Joint Hearing of
Senate Elections,
Reapportionment and Constitutional Amendments Committee and
Assembly Elections and
Redistricting
Proposition 77
SENATOR DEBRA BOWEN: Good morning everyone. Thank you for joining us. My name is Senator Debra Bowen. I am the chair of the Senate Elections,
Reapportionment, and Constitutional Amendments Committee. Joining me today are Kevin McCarthy who is Minority
Leader in the Assembly, to my right, Tom Umberg, the chair of the Assembly
Elections Committee; Johan Klehs, Merv Dymally, and Mark Leno, all
Assemblymembers from various other parts of the state. And I understand that Senator Jim Battin will
be joining us at any moment.
Elections
Code 9034 requires that the relevant policy committee of the Legislature hold
joint informational hearings on all initiatives that qualify for the
ballot. So we are here today to discuss
Proposition 77. These hearings are
informational only, and for better or for worse, no one at this podium has any
ability to alter Prop. 77 or to affect its appearance on the ballot.
I’m
certainly not going to defend the current redistricting system. I arrived in the Legislature in 1992 after
the special masters redistricting following the 1990 census. I voted against the Senate maps in 2000, and
earlier this year I supported Senator Lowenthal’s SCA 3 that would have created
a reapportionment commission and taken the reapportionment out of the hands of
the Legislature. But, I have serious
concerns with many aspects of Proposition 77 and especially the mid-districting
process it envisions, the failure to recognize communities of interest, and the
possibility of multiple redistrictings that could disenfranchise thousands of
voters for much of a decade.
I
tend to run fairly interactive hearings, so if members and I think Senator,
Assemblyman Umberg—sorry, I’m promoting you a little early, also would like to
do that, at the end of the schedule, the agenda here, we will open the meeting
for comments from the public. If you
want to testify during the public testimony portion of the hearing, I would appreciate
it if you would sign in with the sergeants ahead of time and provide us with
your name and the organization you represent.
They’re in the back. This just
helps us run an orderly meeting. It’s
not a requirement for public participation.
So
with that, let me turn it to Assemblyman Umberg, and then ask if any of my
other colleagues have opening comments.
ASSEMBLYMEMBER TOM UMBERG: Well, thank you, Senator
Bowen. I’m particularly pleased to see a
large number of legislators attend this informational hearing of a very
important issue. And thank you for your
leadership with respect to elections and redistricting, Senator Bowen. As you mentioned, we are required to hold
this informational hearing. With respect
to any initiatives qualified for the ballot, this is a rather unique initiative
and has dramatic impact upon the State of
As I
understand it, not only will this be the first time in the State of
California’s history that we’ll engage in mid-decade redistricting, but should
this initiative pass, this would be the first time that redistricting would be
voluntarily done so late after a decennial census. One of the other issues that I think bears
exploration is not just the fact that 3.4 million or so Californians who have
arrived in the state since the last census will be in essence, left out of the
process, but also is whether a group of three retired judges is the best way
to, or the best decision makers with respect to who should draw the lines,
whether that reflects California’s diversity and that’s the best group to
designate the lines in which we’ll run.
And
also another issue is the issue of whether if this should pass and the lines
are redrawn and we have another election to, in essence, ratify the lines. If those lines are rejected, what the impact
is on the State of
We’re
blessed to have a very, very, very dedicated and talented group of panel
members testify here today, and look forward to hearing their testimony. Thank you, Senator.
SENATOR BOWEN: Thank you.
Mr. McCarthy.
ASSEMBLYMEMBER KEVIN McCARTHY: Well, thank you for letting me join you
today. Redistricting to me is the
essence of what this state should actually be working on. Representation and fair representation is the
most important thing we can do after the last election, we all know out of 153
races, none of them being competitive and none of them changing hands. I mean, the sad part if you actually analyze
the last Assembly races, and you took first place and second place. In the presidential race it was a 10 point
difference and people thought that was a landslide in
I
know there’s a lot of debate whether legislators should draw their own
lines. I say that’s inherently
wrong. I think taking a panel of judges
is probably one of the best methods.
We’ve done it before in the 70s.
We’ve done it before in the 90s.
And we had competitive seats. We
had the legislature changing hands from within my own party being in the
minority, going to the majority, and going to the lowest it’s ever been. There’s no guarantee for either party, but
who wins in this is the people. And when
analyzing Prop. 77 I’ll be interested to hear today, in the end, the people who
have the power are the people themselves that get to have the choice, which I
think is what government should be made up of.
So I’m very interested in listening today and I think we’ve got a great
opportunity if we all agree there’s a problem.
You
know, this weekend at my son’s football game, unfortunately he got injured and
got taken away in an ambulance. He got
his neck hurt. And when we were going to
the emergency, I didn’t sit there and say, yeah he’s got a bad problem, but I
should wait until the next doctor’s appointment. We took him right then. And we have the problem and we’ve got a
little solution to it, but I mean, that’s what I think. We’ve got a bad problem in
SENATOR BOWEN: Welcome, Senator Battin. Senator, Mr. Klehs, comments? Mr. Dymally?
Let me get you—alright. Mr.
Leno? Mr. Battin. Welcome to
SENATOR JIM BATTIN: Thank you.
Nice to be here. I’m glad I don’t
live here. I want to thank you for
having the hearing. I get a lot of questions
about Prop. 77 and I will just keep my comment here brief, and as we go through
I’m sure I’ll have others, but what I tell everyone is that any elected
official that tells you what their opinion about Proposition 77 is, you should
fully understand that it is coming through the lens of their own personal self
interest. It is amazing to me to see and
hear the wide variety of opinions that we have, and I always think then about
the person that’s telling me that, okay well, this is the district that he’s
in. He’s up for reelection then. This is who lives by him or her. Ad this is why they have all the opinion that
they do.
It is
imperative that the Legislature have informational hearings on
propositions. It’s very important that
we do that. It’s a tradition that we do
every couple of years. But, we should
not lose sight of the fact that the people that were making, up here making
comments today are going to be alcoholic beverages affected by it with
actually, maybe the exception of a couple of us, the chair and I won’t be. But, everybody else and kind of in general
will be affected by it and we should understand our comments given for what
they are.
SENATOR BOWEN: Alright, with that, let’s turn to our first
panel. And we’ll begin with Tim Storey,
Karin MacDonald, and J. Morgan Kousser.
They are here so let me ask you to—is there, do you have an order among
yourselves?
MR. TIM STOREY: I think I’ll go first.
SENATOR BOWEN: Tim goes first.
MR. STOREY: We’ll just go off the list, I guess. Yeah, that’s fine with me.
SENATOR BOWEN: Yes, and if you have written statements, the—
MR. STOREY: I don’t have anything to hand out. Yeah, but I’ll gladly email it after the
fact. So, and I hope your son’s okay, by
the way.
Thank
you, good morning. My name is Tim Storey
and I do appreciate the invitation to appear and it is an honor for me to be
here. I am a senior fellow with the
National Conference of State Legislatures based in
I’m
just going to provide a brief overview of how other states conduct
redistricting. And then talk a little
bit about how the proposal here in
So,
first let me talk about the legislative process. In 37 states including
So,
there are 12 states that employ some form of a board or commission to conduct
redistricting. And there are six—for
state legislative lines. And there are
six states that employ some form of board or commission to adopt the
congressional plans. The make up and
approach of these commissions vary considerably. Some of them are more bipartisan in their
design than others, and some of them are quite partisan as you’ll see as I
describe a few of them. In many of these
boards and commissions, the legislative leaders make the appointments to the
commission with relatively few limits on who they can appoint. Some of them do specify that members who
serve on the commission are prohibited from serving in public office for some
period after the passage of the plan.
But, in those 12 states, generally the legislative leaders and the
governor in a few of those states have fairly unlimited ability, or unconstrained
ability to appoint whoever they want to appoint to the commission.
Only
two states use some sort of a pool that’s predetermined that the appointing
authority has to choose from. And that
sort of is as I understand the way the
The
commissions range in size from the smallest in
The
largest commission is the one that draws the Missouri House plan.
Before
I get to
Now
let me talk a little bit about
Since
the 1970s when
And
finally, I would like to add there is sort of a fourth way that redistricting
gets done and that’s through the state and federal courts. In 2000, about 30 percent of all the plans
were either corrected or drawn by a state or federal court, because either the
commission or the Legislature failed to adopt a plan. Commission plans are successfully challenged
in court at the same rate as legislatively drawn plans.
Now
let me just talk a little bit about
It
would be the only commission where unanimous approval is required to enact the
plan. And I do sort of--it led me to
wonder as well what happens if the commission fails to adopt the plan. I wasn’t sure if that was in the proposition
or not. I assume like other states where
there’s a vacuum or a failure then it would go to court. And you know, you’d have a number of lawsuits
filed in various courts. It would be the
first redistricting commission to draw up plans in the mid-decade for the next
year’s elections, a point that you made, Assemblyman.
Certainly
in the modern redistricting era there are some cases in the 1800s where states
did do redistricting multiple times during the decade. And certainly as an aside, let me just say
there are couple of things about redrawing lines a second time in the middle of
the decade. Since 2000, a few states
have done this.
So,
that’s my prepared remarks. I really do
appreciate the invitation. Again, it’s
an honor to be here and I’d be happy to take any questions.
SENATOR BOWEN: Thanks for giving us the big
picture.
ASSEMBLYMEMBER UMBERG: Just a couple questions. So as I understand your testimony, this
initiative if passed would make
MR. STOREY: Well—
ASSEMBLYMEMBER UMBERG: Unique as to—
MR. STOREY: For both plans.
ASSEMBLYMEMBER UMBERG: Right.
MR. STOREY: So, yeah, it’d be unique in that respect.
ASSEMBLYMEMBER UMBERG: Alright.
And it would be unique in the respect of using data that’s as dated as
it would six-year-old data, correct?
MR. STOREY: Well, yeah.
I mean, in the modern redistricting era, it gets a little, it’s less
convincing when you get into the 1800s about when redistricting was done. But, yeah, I’d say in the last 100 years that
would be true.
ASSEMBLYMEMBER UMBERG: And the only state to use retired judges, is
that right?
MR. STOREY: Yes, that’s correct.
ASSEMBLYMEMBER UMBERG: And have other states considered using retired
judges and rejected that?
MR. STOREY: I don’t know.
ASSEMBLYMEMBER UMBERG: Okay.
And also, well, I’ll leave it at that.
Thank you.
MR. STOREY: Thank you.
SENATOR BOWEN: Anyone else?
Mr. McCarthy.
ASSEMBLYMEMBER KEVIN McCARTHY: If we did it mid-decade, the current lines are
dealing with the census used the last sentence, the most current information,
right?
MR. STOREY: Well, yeah.
The current redistricting plan was drawn using the 2000 census data,
yes.
ASSEMBLYMEMBER McCARTHY: So this ____ plan would use that same, the
most current census, would it not?
MR. STOREY: Unless the state made some attempt to revise
it or update it, yeah.
ASSEMBLYMEMBER McCARTHY: So, it’s the same data that is currently used.
MR. STOREY: The same data that was used to draw the
original plan, yes.
ASSEMBLYMEMBER McCARTHY: So, if there are current districts that are
overpopulated, would there not be currently?
Are there any current districts overpopulated as we speak today?
MR. STOREY: You know, that’s the beauty of my position
here is that I get to defer that to the
ASSEMBLYMEMBER McCARTHY: Let me ask you one more question.
MR. STOREY: -- because I don’t know.
ASSEMBLYMEMBER McCARTHY: Mr. Umberg said that we would be unique in a
couple different manners. Would we not
be unique that would this be the only state that allows the people the final
decision?
MR. STOREY: It would be the only state where the voters
would essentially vote on the plan, yes.
ASSEMBLYMEMBER McCARTHY: And then the comparison with
MR. STOREY: Yeah, if I understand the initiative or the
proposal before the voters, the three commissioners would be retired judges,
yes.
ASSEMBLYMEMBER McCARTHY: And they could, they’d have to sign not to run
for office for the next five years.
MR. STOREY: As, yeah, as it’s written in the proposal,
yeah, the proposition.
ASSEMBLYMEMBER McCARTHY: Thank you.
SENATOR BOWEN: Mr. Battin.
SENATOR JIM BATTIN: I just wanted to kind of follow up on the
point that Assemblyman McCarthy was making which was on the data—if the data
used on the next redistricting as mandated by the Prop. 77, it’s the same data
that we used for the current redistricting, is that correct? So the assumption would be if the data was
good then, it should be good now? Or
conversely, if the data is flawed now, does that mean that our redistricting
that we have is flawed today?
MS. KARIN MacDONALD: Would you like me to answer
that before my testimony?
SENATOR BATTIN: Why
don’t you answer it as part of your testimony.
SENATOR BOWEN: Mr. Klehs.
ASSEMBLYMEMBER KLEHS: Can someone tell me what the turnover has been
nationally in congressional elections, let’s say the last reapportionment was
2001, so let’s say from the ’98 cycle to the 2004 cycle, or from the 1994 cycle
to the 2004 cycle, the theory being that if legislatures draw the lines of
these members, there’s an inherent conflict.
