizens Redistricting Commission
We first briefly describe the structure and workings of the Citizens Redistricting
Commission.
Prior to 2008, redistricting in California was performed by the Legislature subject
to the veto power of the Governor — or by the courts, when the Legislature and
Governor could not agree. (See, e.g., Legislature v. Reinecke (1973) 10 Cal.3d 396;
Wilson v. Eu (1992) 1 Cal.4th 707.) The electorate, however, dramatically changed the
process by ballot measures in 2008 and 2010. Those measures amended California
Constitution, article XXI, transferring the redistricting task to a newly created Citizens
Redistricting Commission. (Prop. 11, as approved by voters, Gen. Elec. (Nov. 5, 2008)
(Footnote continued from previous page)
“Any reply or consolidated reply to any amicus curiae brief or briefs may be
served and filed on or before Thursday, December 22, 2011.
“All service and filings may be made by facsimile with the original and hard
copies to follow by mail. The court’s fax number is (415) 865-7183.
“No extension of time will be granted.”
12
(Proposition 11); Prop. 20, as approved by voters, Gen. Elec. (Nov. 2, 2010) (Proposition
20).)
A. Charge and selection of the Commission
California Constitution, article XXI, section 2 establishes the Commission and
defines how it is to be constituted. The constitutional provision creates a body that
excludes career politicians, reflects citizen participation at every level, and is expected to
rise above partisanship. Accordingly, subdivision (b) of section 2 charges the
Commission with “conduct[ing] an open and transparent process enabling full public
consideration of and comment on the drawing of district lines; . . . draw[ing] district lines
according to the redistricting criteria specified in this article; and . . . conduct[ing]
themselves with integrity and fairness.” Section 2, subdivision (c)(1) of article XXI
further provides that “[t]he selection process is designed to produce a commission that is
independent from legislative influence and reasonably representative of this State’s
diversity.”
The Commission has 14 members. Five must be registered with the largest
political party in California (based on voter registration), five must be registered with the
second largest political party in California, and four must be individuals who are not
registered with either of the two largest political parties. (Cal. Const., art. XXI, § 2,
subd. (c)(2).) Commission members are ineligible to hold elective public office at the
federal, state, county or city level for a period of 10 years, beginning from the date of
their appointment to the Commission (id., art. XXI, § 2, subd. (c)(6)), and, for a five-year
period beginning from their appointment, are ineligible to hold appointive federal, state,
or local public office, or to serve as paid staff for, or as a paid consultant to, the State
Board of Equalization, Congress, the Legislature, or any individual legislator, or to
register as a federal, state or local lobbyist in California. (Ibid.)
Government Code section 8250 et seq., enacted by the voters in 2008 as part of
Proposition 11, governs the process for selecting commissioners. Government Code
13
section 825216 sets forth how the commissioners are to be selected. The State Auditor,
an office that is independent of the legislative and executive branches (§ 8546), initiates
an application process, open to all registered voters, that is designed to “promote[] a
diverse and qualified applicant pool.” (§ 8252, subd. (a)(1).) According to the
Commission’s Final Report on Redistricting, August 15, 2011 (Final Report), the State
Auditor “undertook a significant outreach process throughout the state utilizing a wide
variety of communications media, including mainstream and ethnic media, social media,
a website, and staff assigned to respond to all telephone calls and e-mails.” (Final Rep.,
at p. 2, available on the Commission’s Web site, [as of
Jan. 27, 2012].) Section 8252, subdivision (a)(2) authorizes the State Auditor to remove
from the pool those applicants with a conflict of interest. Subdivisions (a)(2)(A) and
(a)(2) (B) of section 8252 identify the relationships that can create a conflict of interest.
Section 8252 also authorizes the State Auditor to establish an “Applicant Review
Panel” to screen the applicants. (§ 8252, subd. (b).) The panel consists of three
independent auditors randomly drawn from a pool comprised of “all auditors employed
by the state and licensed by the California Board of Accountancy at the time of the
drawing” (ibid.); one of the three must be registered with the largest political party in
California, one must be registered with the second largest political party in California,
and the third must not be not registered with either of those two parties. (Ibid.)
Prospective panel members are to be screened for conflicts of interest under the same set
of standards that are applied to applicants. (§ 8252, subd. (a)(2).) Once the panel is
constituted, the State Auditor provides it with the applications of prospective commission
members. (§ 8252, subd. (c).)
16 Subsequent unlabeled statutory references in this part (pt. II) and in part III are to
the Government Code.
14
The panel then selects “60 of the most qualified applicants,” 20 of whom must be
registered with the largest political party; 20 must be registered with the second largest
political party; and the final 20 must not be registered with either of those two parties.
(§ 8252, subd. (d).) Selection is to be made on the basis of “relevant analytical skills,
ability to be impartial, and appreciation for California’s diverse demographics and
geography.” (Ibid.) The panel presents its pool of recommended applicants to the
Secretary of the Senate and to the Chief Clerk of the Assembly, and those officers, in
turn, permit the President pro Tempore of the Senate, the Minority Floor Leader of the
Senate, the Speaker of the Assembly, and the Minority Floor Leader of the Assembly
each to strike up to two applicants from each subpool of 20, for a total of eight strikes per
subpool. (§ 8252, subd. (e).) The State Auditor then randomly draws eight names from
the remaining pool of applicants: three from the subpool of applicants registered with the
largest political party, three from the subpool registered with the second largest political
party, and two from the remaining subpool. These eight individuals serve on the
Commission. (§ 8252, subd. (f).) They, in turn, review the remaining pool of applicants
and appoint a final six to complete the Commission: two are to be drawn from the
subpool of those registered with the largest political party, two are to be drawn from the
subpool of those registered with the second largest political party, and two are to be
drawn from the remaining subpool. The six appointees must be approved by at least five
affirmative votes of the original eight commissioners; those five votes must include the
votes of two Commissioners registered with the largest political party, two
Commissioners registered with the second largest political party, and one from a
Commissioner not registered with either party. (§ 8252, subd. (g).) The six appointees
are to be “chosen to ensure the commission reflects this state’s diversity, including, but
not limited to, racial, ethnic, geographic, and gender diversity.” (Ibid.) The Commission,
however, need not comply with any specific ratio or formula. (Ibid.)
15
B. The redistricting process
California Constitution, article XXI, section 2, subdivision (b) and related statutes
establish a public redistricting process. The constitutional provision requires the
Commission to “conduct an open and transparent process enabling full public
consideration of and comment on the drawing of district lines.” Section 8253 implements
that charge, and requires the Commission to “establish and implement an open hearing
process for public input and deliberation that shall be subject to public notice and
promoted through a thorough outreach program to solicit broad public participation in the
redistricting public review process. The hearing process shall include hearings to receive
public input before the commission draws any maps, and hearings following the drawing
and display of any commission maps. In addition, hearings shall be supplemented with
other activities as appropriate to further increase opportunities for the public to observe
and participate in the review process. The commission shall display the maps for public
comment in a manner designed to achieve the widest public access reasonably possible.
Public comment shall be taken for at least 14 days from the date of public display of any
map.” (§ 8253, subd. (a)(7).)
The Commission was sworn in during the month of January 2011, and conducted
an open bidding process to hire independent counsel and experts to advise it on matters
related to the federal Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) (Voting Rights
Act) and technical issues. It thereafter held more than 70 business meetings and 34 public
hearings in 32 cities throughout the state. (Final Rep., at p. 4.) Generally, the
Commission’s hearings were scheduled in the early evening hours at school or
government locations in the center of a community, making it convenient for “average
citizens” to participate. (Ibid.) It regularly allowed public input and comment at its
business meetings as well. (Ibid.) Its educational materials were broadly distributed in
English and six other languages (Spanish, Chinese, Japanese, Korean, Tagalog, and
Vietnamese), and it ultimately received, in addition to oral testimony, more than 2,000
16
written submissions, including maps reflecting statewide, regional, or other districts.
(Ibid.; see also Final Rep., at pp. 3-5 [listing representative groups providing submissions
and other testimony].) The Commission’s staff received “written comments, input and
suggestions from more than 20,000 individuals and groups.” (Id., at p. 5.) The
Commission held 23 public input hearings before issuing a set of its draft maps in June of
2011. After a five-day public review period, it held 11 more public input hearings around
the state to collect reactions to and comments concerning those draft maps. (Ibid.) It held
22 business meetings in Sacramento to discuss the draft maps, at which more than 276
people appeared and commented. All of the Commission’s public meetings were “live-
streamed,” captured on video, and placed on the Commission’s Web site for public
viewing. All of the Commission’s completed documents, and those of its staff, were
posted on the Commission’s Web site for public viewing as well. (Ibid.) All such
materials remain archived on the Commission’s Web site,
(as of Jan. 27, 2012).
Pursuant to California Constitution, article XXI, section 2, subdivision (c)(5), the
structure of the Commission’s vote on each map mirrored the balanced process described
above, under which the Commission’s members were selected. An affirmative vote on
each map was required to be supported by a supermajority of at least nine Commission
members, including three from each subpool of members: those registered with the
largest political party in California (that is, three Democrats), those registered with the
second largest political party (that is, three Republicans), and three who are not registered
with either major party. With regard to the state Senate map — the subject of the
proposed referendum — the Commission’s vote was 13 to 1 in favor.
C. Redistricting criteria
California Constitution, article XXI, section 2, subdivision (d) requires the
Commission to “establish single-member districts for the Senate, Assembly, Congress,
and State Board of Equalization pursuant to a mapping process” that complies with
17
criteria expressly set forth in article XXI itself. It is of considerable consequence to our
analysis that the constitutional provision ranks the applicable criteria by order of priority.
First, “[d]istricts shall comply with the United States Constitution. Congressional
districts shall achieve population equality as nearly as is practicable, and Senatorial,
Assembly, and State Board of Equalization districts shall have reasonably equal
population with other districts for the same office, except where deviation is required to
comply with the federal Voting Rights Act or allowable by law.” (Cal. Const., art. XXI,
§ 2, subd. (d)(1).)
Second, “[d]istricts shall comply with the federal Voting Rights Act (42 U.S.C.
Sec. 1971 and following).” (Cal. Const., art. XXI, § 2, subd. (d)(2).)
Third, “[d]istricts shall be geographically contiguous.” (Cal. Const., art XXI, § 2,
subd. (d)(3).)
Fourth, the Commission’s maps must respect “[t]he geographic integrity of any
city, county, city and county, local neighborhood, or local community of interest . . . in a
manner that minimizes their division to the extent possible without violating the
requirements of any of the preceding subdivisions.” (Cal. Const., art. XXI, § 2,
subd. (d)(4).) The Constitution defines a “community of interest” as “a contiguous
population which shares common social and economic interests that should be included
within a single district for purposes of its effective and fair representation.” (Ibid.)
“Examples of such shared interests are those common to an urban area, a rural area, an
industrial area, or an agricultural area, and those common to areas in which the people
share similar living standards, use the same transportation facilities, have similar work
opportunities, or have access to the same media of communication relevant to the election
process.” (Ibid.) The term “communities of interest” expressly excludes “relationships
with political parties, incumbents, or political candidates.” (Ibid.)
Fifth, “[t]o the extent practicable, and where this does not conflict with the criteria
above, districts shall be drawn to encourage geographical compactness such that nearby
18
areas of population are not bypassed for more distant population.” (Cal. Const., art. XXI,
§ 2, subd. (d)(5).)
Sixth, and finally, “[t]o 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.” (Cal. Const., art. XXI,
§ 2, subd. (d)(6) [commonly referred to as the “nesting” goal].)
Subdivision (e) of article XXI, section 2, provides that “[t]he place of residence of
any incumbent or political candidate shall not be considered in the creation of a map.
Districts shall not be drawn for the purpose of favoring or discriminating against an
incumbent, political candidate, or political party.”
Subdivision (f) of article XXI, section 2, provides that “[d]istricts for the
Congress, Senate, Assembly, and State Board of Equalization shall be numbered
consecutively commencing at the northern boundary of the State and ending at the
southern boundary.”
These criteria are derived, for the most part, from the standards developed by the
special masters appointed by this court in 1973 after the Legislature failed to pass
legislative and congressional redistricting bills that were acceptable to the Governor.
(Legislature v. Reinecke, supra, 10 Cal.3d at pp. 400-402.) This court approved the use
of these criteria in Legislature v. Reinecke, and they subsequently were added to the
Constitution as article XXI when the voters approved Proposition 6 in 1980. The current
version of article XXI, as amended by the voters in 2008 (Prop. 11) and again in 2010
(Prop. 20), expands upon the original criteria articulated by the special masters in 1973,
based, in large part, on decisions of this court applying the criteria developed by the
special masters. (See, e.g., Wilson v. Eu, supra, 1 Cal.4th 707.) Unlike former article
XXI, section 2, or the judicial decisions on which that provision was based, however, the
current version of article XXI, in section 2, subdivision (d), expressly ranks the criteria in
19
order of priority, stating explicitly that a lower-ranked criterion is to be followed only
when doing so does not conflict with a higher-ranked criterion or criteria.
III. Did this court have authority to issue an order to show cause
in this original writ proceeding in the absence of a showing
that the proposed referendum was “likely to qualify” for the ballot?
And does this court at this juncture have authority to determine which
state Senate district map should be used in the event the referendum
qualifies for the ballot and stays the operative effect of
the Commission-certified state Senate map?
In considering petitioner’s request for relief, we must first address the threshold
question whether this court had authority to issue an order to show cause in this original
writ proceeding in the absence of a showing by petitioner that the proposed referendum
was “likely to qualify” for the ballot. In her preliminary opposition to the petition, filed
prior to this court’s consideration of the petition, the Secretary of State maintained that
the petition in this proceeding was not properly filed and should be summarily denied
because petitioner had not demonstrated that the underlying proposed referendum was
“likely to qualify” for the ballot within the meaning of article XXI, section 3(b)(2) of the
California Constitution. We will analyze this threshold question in light of the
circumstances that were before this court on December 9, 2011, when we issued the order
to show cause, both to explain why this court’s December 9 action was authorized and
appropriate, and, as importantly, to provide guidance on this procedural point for the
future in the event similar circumstances arise in the course of subsequent redistricting
efforts.
As we will explain, we conclude the petition’s allegations adequately invoked our
traditional extraordinary writ authority under article VI, section 10 of the state
Constitution over a question that was, and is, ripe for our decision. For this reason, it is
not necessary for this court to apply the language in article XXI, section (3)(b)(2)
20
providing that a “registered voter . . . may file . . . a petition for a writ of mandate . . . 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.” (Cal. Const., art. XXI,
§ 3(b)(2).)
As noted above, the petition filed in this case on December 2, 2011, stated that the
proponents of the referendum had submitted a total of approximately 710,000 raw
(unverified) signatures in support of the referendum to local election officials throughout
the state. The petition asserted that because only approximately 504,000 valid signatures
were required to qualify the referendum for the ballot, the number of signatures that had
been submitted established that the proposed referendum was “likely to qualify” for
placement on the November 2012 ballot and thus that the petition was properly filed
under the provisions of article XXI, section 3(b)(2) of the California Constitution and
should be entertained and acted on by this court. Article XXI, section 3(b)(2) provides in
this regard that “[a]ny registered voter . . . may file . . . a petition for a writ of mandate
. . . 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.” (Italics added.)
As also noted above, the preliminary opposition filed by the Secretary of State
took issue with the petition’s contention that the number of raw signatures that had been
submitted to election officials established that the proposed referendum was likely to
qualify for the ballot. The preliminary opposition pointed out that in the prior separate
mandate proceeding filed in this court (see ante, fn. 7 and related text), petitioner had
asserted that she anticipated obtaining more than 780,000 raw signatures on the
referendum petition but that petitioner instead submitted only approximately 710,000 raw
signatures. The preliminary opposition, noting that a 2008 study of initiative petitions
reported that initiative proponents “lose up to 40 [percent] of gross signatures in the
verification check” (citing Center for Governmental Studies, Democracy by Initiative:
Shaping California’s Fourth Branch of Government (2d ed. 2008) p. 149), asserted that
21
given the relatively low number of raw signatures that had been submitted, it was too
soon to tell whether the proposed referendum was likely to qualify for placement on the
November 2012 ballot. For this reason, the Secretary of State took the position that the
petition was not properly filed and should be summarily denied.
As we have pointed out (ante, at p. 10), our order to show cause in this matter
specifically reserved resolution of this threshold issue for our eventual opinion and
directed the parties to brief two questions related to this issue, regarding (1) the test or
standard this court should apply in determining whether a proposed referendum is “likely
to qualify” within the meaning of article XXI, section 3(b)(2), and (2) whether this
court’s authority to entertain a petition for a writ of mandate prior to the formal
qualification of a referendum petition is limited to the circumstances set forth in article
XXI, section 3.17
The briefs responding to the order to show cause filed by the Secretary of State
and the Commission argued that in order to comply with the “likely to qualify” provision
of article XXI, section 3(b)(2), a petitioner must demonstrate by “a preponderance of the
evidence” that it is “more probable than not” that the referendum petition will qualify for
placement on the ballot. Both briefs further contended that because the relatively low
number of raw signatures submitted in support of the proposed referendum left it unclear
whether there was a sufficient number of valid signatures to qualify the referendum for
the ballot, petitioner failed to meet the “likely to qualify” standard. In addition, both
asserted that if the petition failed to satisfy the “likely to qualify” standard set forth in
article XXI, section 3(b)(2), this court lacked authority to entertain the mandate
proceeding. Accordingly, both maintained that the petition should be dismissed on this
basis.
