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 (sometimes the Commission).
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
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 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
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 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
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 Constitution by new maps drawn by a future newly constituted Commission following the 2020 census.
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 art. XXI in greater detail post, pt. 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
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 (Oct. 26, 2011, S196493 (petn. den.)), challenged the Commission's certified state Senate map; the petition in Radanovich v. Bowen (Oct. 26, 2011, S196852 (petn. den.)), 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.
On December 2, 2011, Vandermost filed the present petition,
The petition seeks immediate relief,
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.
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 [110 Cal.Rptr. 718, 516 P.2d 6]; Wilson v. Eu (1992) 1 Cal.4th 707
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 written submissions, including maps reflecting statewide, regional, or other districts. (Ibid.; see also Final Rep., at
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.
Subdivision (e) of article XXI, section 2, of the California Constitution, 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, of the California Constitution, 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."
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). 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 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) 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 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. 441), our order to show cause in this matter specifically reserved resolution of this threshold issue for our eventual
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.
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.
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, 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.
As we will explain (see, post, at pp. 455-457), 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.
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 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,
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 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.
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
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 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 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
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 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
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 not the referendum would qualify might not be made until early March 2012, when it would, as a practical matter, be
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.
Accordingly, we now turn to that question.
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
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 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.)
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.
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,
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.)
The three dissenting justices in Assembly v. Deukmejian argued that although it would be proper to apply the new boundaries with respect to
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."
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 of Assembly v. Deukmejian, as improperly intruding into the "political thicket" would simply not apply to the present case.
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.
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 [12 L.Ed.2d 506, 84 S.Ct. 1362]) 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
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 [52 L.Ed.2d 465, 97 S.Ct. 1828]; see also Perry v. Perez (2012) 565 U.S. ___, ___ & fn. 2 [181 L.Ed.2d 900, 908 & fn. 2, 132 S.Ct. 934, ___ & fn. 2] [de minimis standard applies to court-drawn maps responding to challenged portions of state maps]; Abrams v. Johnson (1997) 521 U.S. 74, 98 [138 L.Ed.2d 285, 117 S.Ct. 1925].) As explained post, the disparities would not be de minimis if we were to order interim use of the Legislature's 2001 map.
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
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 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
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. 10-11.)
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 old 2001 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.
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 (Aug. 2003) 34 Cal. Journal 21; Plendl, Are the voters dissed by redistricting? (2002) 33 Cal. Journal 12.)
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), p. 137 [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, p. 22 [asserting that "in the last redistricting" politicians paid a consultant to draw district boundaries "to guarantee their reelection"].)
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.)
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.
"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 [137 L.Ed.2d 730, 117 S.Ct. 1491].) 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 Lockhart v. United States (1983) 460 U.S. 125, 134 [74 L.Ed.2d 863, 103 S.Ct. 998] [finding city's map was entitled to preclearance because it did not "increase the
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 [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,
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 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.
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 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,
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.
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, supra, 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.
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 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.
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, supra, 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 [93 Cal.Rptr.2d 298, 993 P.2d 956] ["When the sole means of review is a petition in this court ... our denial of the petition—with or without an 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.
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 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
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 California Constitution, 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 p. 477), 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 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.
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
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.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
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 [90 L.Ed. 1432, 66 S.Ct. 1198] (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 [12 L.Ed.2d 506, 84 S.Ct. 1362]; Baker v. Carr (1962) 369 U.S. 186 [7 L.Ed.2d 663, 82 S.Ct. 691]), 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. ___, ___ [181 L.Ed.2d 900, 905, 132 S.Ct. 934, ___].)
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. 464-485), 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 authority to decide cases such as this leaves too much to "prudence" (maj. opn., ante, at pp. 451, 457, 458, 459, 460) and places insufficient emphasis on language in the California Constitution that channels and checks our discretion.
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.
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 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. 456.) On
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. 459.) 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.)
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. 448), 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. 456-457, 459-460). 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. 456.) 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. 460.) 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
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. 457.) 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. 457-458.) 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 pp. 459-460.)
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. 460 ["[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 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.
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 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
While acknowledging that a petition is "sufficiently ripe ... to be entertained" when a referendum is likely to qualify (maj. opn., ante, at p. 462), 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 pp. 462-463, fn. 25.) Even if this reading of section 3(b)(2) were correct (and I am doubtful that it is (see post, at pp. 491-493)), 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 "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. 461), 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. 460.)
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
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 pp. 462-463, 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 maj. opn., ante, at pp. 450-451 & fn. 18, 461.) 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. 462, 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 the interim map, it may and should say so as early as possible.
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. 487-488.) 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
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 p. 454.)
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 reasonably accurate within a margin of about 1.5%."
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
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. 487-488), 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.
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.
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.
In Assembly v. Deukmejian (1982) 30 Cal.3d 638 [180 Cal.Rptr. 297, 639 P.2d 939], 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 [99 Cal.Rptr. 481, 492 P.2d 385], 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
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. 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.
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."
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.
"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.
"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."
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 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. 464.)
For a number of reasons, we believe that the concurring opinion's approach is untenable.
First, as we have explained above (ante, at pp. 460-462), 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. 492), 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. 496)—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. 488)—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] find[s] or contemplate[s] finding that an alternative to the Commission map should be the interim map." (Ibid.) 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. 492, 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, at pp. 450-462), 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.
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 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.
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.
"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.)
"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.)
"(a) Each member of the Senate, Assembly, Congress, and the Board of Equalization shall be elected from a single-member district.
"(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."
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. ___ [181 L.Ed.2d 900, 132 S.Ct. 934].) 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, <http://www.wedrawthelines.ca.gov> [as of Jan. 27, 2012].) On January 17, 2012, the Department of Justice approved use of the maps.