There’s never any turnover. What’s
the turnover nationally in the Congress?
MR. STOREY: For Congress, I don’t know. I’m sure someone knows. I
mean, I don’t. And we’re all
looking at the political scientist here.
He’ll know.
ASSEMBLYMEMBER KLEHS: It certainly bears ____ this issue.
MR. STOREY: In legislatures—
ASSEMBLYMEMBER KLEHS: The reason I’m asking the question is
therefore you’re kind of looking at every state blindly whether you’ve got a
commission, the legislature’s doing it, or somebody else is doing it, so as
there is this partisan turnover meaning one party loses, one party wins a seat,
I’m just kind of curious what that effect is with all these different plans.
MR. STOREY: Well, I can answer for legislative plans
across the country. I mean, the average
turnover in state legislatures is roughly 20percent, a little bit higher than
that, 22, 23 percent. We have looked at
sort of the differential between turnover in states with commission system
redistricting, versus turnover in the states with traditional legislative
redistricting, and it’s essentially the same.
ASSEMBLYMEMBER KLEHS: You mean for Congressional seats or for
legislative seats?
MR. STOREY: For legislative seats.
ASSEMBLYMEMBER KLEHS: I’m looking for Congressional seats.
MR. STOREY: For Congressional, I don’t know.
ASSEMBLYMEMBER KLEHS: Is the theory in California is that we’re all
in safe seats the theory is that you have to reapportion to eliminate the
safety in seats, so by looking at what has happened in Congress nationally
where you have all states having various forms of reapportionment, we want to
see what really happened in Congress, too.
Was there very much turnover among partisan power over the years even
with the, you know, overlapping a census _____?
MS. MacDONALD: If I may, I’m not an expert on this, but I do
know being a political scientist that in general Congressional races have
become less competitive. And in fact,
we’re seeing this all over the nation that there’s just, there are just less
competitive races even with Senate races, in fact.
ASSEMBLYMEMBER KLEHS: So even though—
MS. MacDONALD: So there is not a lot of turnover.
ASSEMBLYMEMBER KLEHS: So perhaps it could be other factors—
MS. MacDONALD: Absolutely.
ASSEMBLYMEMBER KLEHS: --that affect the fact that there is not a
turnover across parties in Congress other than perhaps reapportionment.
MS. MacDONALD: Correct.
And I could probably email you some citations on people that have
actually looked at this systematically.
SENATOR BATTIN: You actually hit on a very important point
about redistricting is the contributing factor in elections, no one doubts
that. It’s a significant contributing
factor, but of course your point is there are other factors that drive
elections, incumbent advantages, and that.
So, yeah, I think the research supports that. And I'm sure the data exists about the
turnover in congress. It’s just we don’t, we don’t have ____.
ASSEMBLYMEMBER McCARTHY: Can I just ask something to clarify here? You said that state legislatively the
turnover is about 22 percent did you say?
MR. STOREY: Yeah.
ASSEMBLYMEMBER McCARTHY: Did you mean turnover, it is partisan turnover
or people?
MR. STOREY: No, people turnover.
ASSEMBLYMEMBER McCARTHY: So in
MR. STOREY: You’d be in high—
ASSEMBLYMEMBER McCARTHY: That would be part of your—so you’re not
talking about the competitive change of districts?
MR. STOREY: Not change, not talking about party ____--
ASSEMBLYMEMBER McCARTHY: Just talking about new people.
MR. STOREY: --the turnover of new legislators and—
ASSEMBLYMEMBER McCARTHY: But, you were answering it differently.
MS. MacDONALD: I was answering it for Congressional
districts.
ASSEMBLYMEMBER McCARTHY: By were you answering it by new people or by
change of party?
MS. MacDONALD: Party, change of party.
ASSEMBLYMEMBER McCARTHY: So, you’re answering the same question with
different—
MS. MacDONALD: Correct.
ASSEMBLYMEMBER McCARTHY: Thank you.
MR. STOREY: That’s a good point.
ASSEMBLYMEMBER McCARTHY: If I may follow up one thing. If you take the last election during the ____
election where we came on with redistricting, you just go back to your home
state. Did the parties not change the
power in
MR. STOREY: In the state legislature?
ASSEMBLYMEMBER McCARTHY: Yes.
MR. STOREY: Yeah, the Democrats took control of the
legislature for the first time in 40 years, actually.
ASSEMBLYMEMBER McCARTHY: So how many seats were that?
MR. STOREY: It was a handful of seats. The Senate was only a one seat difference,
and the Democrats picked up two.
ASSEMBLYMEMBER McCARTHY: And if I recall correctly on the map, wasn’t
that a red state? Didn’t the state,
MR. STOREY: Yeah.
ASSEMBLYMEMBER McCARTHY: So the state voted for Bush, and you had
redistricting drawn by the courts where the power shifted where the incumbents
lost where the minority party won and became the majority. Is that correct?
MR. STOREY: No, actually, in the legislative plan was
drawn by a commission. The Congress—
ASSEMBLYMEMBER McCARTHY: But, were not drawn by elected officials, the
commission, correct?
MR. STOREY: Yeah, yeah.
The legislative plan was drawn by a commission and it did, and the Democrats
did assume the majority in the State Senate, and so they had majority in the
legislature for the first time in 40 years.
ASSEMBLYMEMBER McCARTHY: And wouldn’t that be true in
MR. STOREY: Oh, boy.
How many—
ASSEMBLYMEMBER McCARTHY:
MR. STOREY: Twelve state legislative chambers switched
party control in the 2004 election.
ASSEMBLYMEMBER McCARTHY: And they were all after redistricting would
they not be because we do redistricting every 10 years?
MR. STOREY: Well, no, because it was the 2002 elections
would be the election cycle right after redistricting.
ASSEMBLYMEMBER McCARTHY: But, this is one _____ cycle after that. This is 2004.
MR. STOREY: Yeah, and there were, I think, 11 legislative
chambers that switched hands after, in 2002, and then 12 legislative chambers
switched hands—
ASSEMBLYMEMBER McCARTHY: And that’s party changes.
MR. STOREY: Right.
ASSEMBLYMEMBER McCARTHY: Now, in
MR. STOREY: I don’t know off the top of my head.
ASSEMBLYMEMBER McCARTHY: Zero.
MR. STOREY: Zero.
SENATOR BOWEN: Let me welcome Senator Romero and Senator
Dunn. He’s down there at the far, my far
right, which is not usually where he is.
And we’ll go on to Ms. MacDonald, because I think your testimony is
going to help us shed a lot of light on the practicalities of some of these
matters.
MS. MacDONALD: Good morning.
Karin MacDonald. I am the
director of the statewide data base which is a redistricting data base for the
state located at U.C. Berkeley. And I
have also done local redistrictings as a consultant and worked with commissions
in those particular areas.
I am
here to talk about data and logistics in general and some of the data issues
we’ve already touched on. Let me start
with just outlining redistricting in general so we all get on the same
page. Redistricting is basically
governed by two sets of criteria, tier one and tier two criteria we refer to
them as sometimes. Tier one criteria are
constitutional criteria that have to be met.
They’re equal population which is basically the reason for why we do
redistricting in the first place. And
secondly, the Voting Rights Act—Voting Rights Act in
Tier
two criteria are also called traditional redistricting criteria and those are
_____ county boundaries, compactness, ____, and communities of interest, things
of that nature. For redistricting
generally speaking, we use census data, or everybody uses census data, and
census data that are released after the census is collected. So usually the data for redistricting gets
released first. As you know, the census
releases a lot of different data sets in between census collection. And the first data set is called the
PO94171. It gives us block level data
for the population, so it gives us total population, gives us some racial and
ethnicity indicators, and it tells us how many people we have that are of
voting age. And city blocks basically
are roughly comparable to the unit of analysis on which the census releases
these data. And I’m kind of pushing that
point, because in order to draw districts that are equal in population, one
needs a very small unit of analysis to actually use as building blocks.
Estimates
in general cannot be used. They’re
generally not good. ____ employment
_____ statisticians _____ say to look at estimates of census data, because
they’re all generally very bad. There
are no systematic data available between census collections. And certainly whatever data are available are
not available on the block level.
One
might consider that courts have held that even adjusted data that the census
releases cannot be used for redistricting and those adjusted data are actually
“fresh data” and very good algorithms are being used to produce these
data. So, they’re usually assumed to be
much better than the estimates, so I think we can all agree that estimated data
are out for redistricting, especially for mid-decade redistricting.
So,
since redistricting is about equalizing the population under one person, one
vote, we’re looking at extreme accuracy.
And especially Congressional districts are held to the strict scrutiny
standards which means that most districts have to be very equal in
population. And in the last round of
redistricting, not only the Congressional districts, but also the Legislative
districts in the State of California were basically didn’t deviate a whole lot
from the ideal population. We had I
think a maximum deviation on any district of two or three people. So that in fact is much smaller than what
Proposition 77 would have us do.
In
terms of what, you know, if we’re looking at redistricting right now, we’re
running into one big problem, and that is really that we don’t have accurate
data available and we can talk about this in more detail, I’m sure, in a
second. In, just as an example, in 2000,
or in 2001, our Assembly districts had roughly 423,396 people in them. And if you look at how many people are in
The
problem is that we just don’t know where these people are, because what we
have, I mean, I couldn’t even find actually an estimate or two estimates that
could agree on how many people we have in
I was
asked to kind of go over logistics a little bit which is, you know, what are
you doing in redistricting? What is
involved with drawing a plan? And I
think generally speaking the process that a commission would go through is not
that different from what the Legislature went through or would have to go
through if it would stay with the Legislature.
One needs to acquire data somehow.
And then, you know, usually drawing begins at that point. Data that are needed to satisfy the criteria
are census data for the equal population criterion, and then political data for
VRA, Voting Rights Act compliance, and public input, I would say, for
communities of interest. But, some
people may also tell you that you could use political data for communities of
interest, you know, to meet the community of interest requirement, or actually,
other census data such as, you know, SF3 data, maybe income variables and things
like that. In, you know, for Prop. 77,
we would pretty much look for the same data, and again, the one problem is that
the census data at this point are quite outdated, because they’re five years
old.
One
would then once the data are acquired, the commission obviously has to be
seated. And then one would have to hire
experts for a 77. I mean, the
Legislature also oftentimes hires experts or, you know, decides to do
redistricting in house and where they have experts. Computers, computer programs have to be
ordered. One has to set up a website I
would guess. That’s pretty much a
standard, a standard thing to do these days.
And then the commission would have to figure out what the guidelines for
public submissions are. And that’s no
trivial task, because I would say that if one really wants public input in a
redistricting process, a commission or legislature should accept anything that
the public submits. That may be a half a
district. That may be just, you know, a
submission that says here’s my neighborhood.
Make sure you don’t split it.
Here are the boundaries. It may
be you know, things of that nature, because there are not that many people in
So,
you know, the submission criteria is a pretty big one, so you’d have to set
that up and then figure out how you will receive these submissions. Will it just be by, you know, by email,
you’re going to fax them in. I mean,
these things sound trivial, but they’re not, because you need to also evaluate
these things. So if they’re not all
coming in the same format, for example, you have one map that, you know,
somebody’s, you know, mother drew, and somebody else has a geographic
information system and they’re sending you maps that way. There’s a totally different process for
evaluating the input and actually incorporating the input.
Then,
you know, hearings have to be held. And
in the last redistricting I believe that the Assembly held five hearings. And I may be wrong on this. Proposition 77 requires three hearings, two
before the plan is finished, and then one after. That’s, I think even five hearings is not a
whole lot for a state as big as California, and three, of course, is even less,
so. Then, you know, the commission would
have to go through the rest of the proscribed process and once the districts
are finalized, you would have to go through _____ which was what Tim was just
talking about. And ____ if anybody has
ever been in that process, it’s a tedious process of just describing basically
which way the district lines go. That’s
the process where all your staffers have to take a vacation all of a
sudden.
And
then you need preclearance, and that’s also, that’s actually a somewhat time
consuming process. Preclearance comes in
because we are covered by the voting rights act. While there are just four counties covered in
SENATOR BOWEN: Let me just stop you for one moment. I think probably a lot of people who are
listening don’t know what preclearance is or how
MS. MacDONALD: Sure.
SENATOR BOWEN: Okay, thank you.
MR. MORGAN KOUSSER: I’ve just finished an 80-page paper on Section
5 and I’ll read it now. (LAUGHTER) No—
ASSEMBLYMEMBER UMBERG: Mr. Kousser, if you could identify yourself.
MR. KOUSSER: I’m Morgan Kousser. I am a professor of history and social
science from Caltech, and I served as an expert witness in more than 20 federal
voting rights cases, including the last two
So
the Section 5 was a section of the Voting Rights Act adopted in 1965 to ensure
that any changes in jurisdiction, states, counties, cities, school districts,
etcetera, which the Congress had reason to believe were likely to
discriminate. And that’s defined by
particular sets of formulas. They had
to—before the election laws went into effect, they had to send them to the
Justice Department where the Attorney General or his designates would make a
decision as to whether the purpose or affect of the new law was
discriminatory. So there, there are four
counties covered in
SENATOR BOWEN: Okay, thank you. I think it’s helpful for us to know. So you’re talking about just procedurally
what it takes. You’ve just spoken to us
about preclearance. And now Professor
Kousser’s clarified that that preclearance requires a minimum of 60 days once
the lines are submitted for preclearance and could take double that. So which I think leads me to wonder how we
could—state law requires that districts be set by December 30th of
2005 for the 2006 election cycle. The
special election in which the voters will decide on Prop. 77 is November
8. We’ll know, informally, we’ll
probably know the results the next day, but they are not formally certified for
another 30 days and we certainly had many elections where it took almost the
full 30 days in the last election cycle.