17 The two questions are reproduced in full ante, footnote 15.
22
In her reply, petitioner disagreed with the proposed interpretation of the “likely to
qualify” language, arguing that in light of the provision’s purpose, the phrase “likely to
qualify” should not be interpreted to mean that a petition for writ of mandate may be filed
only when it can be shown that it is “more probable than not” that a proposed referendum
will qualify for placement on the ballot, but instead that such a petition may be filed on a
lesser showing. (The reply did not specify or quantify the lesser showing that petitioner
believes is contemplated by the “likely to qualify” language.) In addition, the reply
maintained that, in any event, the number of raw signatures that had been submitted in
support of the proposed referendum was sufficient to establish that it was more probable
than not that the referendum would qualify. Finally, the reply asserted that, apart from
article XXI, section 3(b)(2), this court possesses authority under article VI, section 10 of
the Constitution — establishing this court’s original jurisdiction “in proceedings for
extraordinary relief” — to entertain the petition for a writ of mandate in this case because
the petition presented a matter of great public importance that had to be resolved
promptly in light of the impending 2012 electoral cycle.
For the reasons discussed below, we conclude that there is no need for this court to
decide the meaning of the term “likely to qualify” as used in article XXI, section 3(b)(2)
or to determine whether the “likely to qualify” standard of section 3(b)(2) was satisfied at
the time the petition in this case was filed or is satisfied at the present time. As we
explain, in light of the statewide importance of the issue presented by the petition and the
need for an expeditious judicial resolution of this matter, this court had authority, under
article VI, section 10 of the California Constitution, to issue an order to show cause in
this original writ proceeding at the time the petition was filed and also possesses the
authority at the present time to determine, through the exercise of its original writ
jurisdiction, what state Senate district map should be used as an interim measure if the
23
proposed referendum qualifies.18 The sentence of article XXI, section 3(b)(2) in
question — containing the “likely to qualify” language — was not intended, and cannot
reasonably be interpreted, to limit or restrict this court’s authority under article VI,
section 10 to determine that such an original writ proceeding is appropriately ripe for
adjudication and resolution at an earlier point in time. As the facts of this case illustrate,
in light of the great public interest and exigencies of the electoral process, this court may
need to assume jurisdiction and act expeditiously when such a petition is filed if the court
is to retain the ability to render a meaningful decision that can be realistically
implemented. This is so even under circumstances in which it cannot reasonably be
predicted whether the proposed referendum is likely to qualify for the ballot. Nothing in
the background or purpose of article XXI, section 3(b)(2) suggests that the provision was
intended to deprive this court of its fundamental and long-standing constitutional
authority to accept such a filing and to act in such a setting when the court determines
that it is appropriate and prudent to do so.
In analyzing this issue, it is important to recognize at the outset that it is firmly
established that this court possesses “jurisdiction,” in the fundamental sense, to entertain
a petition for an original writ of mandate that is directed to the Secretary of State and
concerns her official duties related to the electoral process, and to grant appropriate relief
in such a proceeding. Article VI, section 10 of the California Constitution explicitly
provides in this regard that this court possesses “original jurisdiction in proceedings for
18 Although the petition in this case asserted that it was filed under the authority
granted by article XXI, section 3(b)(2), the representations disclosed by the petition
demonstrated that petitioner, as a registered voter and the official proponent of the
proposed referendum in question, unquestionably had standing to file a petition for an
original writ of mandate seeking the relief in question under the so-called “public-interest
exception” applicable to mandate proceedings. (See, e.g., Hollman v. Warren (1948) 32
Cal.2d 351, 356-357; see generally 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary
Writs, § 84, pp. 970-973, and cases cited.)
24
extraordinary relief in the nature of mandamus, certiorari, and prohibition,” and this court
has long exercised such original extraordinary writ jurisdiction with respect to public
officials’ exercise of their official conduct. (See, e.g., Hollman v. Warren, supra, 32
Cal.2d at pp. 354-357; see generally People ex rel. S.F. Bay etc. Com. v. Town of
Emeryville (1968) 69 Cal.2d 533, 537-538 [discussing 1966 state constitutional
amendment that “deliberately broadened the constitutional language relating to
jurisdiction in extraordinary writ proceedings”].) In past cases, this court has repeatedly
exercised authority to entertain and decide petitions for original writs of mandate related
to the referendum, initiative, and redistricting process in circumstances in which an
expeditious ruling was necessary to the orderly functioning of the electoral system. (See,
e.g., Senate v. Jones (1999) 21 Cal.4th 1142; Wilson v. Eu (1991) 54 Cal.3d 546; Wilson
v. Eu, supra, 1 Cal.4th 707; Assembly v. Deukmejian, supra, 30 Cal.3d 638; Legislature
v. Reinecke, supra, 10 Cal.3d 396; Silver v. Brown (1965) 63 Cal.2d 270.)
Accordingly, we disagree with the Secretary of State’s and the Commission’s
argument and analysis regarding this court’s alleged lack of authority to issue an order to
show cause in this writ proceeding in light of the petition’s asserted failure to establish
that the proposed referendum was likely to qualify for the ballot. Properly analyzed, the
issue does not implicate this court’s fundamental jurisdiction over petitioner’s mandate
action. Rather, the issue presents a question of the “justiciability” of petitioner’s claim,
and, more specifically, whether the action is “ripe” for adjudication under the “ripeness”
doctrine that constitutes one aspect of justiciability. As this court explained in Pacific
Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170: “The ripeness
requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely
advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role
of the judiciary does not extend to the resolution of abstract differences of legal opinion.
It is in part designed to regulate the workload of courts by preventing judicial
consideration of lawsuits that seek only to obtain general guidance, rather than to resolve
25
specific legal disputes. However, the ripeness doctrine is primarily bottomed on the
recognition that judicial decisionmaking is best conducted in the context of an actual set
of facts so that the issues will be framed with sufficient definiteness to enable the court to
make a decree finally disposing of the controversy. On the other hand, the requirement
should not prevent courts from resolving concrete disputes if the consequence of a
deferred decision will be lingering uncertainty in the law, especially when there is
widespread public interest in the answer to a particular legal question. [Citations.]”
(Italics added.) As the Court of Appeal observed in California Water & Tel. Co. v. Los
Angeles (1967) 253 Cal.App.2d 16, 22, “[a] controversy is ‘ripe’ when it has reached . . .
the point that the facts have sufficiently congealed to permit an intelligent and useful
decision to be made.”
In past cases this court has repeatedly held that this court may appropriately
exercise its jurisdiction over a petition for an original writ of mandate when “the issues
presented are of great public importance and must be resolved promptly.” (County of
Sacramento v. Hickman (1967) 66 Cal.2d 841, 845; see, e.g., Clean Air Constituency v.
California State Air Resources Bd. (1974) 11 Cal.3d 801, 808; see generally 8 Witkin,
Cal. Procedure, supra, Extraordinary Writs, § 146, pp. 1043-1046.) We have frequently
found challenges ripe for the invocation and exercise of our original writ jurisdiction
under this standard in cases involving significant legal issues affecting the electoral
process, when a speedy resolution of the underlying controversy is necessary to avoid a
disruption of an upcoming election. (See, e.g., Wilson v. Eu, supra, 54 Cal.3d at pp. 472-
473; Assembly v. Deukmejian, supra, 30 Cal.3d at p. 646; Thompson v. Mellon (1973) 9
Cal.3d 96, 98; Legislature v. Reinecke (1972) 6 Cal.3d 595, 598; Jolicoeur v. Mihaly
(1971) 5 Cal.3d 565, 570, fn. 1; Silver v. Brown, supra, 63 Cal.2d at pp. 277-278; Perry
v. Jordan (1949) 34 Cal.2d 87, 90-91.)
In this case, the legal issue posed by the petition plainly presented a question of
significant statewide public importance. The petition noted that a referendum petition,
26
challenging the state Senate redistricting map that had been certified by the Commission
and that was currently being implemented by election officials throughout the state, had
been circulated for signatures and had been timely filed with election officials with a
number of raw signatures that was greater than the number of verified signatures required
for qualification. The petition also pointed out that if the proposed referendum proves to
have a sufficient number of verified signatures to qualify for placement on the November
2012 ballot, the existing Commission-certified state Senate map would, as a matter of
law, automatically be stayed pending the electorate’s November 2012 vote on the
referendum measure. (See Cal. Const., art. II, § 10, subd. (a); Assembly v. Deukmejian,
supra, 30 Cal.3d at pp. 654-657, and cases cited [construing the cited constitutional
provision to mean that a “duly qualified referendum” stays implementation of the
challenged electoral maps].) And the petition further explained that if the existing state
Senate map is stayed by qualification of the proposed referendum, this court would bear
the direct responsibility of deciding which state Senate districts are to be used by election
officials for the interim June 2012 primary election and November 2012 general election.
(Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 657-658.) Thus, there is no question
that the legal issue presented by the petition — what state Senate districts should be used
for those elections in the event the proposed referendum qualifies for the ballot — is
clearly an issue of sufficient statewide public importance to warrant this court’s exercise
of its original writ jurisdiction.
At the time the petition was filed, however, the proposed referendum had not yet
qualified for the ballot (indeed, at the time of filing this opinion, it still has not qualified),
and the question raised by the informal opposition to the petition was whether the matter
was sufficiently ripe to render it appropriate for this court to issue an order to show cause,
establish a briefing schedule, and proceed to adjudicate the matter, or whether the petition
was premature.
27
As we will explain (see, post, at pp. 29-32), both on December 2, 2011 (when the
petition for writ of mandate was filed in this court), and on December 9, 2011 (when this
court considered whether to issue an order of show cause), it was apparent (1) that it was
a close question whether a sufficient number of valid signatures had been filed to qualify
the proposed referendum for placement on the November 2012 ballot, and (2) that the
ultimate resolution of that question might not be determined until early March 2012. As
we also will explain, however, under the circumstances shown by the petition, our timely
intervention was critical because of practical impediments faced by election officials
preparing for the 2012 election cycle.
Under the applicable California statutes (Elec. Code, § 9030 et seq.), when, as in
this case, the proponents of a referendum filed with election officials petitions containing
a number of raw signatures greater than the number of valid signatures required for
qualification, local election officials were required to conduct a random sampling of the
raw signatures to make an initial determination of the percentage of raw signatures that
would be found to be valid signatures.19 Here, the last day for counties to complete
random sampling was January 10, 2012. (Elec. Code, § 9030, subds. (d), (e).)
Thereafter, based on the county certificates, the Secretary of State was required to
determine the statewide result of the random sampling by January 18, 2012. Under the
governing statutory provisions, if the random sampling projected a number of total valid
signatures that was less than 95 percent of the required number of valid signatures, the
petition would fail without any further count. If the projection of valid signatures was
110 percent or more of the required number, the petition would qualify without any
19 Random sampling is conducted in each county with regard to 3 percent of the
signatures presented, or 500 signatures, whichever number is greater. If fewer than 500
signatures are submitted in a county, the county election officials must check each
signature. (Elec. Code, § 9030, subd. (d).)
28
further count. If the projection of valid signatures was between 95 and 110 percent, the
Secretary of State would notify counties that a full count of all submitted signatures
would be required to verify the number of valid signatures that had been submitted.
(Elec. Code, §§ 9030, subds. (f) & (g), 9031, subd. (a).) If a full count was required, the
last day for counties to determine the number of qualified signatures would be March 6,
2012. (Id., § 9031, subds. (b) & (c).) Thereafter, by March 12, 2012, the Secretary of
State would determine whether the referendum petition qualifies for placement on the
November 2012 ballot. (Id., §§ 9031, subd. (d), 9033.)
At the time the petition in the present case was filed, all parties in this proceeding
agreed that the available data indicated that the random sampling of the petition
signatures was very likely to result in a projection falling between 95 and 110 percent of
the required number of valid signatures. Thus, although the parties disagreed whether the
available data demonstrated that it was more probable than not that the proposed
referendum would qualify, the parties agreed that the data established that there was at
least a substantial possibility that the referendum would ultimately qualify for the ballot.
And because the parties also agreed that it was quite likely that the final result of the
random sampling process would mean that the verification process would have to go to a
full count of all signatures, at that time it appeared very probable that it would not be
definitively known whether the proposed referendum qualified for the ballot until early
March 2012. However, the Secretary of State informed the court that a number of actions
for the 2012 electoral cycle were required to begin well before that date.
Thus, at the time the petition was filed and this court had to decide whether to
issue an order to show cause, we faced a serious problem of timing and coordination. As
noted in Wilson v. Eu, supra, 54 Cal.3d at page 548, “preparing for elections is a complex
and ‘sequential’ process, requiring various tasks be performed before others may begin,
including identifying the various district boundaries, developing county election
precincts, assigning such districts to all registered voters, designing ballot styles, printing
29
ballots, providing polling places, and training precinct workers. Early delays in one
function can impact all other functions. As the Secretary [of State] points out, the need to
know precise district boundaries ‘is at the front end of the process.’ ” According to the
Secretary of State here, “[t]hese words are particularly applicable to the 2012 election
cycle, where elections officials will implement not only new redistricting plans, but also
the new ‘top two’ or ‘voter-nominated’ election scheme adopted by Proposition 14 (June
2010).”
At the time the petition was filed, all four maps certified in mid-August by the
Commission — including the state Senate map — were then the legally applicable maps,
and county election officials and the Secretary of State and others were using and relying
upon them for purposes of state election planning and “preclearance” under section 5 of
the federal Voting Rights Act,20 and would continue to do so unless and until the state
Senate map is automatically stayed by qualification of the proposed referendum or this
court orders otherwise. The Secretary of State, citing a declaration by the chief of the
elections division, explained that up to six weeks would be required “for state and local
elections officials to implement [any] changes [that might be ordered] to the new maps.”
This court was also informed that the Secretary of State and county election officials
needed to know by the end of January 2012 whether they would be required to implement
any changes in the state Senate districts in the event the proposed referendum qualifies
and automatically stays the Commission-certified state Senate redistricting map.
As the circumstances of the present case demonstrate, even when the available
data may be insufficient to show just how likely or probable it is that a proposed
referendum will qualify for placement on the ballot, detrimental consequences to the
orderly process of an election may result if the court fails to exercise jurisdiction
20 See post, footnote 44.
30
expeditiously and the referendum does ultimately qualify for the ballot. The potential
detrimental consequences resulting from this court’s deferring action until later in the
signature verification process may reasonably support a judicial determination that the
proposed mandate action is sufficiently “ripe” to permit this court to exercise jurisdiction
over the mandate action at that earlier juncture.
The combination of the redistricting process embodied in California Constitution,
article XXI and the electoral schedule often leaves very little time between the deadline
for filing referendum petition signatures and the beginning of the numerous tasks that
must be undertaken by candidates and election officials during the upcoming primary and
general election electoral cycle. Thus, it may be necessary for this court to issue an order
to show cause, elicit briefing, and hold oral argument before it can be determined with
any substantial degree of accuracy or confidence how likely or probable it is that the
proposed referendum will qualify for the ballot. Such immediate action by this court may
be essential in order for this court to retain the ability to render a decision (regarding what
districts should be used in the event the referendum qualifies) at a time when the court’s
decision can actually be implemented. If issuance of an order to show cause is deferred
until later in the signature-verification process, then by the time a judicial decision
ultimately is rendered it may, as a practical matter, be impossible for election officials to
use any districts other than the districts that the officials have been utilizing up until the
date on which the Commission-certified maps are stayed by the official qualification of
the proposed referendum. In other words, if this court were to conclude that other
districts should be used in the event the referendum qualifies, it may be too late at that
time to apply the court’s decision to implement those other districts.
Accordingly, we conclude that, in order to preserve this court’s ability to render a
meaningful and realistically enforceable decision regarding which districts should be
used in the event a proposed referendum qualifies, this court properly may determine that
a proposed mandate proceeding is “ripe” for adjudication and may issue an order to show
31
cause in such a proceeding in the absence of a showing that the referendum is “likely to
qualify” for placement on the ballot. Given the realities of the timing of redistricting and
the statutory electoral process, we hold that this court has authority to find that a mandate
action satisfies the ripeness doctrine when we conclude that, in light of the relative
probability that the proposed referendum will qualify for the ballot and the time
limitations and potential detrimental consequences of refusing to consider a mandate
petition at that point in time, it is prudent to issue an order to show cause and decide
which districts should be used in the upcoming elections in the event the proposed
referendum does qualify for placement on the ballot. (Accord, People ex rel. S.F. Bay
etc. Com. v. Town of Emeryville, supra, 69 Cal.2d at pp. 537-539 [an appellate court has
inherent power to order interim relief in aid of its own jurisdiction and to preserve the
effectiveness of its ultimate decision].)
Furthermore, not only may this court issue an order to show cause in the absence
of a showing that the proposed referendum is “likely to qualify” for the ballot, but this
court’s authority to decide what districts should be used in the event the referendum does
qualify and to grant relief based upon that decision also is not contingent upon a showing
that the proposed referendum is “likely to qualify” for the ballot. Even when it cannot be
determined from the available data how likely it is that a referendum will qualify for the
ballot — or when there is a substantial possibility that the proposed referendum will
qualify but it is not “more probable than not” that it will qualify — a court may conclude
that it is prudent to determine, at that time, which districts should be used in the event the
referendum does qualify so that election officials are not left without meaningful
guidance if the referendum ultimately qualifies.21 Thus, at the relief stage, just as at the
21 As explained earlier, current California statutes mandate a full count of all
submitted signatures whenever the results of the random sampling process project a
signature validity rate between 95 and 110 percent of the required number of valid
(Footnote continued on following page)
32
order to show cause stage of an original writ proceeding, this court may properly grant
relief before a proposed referendum actually qualifies for the ballot when the court is of
the view that there is a sufficient chance that the proposed referendum will qualify to
make it prudent for the court to advise election officials of the districts that should be
used on an interim basis if the proposed referendum ultimately qualifies for the ballot.
