Who Draws the Lines? California Experiment Intact, For Now

November 3, 2012

by Nathan Yu and Chelsea Bobo

When American legislators sit down to redraw district lines it is difficult to disentangle this redistricting process from the evils of gerrymandering and other forms of partisan abuse. Perhaps the party members we elect should not be closely involved in determining what our electoral districts look like. This is the conclusion a slim majority of California voters reached four years ago with the approval of Proposition 11. Also known as the Voters FIRST Act, Proposition 11 set up the California Citizens Redistricting Commission (CCRC), an independent redistricting commission.

Only thirteen states currently utilize independent commissions to draw legislative maps. The California Citizens Redistricting Commission consists of fourteen members who each serve ten-year terms. Five commissioners must come from the largest political party in the state; another five must come from the second largest political party in the state; and four must be independent of either party. Most importantly, any registered California voter may submit his name to serve as a commissioner, and the results are randomized to a certain extent. In light of constant efforts to increase minority participation and influence in the electoral and political processes and achieve proportional representation, it is worth noting that the current Commission is extremely diverse. In effect, Proposition 11 gave “the people” full control of the map-drawing process. By contrast, many of the bedrock redistricting cases, such as Baker v. Carr, grew out of redistricting plans drawn by legislators rather than independent, detached citizens. Recently, the CCRC’s initial batch of statewide district maps were certified by the Secretary of State and granted preclearance by the US Department of Justice, and will be used in this election cycle. This round of pre-election successes bodes well for the nonpartisan, independent redistricting model.

However, the inclusion of an odd referendum on the upcoming ballot suggests California has not completely eliminated partisan finagling in the state’s redistricting process. On November 6, Californians will vote on Proposition 40, a ballot measure that merges two unique components of California’s election system: the referendum process and the CCRC.

California and twenty-three other states allow citizens to place a referendum, often considered a hallmark of direct democracy, on ballots. A veto referendum, one type of referendum, proposes to repeal a law that the state legislature previously enacted. Ironically, voting “yes” on a veto referendum leaves the law intact, whereas voting “no” repeals the law. Thus, although it may seem counterintuitive, those who oppose the contested law and want a veto referendum to succeed in striking the law should vote “no.”

Although referendums typically provide voters with opportunities to repeal statutes, Proposition 40 gives California citizens a chance to repeal the State Senate maps drawn by the CCRC. The fact that California voters have the power to nullify legislative maps shows the impact of the state’s referendum process. In California, citizens can organically affect the electoral process. However, the manner in which this contested redistricting plan was drawn better indicates the true breadth of California’s direct democracy.

Yet, the measure is a partisan reaction by Republicans, involving a desire to maintain a one-third minority presence in the California Senate to block bills that require a supermajority. Party politics aside, the inclusion of Proposition 40 on the November ballot exposes several potential glitches in the California redistricting experiment:

1. The accusation that the new maps disadvantage the Republicans may suggest the CCRC is not as nonpartisan as its member-selection process suggests.
2. The effort to block the CCRC’s nonpartisan work might indicate the simple truth that partisan politics cannot be truly extracted from the democratic process in America.
3. The nonpartisan nature of the Voters FIRST Act may be rendered meaningless or impractical by referendums and similar voting tools that may be too easily manipulated by Democrats or Republicans to challenge the results of a nonpartisan process.

Despite the challenges a district map veto measure like Proposition 40 could pose to the future of the California Citizens Redistricting Commission (and similar voter integrity efforts), the nonpartisan redistricting experiment seems likely to live to fight (or redraw lines) another day. In a strange twist, Proposition 40 has become a non-issue. Apparently the group of Republicans that squeezed Proposition 40 onto the ballot in the first place changed their minds about the CCRC maps. Republicans hoped that, after Proposition 40 reached the ballot, the California Supreme Court would prevent the maps from being implemented on the November 6 and use interim maps. After the high court upheld the new maps, the Republicans reacted by abandoning their initial campaign. The party now advocates citizens to instead vote “yes” on Proposition 40.

This places the California ballot in an awkward situation. Even though neither party appears to support the outcome of Proposition 40, the California Constitution does not provide means for removing an approved ballot measure prior to Election Day. The measure will remain intact and voters will still be presented with the question of whether to approve or reject the district lines produced by the CCRC. As such, both parties have vamped up efforts to instruct voters to simply vote “yes” despite the counterintuitive nature of a veto referendum.

Still, the referendum works against voter interests in two ways. First, regardless of which party a voter supports, those who reject the nonpartisan-drawn maps will at best be unintentionally voting against their party’s interest, since neither Republicans nor Democrats want these maps to be redrawn. Second, a rejection of the maps will undermine the 2008 effort to restore election integrity through the creation of a nonpartisan redistricting commission. Although fighting the manipulation that results when legislators draw district lines is desirable, we might question the permanence and practicability of the CCRC if their efforts are exposed at every turn to public scrutiny on partisan grounds.

The cost alone is worth consideration. If the Proposition 40 “succeeds” and repeals the law, the California Supreme Court would be forced to appoint a three-person panel to draw new maps. This process would cost the state approximately $500,000; it would also cost all counties a collective $500,000. Hopefully, citizens will receive the message and vote “yes,” or at least refrain from instinctually voting “no.”

A nonpartisan redistricting commission like the CCRC is relatively new and uncommon in the United States, and it is probably too early to determine how this idea will turn out. As with most experiments, the best we can do at this point is wait and see.

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