Even if we assume that we can start on November 10th, how do
we get all of these things done in a way that complies with the federal Voting
Rights Act, gives the public an opportunity to participate, and gets the lines
drawn by December 30th so that candidates can be into campaign and
people can know who they’re going to be electing in their new district.
MS. MacDONALD: I think it will be extremely, extremely
difficult. And I wasn’t actually even
talking about the time it would take to get it precleared, you know. Even just the process that I described would
be just incredibly difficult. It would
be incredibly difficult if not impossible to do all of this before December 30th,
partially also because there’s Christmas in between and we all know what
happens over Christmas and people just don’t go to hearings and many people
don’t work. And you know, submitting
essentially a plan to the DOJ for preclearance—
SENATOR BATTIN: I’m sorry, is it the people submitting plans
you think is extremely difficult, or do you think it’s the federal government
engagement in preclearance?
MS. MacDONALD: Both, I think both. After, you know, I’m a bit of an activist
where I live and I will tell you everything shuts down around December, because
you can’t get anybody to come to a hearing.
SENATOR BATTIN: If, if it’s, do you imagine that it would be
alcoholic beverages impossible if
MS. MacDONALD: Do you want to take that?
MR. KOUSSER: It may be the only reapportionment, but it’s
not the only voting law. There are
voting laws annexations, polling place changes, there are all sorts of things
that come up all the time. But the
Justice Department has over 30,000 submissions per year under Section 5 now,
and this might be the biggest one. They
might be able to finish it, but they probably have a great deal more to do.
SENATOR BOWEN: Well, I think we can actually assume for
discussion’s sake for the purpose of Ms. MacDonald’s discussion, because she
wasn’t really getting into this as a time frame. Now, I’m willing to make the assumption that
the preclearance takes one day just for the sake of argument, even though I
think, okay. I understand you think
that’s ridiculous, but just for the sake of argument, if it took one day, how
do you deal with selecting commissions, hiring experts, setting up a data base,
drawing plans, holding public hearings, getting public input, and then getting
this done by December 30th?
Just pretend we don’t have preclearance.
Can you do it?
MS. MacDONALD: I couldn’t, no.
MR. STOREY: You couldn’t, you can’t submit the plan until
it’s certified, so you’re exactly right about that. So, you can’t even send it to the DOJ until
it gets certified. And then I would say that in certainly in the 1990’s round
of redistricting, less so in the 2000 round of redistricting the Justice
Department did tend to go right up to the end of the deadline of their allowed
deadline under the Voting Rights Act which is 60 days plus, 60 if they ask for
any piece of information. And often in
the 1990’s round of redistricting they took the full 120 days plus the lag time
between the two. Now in 2000, the
department did turn around from redistricting plans quicker than that, and—
SENATOR BATTIN: And so certainly in this particular case it
would be the only one in the country that they’d be working on with a lot of
pressure behind it, because everybody knows there’s a clock ticking, so I mean
if you’re going to make assumptions, then make assumptions with, you know, what
the fact _____.
SENATOR BOWEN: I’m assuming one day. I don’t want to take this out of the
equation. Even though it’s a ridiculous
assumption, I think the other tasks and the mechanism for creating public
involvement even without the preclearance are going to give us significant
difficulty. And I’m speaking as someone
who actually participated as a citizen in the 1990 redistricting. I spent time at a computer program looking at
maps of
So
that process, I guess I understand from the process and I think you’re
absolutely right. These people aren’t
interested in the whole big map ____.
They want to know what’s going on in my neighborhood. And it takes ____ time. Senator Umberg, I’m sorry, Assemblyman
Umberg.
ASSEMBLYMEMBER UMBERG: Thank you.
I actually take Senator Battin’s point.
I would assume that if Governor Schwarzenegger called President Bush and
said we want this cleared instantaneously, that perhaps it would only take as
long as email is required to go to
MS. MacDONALD: I think that’s the only reasonable assumption
you can make is that 2000 census data would be used if this initiative passed.
ASSEMBLYMEMBER UMBERG: Well, as I also understand it that census data
is merely a snapshot, right? I mean,
immediately after the census is taken, people move, people are born, people
die. So by the year 2006, that snapshot
is fairly inaccurate. Is that
correct? Okay. And it would be more accurate actually to use
estimates in 2006 than use the census data to create one person, one vote
districts, is that right?
MS. MacDONALD: That depends on whom you ask, but I don’t know
anybody who you would want as an expert witness who would tell you that
estimates for
ASSEMBLYMEMBER UMBERG: ‘Kay, well, the essential purpose of
redistricting is to make sure that each person has equal representation in the
Legislature and the Congress, as I understand it.
MS. MacDONALD: Correct.
ASSEMBLYMEMBER UMBERG: And so we try to do the best job we can by
doing the redistricting immediately after the census, right?
MS. MacDONALD: Correct.
ASSEMBLYMEMBER UMBERG: So if you wait six years by definition the
data is old and so you’re not going to have one person, one vote. Is that right?
MS. MacDONALD: Correct.
ASSEMBLYMEMBER UMBERG: Okay.
Well, what would be the best way to remedy that assuming Proposition 77
passes, what would be the best way to remedy that situation so that you get as
close as possible to one person, one vote?
MS. MacDONALD: Short of correcting data for
ASSEMBLYMEMBER UMBERG: The best remedy would be a new census.
MS. MacDONALD: Correct.
ASSEMBLYMEMBER UMBERG: A statewide census. Do you have any sense of how much that would
cost?
MS. MacDONALD: Well, I actually just divided the cost of the
census nationally by, you know, the population of
ASSEMBLYMEMBER UMBERG: So if we wanted to do redistricting in a way
that was both as equitable as is possible and consistent with Proposition 77 we
would take another census irrespective of the cost.
MS. MacDONALD: I suppose we would have to.
ASSEMBLYMEMBER UMBERG: Alright.
Okay, thank you.
SENATOR BOWEN: Alright, I have wanting to ask questions in
this order: Mr. McCarthy, Ms. Romero, and Mr. Leno, and I cannot see on this
flat podium if there are members who have questions, so you will have to pass
notes. Mr. McCarthy.
ASSEMBLYMEMBER McCARTHY: Thank you very much. A couple different points if I may ask. If the argument is that if we go forward and
we do redistricting and I believe the time table is in the initiative when
individuals have to appoint the individuals to move forward. If I look at history in 1990, or if you look
at the last four decades. In 1970 we did
it by retired judges, correct? In 1980
we did it by legislators. And if I
recall correctly it wasn’t done until 1984 because of the referendum, so this
would not be the only time that it would be a mid-decade redistricting. Nineteen ninety was done by judges. What was the time table that it took for the
special masters. If I recall correctly,
Pete Wilson was the governor. It was
vetoed and it went to a special masters.
Is my memory correct that it was less than 60 days if they drew the
line?
MS. MacDONALD: They did it pretty quick, I know that, because
the person who actually drew the lines is on our advisory board, so I talked to
him at length. He also does not think
you could do particular redistricting. They
use census track.
ASSEMBLYMEMBER McCARTHY: Okay, not to quote other people, but I could
quote other individuals that did redistricting and say something different than
you are, but if I could just ask you that are present. We did it in less than 60 days, correct?
MS. MacDONALD: They did quickly, yes.
ASSEMBLYMEMBER McCARTHY: In here there is a criteria much like in the
1990s that you keep cities and counties whole.
MS. MacDONALD: Correct.
ASSEMBLYMEMBER McCARTHY: Now, I like to play games. And sometimes I like to put puzzles
together. If I buy the big 1,000 piece
puzzle where you have to worry about where every little thing goes, it takes me
a long time. If I do it with my little
nephew and I get the great big pieces where I have to keep cities and counties
_____, it doesn’t take me very long to make a puzzle. There’s a big difference between the thousand
piece and the other. This criteria says
you keep cities and counties whole and you put Senate and Assembly, two Assembly
seats in every one, seems to me it’s more like my nephew’s puzzle--a little
easier to do. Much like we did in 1990,
because it’s the same criteria, correct?
So,
in 1990, when I was still in college, my computer was a Tandy computer and it
was a 5.5 floppy that I put in. Today
I’m getting emails on my Blackberry. I
mean, the technology is different, and if we’re going by a time line here of
where we are technology and the time that it takes to do it, I would have an
argument that if we did it in 1990 in 60 days, and we’re using a criteria of
cities and counties together and we’re nesting Senate and Assembly, I don’t
think we have to be farfetched to say, yes it can be done, especially in the
initiative that it set the time table when they have to be nominated and when
you have to get going on the public opinion hearing. Now where in that thinking of mine would
cause problems?
MS. MacDONALD: There are a number of them. I think you are absolutely right that if you
start nesting, obviously, it’s going to be faster.
ASSEMBLYMEMBER McCARTHY: But, does the initiative call for nesting?
MS. MacDONALD: Yeah, it does.
ASSEMBLYMEMBER McCARTHY: So we would have to nest.
MS. MacDONALD: So, but that’s only one aspect of the
initiative, you know. I mean, you’re
talking about city and county splits. I
mean, we just, we received a grant from the Urban Foundation where we actually
looked at this, like how cities and counties could be kept together, and we
looked at whether you could get competitive districts when you’re keeping
cities and counties together and things like that and evaluate it actually, the
old plans in the systematic way. We
looked at all the different criteria, and one of the big, really to me,
surprising findings were that the last plan is actually the one that is current
and legal right now is actually very good with respect to keeping cities and
counties together. And if you are trying
to draw competitive districts, which, by the way, is not called for in 77, I
mean, there is an assumption that that might happen, right? But, basically there is no real criteria that
says you have to shoot for competitive districts. If you’re trying to keep cities and counties
together, it’s actually harder to draw competitive districts, believe it or
not. And we’re going to release these
data and the findings of the study in two weeks. So, that’s part of it.
But,
the other thing is that also they used census tracks in 1990 when the special masters
drew the maps. And it did not go down to
the block level. And the deviations were
higher. Now deviation standards have
really changed between 1990 and 2000 and definitely by 2005, because we’ve had
a number of law cases, of court cases that came down and said even in the
Legislature you have to have very, very small deviation, which is why I think
the California Legislature have these incredibly small deviations even for the
Legislative districts the last time.
They’re like two or three people, which, by the way, a lot of people
think is ridiculous, because that’s also something that makes it harder to keep
cities and counties together or to represent communities of interest without
splitting them.
I
guess my point is, you know, if you’re looking all these criteria, if you’re
shooting for one, something else has to give.
There are always these little tradeoffs.
But, at this point under the current legal climate, you have to have
deviations that are very, very small, so tract level data are out. And you’re right. When you these days draw up plans, you grab a
city, you put it into your plan that’s really quick. But you still have to carve around, and don’t
forget that you still have those four districts, the voting rights
districts. So they have to be, you know,
drawn with apolitical data and you have to just be very careful when you ____.
ASSEMBLYMEMBER McCARTHY: I believe those voting rights districts petitioned
to not be a voting rights district.
MS. MacDONALD: Yeah, you k now what? Section 5 is right now up for renewal and a
lot of people think that the bailout, what’s called the bailout criteria might
actually get changed in the renewal. I
don’t think they have, but I think they’d like to.
ASSEMBLYMEMBER McCARTHY: My understanding is one half, but, let me just
follow back up on two things that you said.
MS. MacDONALD: Okay.
ASSEMBLYMEMBER McCARTHY: You said under this criteria we cannot do it
well. Is that correct? Under redistricting, under Prop. 77 you said
we could not do it well.
MS. MacDONALD: With the data we have available right now we
could not do it well.
ASSEMBLYMEMBER McCARTHY: Is it your opinion the current redistricting
is done well because you made a statement earlier because of cities and
counties and I don’t want to put any words in your mouth. Would you believe that the current
redistricting is done well?
MS. MacDONALD: You know, it depends on what side of the table
you sit on. For some people—
ASSEMBLYMEMBER McCARTHY: You’re on that side. What side do you—
MS. MacDONALD: My personal one?
ASSEMBLYMEMBER McCARTHY: Yeah.
MS. MacDONALD: I think it was done well for cities and
counties.
ASSEMBLYMEMBER McCARTHY: You think it’s done well. So the lowest ____ speed that goes along—
MS. MacDONALD: For city and county splits it’s done
well. You know, there are some areas
that are done very well, and there are other areas probably—
ASSEMBLYMEMBER McCARTHY: But, you made the whole opinion on Prop. 77
that you couldn’t do it well. So you
would say—
MS. MacDONALD: With respect to data.
ASSEMBLYMEMBER McCARTHY: It’s your belief currently it’s done well.