We also emphasize that it is perfectly appropriate for this court, after the issuance
of an order to show cause and while such a proceeding is pending before the court, to
continue to consider all relevant factors that may affect both the need for relief and the
prudence and appropriate timing of affording the relief that the court determines may be
warranted.22
(Footnote continued from previous page)
signatures. (Ante, at pp. 28-29.) This statutory scheme indicates that even when the
random sampling process projects that the number of valid signatures submitted will be
only 95 percent of the required number of valid signatures, the Legislature is of the view
that there is a sufficient chance that a full count of all signatures will show that the
proposed referendum actually has obtained a sufficient number of valid signatures to
qualify for the ballot to require that a time-consuming and expensive full count be
conducted. Accordingly, the suggestion advanced in one of petitioner’s supplemental
briefs — that this court should adopt a rule under which a proposed referendum that
obtains a random sampling rate of less than 100 percent of the required number of valid
signatures should be considered insufficient to permit this court to advise election
officials of the districts that should be used in the event the proposed referendum does
qualify (see post, fn. 22) — would appear to conflict with the underlying premise of the
statutory scheme.
22 In the present case, for example, we asked the parties during the pendency of this
proceeding to file supplemental briefs addressing what significance the signature validity
rate from the completed random sampling process would have with regard to the issue of
whether a proposed referendum is “likely to qualify” under article XXI, section 3(b)(2).
In response, the parties informed the court of the then-current signature validity
rate of the proposed referendum based on the incomplete random sampling process that
had been conducted as of the date the supplemental briefing was filed. Although the
parties reported the same data — obtained from the Secretary of State’s Web site — they
disagreed whether the signature validity rate obtained from the random sampling process
(Footnote continued on following page)
33
Thus, for example, if in this case, after we issued an order to show cause, the
completed random sampling process had projected less than 95 percent of the required
valid signatures, it would have been clear that the proposed referendum had failed to
qualify for the ballot and that there was no longer any need for a decision by this court
because there was no longer any chance that the Commission-certified state Senate map
would be automatically stayed. Under such circumstances, notwithstanding the fact that
this court had properly issued an order to show cause, this court would simply have
dismissed this writ proceeding as moot.
Furthermore, other relevant factors that develop while such an original writ
proceeding is pending in this court also may affect the timing and nature of the relief that
(Footnote continued from previous page)
is a sufficiently reliable indicator concerning whether a referendum is “likely to qualify”
for the ballot.
Petitioner maintained in this regard that “a petition that attains less than a 100
[percent] signature validity rate from the completed random sampling cannot be said to
be ‘likely’ to qualify,” whereas “[a] petition that attains more than 100 [percent] is likely
to qualify.”
The Secretary of State, by contrast, explained that although the random sampling
process is adequate to do what that process is designed to do — namely to determine
“whether the number of valid signatures on petitions is within a broad range, 95 [percent]
to 110 [percent]” — “the sampling technique is not designed to give reliable results at a
greater level of precision.” The Secretary of State advised the court that “to use the
completed sampling process to determine at what point a petition becomes likely to
qualify, or to determine whether a 101 [percent] random sample petition is more likely to
qualify than a 100 [percent] random sample petition, is beyond the capacity of the
process.” (Italics added.) On this point the Commission, in its own supplemental filing
and at oral argument, deferred to and agreed with the Secretary of State.
For the reasons discussed in the text, we conclude that there is no need to
determine whether the current available data establishes that it is likely or more probable
than not that the proposed referendum will qualify. There is a sufficient probability that
the referendum will qualify to make it prudent to decide at this time which districts
should be used in the event the proposed referendum does qualify. (See, post, at p. 42.)
34
this court will provide. For example, as the briefing and oral argument process
progresses, and as this court, through its deliberations, arrives at a consensus concerning
the substantive question of what districts should be used in the event the proposed
referendum qualifies and stays the Commission-certified districts, the court will continue
to assess the relative probability that the referendum will qualify for the ballot and the
prudence of resolving the proceeding prior to the referendum’s actual qualification.
If this court, after deliberation, concludes that even if the proposed referendum
qualifies for the ballot and automatically stays the operative effect of the Commission-
certified map, election officials should be directed to use the Commission-certified map
on an interim basis because the court has concluded that that map best complies with the
constitutionally mandated criteria embodied in the federal and state Constitutions (a
scenario, as we discuss later in this opinion, that reflects this court’s decisionmaking
process in this case), this court could also reasonably conclude that it should issue its
decision as early as possible so as to eliminate the uncertainty that inevitably arises from
the ongoing signature verification process and the pendency of the writ proceeding in this
court. In such a case, when this court has concluded that the Commission-certified map
should be used, so long as there remains a substantial possibility that the referendum will
qualify for the ballot it would not be necessary for the court to decide whether it is more
probable than not that the proposed referendum will qualify. Even if, after the court
issues its opinion, the referendum ultimately does not qualify for the ballot and the
Commission-certified map is not stayed, issuance of the court’s decision — approving
the Commission’s map — could have no adverse effect upon the Commission-certified
map.
By contrast, based on the Commission’s processes and the Secretary of State’s
statutory responsibilities, different considerations may come into play when this court,
after briefing, oral argument, and deliberation, concludes that a map other than the
Commission-certified map should be used in the interim elections in the event the
35
proposed referendum qualifies for the ballot. Because of the possibility that the issuance
of a court decision favoring an alternative map over the Commission-certified map might
— in the event the referendum does not qualify — unnecessarily cast a cloud over the
legitimacy of that Commission-certified map for the ensuing decade, this court may
determine that it is prudent to consider just how likely it is that the proposed referendum
will not qualify for the ballot. In determining whether it is prudent to issue its decision in
advance of the proposed referendum’s qualification notwithstanding this potential
adverse consequence (and if so, how far in advance), this court would undoubtedly take
into account the particular reasons underlying its analysis and determination that an
alternative map is more consistent with the constitutionally based criteria than the
Commission-certified map, and then decide if and when to issue its opinion based in part
on such considerations.
As the foregoing examples illustrate, under this court’s traditional California
Constitution, article VI, section 10 authority over original writ proceedings, this court
properly retains broad discretion to take into account all such considerations as well as
any other relevant factor in deciding what relief is appropriate in such a proceeding and
when it should be ordered. Because of the variety of circumstances that may be
presented in the future, and the impossibility of predicting the nature of the controversies
that may arise in this context, we conclude that it would not be wise or appropriate to
establish a fixed and inflexible rule or standard that would restrict this court’s discretion
to take appropriate action in light of all the circumstances that may be presented in a
particular case. Thus, we reject any suggestion that this court may determine which
districts are to be used for interim elections in the event a proposed referendum ultimately
qualifies for the ballot only if, at the time the court issues its decision, the available data
demonstrates that the referendum is “likely to qualify” for the ballot.
In their briefs, the Secretary of State and the Commission do not deny that under
the general provisions of article VI, section 10 of the California Constitution regarding
36
original writs of mandate, and the discretion courts may generally exercise under the
ripeness doctrine, this court ordinarily would have authority to issue an order to show
cause in this setting and to provide appropriate relief in light of all of the circumstances
of the case, even if petitioner fails to demonstrate that it is more probable than not that the
proposed referendum measure will qualify for the ballot. The Secretary of State and the
Commission maintain, however, that the specific provision of article XXI, section 3(b)(2)
authorizing “[a]ny registered voter [. . . to] 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” should be
interpreted to limit this court’s authority to issue an order to show cause and grant relief
in an original writ proceeding in this setting to instances in which a petitioner establishes
that the proposed referendum measure is “likely to qualify” for the ballot. (As discussed
above, both the Secretary of State and the Commission maintain that “likely to qualify,”
as used in article XXI, section 3(b)(2), means “more probable than not.”) In advancing
this argument, the briefs rely upon decisions of this court holding that when constitutional
provisions conflict, “a recent, specific provision is deemed to carve out an exception to
and thereby limit an older, general provision.” (Izazaga v. Superior Court (1991) 54
Cal.3d 356, 371; see Greene v. Marin County Flood & Water Conservation Dist. (2010)
49 Cal.4th 277, 290.)
The fundamental flaw in this argument lies in its implicit assumption that the
sentence within article XXI, section 3(b)(2) upon which the briefs rely was intended, and
may reasonably be interpreted, to impose a limitation on the circumstances under which
this court is authorized to issue an order to show cause or to provide relief in this setting.
In our view, it is evident — both from the language of article XXI, section 3(b)(2) itself
and from the judicial background against which the provision was drafted (see Assembly
37
v. Deukmejian, supra, 30 Cal.3d 638)23 — that this section was intended to expand,
rather than to limit, the ability of referendum sponsors or supporters to institute an
original writ proceeding in this court by explicitly providing that when a proposed
referendum is “likely to qualify” for the ballot, any registered voter has the right to file
such a petition in this court before the Secretary of State formally certifies that the
referendum has qualified for placement on the ballot. The language of article XXI,
section 3(b)(2) does not purport to limit this court’s jurisdiction or its ability to
determine, at a time prior to when the referendum is “likely to qualify,” that a case falling
within its jurisdiction is ripe for adjudication, and nothing in the ballot pamphlet related
to this initiative measure indicates an intention to limit this court’s broad article VI,
section 10 authority in such a fashion. Indeed, it would clearly defeat, rather than further,
the purpose of article XXI, section 3(b)(2) to interpret the section as limiting this court’s
authority to entertain a writ petition at an earlier time when an earlier commencement of
the action may be necessary, as a practical matter, to enable the court to provide the relief
sought in the petition should such relief be found appropriate. Accordingly, we reject the
argument that article XXI, section 3(b)(2) should be interpreted to limit this court’s
traditional authority under California Constitution, article VI, section 10 in the manner
suggested by the Secretary of State and the Commission.
23 In Assembly v. Deukmejian, supra, 30 Cal.3d 638, the referendum proponents
gathered an extraordinary large number of signatures (well over two times the number of
required valid signatures — see id., at p. 682 (dis. opn. of Richardson, J.)) in an
exceptionally short period of time (see post, fn. 29), and thus may have been able to
demonstrate even before the petitions were filed with election officials that it was more
probable than not that the referendum would qualify for the ballot. The drafters of the
relevant sentence of article XXI, section 3(b)(2) apparently wanted to make it clear that
in such circumstances any registered voter would have the right to file an action for writ
relief in this court even though the proposed referendum may not yet have formally
qualified for the ballot.
38
Our determination in this regard does not render the pertinent sentence of article
XXI, section 3(b)(2) meaningless or “surplusage.” In the absence of article XXI,
section 3(b)(2), the ripeness of any petition seeking an original writ of mandate that is
filed prior to the qualification of a proposed referendum would be a question for this
court’s discretionary authority over original writs of mandate under article VI, section 10.
Under article XXI, section 3(b)(2), however, when a petitioner is able to show that a
proposed referendum is likely to qualify for placement on the ballot, the petition is, as a
matter of law, sufficiently ripe to permit the petition to be entertained.24 Thus, by virtue
of article XXI, section 3(b)(2), when it is shown that a proposed referendum is likely to
qualify, this court may not properly deny the petition for lack of ripeness. By contrast, a
petition that is filed prior to the time that it can be determined that the proposed
referendum is likely to qualify is unaffected by article XXI, section 3(b)(2) and continues
to be evaluated by this court under all the considerations ordinarily taken into account
under the ripeness doctrine. Accordingly, our conclusion does not render article XXI,
section 3(b)(2) surplusage.25
24 When a petition is properly filed under article XXI, section 3(b)(2), this court is
required to give priority to ruling on the petition. (See art. XXI, § 3(b)(3).) Of course, in
any case in which this court issues an order to show cause in an original writ proceeding
because of the importance of the issue presented and the need for a prompt decision, this
court naturally gives priority to the proceeding in order to provide an expeditious ruling.
The present proceeding is an apt example.
25 Relying upon the “likely to qualify” language in article XXI, section 3(b)(2), the
concurring opinion proposes that the court adopt “as a general rule — indeed a
presumption — that where a petitioner has not shown that a referendum is likely to
qualify, the court should not decide the merits of the mandate petition.” (Conc. opn.,
post, at p. 9.) Because the concurring opinion also concludes that the “likely to qualify”
language is properly interpreted to mean “more likely than not” (conc. opn., post, at
p. 11), under the concurring opinion’s approach this court, as a general rule, would not
decide which map should be used for interim elections if a proposed referendum qualifies
for the ballot unless a petitioner has shown that it is more probable than not that the
proposed referendum will qualify. Thus, in the absence of such a showing, this court
(Footnote continued on following page)
39
(Footnote continued from previous page)
would often be unable to provide timely guidance to election officials, leaving them
without sufficient time to implement this court’s eventual ruling should the referendum
ultimately qualify for the ballot.
For a number of reasons, we believe that the concurring opinion’s approach is
untenable.
First, as we have explained above (ante, pp. 37-39), the “likely to qualify”
language in article XXI, section 3(b)(2) was not intended, and may not reasonably be
interpreted, to limit this court’s authority under article VI, section 10 of the California
Constitution to issue an order to show cause or to decide the merits in an original
mandate proceeding at a point in time earlier than when a referendum is likely to qualify
for the ballot. The concurring opinion fails to identify anything in the language of the
provision or in the ballot materials accompanying the initiative measure that added this
language to the California Constitution indicating that the provision was intended to have
this type of limiting effect on this court’s authority. Under these circumstances, article
XXI, section 3(b)(2) provides no support for the concurring opinion’s conclusion that that
provision’s “likely to qualify” language constitutes the appropriate standard against
which this court’s discretion to grant relief under article VI, section 10 should be
measured or limited.
Second, although the concurring opinion maintains that the “likely to qualify”
standard should be adopted as the general standard for determining when this court will
“decide the merits” in such a mandate proceeding, the “likely to qualify” language of
article XXI, section 3(b)(2), by its terms, is not directed to the time when the court may
or should decide the merits of the mandate petition, but rather to the time when a
registered voter may file such a petition in this court. (“Any registered voter . . . may . . .
file a petition for writ of mandate . . . to seek relief where a certified final map is subject
to a referendum that is likely to qualify and stay the timely implementation of the map.”
(Italics added.)) Although the concurring opinion contests this point, and argues that “the
‘likely to qualify’ language in section 3(b)(2) is better read as specifying when relief is
available and may be granted by this court” (conc. opn., post, at p. 9), in our view a plain
reading of the constitutional language, as well as the purpose of the provision, belie the
concurring opinion’s contrary interpretation.
Third, because the concurring opinion ultimately concludes that “we need not
apply the ‘likely to qualify’ standard in this case because of our ultimate disposition”
(conc. opn., post, at p. 14) — that is, because of the court’s determination that the
Commission-certified state Senate map should be used if the referendum qualifies for the
ballot (see conc. opn., post, p. 3) — the opinion makes clear that its proposed likely-to-
qualify “general rule” is not intended to apply in all cases but only “in circumstances
where [the court] finds or contemplates finding that an alternative to the Commission
(Footnote continued on following page)
40
In sum, for the reasons discussed above, we conclude that, under California
Constitution, article VI, section 10, this court is authorized to issue an order to show
cause and decide which districts should be used in the event a proposed referendum
directed at a Commission-certified redistricting map qualifies for the ballot, even in the
absence of a showing that the proposed referendum is likely to qualify for the ballot.
Finally, applying the general considerations of the ripeness doctrine to the facts of
this case, we conclude that petitioner’s claim was sufficiently ripe to support this court’s
issuance of the order to show cause on December 9, 2011, and that it continues to be
appropriate for this court to determine which state Senate districts should be used in the
interim elections in the event the proposed referendum qualifies for the ballot.
First, as discussed above, at the time the petition was filed on December 2, 2011,
the undisputed facts established that there was a substantial possibility that the proposed
referendum would ultimately qualify for the ballot, but that the determination whether or
(Footnote continued from previous page)
map should be the interim map.” (Conc. opn., post, p. 4.) In advocating the adoption of
a likely-to-qualify rule that applies only in such limited circumstances, the concurring
opinion again departs substantially from the language of article XXI, section 3(b)(2),
which draws no such distinction. The concurrence’s apparent response to this point —
namely, that this court is not granting “relief” when, as in this case, it issues a writ of
mandate directing election officials, in the event the Commission-certified map is stayed
by qualification of the referendum, to use a specified map other than a map sought by
petitioner (see conc. opn., post, at p. 10, fn. 1) — is totally without merit; this court is
clearly granting relief when it directs which map is to be used in the event of a stay,
whether or not the particular outcome ordered by the court is the relief petitioner is
seeking.
In sum, we conclude that article XXI, section 3(b)(2) does not support the
concurring opinion’s approach. For the reasons fully set forth in the text (ante, pp. 23-
39), this court’s authority either to issue an order to show cause or to decide what districts
should be used in the event a proposed referendum qualifies for the ballot is not limited to
circumstances in which the proposed referendum is “likely to qualify” for the ballot.
41
not the referendum would qualify might not be made until early March 2012, when it
would, as a practical matter, be impossible to implement a decision of this court requiring
the use of state Senate district maps other than those certified by the Commission. Under
these circumstances, we conclude that the ripeness doctrine was satisfied and that this
court had authority on December 9, 2011, to issue an order to show cause in this original
writ proceeding.
Second, the relevant factors that have developed while this matter was pending in
this court do not alter our conclusion that it is appropriate to determine in this proceeding
what state Senate districts should be used in the event the proposed referendum qualifies
for the ballot and stays the operative effect of the Commission-certified state Senate map.
During the pendency of this proceeding, the random sampling verification process was
completed, resulting in a determination by the Secretary of State on January 10, 2012,
that the referendum petition had a signature validity rate projecting a total number of
valid signatures between 95 and 110 percent of the required number of valid signatures.
