THE BASIC PROPOSAL
Proposition 77 would change the rules under which California draws the borders of legislative districts after each census. Currently, those borders are drawn up by the state Legislature. Proposition 77 would change the rules so that tentative borders are drawn up by a party-balanced panel of retired judges, and then must be approved or rejected by the voters in a referendum. Proponents of the measure claim that this will lead to fairer districts, pointing to the current districting scheme as a rank example of political corruption. Democratic opponents of the measure claim that it is nothing more than an attempt at a partisan power grab by the Democratic party, while Republican opponents of the measure claim that it is nothing more than an attempt at a partisan power grab by the Democratic party. The proponents are closer to the truth, but there are some subtle concerns that both they and the measure's opponents are missing.
THE CURRENT SYSTEM
Article 21 of the California State Constitution provides, in its entirety:
SECTION 1. In the year following the year in which the national
census is taken under the direction of Congress at the beginning of
each decade, the Legislature shall adjust the boundary lines of the
Senatorial, Assembly, Congressional, and Board of Equalization
districts in conformance with the following standards:
(a) Each member of the Senate, Assembly, Congress, and the Board
of Equalization shall be elected from a single-member district.
(b) The population of all districts of a particular type shall be
(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
(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 California state Legislature is responsible for redrawing the borders of legislative districts after each census. Its border-drawing is subject to federal review under the Voting Rights Act (because certain parts of the state, including Monterey County, are deemed to have been historically discriminatory against the Latino population of the state). In practice, rule (e) above is regularly ignored; a casual glance at any of the current state district maps shows little if any respect for the geographical integrity of anything.
In 1991, after a protracted fight between the legislature and then-Governor Wilson, the State Supreme Court appointed a panel of special masters to hold public hearings and return a recommendation as to what plan should be adopted. That panel rejected both the legislature's preferred plan and the Governor's preferred plan, instead proposing a third plan which was ultimately adopted. One of the signal features of that plan was that all state Senate districts were comprised of two adjoining Assembly districts. These districts were generally considered by partisans on both sides of the aisle as having been fair districts, and there were a substantial number of districts in which the district representative's party switched over the course of the decade.
In 2001, the leaders of both major parties in the state Legislature organized a plan in which every sitting legislator would be ensured a safe district. It was not, as some have alleged, a partisan districting in which the Democrats in the Legislature conspired with Governor Davis to ensure that Democrats would have as many seats as possible; it was a bipartisan incumbent protection plan in which both parties assured that every legislature would be placed in a district in which he was relatively invulnerable to competition. There have been virtually zero districts in which the representative's party has switched in the last two elections.
THE PRAGMATIC PROBLEM WITH THE STATUS QUO
One of the side-effects of an incumbent protection plan is that, as a general rule, it is now true that state Assemblypeople, Senators, and Congresspeople are more likely to be defeated as a result of opposition in the primary than they are in a general election; their districts were designed in such a fashion as to make inter-party competition difficult. This has encouraged politicians of both parties to take positions which appeal primarily to party activists (who are more likely to vote in primaries) and less likely to appeal to the state's centrists (including the approximately thirty percent of voters who are not affiliated with any political party). This has exacerbated the frustration with politics felt by the so-called "independant" voter.
In addition, the need to placate party activists has led directly to the state's intractable budget problems. Compromise between the parties at the legislative level has become all but impossible, as any such compromise risks a backlash from party activists. It is easier for Republicans to hold fast to their determination to not raise taxes than it is for them to seek a budget compromise; it is likewise easier for Democrats to hold fast to their determination to not cut programs than it is for them to seek a compromise. The incumbent-protection districting has created a situation in which everybody has a structural incentive to avoid compromise as much as possible, and has combined with the side-effects of term limits to create a politics of combative paralysis at the state level.
It is, to be sure, not fair to blame this situation entirely on the 2001 redistricting; there are other elements at play. But legislative districts in which interparty competition is less meaningful than intraparty competition encourages extremism in the legislature and discourages compromise, and the results have been unfortunate for the state as a whole.
THE IDEALISTIC PROBLEM WITH THE STATUS QUO
The 2001 redistricting has been widely recognized as an incumbent protection plan: a system in which the legislators drafted districts in order to guarantee their own re-election. A system, in effect, in which the legislators currently in office deliberately chose those voters most likely to support them. To put it bluntly, this is a perversion of democracy. If the legislature can select its voters, if it can aggregate people into districts in such a fashion as to make competitive elections nonexistent, then the people are no longer choosing their legislators in any meaningful fashion. Elections conducted under such a system are a farce, a rubber-stamp in which the people simply verify that the legislators have chosen their voters wisely.
This has always been a danger with reapportionment conducted by the legislature. It is a sin of government that has been around since at least the time of the Long Parliament. But it is also a fundamental violation of the rights of the people. It is no more acceptable than was the decision of Tennessee to forgo reapportionment for decades. And there is some reason to believe that modern technology is making the problem worse by making it harder for the Legislature to accidentally create a few competitive districts in addition to the mass count of districts designed specifically to deny the voters a meaningful choice.
This concern is felt particularly keenly by conservative activists, who believe themselves to be disadvantaged and discriminated against under the current system, and who think that a different system will grant them more power. There is substantial reaosn to think that they are wrong about this proposition granting them more political power; but setting that aside and looking only at their idealistic argument, they have a point. For the legislature to create districts that deny political competition and bear no reasonable relation to geographic communities, in order to ensure their own re-election, denies the voters a meaningful participation in representative democracy. It is intolerable.