MS. MacDONALD: I didn’t say it. What I’m saying is that I don’t think you
could draw good districts right now, because you just don’t have proper,
accurate data. So you couldn’t do it
well even if you wanted to, even if you had the best intentions.
ASSEMBLYMEMBER McCARTHY: Is there any criteria that should be higher
than other criteria?
MS. MacDONALD: Only the constitutional ones.
ASSEMBLYMEMBER McCARTHY: But you say, yes.
SENATOR BOWEN: Actually, she’s the data person. I think that’s probably more properly a
question to the—
ASSEMBLYMEMBER McCARTHY: Okay, let me just follow up with the last
question for the data person. In here
the cities and counties in the current one, you say does a good job from that
standpoint. How many competitive seats
by data, and if we go back to the last.
Because in the last four decades, we’ve had two by judges and two done
by legislatures. How many competitive
seats were currently and how many competitive seats were under judges?
SENATOR BOWEN: What’s a competitive seat?
MS. MacDONALD: Well—
ASSEMBLYMEMBER McCARTHY: Within 10 percentage points you can go
through. There’s lots of different
methods that you can ______ competitive seats.
SENATOR BOWEN: I think, no, it’s an interesting discussion,
but I don’t even know that we can get into that with that—
ASSEMBLYMEMBER McCARTHY: I thought she made that point to me coming
back about—
SENATOR BOWEN: I believe what she said was that there’s, if
Prop. 77 does not call for—
ASSEMBLYMEMBER McCARTHY: Well, I don’t know if she was nodding. Why don’t we let her in ____. Were you referring to competitive seats when
you said this, Prop. 77 does not ask for?
MS. MacDONALD: It does not ask for a competitive seat.
ASSEMBLYMEMBER McCARTHY: That’s why ____ back, she made that comment.
MS. MacDONALD: Right, well, but it’s also true what Senator
Bowen said which is that because it doesn’t call for it, we haven’t really
identified what exactly competitive seat is, because that is the full
employment _____ political scientist, because you can measure competitive seats
based on—
ASSEMBLYMEMBER McCARTHY: Political scientist, did he say competitive
seat?
SENATOR BOWEN: Actually, we haven’t given him a chance for
his testimony.
ASSEMBLYMEMBER UMBERG: Could I add a couple of facts, though, to the
equation that was propounded by Assemblymember McCarthy? In 1970 and 1990 as I understand it, the data
that was used was approximately one year old, number one. Number two is that there had been extensive
hearings and analyses done before the special masters. It wasn’t the judges, at least in 1990. It was special masters that reported to the
Supreme Court, concluded their analysis.
And that would be a critical difference between doing it in 2005, 2006
and in 1991 or 1971. At least it would
appear to me to be a critical difference.
Are those facts correct? I see
heads shaking. Yeah, okay.
SENATOR BOWEN: Senator Romero has been patiently awaiting an
opportunity to ask a question, as has Assemblyman Leno. And then I do want to get to Professor Kousser’s
actual testimony, and then we need to get to the proponents and opponents. We’re still on the, if I may lovingly call
you all the pointy heads here. We’re
note even talking about the people who have an opinion on prop. 77. These are the people who are just trying to
just help us understand. They have no
opinion, right?
SENATOR GLORIA ROMERO: Thank you, Madam Chair. I actually walked in a little bit late, so I
didn’t hear the introductions overall, but let me just say that I was a bit
dismayed seeing at what we have in this auditorium. I think there are probably as many people on
this side of the room as there on that side of the room, and I would not
counting staff from members’ offices. So
I guess the question I would ask first and foremost are where are the
people? It somewhat seems like insider
baseball.
With
respect to the question of what can be done, obviously anything can be
done. You know, what’s the quality,
what’s the public notification?
Assemblymember McCarthy, you talked about Blackberries. Not everybody has Blackberries. Come to
I
would hope that we get into some discussion as well as to even what’s the
purpose of redistricting. I’ve heard
different answers in discussions already.
I always thought it was about equal representation, reapportionment, the
population changes, and you try to reapportion based on population. This proposition and this debate for this
election has gotten into competitive seats.
It’s about Democrats versus Republicans.
It’s about how many parties have changed, how many seats have changed
political parties. I don’t think that’s
what the founding fathers and founding mothers, dare I add, intended when we
talked about redistricting and reapportionment.
And to me it really comes down to this is simply about a political power
grab. You know, one party trying to get
greater control of seats, and quite frankly, another party trying to defend
against it. But, I would hope at some
point we can talk about what is the purpose of redistricting, because if it’s
about competitive seats, I don’t think we’re going to find that anywhere in the
Voting Rights Act of the Constitution.
Finally,
Madam Chair, with respect to the time frame, I am a little bit confused. We’ve got at least eight names on this
agenda, plus ____ public testimony. It’s
after
SENATOR BOWEN: Your point’s well taken. I think we’ve had our questions take over the
panel. Mr. Leno. And then we’ll do Mr. Kousser, and I do want
then dismiss this panel and bring up the opponents and proponents, which is the
heart of this.
ASSEMBLYMEMBER MARK LENO: Thank you, Madam Chair. That’s a great introduction and invitation to
speak. And I do want to also respect the
comments made by Senator Romero, because we clearly do have to move
forward. I want to just preface a brief
comment and then I have a question for Ms. MacDonald, by saying that I, no
attachment to our current system. I
wasn’t a part of it in 2000. I’m going
to be termed out in short time. This is
not about any landscape or real estate that I’m attached to.
But,
I do have a real concern about the whole process that has brought us Prop. 77
given our initiative process. We have no
public hearings whatsoever. This is
taking us down a path that would be a complete experiment. As Mr. Storey’s pointed out, there are a
handful of elements in Prop. 77 which would make us unique--the only state in
the country doing something a certain way. So if we can in crafting any kind of new
policy turn to states for best practices, we’ve gone completely the other
way. We’ve decided that no matter how
any other state is doing it in the very complex issue, we’re going to do it our
way and any historical information or any other kind of experiential
information that could actually benefit the state, we are saying we have no
interest in it. We’re going to do it our
way, uniquely, completely different from anybody else.
My
greatest concern has to do with the issue of reapportionment and some of the
information you shared with us, Ms. MacDonald.
And I don’t want to suggest that we all are experts in ways that you are
not. You clearly know this in a depth
that I certainly don’t and I would really challenge any member of this
committee, given it’s not our life work as it is yours. You had said that estimates cannot be
used. Even adjusted data cannot be used,
and I wanted to ask if that’s just your personal opinion or if you are stating
that as a result of decisions the courts of law have made?
MS. MacDONALD: Yeah, there are a number of court decisions
that basically pointed out that estimates cannot be used for
redistricting. And part of it—
ASSEMBLYMEMBER LENO: Can you be more specific? Which courts have said that estimates can’t
be used? You don’t have that—
MS. MacDONALD: I don’t have them with me, but I can email
them to you, no problem.
ASSEMBLYMEMBER LENO: That’s fine.
And again, this is out of concern for one person, one vote, 14th
Amendment concerns?
MS. MacDONALD: Yeah, it’s about the strict scrutiny idea, and
the fact that you really have to have very equal populations, especially in
congressional districts.
ASSEMBLYMEMBER LENO: Sure.
And Mr. Storey, or Professor, if you wanted to add in, as well, please.
MR. STOREY: Yeah, the U.S. Supreme Court ruled that the
census couldn’t be adjusted or changed.
That it was the actual numeration data that had to be used for
congressional redistricting. The, some
states do make adjustments to their census data before using it for
redistricting. I say some, too, states
do that where they actually move military and college students before they
conduct redistricting and that’s been upheld by courts.
ASSEMBLYMEMBER LENO: Right.
MR. STOREY: And you can do some adjustment to the
data. You just—
MS. MacDONALD: But, part of that has to do with the fact that
the census also had a lot of problems and in the last census collection with
what’s called group quarters which is what he’s talking about right now. So they actually, there were just some data
problems. And they have to adjust the
census data to actually reflect how many people they had in the districts.
ASSEMBLYMEMBER LENO: Right.
But, getting back to this mid-decade redistricting again. I had heard a couple of my colleagues
comment, well, we have the same inequity or the differential between the 2000
census and current
But,
I think the point is that short of a new census, that’s just the way we have
structured this by doing it at least once by law every 10 years. So if we’re so concerned that there is this
differential because of the significant shifts, additional populations that
have come to California in short periods of time—we’re talking about millions
and millions and millions of people, though we have, of course, as you have said,
no idea where they live, then we should be looking at potentially a system
where we would have a mid-decade new census taken. And then we could proceed because of our
great need to adjust with a mid-decade redistricting. But, again, turning to other states, you
would best mention, Mr. Storey, that
MR. STOREY: By the State Supreme Court.
ASSEMBLYMEMBER LENO:
MR. STOREY: Well, it’s been upheld several times by lower
courts and was remanded by the U.S. Supreme Court back to Texas, was upheld by
the District Court in Texas, and the plaintiffs are seeking an appeal with the
U.S. Supreme Court.
ASSEMBLYMEMBER LENO: Okay.
MR. STOREY: Can I make one clarification and ____ in terms
of mid-decade redistricting, I did say that it was uncommon that you got these
cases in the 1990s, but your point is a good one that there have been a number
of mid-decade redistrictings undertaken by courts in the 1990s. That was a fairly, sort of common thing. I think that was the point you were
making. There’s a distinction. If didn’t make that clear, I apologize. Because it was on point to that.
ASSEMBLYMEMBER LENO: And then what’s the situation in
MR. STOREY: It’s pending pre clearance with the Justice Department. They’ve just asked for more information, so
that the 60-day clock is ticking and within 60 days they’ll have to rule on it.
ASSEMBLYMEMBER LENO: Okay, I will conclude with just the last
comment. Also reference to comparing
decades here within
So, I
just don’t get the basic premise here. Clearly,
states change. We have these maps of red
states and blue states across entire sections of the country with regard to
presidential races, they aren’t competitive.
It’s not because the state lines have been redrawn, it’s because of
demographic shifts. I don’t believe
So I
just want to challenge the premise that has brought us to this hearing which is
the result of Prop. 77, and also _____.
You know, you had mentioned as a response to Assemblyman McCarthy’s
question about competitiveness that there’s nothing in it, in Prop. 77, but I
think the amendment that took it out actually came a day or two after Governor
Schwarzenegger held his press conference to announce we’re going to the people,
and that was that seven percent maximum, or seven point maximum spread in party
registration which got ripped out at the last minute. No one even knew about it until a couple days
after.
So,
whole process seems to be a bit rushed, and again, this is a very important
issue. I would like, and I’ll credit the
authors for bringing us greater attention to the issue, because I think the
issue does need to be addressed and I think we collectively may have been
guilty of not addressing it, but so many complexities to it. We’ve had no public hearings even to bring us
to the proposal in front of us, I think we need to step back and take some
time, do it right, look at best practices.
ASSEMBLYMEMBER UMBERG: Thank you, Mr. Leno. If we could turn to Professor Kousser now and
perhaps you could respond to some of the issues raised, including the issue of
voluntary versus mandatory redistricting in connection with mid-decade
redistricting. So, Professor Kousser.
MR. KOUSSER: I will
try. I will try to be as brief as
possible, though it’s out of character.
After the 1990s redistricting, I wrote a paper, long paper called
“Reapportionment Wars: Party Race and Redistricting in
A lot
of you have been around redistricting for a long time. Senator Dymally was chair of the
redistricting committee in the early 1970s and drew plans that I wish had been
adopted. They were very good plans. And I say so in this paper, sir.
I
want to start by quoting somebody else.
Nate Percily who got his Ph. D. at
So
the proposition that you have a process, this is an—the Prop. 77 process at the
beginning is incredibly complicated. I
defy you to teach this to a high school government class and hold a snap quiz
and have them try to get it right. Three
people appoint, oh, let’s see, they have to be, oh gosh. I can imagine what those papers are going to
look like. What the guess is, is that
this non-partisan process is automatically going to lead to more competitive
districts. We have a recent example in
SENATOR BOWEN: Can I ask you to focus on, help us focus on a
question I think Senator Romero raised which is the tradeoff between
competitiveness as a criteria, and the risk for fair representation of
minorities. I know this is an issue that
you have spent some time on, and also help us understand the places where
because of the demographics, it may be impossible to draw a district that is
competitive and compact, remembering, of course, that Prop. 77 does not call
for competitiveness, so this is all a theoretical discussion.
MR. KOUSSER: You all know something about the demographics
of the state. Many of you know much more
about the demographics of the state than I do.
Imagine drawing a Republican district in the middle of the
Imagine
the effect of trying to draw a competitive district that takes into account
SENATOR BOWEN: Women?
MR. KOUSSER: No
women, indeed, sorry. I had already said
white males, so yes, no women, also.
Straight males, yes indeed. I
don’t want to leave anybody out, I apologize.
So, and furthermore all of these groups have access currently to the
people who are drawing districts. The
representatives in the Legislature, Latinos in the Legislature, African-Americans
in the Legislature, women in the Legislature, Asian-Americans in the
Legislature, people of different sexual preferences in the Legislature, they
all have access to the people who were drawing the districts. It is not at all clear that they will have the
same sort of access or any sort of access at all to the people, to the judges
or most crucially, the political consultants, the redistricters who are drawing
the districts.