As a consequence, the Secretary of State has directed local election officials to conduct a
full count of all submitted signatures, a process that the Secretary of State indicates will
be completed by those officials no later than February 24, 2012. According to the
Secretary of State’s representations, however, if this court were to wait until it is finally
determined whether the proposed referendum has actually qualified for the ballot, it
would be too late to permit this court’s decision to be implemented if the court were to
determine that a map other than the Commission-certified map should be used for the
June and November 2012 elections. Given these circumstances, we conclude that, even
though the proposed referendum has not yet qualified for the ballot, it is appropriate for
this court to determine at this time which state Senate district map should be used for the
2012 state Senate primary and general elections in the event the referendum does qualify
for the ballot and automatically stays the effect of the districts certified by the
Commission.
42
Accordingly, we now turn to that question.
IV. If the proposed referendum qualifies, triggering a stay
of the Commission’s certified map, under which Senate
district map should the 2012 elections proceed?
A. Relevant case law
Petitioner emphasizes the interest that referendum proponents and petition signers
have in insisting on an “up or down” referendum vote by the statewide electorate before
the subject of that measure becomes effective. She acknowledges that 30 years ago in
Assembly v. Deukmejian, supra, 30 Cal.3d 638, this court held, by a four-to-three vote,
that redistricting maps that had been enacted by the Legislature and approved by the
Governor, but stayed by the qualification of a referendum challenging those maps, should
be used as an interim measure pending the electorate’s vote on that referendum.
Petitioner asserts we should not follow that course here, but should instead establish new
interim state Senate district boundaries by either (1) ordering use of the expired state
Senate map that the Legislature created in 2001 based on the 2000 census — a remedy
similar to the one adopted 40 years ago in Legislature v. Reinecke, supra, 6 Cal.3d 595 —
or (2) ordering use of one of two alternative state Senate redistricting maps (other than
the Commission-certified map) that petitioner has proposed. Indeed, petitioner suggests
that the amendments made by Propositions 11 and 20 to article XXI of the California
Constitution “vitiate” the main holding of Assembly v. Deukmejian with respect to the
permissibility of using a stayed map. In order to put petitioner’s argument into context,
we more fully describe the relevant past decisions of this court to which petitioner refers.
In Legislature v. Reinecke, supra, 6 Cal.3d 595, a Republican Governor vetoed
new state Senate, state Assembly, and congressional districts that had been passed by the
Democratic-controlled Legislature after the 1970 census, leaving in place only the old
voting districts that had been based upon the 1960 census. When the petition in Reinecke
was filed, this court did not have sufficient time to appoint special masters and establish
43
court-approved districts for use in the upcoming 1972 elections. Under those
circumstances, this court unanimously concluded that the new Legislature-passed state
Senate and Assembly districts that had been vetoed by the Governor should not be used
on an interim basis for the 1972 elections, and held instead that the old legislative
districts, which had been based on the prior census, should be used for the 1972 elections,
even though, due to population shifts, the old districts did not comply with the “one
person, one vote” principle embodied in the equal protection clause of the Fourteenth
Amendment. (Legislature v. Reinecke, supra, at pp. 601-602.) The court in Reinecke
expressed the view that under the circumstances presented, “it will be far less destructive
of the integrity of the electoral process to allow the existing legislative districts, imperfect
as they may be, to survive for an additional two years than for this court to accept, even
temporarily, plans that are at best truncated products of the legislative process.” (Id., at
p. 602.)26 With respect to congressional districts, however, the court held that the vetoed
map should be used, on an interim basis, in the upcoming elections.27
26 Thereafter, following the failure of the Legislature and Governor to agree on new
district lines in 1973, we appointed three special masters to recommend to the court new
district lines for the succeeding elections in 1974 through 1980, and we eventually
accepted and adopted those recommendations with minor adjustments. (Legislature v.
Reinecke, supra, 10 Cal.3d 396.)
27 The court explained: “There are . . . compelling considerations that impel us to
adopt as a temporary court plan, for the 1972 elections only, the bill passed by the
Legislature to reapportion the congressional districts. (Assembly Bill No. 16, 1971 First
Extraordinary Session.) Unlike the numbers of assemblymen and state senators, which
remain unchanged, the number of representatives in the United States House of
Representatives to which California is entitled increased following the 1970 census from
38 to 43. Accordingly, unless congressional districts are reapportioned, the offices of
five representatives will either have to be left unfilled or filled by statewide elections.
We cannot accept either alternative, for Congress has expressly provided that California
shall elect 43 representatives from 43 single member districts. We need only add that we
fully agree with the congressional mandate. It would be wholly unacceptable to avoid
statewide congressional elections by depriving the state of the representation of five
(Footnote continued on following page)
44
Ten years later, in Assembly v. Deukmejian, supra, 30 Cal.3d 638, the three
redistricting statutes at issue in that case (again, covering the state’s Senate, Assembly,
and congressional districts) had been passed by a Democratic-controlled Legislature and
signed by a Democratic Governor in mid-September 1981. A referendum signature drive
by the California Republican Party began the next day, challenging all three maps.
Shortly thereafter, legislators who supported the legislative reapportionment statutes and
who opposed the referendum filed a writ petition in this court, challenging the
Republican-sponsored referendum on various procedural grounds.28
Although petition signatures were gathered and submitted to election officials very
quickly and the Secretary of State was able to determine expeditiously that the
referendum had sufficient valid signatures to qualify for placement on the statewide
ballot,29 in light of the pending writ challenge to the referendum the Secretary of State
(Footnote continued from previous page)
congressmen to which it is entitled, but to conduct statewide elections to fill five
congressional seats in a state of California’s geographical size and large population
would not only tremendously increase the burdens and expenses of effective campaigning
but, by increasing the choices confronting the electorate from the candidates for one to
the candidates for six congressional seats, would seriously impede the casting of
informed ballots.” (Legislature v. Reinecke, supra, 6 Cal.3d at pp. 602-603, fn. omitted.)
28 Three issues ripe for preelection review were directly presented: (1) Because the
referendum petitions directed signers to use their “address as registered to vote,” rather
than their “residence address,” as required by the then-existing Elections Code, were the
petitions defective? (2) If defective, should the petitions be allowed to qualify for
placement of the referendum before the voters? (3) May the referendum process be used
to challenge reapportionment statutes? (See Assembly v. Deukmejian, supra, 30 Cal.3d at
p. 643.) A fourth issue subsequently arose after the referendum qualified and
approximately six weeks before the court filed its opinion: In light of the intervening
qualification of the referendum and the consequent automatic stay of the challenged
maps, under what maps should the upcoming election be conducted? (Id., at p. 644.)
29 Within only 60 days — 30 days fewer than the 90 days authorized for signature
gathering — the referendum proponents submitted their completed signature lists to the
(Footnote continued on following page)
45
announced that she had refrained from directing county clerks to place the referendum on
the June primary ballot, pending this court’s resolution of the writ challenge to the
referendum. The Secretary of State also directed that in the interim, county election
officials should proceed on a dual track, preparing to use either the newly adopted maps
or the old maps from 1973 (see ante, fn. 26) for the June 1982 election.
This court in Assembly v. Deukmejian thus faced a timing problem: the June 1982
primary elections were only a few months away, and election officials needed lead time
to prepare ballots. In order to do so, they needed to know the district boundaries. The
prior boundaries had become outdated and unconstitutional — because of population
shifts, they violated “one person, one vote” requirements. The new boundaries, however,
had been stayed by operation of law by the “duly qualified” referendum. (Assembly v.
Deukmejian, supra, 30 Cal.3d at pp. 654-657.)
As already noted, ultimately, in a four-to-three decision, this court decided that the
new boundaries should be used as an interim measure for the June 1982 primary election
and for the subsequent November 1982 general election. The majority concluded that use
(Footnote continued from previous page)
Secretary of State. Approximately 30 days later, after reviewing the signatures, the
Secretary of State announced that the referendum was duly qualified for placement before
the voters on the statewide ballot. (Assembly v. Deukmejian, supra, 30 Cal.3d at p. 645.)
Prior statutes in place at the time of Assembly v. Deukmejian provided shorter time lines
for the required signature verification at each stage of that process. (Compare current
Elec. Code, §§ 9030 & 9031 [allowing county election officials eight business days for
counting of raw signatures, 30 business days for random sampling of 3 percent of raw
signatures, and 30 business days for verifying all signatures by a full count] with former
Elec. Code, §§ 3520 & 3521 (as amended by Stats. 1980, ch. 1287, §§ 11.3 & 11.4,
pp. 4358-4360) [allowing county election officials five business days for raw counting,
15 calendar days for random sampling of 5 percent of raw signatures, and 30 calendar
days for verifying all signatures by a full count].) The longer timing schedules of the
current statutes, combined with the mid-August deadline for certification by the
Commission, exacerbate the time crunch we face now.
46
of the new, albeit challenged maps, which were based on then-current 1980 census data,
“more nearly comports with the requirements of the federal and state equal protection
clauses and is least disruptive of the electoral process” in view of the limited options and
time constraints. (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 665-666.) The court
also reasoned that permitting the voice of 5 percent of the electorate who had signed the
referendum petition “to delay implementation of a constitutionally required
reapportionment plan for two to four years” would “perpetrate a potentially grave
injustice on the majority of the people of this state” (id., at p. 670): “Although the
Constitution of our state grants the power to initiate a referendum to 5 percent of the
voters, it does not require that the effect of that referendum be articulated in a manner
that does such serious injury to conflicting and equally compelling constitutional
mandates.” (Ibid.)
The three dissenting justices in Assembly v. Deukmejian argued that although it
would be proper to apply the new boundaries with respect to congressional elections
(because the number of California seats had increased by two, and there would be no
valid way to elect the new number of congresspersons without using the new boundaries),
the court should abide by its 1972 decision in Legislature v. Reinecke, 6 Cal.3d 595, and
use the decade-old boundaries for state Senate and Assembly elections despite the federal
constitutional flaws concerning those old boundaries. (Assembly v. Deukmejian, supra,
30 Cal.3d at pp. 679-694.) Justice Richardson, speaking also for Justices Mosk and
Kaus, argued that the majority’s decision to employ the stayed map “can only be
perceived as an official alignment of the court with one side in a partisan dispute as to
which we should remain scrupulously neutral.” (Id., at p. 680.) Justice Mosk, writing
separately, deplored the majority’s having become “entangled in the ‘political thicket’ by
ignoring their obligation of neutrality on a partisan issue, a neutrality that can be
47
observed only by maintenance of the status quo in legislative districting until the people
speak [on the referendum] at the forthcoming election.” (Id., at p. 693.)30
Quoting from the dissenting opinions in Assembly v. Deukmejian, supra, 30 Cal.3d
at pages 679 and 693, petitioner asserts that the court faces now, and should avoid, a
similar “political thicket.” She argues that “the political situation [today] is analogous to
1981. Republicans have sponsored and funded the [proposed] referendum against the
Commission’s Senate map plan.” She alludes to speculation that “the Commission may
have ‘delivered a two thirds majority in the Senate’ to Democrats,” and states that
“Republicans have been dissatisfied with the Commission’s Senate lines for these
reasons.”31 Further, petitioner relies upon the majority opinion’s conclusion in
Legislature v. Reinecke, supra, 6 Cal.3d at page 602, that, on the facts there presented, “it
will be far less destructive of the integrity of the electoral process to allow the existing
legislative districts, imperfect as they may be, to survive for an additional two years than
for this court to accept, even temporarily, plans that are at best truncated products of the
legislative process.” (Italics added.) Petitioner thus argues that the “Commission’s
30 In June 1982, the people, voting by referendum, rejected the Legislature’s
redistricting map. (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 667.) Thereafter,
“Democratic legislators rushed to redraw the lines, passing a compromise plan before
lame duck Democratic Gov. Jerry Brown had left office and his Republican successor
George Deukmejian could be sworn in. The plan was generous enough to Republicans to
garner a two-thirds vote in each house, allowing it to go into effect swiftly and avoid
another referendum [citation]. Those lines stayed in place for the remainder of the
decade.” (Kogan & McGhee, Redistricting California: An Evaluation of the Citizens
Commission Final Plans, 4 California Journal of Politics and Policy ___ (forthcoming
Jan. 2012; available via Google Scholar at
, p. 4 [as of Jan. 27, 2012].)
31 Petitioner elaborates on these statements in her reply brief. She asserts: “Media
commentators all have noted that the Commission’s maps favored Democrats. Many
signers, alarmed about the state of California’s economy, may have signed to better
prevent the prospect of a safe, two-thirds majority in the State Senate to raise their taxes.”
48
Senate map is now part of a truncated process [in that] a [proposed] referendum has been
filed against it.” She asserts that, in the event the referendum petition eventually is
determined to be supported by an adequate number of verified signatures, we should
order that the June and November 2012 state Senate elections proceed with alternative
interim maps other than the Commission’s certified map that is the subject of the
proposed referendum.
For two reasons, we do not find persuasive petitioner’s claim that the
circumstances in this case are comparable to the circumstances that were presented in
Legislature v. Reinecke, supra, 6 Cal.3d 595, and Assembly v. Deukmejian, supra, 30
Cal.3d 638.
First, the redistricting process here has not been “truncated” as it was by the
Governor’s veto in Legislature v. Reinecke. The constitutionally mandated procedure has
been completed by the Commission’s certification of a Senate map. If the referendum on
that map qualifies for the ballot, the effectiveness of the Commission’s product will be
stayed pending the referendum’s outcome, but qualification itself does not terminate or
reverse the Commission’s redistricting process. As with the stayed product of legislative
redistricting in Assembly v. Deukmejian, supra, 30 Cal.3d at page 671, the certified
Senate map here has “never been rejected by any government entity” and the redistricting
process thus “has been lengthened but not terminated.”
Second, petitioner overlooks a crucial distinction between the redistricting process
as it existed at the time of those decisions and the redistricting process that is in effect in
California today. At those earlier times, voting districts were created by state legislators
and it was frequently charged that redistricting maps were commonly drawn on a partisan
basis to give maximum political advantage to the political party that enjoyed majority
control of the legislative branch. Given the difference between the origins of the stayed
maps at issue in the former cases and the Commission’s state Senate map, any criticism
49
of Assembly v. Deukmejian, as improperly intruding into the “political thicket” would
simply not apply to the present case.
As we have explained ante, the redistricting process in California has been
completely changed from the earlier process. Under California Constitution, article XXI,
redistricting is now performed by a Citizens Redistricting Commission, whose
membership and procedural requirements are carefully designed to ensure that
redistricting is undertaken on a nonpartisan basis. When a redistricting map adopted by
such a nonpartisan entity is challenged by a proposed referendum measure sponsored by
one political party, we believe it is unrealistic to maintain that a court should be viewed
as improperly intruding into the “political thicket” if it determines, after reviewing the
pros and cons of all viable alternative maps in relation to the constitutional scheme and
criteria, that the map devised by the nonpartisan Commission is the most appropriate one
to be used in an interim election. We also question petitioner’s suggestion that a court
should be viewed as properly avoiding the same political thicket if it were to decide that
the most appropriate map to be used in the interim election is one proposed by the
proponent of a referendum sponsored by one political party. 32
32 In addition, we note a further significant distinction between this case and
Assembly v. Deukmejian, supra, 30 Cal.3d 638. Use of the Commission’s districts for the
2012 elections would not carry with it another problem that was inherent in the situation
this court faced in Assembly v. Deukmejian. The use of the Legislature’s redistricting
maps for the interim elections in that case had the effect of giving an advantage to that
party not only to elect legislators in the interim year elections, but also permitted the
legislators thus elected from those districts to adopt new redistricting maps that would be
needed if the first legislative districts were rejected by the voters in the referendum
election (as ultimately occurred — see ante, fn. 30). Thus, the decision to use the
legislatively devised districts in Assembly v. Deukmejian had a direct effect upon the
districts that were in use in California for the entire decade, and did not affect only the
interim year’s elections.
In the present case, by contrast, if the proposed referendum qualifies for the ballot
and the voters reject the Commission’s districts at the upcoming November 2012
(Footnote continued on following page)
50
Furthermore, contrary to petitioner’s assertion, we do not believe that respect for
the constitutionally based referendum power requires that a court, faced with the question
of which voting district map should be used for an interim election, must exclude from its
consideration a redistricting map that has been stayed by qualification of a referendum.
(See Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 658-660.) A referendum’s
qualification for the ballot is given full respect by recognizing that the qualification stays
the operative effect of the redistricting map that otherwise would lawfully govern the
upcoming election in the absence of the referendum, and requires this court to determine
what districts to use in the interim elections. The stay of the challenged redistricting
map, however, does not necessarily or logically restrict this court’s authority and
responsibility to consider and evaluate on the merits all of the potential redistricting maps
that could be used in the upcoming interim elections to determine which map the court
should direct elections officials to implement for those elections.33
(Footnote continued from previous page)
election, the new districts would not be drawn by legislators elected from the very
districts that the voters have rejected. Rather, pursuant to California Constitution, article
XXI, section 2, subdivision (j), new districts would be established by this court with the
aid of special masters. For this reason, interim use of the Commission’s state Senate map
for the June and November 2012 elections would not produce the same type of long-term
adverse effect that the use of the partisan legislatively drawn districts had in Assembly v.
Deukmejian, supra, 30 Cal.3d 638.
33 As we have seen, even in Legislature v. Reinecke, supra, 6 Cal.3d 595, this court,
while declining to adopt on an interim basis the new state Senate and Assembly districts
that had been passed by the Legislature but vetoed by the Governor, recognized that it
possessed the authority to adopt on an interim basis the new congressional districts that
had been passed by the Legislature, even though the Governor had also vetoed the new
congressional redistricting map. In like manner, the fact that qualification of a
referendum operates to stay the effect of a Commission-certified map does not limit this
court’s authority to consider the merits of that map along with other alternatives in
determining what districts should be utilized at the elections that are to be held before the
referendum is voted upon.