THE PROPOSED SOLUTION: PROPOSITION 77
Proposition 77 would take the power to redraw legislative districts away from the legislature entirely and, in effect, split it in half. The power to create new district maps would be handed to a panel of retired judges selected through a complicated procedure designed to ensure partisan balance among the judges; those judges would then be constrained by a set of rules regarding what they could consider in drawing new boundaries. The power to approve new district maps would be vested in the voters themselves, through the power of referendum.
There is some precedent for involving the judiciary in the process. The 1990 redistricting was in effect done by the judiciary, and other states have from time to time had individual redistricting plans issued by the courts. In addition, since the 1960s redistricting plans in areas which are deemed to have had a history of racial and ethnic discrimination in the political process have been subject to judicial review.
More common is the principle behind involving the judiciary: the idea that redistricting should not be done by politicians but by people who are non-partisan and unlikely or ineligible to stand for political office is a common one. Iowa, for example, has for several decades vested redistricting in the hands of an independent commission appointed for that purpose, and district boundaries in most parliamentary systems are redrawn by civil servants whose only responsibility is to ensure fair districting. It is generally agreed by US experts that Iowa's districts are the fairest and most competitive in the United States; and there is very little discontent with the drawing of district boundaries in countries with civil service-drawn district borders (although this may be a result of a generally less polarized electorate in those countries, or of other cultural factors which do not arise from the district boundaries themselves).
Much of the opposition to proposition 77 seems to focus on a perception that the procedure for selecting who will draw new boundaries does not actually guarantee political independance, and may simply result in a politically biased cartel which is not, in the end, responsible to anyone. Proponents are aghast at the idea: if retired judges cannot be trusted to be unbiased and neutral, to apply the rules regarding district boundaries fairly and without a nod to political concerns, then who can be?
The proponents of the measure have a point: we expect judges to be unbiased, as a daily routine, part of their jobs. Judges hearing cases that arise out of election disputes are expected to put their partisanship aside and apply the law fairly and - Bush v. Gore notwithstanding, generally do so. It is not unreasonable to expect them to suppress their political bias in this task, and in any event the fact that their plans will be submitted as an initiative acts as a check on any political adventurism.
There is a problem, however, which opponents and proponents both seem to ignore: unbiased judicial involvement in the drafting of new districts may well lead to a perception of bias. As we've seen with the juggling of judges in the Tom DeLay case (where two judges have now been pushed off the case as a result of charges of political partisanship), it is easy for people to learn to percieve judges as being biased partisan hacks. To the extent that happens, respect for the judiciary, and willingness to comply with the decisions of courts, declines. It is possible, though by no means certain, that redistricting by judges will result in better redistricting and also cause a decline in public respect for the nonpartisanship of judges; that is one of the great risks of the proposal.
VETTING REDISTRICTING BY INITIATIVES
The other great risk in proposition 77 involves using initiatives to approve new district maps. Under the proposal at hand, the panel of retired judges is supposed to send its plan to the Secretary of State. It will go into effect immediately for the upcoming primary and general election, but it will also appear on the general election ballot as an initiative. If the initiative passes, the resulting plan is in effect until the following census; if the initiative fails, then a new panel of special masters is appointed and the cycle repeats itself.
The complaints i've heard about this focus entirely on the fact that the plan goes into effect before it is approved by the voters. If this measure passes, for example, the election of 2012 will be conducted using the districts drawn by retired judges using the 2010 census data, and simultaneously the voters will be deciding whether to accept or reject the boundaries. Doesn't that, as the opponents of the measure say in their rebugttal to the argument in favor, "take away the right of voters to reject redistricting plans before they go into effect?"
To an extent, yes. Under current rules, if the legislature adopts a redistricting plan, angry voters could circulate petitions to force a referendum at the next election, and the new boundaries would be suspended until after the election. This has never happened. The signature gathering does pose a significant barrier; and arguably a system in which the voters automatically get to vote on the plan is one which gives more power to the voters than one in which they only get to vote on the plan if they collect six hundred thousand signatures asking for the right to do so. This particular argument, as presented in the ballot pamphlet, is disingenuous at best.
There is a different concern, though: what will the campaigns over district boundaries be like? There will be expensive, high-profile campaigns; there always are, with ballot initiatives. Will they focus on contiguity (the only real concern that the judges are allowed to take into account when drawing the district boundaries)? Or will they focus on partisan outcomes? How likely is it that we will see political commercials denouncing new district boundaries for creating a democratic, or republican, partisan majority that is inconsistent with voter registration? What is the risk that plans which conform to the letter of the law will be rejected for reasons that the drafters of the districting plans are not lalowed to consider. Worse, what is the risk that plans will be consistently rejected and that, in effect, we will endure biennial redistricting?
Nobody knows the answers to this question; it is the great unknown in proposition 77.
The question that we as voters must consider is this: is that risk, and the risk of damaging the reputation of the judiciary, worth it? Or are we better off sticking with a means of selecting district boundaries which is actively undermining democracy?
In my mind, there's no contest. There are risks associated with Proposition 77; there are uncertainties. But i'd rather take those risks than continue with a system in which legislators select their voters and elections are, in effect, rendered meaningless. The risks of adopting proposition 77 can be ameliorated by further ballot initiatives if they turn out to be too great. While the risks of sticking with the current situation can also be ameliorated by ballot initiative, the failure of this initiative would discourage further attempts, and it is more likely that we would stick with the status quo than try something new. That course would do too much damage to our political culture.
Proposition 77 is a questionable idea whose time has come. It has risks, and it is not guaranteed to fix every problem for which it is offered as a palliative; but it has the potential for great improvement, and the current situation is intolerable. It is an experiment which, like the blanket primary in 1998, deserves the wholehearted support of the voters of the state.
|< Imagined Wrath | BBC White season: 'Rivers of Blood' >|