The
judges will have two basic decisions to make.
The first, maybe the most important decision they make is who’s going to
be the person who actually does the line drawing? And that will not be transparent at all. They’ll choose this person. It will probably have to be done
rapidly. Who is it going to be? I don’t know.
This is a pig in a poke. If
you’re asking what the influence of anybody is going to be in this particular
proposition, we simply don’t know.
There’s too much that’s not spelled out.
The
second thing is that they will make a decision on the lines. And those are the lines that will be used if
somehow this all gets done. If Mr.
McCarthy is right and this all gets done by 2006, those will be the lines that
are used in 2006. Maybe the people can
vote to throw out those lines causing further chaos afterwards. But, they will be the people who will do
that. We don’t know who we’re voting
for. We don’t know what we’re voting
on. And we do know most likely that they
will be three unrepresentative people making these two most important
decisions.
If I
may, I’d like to say something quickly about the master’s plans of the 1970s
and 1990s comparing them with what went on in the post-2000 redistricting and
the 1980s. There’s a rule in political
science that you have to hold other things equal in order to try to determine
that one variable is most important. The
other things that might be held equal with respect to the outcomes of elections
weren’t equal across the 1980s, ‘90s, 2000.
In 2004, there were only two counties I think, in
Later
on in the decade you had Proposition 13.
Nineteen eighty you had Ronald Reagan who had coattails in 1980.
ASSEMBLYMEMBER McCARTHY: How do you equate then—you never mentioned the
recall. We’ve never recalled a governor
before and that was done less than a year prior to that election, but you
mentioned Watergate which was held in
MR. KOUSSER: No, because as it turned out in 2004 much to
your chagrin and much to your governor’s chagrin, Arnold Schwarzenegger did not
have coattails. And he did not manage to
pull in other people, though they particularly targeted a certain number of
Assembly districts. I’m sure that you
can—
ASSEMBLYMEMBER McCARTHY: But, I wouldn’t equate—how many times have we
recalled the governor in California regardless of whether he’s yours or mine
just from a, not from a party point of view, but from a California point of
view?
MR. KOUSSER: There
was—the thing about the recall is that it was relatively concentrated on
SENATOR BOWEN: I want to when you finish we want to get to
Mr. Costa and to the opponents.
MR. KOUSSER: Certainly, I apologize. In the 1990s you had the worst recession in
I
will agree, Mr. McCarthy, that there was a bipartisan gerrymander in the 2001
redistricting. And I was critical of
parts of that. It is not the
redistricting that I would have chosen had I had a choice. The question that we have, that we’re
concerned with here is given the chaos that will take place if Proposition 77
is put into place before 2010 which it will be, given the fact that minorities
will have much less access to representation here, given that there is
certainly no guarantee of competitive districts, no part in the law for
competitive districts and no likelihood that you can automatically say that
there will be competitive districts.
Given this choice between two things, is that the right thing to
do? And that’s what you have to decide.
ASSEMBLYMEMBER McCARTHY: I’ll be very brief. The study of last four redistrictings and
this is Rose Institute just in. It says
a competitive seat is when a Republican or Democrat switches within a
decade. That’s their definition of
highly competitive. The two times the
judges did it, there were 30 seats that they can, because they switched, you
know, by history. In the 1980s there was
15. This time there’s five. You don’t say competitiveness in there, but I
think when you use the criteria where you keep cities and counties whole, that
happens.
The
only other statement I would make from your standpoint, you disagree with the
current redistricting model. You say you
would not have selected that one. Inside
this Rose Institute study, as well, it says that minority groups, if you took
the criteria that asks for in Prop. 77 would have greater representation under
Prop. 77 than without. They state by
Assembly districts even up by
MR. KOUSSER: It went
up. It could have gone up further.
SENATOR BOWEN: Actually, I think what I’d like to do is call
up the next panel and we’ll ask the communities, the minority communities who
are here, MALDEF, the Asian Pacific American Legal Center, and so forth, to
address their view of whether Prop. 77, of Prop. 77.
ASSEMBLYMEMBER
DYMALLY: Madam Chair, while
the panel is changing, I just want to make a, take this time—
SENATOR BOWEN: Bring up Mr. Costa and the remaining panelists
will, can come on up and will save us transition time.
ASSEMBLYMEMBER
DYMALLY: Madam Chair, just
want to make an observation before we start the next panel. There’s a lot of discussion about community
of interest. Prior to this last
reapportionment,
SENATOR BOWEN: Thank you.
Alright, Mr. Costa. Welcome.
MR. EDWARD COSTA: Thank you very much. It’s a pleasure to be here. First I think you all know that Proposition 77
is under the jurisdiction of the California Supreme Court, and is another
action that my good friend here has brought in the Ninth Circuit. And so I, this is a legislative hearing. I want to get into the legal aspects of
that. I think it’s best that the court
handles all those legal aspects of the thing.
However, if you want to ask your questions, I’m here to answer your questions.
In
lieu of a paper, because I was invited here and I asked what the format was and
no one ever got back to me, I brought editorials from the New York Times, from the Orange
County Register, and the Fresno Bee. And I submit those because they say about
everything that I want to say about this initiative. Of course, it is the intention of the
drafters of this initiative that we believe first and foremost that legislators
and politicians have an inherent conflict of interest. And we wanted to help you by relieving you of
that duty, but yet give you input into that duty. And that’s why that we went to a panel of
judges.
Now,
the panel of judges—remember, the point was made here that why don’t other
states use judges. Because in
So,
_____ initiatives checks and balances over the system. Yes, I know it’s a little complicated, but
you have an awful lot to check and an awful lot to balance, and we want to get
it buttoned up and we believe that we have buttoned it up. And with that, I think I’ll just open it up
to your questions.
ASSEMBLYMEMBER UMBERG: I thought first maybe introduce who’s at the
panel so we know.
SENATOR BOWEN: We can do that. Let’s have the panelists do, introduce
themselves and please take the microphone before you do that.
MS. CHRIS CARSON: I’m Chris Carson from the League of Women Voters
of California.
MR. EUGUEN LEE: My name is Eugene Lee. I’m with the
MR. JOHN TRASVIÑA: I’m John Trasviña, Senior Vice President for
Law and Policy at the Mexican-American Legal Defense and Educational Fund.
MR. ADRIAN DOVE: I’m Adrian Dove, chairman of the CORE,
Congress of Racial Equality of California Legal Defense and Education Fund.
ASSEMBLYMEMBER UMBERG: Mr. Costa, thank you so much for testifying
today. Let me just ask a couple
questions. With respect to the data,
would you agree with me that it would be better to have data that’s one year
old as opposed to six years old to do redistricting?
MR. COSTA: Well, absolutely.
ASSEMBLYMEMBER UMBERG: And would you agree with me that the data that
would be used under Prop. 77 would, if we use the census data, would be five or
six years old. Is that right?
MR. COSTA: It’s a possibility, it could be, yes. ____ process and the United States
Constitution and the remedy if someone wants to change that is to amend the
U.S. Constitution, and you could have a census every year if you want. But, they do it every 10 years and during
that 10-year period, is that’s where we are.
Right in the middle of it.
ASSEMBLYMEMBER UMBERG: This is, I know you’d agree with me also that
this is a unique situation where the proponents are asking for redistricting in
the middle of the decade as opposed to immediately after the federal census,
right? Wouldn’t you agree with that?
MR. COSTA: Yes.
Yes, we want it now.
ASSEMBLYMEMBER UMBERG: Right.
MR. COSTA: We call it fair districts now, because we
think that the system is broke and it needs repairing and we cannot wait
another six years to do it.
ASSEMBLYMEMBER UMBERG: And in order to get the fairest districts
would you agree that having data from a state census conducted beginning
immediately after the passage of Prop. 77 would be the fairest way to do it?
MR. COSTA: Would I agree to that? I might agree to that, yeah. Let me tell you something. We have data that is conducted by the
census. And then we have this data that’s
right now that’s in my opinion, is total speculation. Let me give you an example of it. The other day when I was debating, I was told
that, my gosh, if this thing passes, the people in San Francisco will have
100,000 fewer people in their districts than the people in the Inland
Empire. But, my gosh, isn’t that true if
we don’t have redistricting next year it will be the same? So what kind of an argument is that? How do we know that there’s 100,000 more
people there unless someone went out and counted them?
ASSEMBLYMEMBER UMBERG: The essential purpose of redistricting is to
ensure that one person has one vote and equal representation in the congress
and the legislature as I understand it.
Is that right? That’s the—
MR. COSTA: That’s one of the criteria, yeah.
ASSEMBLYMEMBER UMBERG: That’s the essential criteria, right. That’s the primary purpose.
MR. COSTA: For Legislative and Congressional, yeah.’
ASSEMBLYMEMBER UMBERG: Right.
And so, again I assume you’d agree that the best way to do it would be
to have a census perhaps beginning immediately after passage of Prop. 77.
MR. COSTA: No, I don’t agree to that at all. I mean, that’s, it’s not part of what we’re
doing in this initiative. That is part
of the U.S. Constitution, and the remedy for that is to change the U.S.
Constitution if you want to change the way the census is done.
ASSEMBLYMEMBER UMBERG: No, I’m talking about state census, not a
federal census.
MR. COSTA: Well, it’s in federal court right now. The federal judges could do that if they
wanted.
ASSEMBLYMEMBER UMBERG: But, we certainly could in
MR. COSTA: Yeah.
Let me—I’m not trying to evade your question, but let me tell you
something. We chose this three judge
panel because we thought they were the best qualified for the very reason that
they are judges. Alright? Judges have a lot of leeway. A lot of things that judges could do. They can make their own rules. Okay?
It’s kind of silent on this, because we want the panel to have the flexibility
to do what they want, okay? Now, if you
personally have a remedy or any one at this table has a remedy, when that judge
panel comes together, they can submit anything to those judges they want.
ASSEMBLYMEMBER UMBERG: In terms of the judges and the diversity of
the judges, it’s, the panel would consist of retired judges, is that right?
MR. COSTA: That’s correct.
ASSEMBLYMEMBER UMBERG: And retired judges in the State of
MR. COSTA: _____ agree with you on that.
ASSEMBLYMEMBER UMBERG: Would you suggest that perhaps majority are
minorities, retired judges?
MR. COSTA: No, they’re not. Not by any means are the majority of them
minorities.
ASSEMBLYMEMBER UMBERG: In fact, over 80 percent are white, is that
correct?
MR. COSTA: I don’t know the exact percent.
ASSEMBLYMEMBER UMBERG: Well, would you agree with me that it’s over
80 percent?
MR. COSTA: Judges Retirement System knows what it
is. I do not know what it is. I know there are significant numbers of
minorities and significant numbers of women that can be chosen in the pool.
ASSEMBLYMEMBER UMBERG: But, Mr. Klehs informs me it’s about 89.3
percent white. I would suggest that’s
overwhelming, would you agree with that?
MR. COSTA: Not unless I really see the numbers. I won’t agree with that.
ASSEMBLYMEMBER UMBERG: I see.
Would you agree—let’s just assume for purposes of this discussion it’s
89 percent.
MR. COSTA: I do have those numbers in my office and I
could get them for you. But, I don’t
have them—
MR. COSTA: Let’s just assume that Mr. Johan Klehs’ data
is accurate. Would you agree that 89
percent being white would mean overwhelmingly white?
MR. COSTA: Well, easily 130 minorities could be
chosen. We only have to choose 12 of
them.
ASSEMBLYMEMBER UMBERG: I see.
MR. COSTA: So judges in their wisdom they can if they
want, they can set their priorities to have diversity in the pool. And the four people who choose can set their
priority to make sure that they have—
ASSEMBLYMEMBER UMBERG: But, that’s not required, is it? In the initiative?
MR. COSTA: No, it’s not—
ASSEMBLYMEMBER UMBERG: Would you also agree with me that it would be,
I don’t have the number in front of me, but this is my estimate—about 90
percent male?
MR. COSTA: I don’t know.
That’s in your estimate? Fine,
that’s your estimate.
ASSEMBLYMEMBER UMBERG: Would you agree that that would be
overwhelmingly male?
MR. COSTA: Ninety percent would be overwhelmingly male,
yes.
ASSEMBLYMEMBER UMBERG: And in terms of the compensation, how would
the panel be compensated?
MR. COSTA: They’d be compensated the same. It’s under the initiative as the ____
commission.
ASSEMBLYMEMBER UMBERG: They get paid per day, right?
MR. COSTA: Yes.
ASSEMBLYMEMBER UMBERG: Is it $100 per day?
MR. COSTA: Something along that line.
ASSEMBLYMEMBER UMBERG: I see.
And so, in terms of $100 per day for a retired judge would you agree
with me that that’s fairly low compensation for a retired judge?
MR. COSTA: No, I wouldn’t. They are volunteering. They’re not being drafted. They are volunteering for the position, just
as the people who get on a salaried commission are volunteering for the
position. They’re going in there knowing
full well that they’re going in there for public service. They’re going to spend 30 days, maybe 45 days
and their duty is over. And during all
that time they’re going to get their retirement.