(Footnote continued on following page)
51
In sum, in light of the fundamental change in the redistricting process in
California, we conclude that it would not be appropriate for this court to, in effect, adopt
a presumption against the use of a Commission-certified map as an interim measure in
the event the Commission-certified map is stayed by the qualification of a referendum
petition. Instead, we believe it is most appropriate to fairly evaluate the pros and cons of
all the potential alternative redistricting maps in relation to the constitutional scheme and
criteria in order to determine which should be used in the upcoming elections if the
proposed referendum qualifies for the ballot.
B. Potential interim maps
In so reviewing the pros and cons of each of the redistricting maps that have been
proposed for use on an interim basis in the event the proposed referendum qualifies for
the ballot, we begin with the three alternative maps proposed by petitioner, and then
consider the Commission-certified map.
(Footnote continued from previous page)
Indeed, petitioner’s alternative proposals regarding the relief that she requests this
court provide implicitly acknowledge that the qualification of the proposed referendum
and resultant stay of the Commission-certified state Senate district map would not
deprive this court of the authority to adopt interim state Senate districts that differ from
those embodied in the preexisting 2001 redistricting map. In fact, under one of
petitioner’s proposed alternatives — the “nesting” map described below — this court, in
fashioning Senate districts for use in the interim elections, would utilize without change
the new state Assembly districts that were created and certified by the Commission and
thus adopt a map that includes at least several state Senate districts that precisely mirror
the Senate districts contained in the Commission-certified map.
52
1. Use of the “old map” adopted by the Legislature in 2001 based
on the 2000 census
The first alternative proposed by petitioner is to follow the approach of Legislature
v. Reinecke, supra, 6 Cal.3d 595, and use the outdated state Senate district map that was
formulated by the Legislature in 2001, based on the 2000 census.
The most obvious problem with the 2001 map concerns the principle of “one
person, one vote,” under both the federal equal protection clause (as construed in, e.g.,
Reynolds v. Sims (1964) 377 U.S. 533) and under California Constitution, article XXI,
section 2, subdivision (d)(1). As noted earlier, article XXI, section 2, subdivision (d)(1)
lists as the first order of priority for redistricting that “[d]istricts shall comply with the
United States Constitution. Congressional districts shall achieve population equality as
nearly as is practicable, and Senatorial, Assembly, and State Board of Equalization
districts shall have reasonably equal population with other districts for the same office,
except where deviation is required to comply with the federal Voting Rights Act or
allowable by law.” (Italics added.)
The United States Supreme Court has explained that with regard to legislatively
enacted reapportionment, “ ‘[m]inor deviations from mathematical equality among state
legislative districts are insufficient to make out a prima facie case of invidious
discrimination under the Fourteenth Amendment so as to require justification by the
State. Our decisions have established, as a general matter, that an apportionment plan
with a maximum population deviation under 10 [percent] falls within this category of
minor deviations. A plan with larger disparities in population, however, creates a prima
facie case of discrimination and therefore must be justified by the State.’ ” (Voinovich v.
Quilter (1993) 507 U.S. 146, 161, quoting Brown v. Thomson (1983) 462 U.S. 835, 842-
843.) Although the high court has not identified an upper limit of deviation that simply
cannot be justified, one of the court’s decisions suggested that the outer limits might be
reached if the deviation exceeded 16.4 percent. (Mahan v. Howell (1973) 410 U.S. 315,
53
329 [stating that a 16.4 percent deviation “may well approach tolerable limits”]; see also
Brown v. Thomson, supra, at pp. 849-850 (conc. opn. of O’Connor, J.) [noting the Mahan
court’s statement that a 16.4 percent deviation may approach the maximum that is
permissible]; Daly v. Hunt (4th Cir. 1996) 93 F.3d 1212, 1218 [same].)34
Court-ordered reapportionment, contrasted with legislatively enacted
reapportionment, is subject to even stricter standards, and “ ‘must ordinarily achieve the
goal of population equality with little more than de minimis variation.’ ” (Connor v.
Finch (1977) 431 U.S. 407, 417; see also Perry v. Perez (2012) 565 U.S. ___, ___ & fn. 2
[2012 WL 162610, 2012 U.S. Lexis 908] [de minimus standard applies to court-drawn
maps responding to challenged portions of state maps]; Abrams v. Johnson (1997) 521
U.S. 74, 98.) As explained post, the disparities would not be de minimis if we were to
order interim use of the Legislature’s 2001 map.
Petitioner observes that some of the deviations considered by this court in
Assembly v. Deukmejian, supra, 30 Cal.3d 638, were higher than the deviations that
would be created now, if this court were to order interim use of the Legislature’s 2001
map that was crafted in light of the 2000 census.35 According to petitioner: “In the case
34 Petitioner, in her reply brief, cites Brown v. Thomson, supra, 462 U.S. 835, as an
example of a case in which the high court accepted a much larger deviation. (See id., at
pp. 839, 846 (lead opn. of Powell, J.) [referring to a 16 percent average deviation and an
89 percent maximum deviation].) In that case, however, the state’s overall redistricting
was not at issue (id. at p. 846); rather, the challenge was limited to a single district that,
because of its status as a county, was accorded a representative despite its small size. The
limited scope of the decision also was recognized by the two concurring justices (id., at
p. 849 (conc. opn. of O’Connor, J.)), and the four dissenting justices agreed that the
court’s holding was “extraordinarily narrow.” (Id., at p. 850 (dis. opn. of Brennan, J.).)
35 For example, in Assembly v. Deukmejian, we observed: “According to figures
supplied by real parties, the current population of the old 76th Assembly District
(530,643) is 236 percent of the population of the old 16th Assembly District (224,488).
The vote of a resident of the former 16th District would, therefore, be worth more than
twice that of a resident of the former 76th District. Compared to the current ideal district
(Footnote continued on following page)
54
of the odd-numbered Senate districts that come up for election in 2012, the percent
deviation from largest to smallest is 38.7 percent; the [most populous] district, Senate
District 37, is over [the ideal population size] by 284,528 people, 30.5 percent, while the
[least populous] district, Senate District 21, is under by 76,335, 8.2 percent.”36 Petitioner
asserts that “[s]eventeen of the odd numbered districts are within 10 percent of the norm,
and eight deviate by less than five percent. Only three deviate by more than 10
percent.”37 Petitioner maintains that “the population deviations are not nearly as great as
they were in [1982] when the Court declined to follow its Reinecke decision.”
(Footnote continued from previous page)
size, the old 76th District is 79.4 percent greater than the ideal, while the old 16th District
is 24.1 percent less than the ideal. The total deviation between the two districts is 103.5
percent.
“Overall, 2 of the old Assembly districts vary by more than 50 percent from the
ideal population size of 295,857; 2 vary by 30 to 50 percent from the ideal size; and 48 of
the 80 districts vary by 10 to 30 percent from the ideal. Only 28 of the districts are within
10 percent of the ideal district size.
“In the Senate, old Senate District 5 now contains 458,587 people, 22.5 percent
less than the ideal number, while old Senate District 38 contains 904,725 people, 52.9
percent more than the ideal. Thus, the vote of a resident of former District 5 would be
worth almost twice that of a resident of former District 38. The total deviation between
the two districts is 75.4 percent. Real parties’ figures show that the population of one old
Senate district is more than 50 percent greater than the ideal; another is 41 percent greater
than the ideal; 19 vary by 10 to 30 percent from the ideal; and 19 are within 10 percent of
the ideal population size.” (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 666-667.)
36 In light of our conclusion that this proposed alternative should not be adopted even
under petitioner’s suggested analysis, we need not and do not determine whether it is
appropriate to evaluate population deviations only in the odd-numbered state Senate
districts rather than the deviation in all of the Senate districts.
37 Petitioner concedes that in addition to old Senate District No. 37, which as noted
currently is over the ideal population size by 284,528 people, or 30.5 percent, according
to petitioner, old Senate District No. 17 currently is over the ideal population size by
166,798 people, or 17.9 percent, and old Senate District No. 5, currently is over the ideal
population size by 101,265 people, or 10.9 percent.
55
The Commission asserts that the relevant deviation, as we described it in Assembly
v. Deukmejian, supra, 30 Cal.3d at page 667, is to be measured “between the largest and
smallest districts” — and not from the “ideal” Senate district population.38 The
Commission argues that the calculations of petitioner’s consultant (submitted to us in the
declarations of Dr. T. Anthony Quinn, in support of the petition) improperly “ignore the
relevant population deviation among the 2001 districts from the ‘ideal’ population of a
Senate district,” and that correctly understood, “19 out of 20 of the odd-numbered Senate
districts deviate by more than 16.4 [percent] and are thus patently unconstitutional.”
Moreover, the Commission asserts that “even using [petitioner’s] incorrect frame of
reference (deviation from the ‘ideal,’ rather than comparison to other 2001 districts),
[petitioner] concedes that three districts are unconstitutional.”
In this regard, and as the Commission observed in its preliminary opposition brief
(in which it implicitly accepted for purposes of analysis petitioner’s frame of reference —
deviation from the “ideal,” rather than comparison to other 2001 districts), petitioner’s
own consultant’s summary shows that three 2001 Senate districts, if imposed by this
court, would be constitutionally suspect, as deviating excessively from the ideal. (See
ante, fn. 37.) The Commission asserts in that opposition brief that under petitioner’s own
analysis, Senate Districts Nos. 17 and 37 would be “patently unconstitutional —
deviating by 17.9 [percent] and 30.5 [percent] respectively.” We conclude that such
results would raise serious constitutional questions in light of the court’s obligation, in
adopting an alternative interim map, to avoid any but de minimis deviations. (See
Abrams v. Johnson, supra, 521 U.S. at p. 98.)
Petitioner’s consultant, Dr. T. Anthony Quinn, in a supplemental declaration filed
December 7, 2011, asserts there is a ready fix: “This situation is easily resolved. The
38 Petitioner’s reply brief does not respond to this point.
56
Court could simply order that these three districts be reduced in size so that the districts
electing in 2012 are within the 10 percent deviation range. Petitioner would be very
happy to suggest to the court areas to be removed from the existing districts and the
Secretary of State could instruct the counties to conduct the 2012 election only in the
remaining portions.”
Petitioner’s suggestion that the 2001 lines for three Senate districts could be easily
“revised’ is highly questionable. As the Commission observes, “[f]or example, 2001
Senate district 37 in Riverside County now has a population of 1,215,876. (MacDonald
Decl. Ex. C.) To come within a 10 [percent] deviation of the least populated Senate
district (2001 district number 21), district 37 would need to shed 267,764 people. (Ibid.)
However, the districts immediately to 2001 district 37’s north (2001 districts 18 and 31)
and to its south (2001 district 40) are also overpopulated. (Ibid.) As a result, any ‘re-
drawing’ of 2001 districts would require the Court to reconfigure population clusters in
the greater Los Angeles area, which would be certain to produce population ripple-effects
throughout this densely packed region (if not through the entire state). [Citation to
Legislature v. Reinecke, supra, 10 Cal.3d at p. 403.] Moreover, re-drawing Los Angeles-
area districts would affect . . . Latino districts in Los Angeles [under section 2 of the
Voting Rights Act], causing unanticipated effects and likely violating [that act].”39
39 Congress enacted section 2 of the Voting Rights Act to combat minority vote
dilution. Section 2 prohibits the imposition or application of any “voting qualification,”
“prerequisite to voting” or “standard, practice, or procedure,” which results in the “denial
or abridgement of the right of any citizen . . . to vote on account of race or color,” or on
account of minority language status. (42 U.S.C. § 1973(a).) The test for determining
whether an electoral practice results in a denial or abridgment of the right to vote is set
forth in subdivision (b) of section 2 of the act. In order to prevail, a plaintiff must be able
to demonstrate that, “based on the totality of circumstances, . . . the political processes
leading to nomination or election in the State or political subdivision are not equally open
to participation by members of a [racial or language minority],” in that members of those
protected classes “have less opportunity than other members of the electorate to
(Footnote continued on following page)
57
By comparison, the Commission explained in its Final Report that it “strive[d] for
a total population deviation of zero” and “would allow no more than a 2.0 [percent] total
deviation except where further deviation would be required to comply with the federal
Voting Rights Act or allowable by law.” (Final Rep., at pp. 11-12.)40 The Commission’s
(Footnote continued from previous page)
participate in the political process and to elect representatives of their choice.” (42
U.S.C. § 1973(b).) (See generally Wilson v. Eu, supra, 1 Cal.4th at pp. 744-749
[discussing relevant “section 2” and United States Supreme Court authority]; Final Rep.,
at pp. 13-16 [same].)
40 The Commission’s Final Report, at page 10, observed that as originally enacted in
1980, article XXI of the California Constitution “mirrored the special masters’ standard
from the 1970s [see Legislature v. Reinecke, supra, 10 Cal.3d 396, 411, which aimed for
districts within 1 percent of the ideal and in no event deviating more than 2 percent] and
required that ‘the population of all districts of a particular type shall be reasonably
equal.’ (Wilson v. Eu (1992) 1 Cal.4th 707, 753 . . . , italics added.)” The Final Report
continues:
“The Attorney General had interpreted that language ‘as incorporating the more
restrictive population requirements contained in [Reinecke] that the “population of senate
and assembly districts should be within 1 percent of the ideal except in unusual
circumstances, and in no event should a deviation greater than 2 percent be permitted.” ’
(Ibid., quoting Reinecke, supra, 10 Cal.3d at p. 411.) Accordingly, the special masters in
the 1990s expressly complied with that stricter deviation limit, while acknowledging that
they had selected a maximum deviation that may have been even more stringent than the
California Constitution required. (Wilson, supra, 1 Cal.4th at p. 753.) The California
Supreme Court approved the masters’ plans without explicitly ruling on the maximum
deviation permitted under the California Constitution. (See id. at p. 719.)
“Proposition 11 and Proposition 20 amended the population-equality language in
California’s Constitution to state that ‘Senatorial, Assembly, and State Board of
Equalization districts shall have reasonably equal population with other districts for the
same office, except where deviation is required to comply with federal Voting Rights Act
or allowable by law.’ (Cal. Const., art. XXI, § (2), subd. (d)(1), amended by initiative,
Gen. Elec. (Nov. [2,] 2010), italics added.)
“No court has interpreted the population-equality language in Propositions 11
or 20. Accordingly, no court has decided whether, or how, the addition of the phrase
‘except where deviation is required to comply with the federal Voting Rights Act or
allowable by law’ to ‘reasonably equal population,’ may alter the total deviation allowed
under the California Constitution.” (Final Rep., at p. 10.)
58
certified Senate map’s maximum total deviation between districts is only 1.98 percent.
(Final Rep., appen. 3, table 1, Senate Districts.)
Petitioner’s proposal to use the Legislature’s outdated 2001 map suffers from
another substantial problem. As noted ante in part II.C., California Constitution,
article XXI, section 2, subdivision (d), as amended in 2008 and 2010, sets out six
prioritized criteria: compliance with (1) the United States Constitution (the equal
protection clause and “one person, one vote” principles) and (2) the federal Voting Rights
Act; (3) geographical contiguity; (4) respect for the “geographic integrity of any city,
county, city and county, local neighborhood, or local community of interest . . . to the
extent possible”; (5) encouraging geographical compactness, to the extent practicable;
and (6) “[t]o 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 . . . .” As observed earlier, some but not all of these six redistricting
criteria currently set out in article XXI, section 2, subdivision (d), also were set out as
relevant standards for the Legislature’s consideration in the prior version of article XXI
that was in effect at the time the Legislature created the 2001 old maps based on the 2000
census. But not all of the criteria set out in the recent amendments to article XXI were
previously articulated, nor were any of the factors previously expressly prioritized; the
Legislature, when crafting the prior maps in 2001, was not required to apply the criteria
pursuant to the rank ordering that controls today.41 Petitioner has made no attempt to
41 Until amended by Proposition 11 in 2008 and Proposition 20 in 2010, California
Constitution, former article XXI, as adopted in 1980, read as follows: “In the year
following the year in which the national census is taken under the direction of Congress
at the beginning of each decade, the Legislature shall adjust the boundary lines of the
Senatorial, Assembly, Congressional, and Board of Equalization districts in conformance
with the following standards:
“(a) Each member of the Senate, Assembly, Congress, and the Board of
Equalization shall be elected from a single-member district.
(Footnote continued on following page)
59
address in what ways the Legislature’s old 2001 Senate map based on the 2000 census
comports with these prioritized criteria given population changes during the last decade.
We conclude that, insofar as this alternative map is concerned, petitioner has provided us
with no basis upon which we can conclude that it respects the constitutionally specified
criteria at least as much as any other of the other proposed maps, including the
Commission’s certified state Senate map.
Finally, in an additional significant respect the 2001 Senate district map appears
legally suspect. As discussed ante, article XXI, section 2, subdivision (e) provides that
“[d]istricts shall not be drawn for the purpose of favoring or discriminating against an
incumbent, political candidate, or political party.” The Legislature’s 2001 redistricting
map has been widely perceived as specifically designed to protect incumbent legislators
of both major political parties and as serving that purpose well over the decade in which
the redistricting map was in effect. (See, e.g., Center for Governmental Studies,
Redistricting Reform in California: Proposition 11 on the November 2008 California
Ballot (2008) p. 12 [noting that in 2001 the Legislature drew district lines “that favor the
re-election of incumbents from both parties” and that “[a]s a result, only one seat has
changed parties due to competition, and only one incumbent has lost in the 459
legislative and Congressional general election races held this decade” (fn. omitted)];
Block, Partisan Reapportionment (2003) 34 Cal. Journal 21; Plendl, Are the voters dissed
(Footnote continued from previous page)
“(b) The population of all districts of a particular type shall be reasonably equal.
“(c) Every district shall be contiguous.
“(d) Districts of each type shall be numbered consecutively commencing at the
northern boundary of the State and ending at the southern boundary.
“(e) The geographical integrity of any city, county, or city and county, or of any
geographical region shall be respected to the extent possible without violating the
requirements of any other subdivision of this section.”
60
by redistricting? (2002) 33 Cal. Journal 12.)42 By contrast, academic observers have
concluded that the Commission’s maps, including the certified state Senate map,
“represent[] an important improvement on the legislature-led redistricting of 2001. The
new district boundaries kept more communities together and created more compact
districts while at the same time increasing opportunities for minority representation. . . .
[T]hese maps . . . have the potential to modestly increase competition in California
elections and the responsiveness of the legislative branch to changing voter preferences.”
(Kogan & McGhee, Redistricting California: An Evaluation of the Citizens Commission
Final Plans, supra, 4 Cal. Journal of Politics and Policy ___ (forthcoming Jan. 2012;
available via Google Scholar at , pp. 32-33 [as of Jan. 27, 2012].)
It was partly in reaction to the Legislature’s 2001 maps that the Commission was
created and charged with drawing district lines. (See Voter Information Guide, General
Elec. (Nov. 4, 2008) text of Prop. 11, § 2, subd. (b) [noting that “[u]nder current law,
California legislators draw their own political districts” and that, as a result, “99 percent
of incumbent politicians were reelected in the districts they had drawn for themselves in
the recent elections”]; Voter Information Guide, General Elec. (Nov. 2, 2010), Argument
in Favor of Prop. 20 [asserting that “in the last redistricting” politicians paid a consultant
to draw district boundaries “to guarantee their reelection”].) In our view, it would
contravene the intent of the new redistricting regime of article XXI of the California
Constitution if this court were to order the use of old state Senate districts that were
perceived as designed for purposes no longer permissible.
42 See also McGhee, Redistricting and Legislative Partisanship (2008) Public Policy
Institute of California, p. 1; Quinn, CA: The Bipartisan Redistricting: How It Happened
(Oct. 2001) vol. 5, No. 8, Cal-Tax Digest (as of Jan. 27, 2012).
61
2. Petitioner’s proposed “nesting” map
Petitioner’s second proposed alternative is to create new state Senate districts by
combining two adjacent state Assembly districts, of which there are 80, into single Senate
districts, of which there are 40. Petitioner refers to this as her “simple nesting plan.”
As noted, California Constitution, article XXI, section 2, subdivision (d) sets forth
six prioritized criteria, the last of which is: “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 . . . .” (Italics added.)
Petitioner does not explain how her nesting proposal can be reconciled with article
XXI’s rank ordering of criteria. As the Commission explained in its Final Report,
although it attempted to nest Assembly districts in Senate districts “[t]o the extent
practicable” and when “not in conflict with the other” higher-prioritized criteria, in
practice the Commission, balancing those other criteria, was able to fully achieve the
nesting goal in only three of the 40 Senate districts. (See Final Rep., appen. 5.)43 As the
Commission describes in its brief: In order “to minimize city and county splits (a higher-
order criteria than nesting), the Commission created certain Senate districts from
‘blended’ Assembly districts” so as to “avoid repeating city and county splits that were
unavoidable at the Assembly level.” As the Commission further explains, it “also
blended Assembly districts to respect communities of interest ‘where more than two
Assembly districts had common interests or geographical characteristics that were
common to a single Senate district.’ ” (See Final Rep., at p. 42.)
43 In addition to three districts that achieved 100 percent nesting, three others
achieved nesting of at least 99 percent of the district’s population. The two least-nested
districts achieved that goal with respect to approximately 65 to 66 percent of the district’s
population. (Final Rep., appen. 5.)
62
In contrast to the Commission-certified state Senate map, petitioner’s nesting
proposal would require this court to adopt nesting, the lowest valued criterion, as the
controlling criterion, without regard to, and at the expense of, several other higher value
criteria.
First, petitioner’s nesting proposal appears to conflict with criterion (2) of article
XXI, section 2, subdivision (d) — compliance with the federal Voting Rights Act. Under
section 5 of that Act,44 before a state may implement any voting-related change that will
affect a “covered jurisdiction,” the state must seek either judicial or administrative
approval of the change to ensure that it does not have the purpose or effect of denying or
44 Section 5 of the Voting Rights Act requires that before certain “covered
jurisdictions” may implement any change in a voting qualification, a prerequisite to
voting, or a standard, practice, or procedure with respect to voting (a voting-related
change), the state must seek judicial or administrative approval of the voting-related
change to ensure that it does not have the purpose or effect of denying or abridging the
right to vote on account of race, color, or language minority. (42 U.S.C. § 1973c(a).)
Section 5 of the Voting Rights Act applies to only four California counties: Kings,
Merced, Monterey, and Yuba. (Wilson v. Eu, supra, 1 Cal.4th at p. 746.) Thus, section 5
applies to statewide changes to California’s voting practices and procedures only to the
extent that those changes affect these covered counties. (Lopez v. Monterey County
(1999) 525 U.S. 266, 280-281; see generally Wilson v. Eu, supra, at pp. 745-746; Final
Rep., at pp. 21-23.)
The process of obtaining judicial or administrative approval for a voting-related
change that affects a covered county is called “preclearance.” A state may seek
preclearance either from the Attorney General of the United States (Department of
Justice) or from the United States District Court for the District of Columbia, and until a
state obtains preclearance for a voting-related change that affects a covered county, the
voting-related change is unenforceable. (42 U.S.C. § 1973c(a); see, e.g., Perry v. Perez,
supra, 565 U.S. ___ [2012 WL 162610, 2012 U.S. Lexis 908].) Because the
Commission’s four certified maps constitute voting-related changes that will affect the
covered counties, on November 15, 2011, the California Attorney General submitted the
Commission’s maps to the Department of Justice. (The 44-page preclearance
submission, along with all other Commission documentation, is available on the
Commission’s Web site, [as of Jan. 27, 2012].) On
January 17, 2012, the Department of Justice approved use of the maps.
63
abridging the right to vote on account of race, color, or language minority. (42 U.S.C.
§ 1973c(a).) As observed ante, footnote 44, section 5 of the Voting Rights Act applies to
only four California counties: Kings, Merced, Monterey, and Yuba. A redistricting map
will have the “effect” of “denying or abridging the right to vote” if it “lead[s] to a
retrogression in the position of racial [or language] minorities with respect to their
effective exercise of the electoral franchise.” (Beer v. United States (1976) 425 U.S. 130,
141 (Beer); see also Riley v. Kennedy (2008) 553 U.S. 406, 412; Wilson v. Eu, supra,1 Cal.4th at p. 746.)
“Retrogression, by definition, requires a comparison of a jurisdiction’s new voting
plan with its existing plan. [Citation.] It also necessarily implies that the jurisdiction’s
existing plan is the benchmark against which the ‘effect’ of voting changes is measured.”
(Reno v. Bossier Parish School Bd. (1997) 520 U.S. 471, 478.) Accordingly, newly
drawn districts that improve or maintain the voting rights of minority groups satisfy
section 5. (Beer, supra, 425 U.S. at p. 141; see also City of Lockhart v. United States
(1983) 460 U.S. 125, 134 [finding city’s map was entitled to preclearance because it did
not “increase the degree of discrimination” against the city’s Mexican-American
population]; Wilson v. Eu, supra, 1 Cal.4th at p. 746.) By contrast, newly drawn (or in
this case proposed alternative) districts that “retrogress” the voting rights of minority
groups would violate section 5.
Petitioner’s consultant, Dr. T. Anthony Quinn, asserts that under petitioner’s
nesting proposal, the sole section 5-covered jurisdiction that would be impacted is
Monterey County, through petitioner’s proposed “nested” Senate Districts Nos. 13
and 15. The Commission asserts that petitioner “fails to address, however, that [these]
proposed Senate districts 13 and 15 fall far below the 2001 benchmark levels and thus
violate Section 5: [Petitioner’s] proposed district 13 [a combination of certified
Assembly Districts Nos. 28 and 29], covering north Monterey County, falls from the
2001 benchmark of 26.22 [percent] Latino Voter Age Population (‘LVAP’) to 17.66
64
[percent] LVAP. Similarly, [petitioner’s] proposed Senate district 15 [a combination of
certified Assembly Districts Nos. 27 and 30], reduces the benchmark for South Monterey
from 53.48 [percent] LVAP to 51.31 [percent] LVAP.” The Commission asserts that
“[n]either result is permissible under Section 5 of the Voting Rights Act.”
In a second way, petitioner’s nesting proposal would appear to exalt nesting over
yet other higher-ranked criteria, set forth in California Constitution, article XXI,
section 2, subdivision (d)(4). That subdivision requires a redistricting map to respect the
“geographic integrity of any city, county, city and county, local neighborhood, or local
community of interest . . . in a manner that minimizes their division to the extent possible
without violating the requirements of any of the preceding subdivisions.” Petitioner’s
map would result in five more splits of cities and counties compared with the
Commission’s certified map,45 and also would split more “local communities of interest.”
For example, as the Commission observes: Certified “Senate district 1 was created in
part to keep intact the Lake Tahoe basin, in light of overwhelming public support for
keeping that community of interest together. See, e.g., El Dorado County Bd. of
Supervisors Resolution No. 82-2011, submitted [to the Commission] June 28, 2011.)[46]
Ignoring this public input, [petitioner’s] proposed nesting plan splits Lake Tahoe between
her proposed districts 1 and 4.”47
45 As the Commission observes — and petitioner does not contest — the
Commission’s certified Senate map splits “20 cities and 11 counties (excluding zero-
population splits and cities or counties with populations greater than 931,349, the ideal
2010 [S]enate district population), for reasons explained in the Final Report [at p. 42].
[Petitioner’s] nesting map, by contrast, splits 22 cities and 14 counties.”
46 Like all other matters submitted to the Commission, this resolution is posted on
the Commission’s Web site, (as of Jan. 27, 2012).
47 In another way, petitioner’s nesting proposal, and specifically her proposed state
Senate Districts Nos. 1 and 3, appears to violate article XXI, section 2 of the California
Constitution. As noted earlier, subdivision (f) provides that districts “shall be numbered
(Footnote continued on following page)
65
In addition to subordinating higher-ranked constitutional criteria, the Commission
argues, the nesting proposal also would increase dramatically the number of “deferred”
voters — those voters residing in 2001 districts that who did not vote for a state senator
in 2010 and who thus ideally would be placed in new districts that are scheduled to vote
for a state senator in 2012 but who are instead placed in districts that would not vote for a
state senator until 2014 — and would inevitably “double-defer” some voters.48 The
Commission points out that its own certified maps minimized the number of deferred
voters by employing three numbering alternatives. According to the Commission,
petitioner’s nesting proposal would result in deferrals for at least 4,592,350 voters, an
increase of 15.5 percent over the 3,972,984 voters who will be deferred under the
Commission’s maps.49
The Commission contends that petitioner’s nesting proposal also raises the specter
of “double-deferral” — individual voters who would be deferred in both 2012 and 2014
(Footnote continued from previous page)
consecutively commencing at the northern boundary of the State and ending at the
southern boundary.” Petitioner’s proposed nested state Senate District No. 1 does not
touch the state’s northern boundary, where petitioner would place her proposed nested
state Senate Districts Nos. 2 and 4, and indeed is located south of petitioner’s proposed
nested state Senate District No. 3, as well.
48 The Commission “agrees that some level of voter-deferral is inevitable in any
Senate redistricting plan, as voters move between ‘odd’ and ‘even’ numbered districts.”
Nevertheless, the Commission asserts, the number of deferred voters is an important
consideration when considering alternative interim plans.
49 Based on analysis of the exhibits appended to the declaration of Karin
MacDonald, the Commission asserts that petitioner’s proposed nested Senate Districts
Nos. 33 and 34 “would create more deferrals by their numbering: [The] proposed
[nested] district 34 contains 529,759 residents from a 2001 odd-numbered district and
only 398,611 residents from a 2001 even-numbered district. [The] proposed [nested]
district 33, on the other hand, contains 513,062 residents from a 2011 even-numbered
district and 421,083 residents from a 2001 odd-numbered district.”
66
due to the implementation of another set of maps after the 2012 elections. In this regard,
the Commission explains, “[t]he worse-case scenario is not, as Petitioner casually asserts,
‘having the right to vote in an extra election,’ but rather being denied the right to vote in
both the 2012 and 2014 elections. [Citation.] These ill effects would not occur with the
Commission’s certified Senate districts, yet are virtually guaranteed under [petitioner’s]
nesting proposal.”
Finally, the Commission asserts, the prospect of double-deferral raises other
potential problems under section 2 of the Voting Rights Act (see ante, fn. 39), because
none of petitioner’s proposed nested districts with minority voting populations protected
by section 2 of that act (according to the Commission, proposed nested state Senate
Districts Nos. 24, 30, and 32) would vote for state senators in 2012.50 The Commission
concludes that as a result, under petitioner’s nesting proposal, “the brunt of double-
deferral will fall on voters of color who would be unable to vote for their senators of
choice in 2012 elections and could be further deferred under an as-yet determined set of
maps.” Given all this, the Commission comments, it is “not surprising that the
Commission considered and declined to draw completely nested Senate and Assembly
districts, in favor of compliance with Article XXI, section 2’s higher-order criteria.”
We conclude that, insofar as petitioner’s nesting map is concerned, she has
provided us with no basis upon which we can determine that it respects federal and state
law at least as much as any other of the proposed interim maps, including the
Commission’s certified state Senate map.
50 By contrast, the Commission asserts, under the Commission’s certified maps, state
Senate District No. 33 — “a . . . Section 2 district [under the Voting Rights Act] — will
elect State senators in 2012.”
67
3. Petitioner’s proposed “model plan”
As noted earlier, petitioner alternatively proposes that we adopt a wholly new
“model plan” — a map based on a proposal submitted by petitioner’s redistricting
consultant, Dr. T. Anthony Quinn.
The petition does not undertake to describe the model plan, except to say that it
would require the court to “redraw some but not all of the Senate Districts” and hence
unlike the prior two proposals discussed above, it “would require relatively more time” to
put into place. A November 22, 2011, declaration by Dr. Quinn, filed with the petition
on December 2, provides some elaboration: The model plan is the same one submitted
by petitioner in her September petition, Vandermost v. Bowen (Sept. 16, 2011, S196493),
challenging the legality of the Commission’s certified state Senate map. In that earlier
petition, the model plan was presented and offered as a starting point for use by special
masters whom petitioner asked us to appoint in order to recommend to this court a state
Senate map to replace the Commission’s certified Senate map. As noted, we denied the
prior writ petition on October 26, 2011. Dr. Quinn’s November 22 declaration states:
“Should the court appoint an expert or a Special Master to draft an interim Senate map,
I am prepared to present this map to the expert or master, and to provide all the necessary
computer files for the map.”
At this late stage in the schedule of election preparations, there simply does not
exist sufficient time to adequately consider such an undefined new map. We concluded
in October 2011 that there was no reason to appoint special masters or to further consider
petitioner’s proposed model plan, and, because it would be essentially impossible to
consider and implement any such map now, that conclusion is all the more apt today.
4. Interim proposal suggested by the Secretary of State and the Commission:
Use of the Commission’s certified state Senate map
The Secretary of State and the Commission each urge us to hold that even if the
Commission’s certified Senate map eventually is stayed by the qualification of the
68
proposed referendum, the Commission’s map should be employed for the 2012 elections
because it is preferable to any of the alternative maps in a number of respects. As
explained, for a number of reasons we conclude that the Commission-certified state
Senate map is the best of the alternative maps that have been proposed for use in the 2012
elections in the event the proposed referendum qualifies for the ballot.
As an initial matter, as noted ante, we reject the suggestion in petitioner’s brief
that should the Commission-certified state Senate map be stayed by qualification of the
proposed referendum, it would be impermissible for us to consider use of the
Commission’s state Senate map as an interim map for the 2012 elections. The majority
opinion in Assembly v. Deukmejian, supra, 30 Cal.3d 638, repeatedly observed that, as
decisions of the United States Supreme Court teach, a court in our situation has broad
authority to consider “any practical alternative . . . , including reapportionment plans
which are not yet in effect and which are scheduled to be submitted to the electorate.”
(Id., at p. 658, italics added; see also id., at p. 659 [“a court, in the exercise of its
equitable powers, may not only consider but also adopt reapportionment plans which are
not yet final within the framework of a state constitution. This is precisely the action
affirmed by the Supreme Court in Reynolds v. Sims, supra, 377 U.S. 533.”]; id. at p. 660
[“Given the breadth of a court’s equitable powers in reapportionment cases under federal
law, it is clear that this court may give consideration to the Legislature’s 1981
reapportionment plans, even though those plans are not yet in effect and are now
scheduled to be submitted to a popular vote.”].) Contrary to petitioner’s suggestion, there
is no indication in the text of Proposition 11 or Proposition 20, or the ballot materials
relating to those measures, that either measure was intended to, or did, “vitiate” Assembly
v. Deukmejian in this or any regard. Although we recognize, and take into account, that
if the proposed referendum qualifies for the ballot this would indicate the Commission-
certified state Senate district map has engendered a significant degree of opposition as
reflected by the number of individuals who signed the referendum petition, we must at
69
the same time recognize the reality that the public has not had a comparable opportunity
to scrutinize or express its opinion with regard to the merits of any of the alternative plans
proposed by petitioner.