ASSEMBLYMEMBER UMBERG: Would you characterize these judges then as
volunteers?
MR. COSTA: I would hope so.
ASSEMBLYMEMBER UMBERG: I see.
MR. COSTA: I would hope they’re volunteers. Our governor is a volunteer. Why can’t these guys be volunteers?
ASSEMBLYMEMBER UMBERG: Alright.
Well, would you agree with me, though, that that would eliminate a
certain number of individuals who didn’t have the financial resources to
volunteer?
MR. COSTA: I don’t know of any retired judges that don’t
have the financial resources. If you do,
let us know real good. We’ll have a
fundraiser for them, okay?
ASSEMBLYMEMBER UMBERG: You’re not suggesting that you would want to
compensate them on the side, are you?
MR. COSTA: (LAUGHTER)
I would be sure they don’t starve. Okay,
I would want to do that.
ASSEMBLYMEMBER UMBERG: Okay.
Let me turn it back to the chair.
Thank you.
SENATOR BOWEN: Just a few questions about the mechanics of
the measure—what happens if the redistricting plan, people run under the plan
as proposed and then it’s defeated. What
happens? Who gets seated in the Legislature
at that point?
MR. COSTA: The people who won at that election would
serve their two-year term, and then there would be redistricting again and then
there would be new districts two years later.
SENATOR BOWEN: And same scenario. So we could just go every two years and have
a continual rejection.
MR. COSTA: Theoretically you could go every two years and
see how far, how long it will take for the people of the State of
SENATOR BOWEN: Well, I think they’re there now, but ____
matter. One of the things we talked
about a little bit was the issue of criteria.
And I thought Professor Kousser’s point about not being able to hold
every criteria equally important is a very critical. You have to decide what’s most
important. Is it equal representation, one
person, one vote? Is it
competitiveness? Is it communities of
interest? Is it city and county
boundaries? There’s simply no way to
make all of those things equally important in redistricting. Prop. 77 seems to be, place an emphasis on
city and county boundaries, rather than communities of interest. Can you explain why you chose to use the
existing geopolitical boundaries, rather than the actual interests of people in
communities as the first criteria?
MR. COSTA: Yes, I can, but let me explain something
first. The professor talked about the
_____ political science of random universe.
And as long as I’ve been in politics, it is not random, okay? And no two things are the same in
politics. So that’s why we have all
these arguments about back in the ‘70s, back in the ‘80s, and all that because
you can’t compare them to today. Yes,
we, the drafters of this initiative thought communities of interest were
extremely important. And when we looked
there is more important community of interest than a county. They were created with the state at the same time,
and secondly, are the cities of this state are communities of interest. So we set those out. And there are other communities of interest,
as well. And we would like them
protected.
Let
me give you the most important example of this.
All the time when we talk about communities of interest we all talk ____
demographic. I live in
SENATOR BOWEN: But, are you suggesting that we try to draw
boundaries based on a particular issue?
Because, if I took the Auburn Dam and said, well we’re going to use that
as a measure of community of interest, then I would necessarily have to not use
other things where people might have, for example, an interest in not sending
water to
MR. COSTA: I can’t imagine. I can’t imagine
SENATOR BOWEN: Parts of
MR. COSTA: Yes.
Let me tell you something. I
mentioned the dam. There are a thousand
issues similar to the dam in the state.
Every community of interest has issues that are important to them. And if they didn’t have issues that were
important to them, we wouldn’t even need a legislature.
SENATOR BOWEN: What I’m suggesting to you is that the
community—if you’re just looking at the phrase “communities of interest” that
it’s going to very radically depending, the map will not be the same depending
on whether you choose education issues, environmental issues, water issues,
transportation issues, language issues.
You’re going to have radically different maps where communities align
differently on different issues.
MR. COSTA: Yes, that’s what the legislature’s job to
articulate all those divergent points of view.
SENATOR BOWEN: So that judges will have to figure that out.
MR. COSTA: No. Judges
are going to follow the constitutional criteria which is you keep counties
whole, number one criteria. Number two,
you keep cities whole. Number two
criteria. That is the criteria that we
established in the Constitution and the masters are to follow that
criteria. The first redistricting might
be a little wave or two, but after that they should be so smooth that there
would be minor adjustments which is what the founding fathers, what they wanted
is minor adjustments to population every 10 years. That’s what you will get when you keep
counties whole, keep cities whole.
Counties can depend upon the fact that when the annual, when the census
comes that their county will be pretty much the same as it was in the past.
SENATOR BOWEN: This whole discussion about counties is
actually fairly ridiculous in Los Angeles County, because we have I don’t know,
17 senate districts and I don’t know how many Assembly districts ____ the
population shifts within the cities and the county are such that you cannot
possibly just add a whole city when you’re changing the census. You can’t take Senator Romero’s Senate seat
in
MR. COSTA: Yeah, but
SENATOR BOWEN: The City of
MR. COSTA: Yes, but when you take
SENATOR BOWEN: I would respectfully suggest that if you were
to go—well, again, if, you know,
MR. COSTA: And why should
SENATOR BOWEN: I’m, who’s suggesting that it does? You can’t divide the 15 million people in the
Los Angeles—you can’t divide the City of Los Angeles into equal Assembly
districts. Have you ever looked at map
of the City of
MR. COSTA: If Proposition 77 passes, when we’re doing the
districts, once they go into
SENATOR BOWEN: The practicalities of what the map looks like
in Los Angeles and what the City of L.A. boundaries are, there is a, what is
it, Mr. Dymally? A 12-mile, 10-mile long
strip that connects South Central to San Pedro along a little strip that’s
maybe half a mile wide. And I’m sure you
know the exact statistics. Yeah, Harbor
Gateway it’s called. I represent
it. It’s definitely got more in interest
with the people on either side of it than it does with the people who are 20
miles up the road. So I think there are
just some practical problems with that, but the size alone is what’s going to
____.
Let
me just turn for one moment to the question of nesting. Nesting adds one more criteria to what has to
be worked on. My question for you is if
your concern here is the power of incumbency, doesn’t nesting increase the
power of Senate members to in effect, pass the mantle to a nested member in
their district?
MR. COSTA: It could possibly. However, the people are the ones who consent
or the people consent to that representation.
It’s theirs. You will have to go
to the people to get people’s votes.
SENATOR BOWEN: Senator Romero, question?
SENATOR ROMERO: Yeah, I have a couple of questions. Mr. Costa, thanks again, too, for appearing
here. Let me just as you though. The argument is, and again, redistricting
absolutely. Let’s think of new ways to
do it. I do have concerns and of course,
am not supportive of Prop. 77, but the idea generally is take it out of the
hands of the politicians. But, let me
ask you. It essentially Prop. 77 doesn’t
take it out of the hands of the politicians.
At least as I read the initiative it actually reduces. It gives it to the politicians, but rather than
120 legislators voting on the plan and sending it to the governor for his
signature, 121 of us, it basically hands it over to four politicians. How does that—I mean, to some extent, if
you’re going to take it out of the hands of the politicians, then take it out
of the hands. But, essentially as I
understand it, and please help me understand it if I’m misunderstanding it,
Prop. 77 says forget that women have been elected. Forget that minority groups have been
elected. Forget that the governor has a
chance to sign or veto it. Forget that
there’s 121 politicians. Prop. 77 says
in the name of getting it to the judges, I’m going to reduce it and give it to
four politicians, all of whom are men, by the way.
Prop.
77 doesn’t take it out of the hands of the politicians. It reduces it to a handful, less than a
handful, four people. And with all due
respect, and Mr. McCarthy, who you have faith in to say, I think he’ll pick
diversity, there’s, quite frankly that doesn’t take it out of the hands of the
politicians. It gives it to four people,
four men in
MR. COSTA: Here’s what it was. It’s explained, I think, rather really well
in the voter pamphlet. I told you about
checks and balances. The four leaders
may not choose someone of their own party.
Okay.
SENATOR ROMERO: But, they still choose.
MR. COSTA: So no matter how bad Kevin McCarthy doesn’t,
wants to choose a Republican, he must choose a Democrat. That must be his choice.
SENATOR ROMERO: But, the point is he’s choosing. He’s choosing somebody. You’ve given it—Prop. 77 gives this to four
politicians to ultimately pick three unelected judges who have no
accountability to the public whatsoever.
The question’s for Mr. Costa. Let
me hear him first, please. And then
when you get your chance, you can go ahead and . . .
MR. COSTA: Okay, as I was saying, there’s one other check
and balance there that they each have a veto.
They each have a silver bullet.
SENATOR ROMERO: But, again though, and again I hear that, but
what you’re saying, though, that the previous veto might have been Senator
Bowen or myself or Assemblyman Dymally, or 120 legislators. I mean, essentially the veto which means a no
vote is being taken out of the hands of the politicians, but the absolute
decision making is given to four executives, four hand-picked party leaders—
MR. COSTA: Actually, it’s the clerk. The clerk reaches their hand it or his hand
and pulls out three at random.
SENATOR ROMERO: But, ultimately who make, who ultimately, here
it is again, too, the four legislative leaders—
MR. COSTA: Only choose the pool. Only choose the pool and then it is chosen by
the Chief Clerk.
SENATOR ROMERO: But, still, I guess my point is, this is not
taking it out of the hands of the politicians, it’s concentrating it in a very
powerful, minority, political, blatantly partisan leadership with all respect
to my leader, Don Perata, ____ part of the leadership.
MR. COSTA: _____.
You know that’s not true. ____
yes you do. We need to talk, yeah.
SENATOR ROMERO: Okay, but hopefully I hope the voters talk,
because this is certainly what I think is going on as we are not taking it out
____ concentrating it.
MR. COSTA: If I could make one other little comment.
SENATOR ROMERO: Okay, and then I have one final comment before
I know Assemblyman McCarthy wants to jump in.
MR. COSTA: There’s a program that anyone can buy for
$6,000. has all the census tracks in and
you could redistrict this state in about three hours. So I invite any of you when Prop. 77 passes,
come over to my office, we’ll sit down and we’ll do district plan. I’m hoping it’ll be a hundred or 200 plans
submitted.
SENATOR ROMERO: Okay, Mr. Costa, though, let’s not be
trivial. This is an important
issue. Redistricting is a serious issue
____ representation.
MR. COSTA: I can submit a plan, you could submit a plan,
anyone here could submit a plan. Anyone
at this table could submit three or four plans.
SENATOR ROMERO: Mr. Costa, let’s get serious, again, too. Not anybody can afford 6,000 bucks. You know, there are poor people in
MR. COSTA: Send them to my office. I’ll let them use the program.
SENATOR ROMERO: Finally, your comment on having fundraisers
for judges, again, too, this is a serious venue. I hope it was a flip comment. But, ____ if you as the author of Prop. 77
are encouraging fundraisers for judges, then I really think that the four
concentrated politicos picking judges who ultimately, who American Media might
have a fundraiser for, then we’re really walking down a dangerous line. But, Mr. Costa, really let’s not be
flip. This is not about money. This should be about representation. It should be about fair representation for
every individual whether they can afford $6,000 or even have access to a
computer which I would submit to you, they don’t. But, ultimately, if we’re going to change
redistricting and I believe all of us are open to it, my hope is that if you’re
going to take it out of the hands of the politicians, then take it out. Don’t put a super concentrated, four men, to
pick three unelected judges with absolutely no accountability on a piece of
paper that they may sign pledging to never run for office. There’s no enforceability. But, I know that the Assemblyman _____.
MR. COSTA: The one point, I will apologize to you the
comment I made about judges. I made the
comment because, see, I really believe that judges’ retirement is such a nice
retirement, that it’s more than the average person makes and they’re doing very
well on retirement and they can give _____.
And they don’t have to. It’s
voluntary.
SENATOR ROMERO: And I appreciate that. It’s a nice retirement, but you know what,
though? It’s all too few people. A very non-diverse set of people. Well intentioned, perhaps, but a very
non-diverse set of people who enjoy that retirement.
MR. COSTA: The work that they do is going to come before
the courts, some of the finest legal minds there is. And these judges are the ones that know how
to button up redistricting so it will withstand all the challenges. They are the one group of people in our
society that could take this issue and button it right up.
SENATOR ROMERO: Thank you, Chair.
SENATOR BOWEN: Mr. McCarthy, and then there’s nothing from
this end, we’ll go to the opponents starting with League of Women Voters.
ASSEMBLYMEMBER McCARTHY: If I may just clarify as being one of the
leaders what happens. The leaders do not
select the three. The system says the
Judicial Council selects ____ 24, so then you get a randomly selected. From there the leaders select 12. They picked in. And then what happens is like a jury system
that we all support and go through each and every day of our life in this court
system, get to throw one person off, not of your own party, but of the opposite
party, much like a jury system that we all believe and supported. I think that is a very fair manner. Then what happens here is, that’s not the
end. The point I think that is happening
is people are focusing on the wrong issue.
at the end the public is the final say.