Second, as the Secretary of State and the Commission point out, unlike any of the
other proposed maps, the Commission’s state Senate district map has survived
petitioner’s prior legal challenge in this court. As mentioned earlier, petitioner’s 126-
page petition, Vandermost v. Bowen (Sept. 11, 2011, S196493), presented myriad federal
and state statutory and constitutional challenges to the Commission’s certified state
Senate map. (See ante, fn. 7.) On October 26, 2011, after thorough consideration of all
the issues raised by petitioner, we determined that the petition lacked merit and denied
the requested writ. (See In re Rose (2000) 22 Cal.4th 430, 445 [“When the sole means of
review is a petition in this court . . . our denial of the petition — with or without
opinion — reflects a judicial determination on the merits.”].) We are aware of no basis
upon which to reasonably question the legality of the Commission’s certified state Senate
map. This clearly distinguishes the Commission-certified map from each of the
alternatives proposed by petitioner.
Third, and unlike the proffered alternatives, not only do the Commission-certified
Senate districts appear to comply with all of the constitutionally mandated criteria set
forth in California Constitution, article XXI, the Commission-certified Senate districts
also are a product of what generally appears to have been an open, transparent and
nonpartisan redistricting process as called for by the current provisions of article XXI.
We believe these features may properly be viewed as an element favoring use of the
Commission-certified map.
On the other hand, we emphasize that our decision does not mean that we
invariably will conclude that the Commission’s certified map or maps always should be
used on an interim basis in circumstances similar to the setting we address today. In
some instances, for example, the Commission may draft and consider a number of
70
differently configured district maps and, after public comment, may make a controversial
judgment with regard to which map to adopt and certify. If the controversy engenders a
referendum that qualifies for the ballot, the court may have before it an alternative map
drafted by a nonpartisan entity through an open process and that has been subject to
review and comment by the public, hence satisfying most of the procedural safeguards
embodied in California Constitution, article XXI.
There also are conceivable circumstances in which the “old” map or maps might be
selected as an interim measure over the Commission’s certified map or maps. As discussed
in the briefs, because the state has undergone less population growth in the last decade
compared with the 1970s, the extent of noncompliance of existing districts with federal equal
protection principles is less than it was in the case of the districts considered in 1982 in
Assembly v. Deukmejian, supra, 30 Cal.3d 638. It is possible that in the future, old districts
will remain substantially compliant with federal equal protection principles after a decade.
For other reasons, there may be less cause in the future to avoid selecting old maps as
interim remedies. Although as noted earlier, the Legislature, in crafting its 2001 maps, was
not guided by the criteria set forth in article XXI, section 2, subdivisions (d) to (f), and the
resulting 2001 maps have been widely viewed as having been designed to protect incumbent
legislators (see ante, at pp. 60-61), this will not be true of subsequent maps. All future maps,
whether certified by the Commission (Cal. Const., art. XXI, § 2, subd. (g)) or adopted by this
court with the assistance of special masters (id., §§ 2, subd. (j), 3, subd. (b)(3)), will be
guided by the ranked constitutional criteria and article XXI’s prohibition on designing
districts to protect incumbent legislators.
Moreover, in some instances, due to the procedural posture of the case, the court may
find it proper to avoid use of the Commission’s certified map or maps on an interim basis.
If, for example, we are faced with a request for interim relief in light of a pending
referendum challenge at the same time that we concurrently are considering a legal challenge
to the Commission’s maps for failure to properly follow the prescribed constitutional
71
procedures or criteria (see Cal. Const., art. XXI, § 3(b)), we may conclude that the
Commission’s maps are not a sound basis for interim relief.
Although a variety of circumstances, singly or in combination, could lead this court to
conclude in a future case that a Commission-certified map should not be used as an interim
map pending a referendum challenging that map, no such circumstance is present in this
case.
V. Conclusion and disposition
For the reasons set out above, we conclude that this court is authorized to entertain
this writ petition at this time and to determine which state Senate districts should be used
for the 2012 primary and general elections in the event the proposed referendum qualifies
for placement on the ballot and stays the operative effect of the Commission-certified
state Senate district map. We decline petitioner’s request to issue a peremptory writ of
mandate commanding the Secretary of State to refrain from taking any action
implementing the Commission’s certified state Senate map. Instead we order that, if the
proposed referendum qualifies for the ballot, the Secretary of State and local election
officials are to use the state Senate map certified by the Commission as interim
boundaries for the 2012 primary and general elections. The Commission’s certified state
Senate map is the alternative most consistent with the constitutional scheme and criteria
embodied in the federal and state Constitutions.
72
The relief sought by petitioner is denied. If the proposed referendum qualifies for
the ballot, the Secretary of State and local election officials are directed to use the state
Senate map certified by the Commission for the June 5, 2012, Primary Election and the
November 6, 2012, General Election. Each party shall bear its own costs in this
proceeding. Our judgment is final forthwith.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
73
CONCURRING OPINION BY LIU, J.
More than a half century ago, Justice Felix Frankfurter observed that “[t]he one
stark fact that emerges from a study of the history of [legislative] apportionment is its
embroilment in politics, in the sense of party contests and party interests.” (Colegrove v.
Green (1946) 328 U.S. 549, 554 (plur. opn. of Frankfurter, J.).) Faced with entreaties by
litigants seeking judicial intervention in the redistricting process, Justice Frankfurter
famously warned that “[c]ourts ought not to enter this political thicket.” (Id. at p. 556.)
Although the law has not adopted the uncompromising version of this principle urged by
Justice Frankfurter (see, e.g., Reynolds v. Sims (1964) 377 U.S. 533; Baker v. Carr (1962)
369 U.S. 186), his admonition continues to resonate each decade when courts are asked
to decide what are fundamentally political disputes. Judicial restraint is especially
important in the context of legislative redistricting because, as the high court recently
observed, “experience has shown the difficulty of defining neutral legal principles in this
area.” (Perry v. Perez (2012) 565 U.S. __ [2012 WL 162610, 2012 U.S. Lexis 908].)
In this case, I agree with the court’s bottom line: the Senate district map certified
by the Citizens Redistricting Commission (Commission) is the interim map that should
be used in the event that petitioner’s referendum qualifies for the ballot. As the court
explains (maj. opn., ante, at pp. 43-72), we need not exclude the Commission map from
consideration as a possible interim map, and the Commission map is superior to the
proposed alternatives when evaluated against applicable federal and state redistricting
criteria. I write separately, however, because I believe the court’s discussion of our
1
authority to decide cases such as this leaves too much to “prudence” (maj. opn., ante, at
pp. 24, 32, 33, 35, 36) and places insufficient emphasis on language in the California
Constitution that channels and checks our discretion.
Today’s opinion concludes that “under California Constitution, article VI, section
10, this court is authorized to issue an order to show cause and decide which districts
should be used in the event a proposed referendum directed at a Commission-certified
redistricting map qualifies for the ballot, even in the absence of a showing that the
proposed referendum is likely to qualify for the ballot.” (Maj. opn., ante, at p. 41.) The
court will find a mandate action ripe for decision “when we conclude that, in light of the
relative probability that the proposed referendum will qualify for the ballot and the time
limitations and potential detrimental consequences of refusing to consider a mandate
petition at that point in time, it is prudent to issue an order to show cause and decide
which districts should be used in the upcoming elections in the event the proposed
referendum does qualify for placement on the ballot.” (Id. at p. 32.)
I believe these statements, by maximizing our discretion, will have the unintended
consequence of inviting future litigants to bring their grievances with the redistricting
process to this court. Of course, the court will exercise prudence in addressing those
litigants’ claims. However, as this court’s own experience shows, redistricting
controversies are fraught with political peril. Where one judge sees prudence, another
may see partisanship. I respectfully disagree with the court’s unduly broad assertion of
authority because it underestimates the risks of political entanglement that are inherent to
redistricting disputes and because the all-things-considered discretion it contemplates
gives insufficient weight to language in our Constitution that can help the court avoid
such entanglement.
I.
As an initial matter, I agree with the court that we have jurisdiction under
California Constitution, article VI, section 10 to entertain a petition for writ of mandate
2
and to issue an order to show cause in this matter. Our jurisdiction, in the fundamental
sense of lawful authority to hear the case, is not in question.
The question we face is under what circumstances this court should decide the
merits of a petition seeking relief in the form of an interim map to be used in the event
that a referendum challenging a Commission map qualifies for the ballot. Uncertainty as
to whether a proposed referendum will qualify for the ballot presents a timing problem
with two competing dimensions. On one hand, the court risks acting too late if it waits
for the signature verification process to indicate whether the referendum will qualify.
“[I]f this court were to conclude that other districts should be used in the event the
referendum qualifies, it may be too late at that time to apply the court’s decision to
implement those other districts.” (Maj. opn., ante, at p. 31.) On the other hand, the court
risks acting too early if it decides the merits of the petition and selects an interim map
before knowing whether the referendum will qualify. “[T]he issuance of a court decision
favoring an alternative map over the Commission-certified map might — in the event the
referendum does not qualify — unnecessarily cast a cloud over the legitimacy of that
Commission-certified map for the ensuing decade . . . .” (Id. at p. 36.)
The risk of acting too early is not present where, as here, the court concludes that
the Commission map should be the interim map if petitioner’s referendum qualifies for
the ballot. “Even if, after the court issues its opinion, the referendum ultimately does not
qualify for the ballot and the Commission-certified map is not stayed, issuance of the
court’s decision — approving the Commission’s map — could have no adverse effect
upon the Commission-certified map.” (Maj. opn., ante, at p. 35.) Under such
circumstances, there is no need to assess the referendum’s likelihood of qualification, and
the court “should issue its decision as early as possible so as to eliminate the uncertainty
that inevitably arises from the ongoing signature verification process and the pendency of
the writ proceeding in this court.” (Ibid.)
3
Today’s decision could have resolved the timing issue on that basis and left
matters there. However, in an effort “to provide guidance on this procedural point for the
future” (maj. opn., ante, at p. 20), the court goes further to broadly hold that we have
discretion and maximum flexibility to determine whether and when we may decide which
map should be used upon qualification of a referendum, even where the interim map we
choose is not the Commission map. (See id. at pp. 31-32, 35-36.) In that scenario, where
the court concludes that an alternative map is superior to the Commission map, the
problematic consequences of acting too early or too late come to the fore. This case does
not present that scenario, but it is clear that the court’s broad holding applies to that
scenario and is expressly intended to address it. (See id. at p. 31.) Accordingly, the
discussion from here forward addresses the court’s understanding of our authority in
circumstances where we find or contemplate finding that an alternative to the
Commission map should be the interim map.
In my view, the court’s articulation of its authority raises two concerns. First, the
court refers to the harm from acting too early as a “possibility” that “might” come to
pass. (Maj. opn., ante, at p. 36.) I see no reason for such tentative acknowledgment of
the substantial harm at issue. If the court issues a decision favoring an alternative to the
Commission map but the referendum does not end up qualifying, the court’s decision
would have needlessly burdened election officials with using a dual-track planning
process until completion of the signature verification process. More importantly, serious
concerns about the fairness and legitimacy of the electoral process would arise
throughout the next decade if a Commission map were to go into effect in the shadow of
an opinion by this court favoring another map even if only on an interim basis. These
problems are hardly speculative. The consequences of acting too early are at least as
serious and foreseeable as the consequences of acting too late, yet the court’s opinion
seems far less concerned with the former than with the latter. (See id. at pp. 30-33.)
4
This imbalance contributes to the second concern, and that is the expansive
discretion the court claims for itself to decide whether and when to act on a mandate
petition in cases where it finds that an alternative map is superior to the Commission’s.
The court says it may act “when we conclude that, in light of the relative probability that
the proposed referendum will qualify for the ballot and the time limitations and potential
detrimental consequences of refusing to consider a mandate petition at that point in time,
it is prudent” to act. (Maj. opn., ante, at p. 32.) Elsewhere the court says it “may
properly grant relief . . . when the court is of the view that there is a sufficient chance that
the proposed referendum will qualify to make it prudent for the court” to do so. (Id. at
p. 33.) And “[i]n determining whether it is prudent to issue its decision in advance of the
proposed referendum’s qualification notwithstanding [the] potential adverse consequence
[of acting too early] (and if so, how far in advance), this court would undoubtedly take
into account the particular reasons underlying its analysis and determination that an
alternative map is more consistent with the constitutionally based criteria than the
Commission-certified map, and then decide if and when to issue its opinion based in part
on such considerations.” (Id. at p. 36.)
These verbal formulations all boil down to the same thing: the court will act when
the court feels it is prudent to do so. (See maj. opn., ante, at p. 36 [“[T]his court properly
retains broad discretion to take into account all such considerations as well as any other
relevant factor in deciding what relief is appropriate in such a proceeding and when it
should be ordered.”].) It casts no doubt on the court’s collective wisdom to worry that
such open-ended discretion offers little in the way of an objective standard for
determining — in the face of uncertainty and the serious risks it entails — whether and
when to issue a decision as important as declaring that a map other than the
Commission’s should be used as an interim map. In effect, the court’s opinion invites
future litigants to make their best case for or against judicial intervention without
supplying a determinate legal principle that can help keep our decisionmaking, in
5
appearance and reality, above the political fray. We need not place such a heavy burden
on the dictates of our own prudence, for the text of our Constitution provides a better
approach.
II.
The voters of California fundamentally reformed the redistricting process when
they passed Proposition 11 in 2008 and Proposition 20 in 2010. Those initiatives created
the Commission, defined its membership, procedures, and responsibilities, established a
prioritized list of redistricting criteria, and provided that Commission-certified maps may
be challenged by referendum. In addition, the recent reform contemplates this court’s
intervention in the redistricting process in four circumstances. First, a registered voter
may challenge the lawfulness of a Commission map within 45 days after it is certified.
(Cal. Const., art. XXI, § 3, subd. (b)(2), (3).) Second, when the Commission does not
approve a final map by the requisite votes, it is this court’s duty to supply a map with the
aid of a special master. (Id., § 2, subd. (j).) Third, when voters disapprove a Commission
map in a referendum, the court also must supply a map with the aid of a special master.
(Ibid.)
The fourth circumstance is the one relevant here: “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.” (Cal. Const., art. XXI, § 3, subd. (b)(2)
(hereafter section 3(b)(2)).) This sentence of section 3(b)(2) addresses situations where a
referendum challenging a Commission map has not yet qualified for the ballot, and it
provides guidance on the timing problem we face.
Section 3(b)(2) was enacted as part of Proposition 20 along with another provision
that moved up the date by which the Commission must release its final maps from
September 15 to August 15. (Cal. Const., art. XXI, § 2, subd. (g).) The evident purpose
of these provisions was to give this court flexibility to act in situations where a
6
referendum is likely to qualify but where the signature verification and official
qualification process has not reached completion. Further, article XXI, section 3,
subdivision (b)(3) of the California Constitution (hereafter section 3(b)(3)) says: “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 [section 3(b)(2)].”
At a minimum, section 3(b)(2) means that a petition for relief in the form of an
interim map is properly before the court and ripe for adjudication on the merits where the
petitioner has shown that a referendum challenging a Commission map is likely to
qualify. Section 3(b)(3) makes clear that the court must act expeditiously to decide the
merits of such a petition. The import of these constitutional provisions is that when a
petitioner has shown that a referendum is likely to qualify, the probability of qualification
is sufficiently high that this court must promptly provide guidance to election officials on
the interim map that will be used in the event that the referendum ultimately does qualify.
Although a referendum deemed likely to qualify may still end up not qualifying, sections
3(b)(2) and 3(b)(3) imply that the risk is sufficiently low that the court should decide the
merits of the petition.
While acknowledging that a petition is “sufficiently ripe . . . to be entertained”
when a referendum is likely to qualify (maj. opn., ante, at p. 39), today’s opinion stops
short of saying that the court should promptly decide the merits of such a petition.
Instead, the court says that “the ‘likely to qualify’ language of article XXI, section 3(b)(2)
is not directed to the time when the court may or should decide the merits of the mandate
petition, but rather to the time when a registered voter may file such a petition in this
court.” (Id. at p. 40, fn. 25.) Even if this reading of section 3(b)(2) were correct (and I
am doubtful that it is (see post, at pp. 8-11)), section 3(b)(3) leaves no ambiguity as to
what this court is supposed to do. Where a petitioner has shown that a referendum is
likely to qualify, the “ruling” contemplated by section 3(b)(3)’s mandate that this court
7
“shall give priority to ruling on a petition . . . filed pursuant to [section 3(b)(2)]” can only
be understood as a ruling on the merits.
Sections 3(b)(2) and 3(b)(3) thus answer part of the timing question we face:
when a referendum is likely to qualify, the court must act. But what should the court do
when available information does not support a finding that a referendum is likely to
qualify? If a petitioner cannot show that a referendum is likely to qualify, what
significance does that circumstance have for whether and when the court should act? I
agree with today’s opinion that because section 3(b)(2) “does not purport to limit this
court’s jurisdiction” (maj. opn., ante, at p. 38), a petitioner’s inability to show that a
referendum is likely to qualify does not deprive the court of its prerogative to decide
whether and when to act. But I do not agree that failure to show that a referendum is
likely to qualify has no particular significance to the exercise of our authority, beyond
being a factor that it may be “prudent” to consider. (Id. at p. 36.)
Once again, section 3(b)(2) says: “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.” Textually, the phrase “where a certified final map is subject
to a referendum measure that is likely to qualify” is sensibly read as a condition
precedent to the availability of “relief” under section 3(b)(2). Just as the “likely to
qualify” standard serves to mitigate the risk of acting too late, it also serves to mitigate
the risk of acting too early. Where the probability of qualification is sufficiently low that
a referendum cannot be deemed likely to qualify, the court generally should stay its hand
because of the sufficiently high risk that issuing a decision on the merits will prove
unnecessary and injurious to the electoral process. Section 3(b)(2) addresses the
uncertainty where a referendum has not yet qualified by balancing the public interest in
giving the referendum’s supporters a timely opportunity to seek relief in the event that the
referendum does qualify against the public interest in having a Commission-certified map
8
implemented without disruption in the event that the referendum does not qualify. In
other words, the “likely to qualify” standard strikes the very balance that the court would
relegate to its sense of prudence. Because section 3(b)(2) does not limit this court’s
jurisdiction over original writ proceedings, it is always possible that exceptional
circumstances may compel the court to act even where a petitioner has not shown that a
referendum is likely to qualify. However, I would adopt as a general rule — indeed, a
presumption — that where a petitioner has not shown that a referendum is likely to
qualify, the court should not decide the merits of the mandate petition.