So it’s not a select group. It is
the entire public. If you look at the
last redistricting, what happened? You
didn’t get a selection. You got a few
leaders get in the back and made a decision based upon how to create the puzzle
and asked—number one question they asked elected officials? What city do you want to represent? The elected officials picked the voters. The voters did not consent.
Now,
I don’t think we can have it both ways.
You can’t sit here and try to make some cross examination. To sit there and say the census data is
bad. If that is your belief that the
census data is bad, then we’re living in a problem of census data right
now. That is what the districts are. But, if everybody agrees redistricting is
wrong, then we need to change it. And
you know what? We’re going to have to
make that change.
Now,
in my district much like everybody else’s district, they have another Assembly
seat next to them. I can go to a certain
school in my district even though it’s in the main population and this is where
you come inside Prop. 77. It is stated
as saying you keep the cities and counties contiguous as possible. So if
And
when you talk about issues, the judges aren’t going to sit there and say Auburn
Dam is the issue or another. They’re
going to sit there and look at the cities and counties, because that’s the
jurisdiction we’ve been going under and those are not political issues, those
are issues from within. So I think from
a standpoint when you’re looking at long term, how do we create redistricting
better, to me structure dictates behavior.
And if you set a structure that says cities and counties and you set a
structure where you keep 80 Assembly members, 40 Senators, that’s not difficult
math, two for one, you get greater representation because the people have the
say. They people have the input, and
it’s not based upon parties. And I think
in the long run that is best for all and I think history has shown over the
last four redistrictings, when they were done by judges and were done by
legislators, this isn’t about Republicans or Democrats. This isn’t about a majority or a minority
status, because I will tell you my party in a redistricting by judges has had
the most and they had the least. So it’s
not about that. It’s about people having
the say and in the end what does Prop. 77 say?
The people make the decision. So,
some people are afraid that what if the people disagree with what is done? That is the right thing for the do. The people rejected and we have to go
back. That we have to go back, then that
is what the country is made up for. What
if they rejected somebody at the ballot?
This is what it’s all about. The
people have the say at the end and not a select few. I thank you for your initiative.
ASSEMBLYMEMBER UMBERG: May I just clarify something? Assemblyman McCarthy analogized this system
to how we select jurors, but as I understand it, there’s a self selection
mechanism, Mr. Costa. First you need to
have been a judge, right?
MR. COSTA: That’s true.
ASSEMBLYMEMBER UMBERG: And to have been a judge you, in large part,
had to have been appointed by the Governor of the State of
MR. COSTA: Either that or elected by the people. Federal judges are eligible, too.
ASSEMBLYMEMBER UMBERG: Well, then by the President of the
MR. COSTA: That’s what you contend.
ASSEMBLYMEMBER UMBERG: Yes, do you agree with me on that?
MR. COSTA: I don’t know to or not to.
ASSEMBLYMEMBER UMBERG: Well, okay.
So first you needed to be a judge in large part appointed by either the
Governor or the President of the
MR. COSTA: ____, sure, they’re both partisan
officeholders.
ASSEMBLYMEMBER UMBERG: Then you need to actually volunteer, as
well. You can’t just be plucked out of
that pool. You’ve got to submit your
application to be part of the process, right?
MR. COSTA: It could work out that way or they could send
a note into them and they would have to submit something back not to be. Or their name would be put in, but the judges
have that discretion.
ASSEMBLYMEMBER UMBERG: You mean, under your system a judge might be
drafted actually.
MR. COSTA: It’s not my system. It will be the three—once the three, the
panel is in, it’s their system. It’s not
mine. In fact, it’s not even mine. It belongs to the people of the State of
ASSEMBLYMEMBER UMBERG: Let’s just clarify one point. A retired judge—is a retired judge subject to
being drafted involuntarily to participate in this process?
MR. COSTA: No.
ASSEMBLYMEMBER UMBERG: Alright.
MR. COSTA: In the end, it’s voluntary.
ASSEMBLYMEMBER UMBERG: I see.
Okay. So, one, you need to be a
judge. Two, you need to volunteer.
MR. COSTA: I’m sure there’s professional courtesy amongst
the profession, I’m sure.
ASSEMBLYMEMBER UMBERG: Okay, alright.
____. Thank you.
SENATOR BOWEN: Alright, let’s go to the opposition. We’ll begin with Chris Carson, League of
Women Voters. And thank you for your
patience and allowing us to sort through the parts we have so far, and I’m sure
you’ll enlighten us as to the parts that we missed.
MS. CARSON: The League of Women Voters of California
appreciates the opportunity to share with you the reasons why we oppose
Proposition 77 on the November, 2005, ballot.
The League supports redistricting processes and standards that promote
fair and effective representation in the State Legislature and House of
Representatives with maximum opportunity for public scrutiny and a bipartisan
commission as the preferred redistricting body.
The current method of redistricting in
The
League and its partners spent many hours educating the Legislature and Governor
as well as the public about the components of a good redistricting plan. We worked with legislators in both parties,
chiefly Mr. McCarthy, and there were many good faith efforts on both sides of
the aisle to find a reasonable solution.
Unfortunately, even with intense last minute negotiations between the
Legislature and the Governor, an alternative to Proposition 77 was not put on
the ballot.
We
have a number of concerns which include the nature of the panel, the timing of
the redistricting and communities of interest, but I’d just like to focus for a
minute or two on one particular portion of it—the ratification of a proposed
plan. Currently any redistricting plan
is a bill that is enacted into law and becomes operative for the state. Proposition 77 would require that any
proposed redistricting plan be brought to a vote of the people, even while it
is being used in elections. If the plan
is rejected, then the entire process must be repeated until a plan is approved
by the voters.
By
any standard of government efficiency and effectiveness, this is an invitation
to chaos. Who is going to spend the
enormous amount of time and money needed to educate the public about the plan. Any plan is going to be so complex and so
technical. And given the complexity of
the plan, whatever plan is proposed, even a very small interest group could
easily spread enough suspicion to cause its defeat at the polls. How many elections would it take before a
plan is adopted? Not because it is
worthy, but out of sheer exhaustion.
In
the meantime, confusion would reign.
Voters would be unsure of which districts they resided in, let alone who
actually represented them. And this is
something that the League of Woman Voters is very focused upon, because when
anybody has a question or a problem they call or email us. “Who’s my representative? What district am I in,” you know, “how do I
get this? Who do I talk to about
that? Shouldn’t the state lottery
computers be used to count votes?”
whatever it is, they find us and we have to answer their questions. You’ve got a situation now where the voters
don’t know much as it is. What’s going
to happen with this new proposal?
We
talked a lot about this, because we’re not just about technicalities. The League is about basic constitutional
principles of good government. Elected
officials would have real difficulties connecting with their constituents and
identifying the needs and interests of their districts. And how long would it be before voters begin
to question the Legislature’s authority to represent the people and do their
business? It is not too far fetched to
ask if representatives are elected to district whose lines those voters reject,
will the voters accept their governing power?
The first time, perhaps. But,
after two or three such rejections. . .
And
finally we have concerns about remedies for flaws and weaknesses in this
measure. There’s no easy remedy provided
for. The only way to correct any
problems that would arise would be long and costly lawsuits which might not be
successful and will ultimately require placing another constitutional amendment
on the ballot in the hope the voters would approve it.
SENATOR BOWEN: Thank you.
Mr. Lee, you’re next in line, so we’ll hear from you next, unless, well,
do you want to go in the order you’re listed?
Okay, let’s do that.
MR. TRASVIÑA: Thank you, Senator. On behalf of the Mexican-American Legal
Defense and Educational Fund, I appreciate the opportunity to testify on
Proposition 77. I am John Trasviña,
MALDEF Senior Vice President for Law and Policy. MALDEF is a
Not
only does Proposition 77 take us farther away from real reform, it dangerously
side tracks our local state and federal elected officials, interested
communities and voters from the central issues facing California’s families and
futures. Focused attention on the state
budget, education, health, and myriad other issues of vital important to
Californians, inevitably get cast aside when every redistricting reform rears
its head. One of the practical values of
once a decade redistricting is that it minimizes the electoral distraction to a
defined period of time between the publication of the new census data and the
Secretary of State’s ballot preparation deadline so that
The
impact of redistricting under Proposition 77 does not simply commence with the
selection of special masters nor end on the 40th day after the
unanimously approved new districts. Re
redistricting unleashes a campaign agenda which enters the political
bloodstream of the state early on, mutates and enlivens political action
committees, fundraisers, lobbyists, the hiring of campaign consultants and
demographers and inevitably looms over the executive and legislative agendas
not just in Sacramento, but in cities and counties across the state. Simultaneously, the reasonable and ____
expectations of the governing agenda get upset and the prospects of moving up
the electoral ladder germinate in politicians’ minds. All of this occurs prior to the approval of
new districts. Once the maps are
approved, constituents’ districts are shifted from the man or woman they
elected affectively lose their legislator who is off starting a new electoral
relationship with new constituents.
Meanwhile, political leaders are raising and spending money to challenge
or defend the new districts themselves, for if the new districts fail to obtain
majority support at the next election, they remain valid only for that single
election, and we start the process all over again.
Proposition
77 may be a dream for perpetual campaigners, but it is a nightmare for those
who look to
My
own involvement in redistricting and districting reform dates back to the 1980
reapportionment and 1982 reform effort.
In 2002 I was the vice chair of the redistricting task force for the
City and
Retired
judges by the nature of their positions tend to be insulated from daily
Proposition
77 suffers from other flaws that you’ve heard about today and _____. MALDEF associates itself with the remarks
offered by the League of Women Voters, Asian Pacific American Legal Center of
Southern California, and other witnesses in opposition to Proposition 77 and we
thank you for the opportunity to share our views.
SENATOR BOWEN: Mr. Leno, question?
ASSEMBLYMEMBER LENO: Yes.
Thank you, Madam Chair. I just
wanted to ask a question of Ms. Carson.
You touched on one of the unique characteristics of Prop. 77 which Mr.
Storey had originally pointed out and wanted to also address one of the other unique
characteristics of it to which Mr. Costa had already responded either
flippantly or in my opinion a less than thoughtful fashion with regard to why
the other 49 states in this country do not use a panel of retired judges. His response was they don’t have enough of
them in their state. I wondered why you
thought, because I’m sure you have conversations with your counterparts in
other states, why other, no other state uses a panel of retired judges and no
other state puts this to the vote of the people and I thought that your
comments with regard to what could very likely happen is an argument I’ve not
heard before which I, but made a great impact on me that clearly with enough
money you can ____ anything in the state at the ballot. And what does that do to the credibility of
the legislators who are elected when lines are not approved?
MS. CARSON: Well, as far as the other states are
concerned, the League of Women Voters, although it’s a national organization,
is intensely grassroots and local, so what the League of Women Voters say, of
ASSEMBLYMEMBER LENO: Very good.
Just a final comment. Should Prop.
77 be defeated, I just want to publicly state my commitment to you as well as
to other proponents of looking at other ways of doing it to work with you to
find that bipartisan legislative process and imagining that we would look to
other states for best practices as opposed to dreaming up untested practices.
MS. CARSON: We’ll hold you to the promise. We’re ready to go.
ASSEMBLYMEMBER LENO: Please, that’s what I’m here for. That’s what I’m here for. Thank you.
SENATOR BOWEN: Mr. Lee
MR. LEE: Good afternoon. Thank you for inviting me to testify at this
hearing. My name is Eugene Lee and I am
with the
As
you know, APALC opposes Proposition Prop. 77.
Although we support redistricting reform and the concept of an
independent commission, we think that Prop. 77 is flawed and will make a bad
process worse.
One
thing that we are particularly concerned about is the likelihood that
Proposition Prop. 77 will increase the potential that redistricting will
provide communities tied together not only by race and ethnicity, but also by
use on the environment, needs for housing and criminal justice, and similar
income levels, and levels of educational attainment.
To
put this into context, I’d like to describe APALC’s involvement in past
redistricting processes. In 1990, APALC
worked with two coalition’s of APA groups in
CAPAFR
had a presence at every hearing and made well thought out demographic
presentations and provided testimony.
Because of this advocacy, the final 2000 plan unified many key
communities of interest. For example, in
CAPAFR
did suffer some losses. For example in
Santa Clara CAPAFR advocated placing a neighborhood called Berryessa which is a
neighborhood of
I
bring up the 2001 process, because I think it fits into context what’s at stake
with Proposition Prop. 77. CAPAFR was
successful on the whole, because of two primary factors. The first is the preparation that CAPAFR put
into the process. CAPAFR started to work
on redistricting in early 2000. For the
next year and a half, CAPAFR groups met, discussed draft plans that with other
racial and ethnic constituency groups and heard their concerns, and then went
through the process of submitting testimony and made demographic presentations
at hearings. Without this lengthy,
time-consuming preparation, CAPAFR groups would not have been successful. With Prop. 77, ____ redistricting simply
would not allow time for this preparation to take place. It would leave groups such as CAPAFR without
a voice in the process.
We
heard _____ earlier that redistricting would have to be completed by December
30th. So from November 9th
to
We
think that this incredibly compressed time frame under Prop. 77 would eliminate
the ability of community groups to organize, discuss maps, and submit
them. I’d like to point out that this is
what—
ASSEMBLYMEMBER LENO: Can I interrupt just one second? I know you’ve got a written statement there,
and if I could ask you to highlight the points that haven’t been made by
others, and then we’ll take your statement and attach it to the record.