The court contends that the “likely to qualify” language in section 3(b)(2) has no
bearing on when judicial action is warranted and, as a textual matter, speaks “to the time
when a registered voter may file” a petition for writ of mandate or writ of prohibition.
(Maj. opn., ante, at p. 40, fn. 25.) But it makes little sense to read section 3(b)(2) as a
timing provision that pertains to filing in light of the court’s conclusion that under article
VI, section 10 of the California Constitution, a petition for writ of mandate or prohibition
may be filed whether or not the petitioner can show that a referendum is likely to qualify.
(See id. at pp. 23-24 & fn. 18, 38.) Instead of indicating when a registered voter may file
a petition, the “likely to qualify” language in section 3(b)(2) is better read as specifying
when relief is available and may be granted by this court before a referendum has
qualified for the ballot.
More fundamentally, the court objects to this reading of section 3(b)(2) on the
ground that it would limit our authority to entertain a mandate petition, even just to issue
an order to show cause, unless a petitioner has shown that a referendum is likely to
qualify. (Maj. opn., ante, at p. 40, fn. 25.) But my interpretation would not have “this
type of limiting effect on this court’s authority.” (Ibid.) Where, as here, an original writ
petition is properly filed pursuant to article VI, section 10 of the California Constitution,
the court has jurisdiction and may issue an order to show cause, entertain briefing and
oral argument, and deliberate. If the court concludes that the Commission map should be
9
1
the interim map, it may and should say so as early as possible. Otherwise, the court
generally should not decide the merits of the petition or grant relief before it finds that the
referendum is likely to qualify. The inability to make that finding at the moment the
petition is filed does not mean we must dismiss the petition. The court may retain
jurisdiction and await further information on the referendum’s likelihood of qualification.
If additional information shows that the referendum is likely to qualify, the court will be
2
poised to act expeditiously.
1
Doing so without determining whether the referendum is likely to qualify does not
“depart[] . . . from the language of article XXI, section 3(b)(2)” (maj. opn., ante, at p. 41,
fn. 25) because in cases such as this, where we deny a petitioner’s request to order
interim use of a non-Commission map, we are not granting any “relief” sought by the
petitioner under section 3(b)(2). In light of section 3(b)(2)’s text (“Any registered voter
in this state may . . . file a petition . . . to seek relief”), the illogic of the court’s assertion
that we are granting “relief” within the meaning of section 3(b)(2) “whether or not the
particular outcome ordered by the court is the relief petitioner is seeking” (maj. opn.,
ante, at p. 41, fn. 25) speaks for itself.
2
The practice of retaining jurisdiction in a mandate proceeding and postponing
action in light of possible developments is not unfamiliar to this court. (See Legislature
v. Reinecke (1973) 10 Cal.3d 396, 400.) As a result of litigation after the 1970 census
and reapportionment, we adopted temporary maps for the 1972 elections and retained
jurisdiction to draw new maps for subsequent elections if the Legislature failed to enact
valid maps during the 1972 regular session. (Ibid. [citing Legislature v. Reinicke (1972)
6 Cal.3d 595, 603-604].) Subsequently, “at the request of the Senate of the State of
California, we postponed the time for further court action” in order to allow the
Legislature an opportunity to act in special session. (Ibid. [citing Legislature v. Reinicke
(1972) 7 Cal.3d 92, 93].) When the Legislature failed to enact valid maps in 1972, we
appointed three special masters to propose new maps, even as we made clear that “ ‘If at
any time during the proceedings contemplated by this order valid congressional and
legislative reapportionment measures are enacted the court will entertain an application to
dismiss these proceedings.’ (Legislature v. Reinicke (1973) 9 Cal.3d 166, 168.)” (Ibid.)
Although Legislature v. Reinicke did not present the same issues we face here, the case
illustrates the flexibility the court possesses to retain jurisdiction and defer decision
where the exercise of our authority depends on developments occurring after we initially
assume jurisdiction.
10
In essence, the court’s objection to my interpretation of section 3(b)(2) confuses
the issue of whether the court has authority to entertain a mandate petition with the
separate and distinct issue of how that authority should be exercised. The first issue is
settled by article VI, section 10 of the California Constitution. (See ante, at pp. 2-3.)
Section 3(b)(2) speaks only to the second issue. In exercising its proper authority to
entertain a mandate petition seeking relief in the form of an interim map, under what
circumstances may the court grant relief before a referendum has qualified for the ballot?
Section 3(b)(2) answers that question by stating a condition precedent to the availability
of relief — namely, a showing that the referendum is likely to qualify.
The advantage of this approach is precisely what the court sees as its
disadvantage: it limits our discretion. By using the phrase “likely to qualify,” section
3(b)(2) provides an objective and determinate standard for balancing the competing risks
of acting too early versus acting too late. In ordinary usage, the word “likely” is
commonly understood to mean “more likely than not.” (See, e.g., Merriam-Webster’s
Collegiate Dict. (11th ed. 2003) p. 721 [defining “likely” to mean “having a high
probability of occurring or being true”]; Webster’s International Dict. (3d ed. 2002)
p. 1310 [defining “likely” to mean “having a better chance of existing or occurring than
not”]; Garner, A Dict. of Modern Legal Usage (2d ed. 1995) p. 530 [“likely has different
shades of meaning” but “[m]ost often it indicates a degree of probability greater than five
on a scale of one to ten”]; Black’s Law Dict. (6th ed. 1990) p. 925 [defining “likely” to
mean “probable and having better chance of existing or occurring than not”].) Although
the court in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916-917 said that
the meaning of “likely” may depend on context, Ghilotti interpreted the phrase “ ‘likely
to engage in acts of sexual violence’ ” as part of an intricate statutory scheme enacted by
the Legislature to provide for civil commitment of inmates previously convicted of a
sexually violent offense. (See id. at pp. 915-929.) The particularized meaning of words
in complex, legislatively enacted statutes has little bearing on the interpretation of words
11
in an initiative, which we construe according to their ordinary meanings as understood by
“the average voter.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 902.)
To be sure, the “likely to qualify” standard does not fully immunize the court from
the risks of acting too early or too late. A referendum shown to be likely to qualify may
end up not qualifying, and a referendum not shown to be likely to qualify may end up
qualifying. But the risk of error in one direction or the other is present in any approach to
the timing problem. That is the nature of uncertainty. Rather than address the
uncertainty through the prudential exercise of discretion, I would make use of the
objective constitutional standard that already balances the competing risks.
As a practical matter, the “likely to qualify” standard does not impose a heavy burden
on the petitioner or on this court. In most cases, determining whether a referendum is “likely
to qualify” will be a simple matter. The random sampling that takes place when a
referendum has gathered a sufficient number of signatures will usually resolve the issue in a
timely fashion. As the court explains: “Under the governing statutory provisions, if the
random sampling projected a number of total valid signatures that was less than 95 percent
of the required number of valid signatures, the petition would fail without any further count.
If the projection of valid signatures was 110 percent or more of the required number, the
petition would qualify without any further count. If the projection of valid signatures was
between 95 and 110 percent, the Secretary of State would notify counties that a full count of
all submitted signatures would be required to verify the number of valid signatures that had
been submitted. (Elec. Code, §§ 9030, subds. (f) & (g), 9031, subd. (a).)” (Maj. opn., ante,
at pp. 28-29.)
According to documentation attached to petitioner’s declaration, of the 48 initiatives
and referenda submitted to the Secretary of State between 2005 and 2010, 44 of them were
projected to receive more than 110 percent of the needed signatures. Those measures
qualified for the ballot without any need to count all the signatures submitted. In such cases,
even before the referendum is officially certified by the Secretary of State, this court can
12
conclude that the referendum is likely to qualify. The random count in this case was
completed by January 10, and it is likely that such counts will be completed around the same
time in the future. That date is well before “the end of January 2012,” which is the latest
time by which the Secretary of State and county election officials need to be informed of this
court’s decision in order “to implement any changes in the state Senate districts in the event
the proposed referendum qualifies and automatically stays the Commission-certified state
Senate redistricting map.” (Maj. opn., ante, at p. 30.)
If random sampling yields a projection between 95 percent and 110 percent of the
signatures needed and a full count is required, this court will still be able to determine
whether a referendum is likely to qualify in most cases. In supplemental briefing, the
Secretary of State claimed that “to use the completed sampling process to determine at what
point a petition becomes likely to qualify . . . is beyond the capacity of the process” and that
“the sampling technique is not designed to give reliable results at a greater level of
precision” than determining “whether the number of valid signatures on petitions is within a
broad range, 95 [percent] to 110 [percent].” But the Secretary of State also acknowledged in
the same briefing that the experience of the four initiatives within the last five years that
required a full count in order to qualify for the ballot “suggests that the sampling process is
3
reasonably accurate within a margin of about 1.5%.” Although the Secretary of State said
3
The Secretary of State’s supplemental briefing identified four initiatives in the past
five years that went to a full count. Measure No. 1226, a 2009 initiative concerning
community colleges, had a random sample validity rate of 71.38 percent and a full count
validity rate of 71.08 percent. Measure No. 1271, a 2009 initiative concerning a
children’s hospital bond, had a random sample validity rate of 69.30 percent and a full
count rate of 70.84 percent. Measure No. 1311, a 2011 term limits measure, had a
random sample validity rate of 75.58 percent and a full count rate of 74.36 percent.
Finally, a 2011 attempt by the Americans Elect political party to qualify for the ballot
through a signature drive had a random sample validity rate of 69.81 percent and a full
count rate of 68.08 percent.
13
she was “reluctant to draw firm conclusions from a sample that consists of only four
examples,” the examples do offer some indication, however limited, that the random
sampling process can predict the full count within a fairly small margin of error.
Contrary to the Secretary of State’s suggestion, the Legislature’s determination that
random sampling must yield a projection of at least 110 percent of the signatures needed
before a referendum will be deemed qualified does not preclude a petitioner from citing a
projection less than 110 percent as evidence that a referendum is likely to qualify. Indeed,
because a referendum actually qualifies with a projection equal to or greater than 110
percent, logic dictates that a lesser projection may support a finding that a referendum is
merely likely to qualify. For example, where random sampling yields a projection of 105
percent of the total signatures needed, the referendum does not qualify on that basis and must
go to a full count. But the projection would still be credible evidence, given the past
relationship between random counts and full counts, that the referendum is likely to qualify.
The task of timely determining whether a referendum is likely to qualify is more
difficult when random sampling yields a projection that is very close to the minimum
number of signatures required. Petitioner asserts that whenever random sampling projects
100 percent or more of the needed signatures, the referendum should be deemed likely to
qualify. But petitioner offers no analysis or expert declarations in support of this claim. At
oral argument, petitioner asserted that more refined analysis of whether a referendum is
likely to qualify is within the competence of various experts and experienced consultants.
Although we need not apply the “likely to qualify” standard in this case because of our
ultimate disposition (see ante, at pp. 3-4), future litigants would be well-advised to bring
expert analysis to bear where the issue is a close call. Statistical certainty is not required in
order to render a legal judgment applying the “likely to qualify” standard (presumably, a
petitioner need only show that a referendum is “likely to qualify” by a preponderance of the
evidence), but the court would benefit from expert interpretation of available information.
14
Finally, it is worth noting that, although my view of section 3(b)(2)’s significance
for the timing of judicial intervention differs from the court’s, nothing I have said is
technically inconsistent with the court’s broad holding that the issue of timing should be
resolved according to the dictates of prudence. My sense of prudence, which subsumes
my reading of the law, impels me to assign particular significance to whether a
referendum is likely to qualify in deciding whether and when we should act on the merits
of a mandate petition. But whether the prudence of my colleagues would lead each of
them to the same conclusion or to different conclusions in a case where the issue really
matters is an open question. And that, in a sense, illustrates the problem with the court’s
approach.
III.
Because our disposition in this case is unanimous, the concerns I have expressed
may seem speculative. But the court typically speaks on redistricting only once a decade,
and today’s opinion deliberately paints with a broad brush. It is of course anyone’s guess
what the future will bring. But history provides a cautionary tale.
Thirty years ago, this court had a very different experience with a redistricting
controversy. After the 1980 census, the Democratic-controlled Legislature enacted and
the Governor, also a Democrat, signed in September 1981 three reapportionment statutes
revising the boundaries of the state’s congressional, Senate, and Assembly districts. The
Republican Party initiated a referendum against each of these reapportionment statutes.
By December 15, 1981, these referenda had qualified for the June 1982 ballot. Various
members of the Assembly, Senate, and United States House of Representatives filed
mandate proceedings claiming that defects in the referendum petitions rendered the
petitions invalid. They also claimed that even if the referenda did qualify for the ballot,
they should not stay implementation of the new legislative maps for the June 1982
election.
15
In Assembly v. Deukmejian (1982) 30 Cal.3d 638, this court rejected the
challenges to the validity of these referenda and affirmed that the referenda stayed the
reapportionment statutes, as they would any other statute. (Id. at pp. 656-657.) The court
then considered the appropriate remedy. The referenda proponents argued that the court
should order use of the old maps in the interim, as the court had done in Legislature v.
Reinecke (1972) 6 Cal.3d 595, a case in which the new legislative maps had been vetoed
by the Governor and never became law. By a four-to-three majority, the court in
Assembly v. Deukmejian declined to order use of the old maps, instead concluding that
the new maps should be used in the interim primarily because they were drawn to comply
with the one-person, one-vote requirement of the Fourteenth Amendment’s equal
protection clause. (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 665-668.)
The court’s holding in favor of the new maps prompted three separate dissenting
opinions. Justice Richardson, in an opinion joined by Justice Mosk and Justice Kaus,
explained that it was improper to use new maps that had been stayed by qualification of
the referenda and that using the old maps until the referenda were voted on would not
violate the equal protection clause. (Assembly v. Deukmejian, supra, 30 Cal.3d at
pp. 680-685 (conc. & dis. opn. of Richardson, J.).) According to Justice Richardson, “the
majority completely disregards [the] stay [of the new maps] and imposes upon the people
of California a state legislative reapportionment plan which has been stopped dead in its
tracks by operation of law and which is heavily veiled in a cloud of political uncertainty.
The majority’s adoption of this plan prejudges the result and its action can only be
perceived as an official alignment of the court with one side in a partisan dispute as to
which we should remain scrupulously neutral.” (Id. at p. 680.)
In a separate opinion, Justice Mosk wrote that “a bare majority of this court have
become entangled in the ‘political thicket’ by ignoring their obligation of neutrality on a
partisan issue, a neutrality that can be observed only by maintenance of the status quo in
legislative districting until the people speak at the forthcoming election.” (Assembly v.
16
Deukmejian, supra, 30 Cal.3d at p. 693 (conc. & dis. opn. of Mosk, J.).) And Justice
Kaus wrote separately to say that “the course chosen by the majority involves greater
judicial intrusion into the legislative process laid out by the California Constitution.” (Id.
at p. 694 (conc. & dis. opn. of Kaus, J.).)
I express no view on which side was correct in Assembly v. Deukmejian. But I am
confident that each of the four justices who voted in favor of the new maps, as well as
each of the three justices who voted in favor of the old maps, cast his or her vote on the
basis of a well-informed assessment of the lawful and prudent course. (Compare
Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 675-676 [use of new maps would be the
least disruptive remedy] with id. at p. 692 (conc. & dis. opn. of Richardson, J.) [use of old
maps would be least disruptive].) Even so, the court ultimately fractured in a series of
strongly worded opinions laced with charges of partisanship.
Assembly v. Deukmejian did not present the timing issue we face here. But the
case confirms that “[l]ogic, as well as experience, tells us . . . that there can be no total
sanctuaries in the political thicket.” (Dixon, The Court, The People, and “One Man, One
Vote,” in Reapportionment in the 1970s (Polsby edit. 1971) p. 32.) Today the court
unanimously agrees that the Commission map is superior to the proposed alternatives. In
a future case, the court may be divided with regard to which map should serve as an
interim map and, closely related, whether and when to issue a decision on that important
issue. Those questions will inevitably play out against a backdrop of partisan interests. I
hope the court is correct that prudence will be sufficient to guide us out of the thicket.
But I believe the language of our Constitution already provides the guidance we need.
LIU, J.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Vandermost v. Bowen
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S198387
Date Filed: January 27, 2012
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Counsel:
Bell, McAndrews & Hiltachk, Charles H. Bell, Jr., Thomas W. Hiltachk, Colleen C. McAndrews, Paul T. Gough,
Brian T. Hildreth and Ashlee N. Titus for Petitioner.
Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Peter A. Krause and George
Waters, Deputy Attorneys General; and Lowell Finley for Respondent.
Morrison & Foerster, James J. Brosnahan, George C. Harris and Benjamin J. Fox for Intervener.
Remcho, Johansen & Purcell, Robin Johansen and Thomas A. Willis for Senator Darrell Steinberg as Amicus Curiae
on behalf of Respondent and Intervener.
Kathay Feng for California Common Cause as Amicus Curiae on behalf of Intervener.
Nielson Merksamer Parrinello Gross & Leoni, Margueirte Mary Leoni and James R. Parrinello for Charles T.
Munger, Jr., as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Charles H. Bell, Jr.
Bell, McAndrews & Hiltachk
455 Capitol Mall, Suite 600
Sacramento, CA 95814
(916) 442-7757
George Waters
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-8050
James J. Brosnahan
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
(415) 268-7000