MR. LEE: Sure, okay.
Let me take one second here.
Okay, I have two other points.
Continuing on this timing, I’d like to point out this is what happened
earlier this year in
I
mentioned a second factor behind CAPAFR success. That second factor was the testimony and
presentations that CAPAFR made to the Legislature. As I mentioned our plan included many
districts that unified communities of interest.
Our success _____ depended on the ability of the Legislature and we
relied on the Legislature taking into account this information about
communities of interest. Now, Prop. 77
requires the panel to consider a list of nine criteria. But, amidst communities of interest which is
a traditional redistricting criterion recognized by
We
have other concerns about Prop. 77 which are outlined in the position paper
that APALC coauthored with MALDEF and the League of women voters of California
and I’ve attached that to my written testimony, as well.
I’d
like to conclude by going back to the 2001 redistricting process. The CAPAFR experience was positive and
empowering for the APA community. But,
ultimately we were frustrated by a process in which legislators cut deals at
the expense of communities. Because of
these last minute deals in which the APA community suffered the brunt of the
deal, many communities were split. And
because of this experience, APALC has called for redistricting reform. We’ve supported the concept of a commission
and we’ve released model language. And
we look forward to working with the Legislature and appreciate remarks made by Assemblymember
Leno about his commitment to redistricting form and urge the Legislature to
enact a true redistricting reform bill next year. Thank you.
SENATOR BOWEN: Mr. Dove, last but not least.
MR. DOVE: Thank you, Madam Chairperson. My name is Adrian Dove. I’m the chairman of the Congress of Racial
Equality and Legal Defense and Education Fund.
CORELDEF is
There’s
a big difference between the two and when Mr. Lincoln drew his
CORE,
California Legal Defense and Education Fund, in 1991 I had just come from being
regional director of the Census, U.S. Census Bureau responsible for California,
so I was quite deep into what the census data was. And volunteered to use it in CORE
Of
course we were back again at 10 years later and in the 2000 census and at that
time, the folks with me here, it was Tom Sands was there ahead, and Kathy
Fung. There were different people from
the organizations here at the table, but we all were the ones like Mr. Lee
said, there was time for us to get together and define what the community of
interest would be, and more importantly to work on the coalition of what is the
common interest. There is not a unanimity
among the “minority communities”. The
Hispanic population for example is growing rapidly and benefits by in some way
by increasing the pace of, the frequency of the redistricting. The cohorts, I call it’s cohorts of the
African-American, because there’s really no such thing as race, but we are
cohorts of an experience. And that ____
involves slavery and in forced migration to the country and a lot of other
things and the Jim Crow, and from that we still have things in common with the
Hispanic immigrant population and the _____ Hispanic population as well as the
Asian population which is the second largest growth immigrant group.
The
cohorts of the African-American population are not diminishing in number, but
because all other numbers are increasing, increasingly we share something with
the non-Hispanic white population and that is our percentages are decreasing
and we see results of it when we form a coalition with people in the valley who
want to secede from L.A. in order to not be, not become a smaller minority
while retaining the same numbers. We
believe that one, accelerating the pace and increasing the frequency of
redistricting is damaging, and particularly if the real data that it’s based on
is the census that’s taken once every 10 years, then what you’re doing if we
were to buy off on this Prop. 77 we’d be taking a second bite at the apple
using the same base data. And the only
possible reason for doing that would be to fine tune whatever was done. And by appointing a panel of judges, we don’t
have a perfect system now, and as a minority and a permanent minority, we know
that the whole system of democracy is imperfect, because if it were perfect, it
wouldn’t have been able to be founded on the basis of slavery and demanding
equality and liberty and justice for all and then going home to oversee
slaves.
And
so every place where democracy has been put in place, simple majority winner
take all in Rome, in Greece, and in America at its beginning, it’s always had
slavery as a part of it for the minorities. We’ve removed that and probably more than any
place in the world,
And
so we are saying that, well, we filed a lawsuit, and I don’t need to go into
the details. Our attorney, David Martin,
is here and plans to be testifying, but we believe that there was some
duplicity and disingenuousness in the language that was switched on this proposition
from the time it was sent to the Attorney General and the time it appeared on
the ballot, little modifications in that language. We’ve gone to court and we’ve got an
acknowledgement that that was the case, but it was set aside so that the matter
could be put on the ballot. And so we are
continuing with the lawsuit, because whether it wins or lose, I guess if it
loses at the ballot, it’s no point in continuing with the lawsuit. But, if it wins at the ballot, we will
continue to seek to have that removed because of the procedural aspects as well
as the other unintended consequences.
Thank you very much for allowing us to come before you today.
ASSEMBLYMEMBER UMBERG: Thank you.
Thank you, Mr. Dove. I think that
concludes the panel presentation as to those who had been invited. Now we have a period of public comment. If you care to make public comment, we notice
that a couple people have signed in. If
you’d approach the microphone, identify yourself, we’re going to limit public
comment to two minutes. You may provide
whatever you’d like in writing and we’ll make sure that the record is upended
to include your written comments.
ASSEMBLYMEMBER
DYMALLY: Mr. Chairman, since
Mr. Dove mentioned Attorney David Martin, do you think it might be _____ if Mr.
Martin comes up and responds to some of the questions Mr. Dove raised?
ASSEMBLYMEMBER UMBERG: If Mr. Martin would care to make public comment,
that’s fine.
MR. DAVID MARTIN: Thank you very much, Assemblyman Dymally.
ASSEMBLYMEMBER
DYMALLY: Mr. Martin, would
you put the microphone closer?
MR. MARTIN: Oh, sure.
ASSEMBLYMEMBER UMBERG: Those of you come forward, just identify
themselves.
MR. MARTIN: My name is David Martin. I’m an attorney for CORE Legal Defense and
Education Fund and Adrian Dove. As Mr.
Dove alluded to, we have filed a petition in the Superior Court of
California. We allege some what I
believe are very disturbing procedural moves with respect to Proposition
77. As reflected in our petition, a copy
of which we will file with this panel, we allege that a, and believe we can
prove, that a very different version, a significantly different version of the
current proposition is being circulated for approval from the version that was
submitted to the Attorney General.
There’s a very specific process and procedure that must be followed
under the California Constitution.
One
version of Prop. 77 was submitted to the Attorney General for title and
summary. A significantly different
version, significantly different in 11 different changes was submitted to the
Secretary of State. We allege that that
is potentially a fraud on the
The
Superior Court originally pursuant to our petition, took Prop. 77 off the
ballot finding that our position was legally correct, that the constitutional
process was violated, and that Prop. 77 had no valid business being put before
the voters.
Now,
there’s, subsequent to that there’s been a split among the courts on that
issue, but we at least have two courts coming out and saying there has been a
violation of the California Constitution.
SENATOR BOWEN: Mr. Martin, we’re aware of the
litigation. We do know that we will
have, if the Proposition 77 passes, continued litigation on that measure, but
for the purposes of the November 8th election, the courts have
decided that the election is going to proceed.
So, I’m, thank you for briefing us, but we’re, our constitutional
requirement here is to hear the measure itself and as it will be before the
voters. I do think this is an important
argument that you need to make to voters and I’m sure you will do so aptly.
MR. MARTIN: Absolutely.
Thank you, thank you. And I’ll
just be brief and I’ll just conclude.
The issue still is open. We have
a, the State Supreme Court has spoken on this issue, but there is a federal
litigation going on. And as we have mentioned
in our court papers, we believe that there are violations of both the elections
Code and potentially the Penal Code.
Thank you for your time.
ASSEMBLYMEMBER UMBERG: Thank you.
I think we have a sign in roster here.
Let’s see, who do we have next.
Mr. Holtzman?
MR. DAVID HOLTZMAN: That’s me.
ASSEMBLYMEMBER UMBERG: How ‘bout that?
MR. HOLTZMAN: David Holtzman. Thank you _____ legislators for bringing this
hearing to
I’m
here wearing two hats. First of all, I’m
the founder of Los Angeles Voters for Instant Runoff Elections, L.A. Vote Fire,
which is a county-wide effort to improve our elections by making them instant
run off elections. Second, I'm a member
of the board of directors of a statewide group, Californians For Electoral
Reform, or CFER, which has asked me to deliver its position to you today.
As an
advocate for instant runoff elections, I should tell you that it’s a form of
abuse to jerk voters to the polls when there’s no particularly good reason for
doing so. They shouldn’t have two round
elections when there’s a perfectly good system that will let you resolve nonpartisan
elections in one round, and with regard to the special election, really there’s
nothing on the ballot that’s of sufficient importance to justify jerking voters
to the polls for a special election.
Should
also tell you that I think the Supreme Court got it wrong when it decided to
allow Prop. 77 to stay on the ballot for the special election. In doing so it suggested that the signers of
the petition had some sort of legitimate expectation that voters could vote on
the issue at the special election, when really nobody had a legitimate legal
expectation that there would be a special election. And I think the Supreme Court needs to
revisit the issue of the distinction between a special election and a general
election and I believe that distinction could tip the balance in favor of a
post-election injunction—
ASSEMBLYMEMBER UMBERG: Mr. Holtzman, we’re going to give everybody
two minutes and if you care to use your two minutes to discuss the issues with
respect to litigation, that’s your decision, but that’s not what we’re here
about.
MR. HOLTZMAN: I just, as a procedural matter I think Prop.
77 is vulnerable to a post-election injunction against enforcement because it’s
being voted on in a special election as opposed to a general election, special
election nobody had a right to expect.
Let
me just move on quickly then and read the basics of CFER’s position on
Proposition 77. Californians for
Electoral Reform takes _____ position of neutrality on Proposition 77 because
it would have at best a marginal effect on representation. And at worst it would be tied up in the
courts for years. CFER believes that
arguing over who should draw district lines is like arguing over who should
rearrange the deck chairs on the Titanic.
It does not address the fundamental problem. While it may seem egregious to have
legislators draw their own districts, having someone else do it won’t bring the
results the proponents of redistricting reform seek to achieve. And if this statement which I’ll leave with
the Sergeants has a lot of statistics about disappointing results of other
states.
ASSEMBLYMEMBER UMBERG: Thank you very much. We’ll go ahead and take your statement and
we’ll upend it to the record.
MR. HOLTZMAN: Thank you very much.
ASSEMBLYMEMBER UMBERG: Thank you so much for coming to testify. And is it Ms. Choong?
MS. YVONNE CHOONG: Hi, my name is Yvonne Choong
and I’m the governance policy program director with the USC California Policy
Institute. The California Policy
Institute has produced a series of non-partisan in-depth analyses of four
initiatives that will be appearing on the November ballot, 73, 74, 76, and
77. These analyses review and apply
current academic research to provide information to voters on the potential
affects of these initiatives on
My
presentation largely echoes a lot the points that were made earlier by the first
panel and I just wanted to mention that our full analysis of Prop. 77 will be
presented tomorrow at a public forum at the California Research Bureau. And copies of the report and summary will be
available there, as well. All
information will be available on our web site at www.usc-cpi.org. And these materials will also be made
available in Spanish.
Our
main points of our report are that, again, redistricting commissions are not a
panacea. Our report goes into fuller
detail on the work being done in other states.
And that the plans being produced by redistricting commissions in other
states have been challenged and have been regarded as unfair just about as
often as other plans. And with respect
to redistricting criteria, we wanted to reemphasize the point that the
redistricting criteria as proposed in the proposition many of which are
inherently in conflict with each other and that’s really an important issue to
consider. And again, our summary will go
into that in further detail. Thank you.
ASSEMBLYMEMBER UMBERG: Thank you so much for your presentation. Mr. Johnson.
MR. DOUGLAS JOHNSON: Good afternoon. Two parts—one, you have copies of the
executive summary and on our web site is the full report, so I won’t go through
all that. But, just to hit the couple of
high points.
ASSEMBLYMEMBER
DYMALLY: Mr. Chairman, I
wonder if Mr. Johnson could pull the microphone closer.
SENATOR BOWEN: And we should, although I
know who you are, not everyone does, so.
MR. JOHNSON: Douglas Johnson, fellow with the Rose
Institute of State and Local Government at
Also,
wanted to highlight that the questions about what data and chaos. I mean the record is clear that we, we being
the State of
And
also on the, Senator Bowen, you had raised a question about the nesting and the
impact of State Senate power. Actually,
State Senators oppose nesting with the core of their being. Currently, the State Senators have their
districts among two, three, four, five, sometimes even six or seven Assembly
districts. They, the Senator controls
that district and really gets, as we saw in 2001, it’s easy to appoint the
successor. If the districts are nested,
there are two Assembly districts. Each
Assemblyman has just as much relationship with half the voters as a Senator
does. And the reason that they don’t
nest when legislators draw the lines is the Senators are afraid that the
Assemblymembers will run against them. I
mean--
SENATOR BOWEN: Well, actually, first if you just look at,
well, take the 28th Senate District, because I’m familiar with
it. It has, it roughly has two Assembly
districts in it. But, the registration
numbers are so different in those two districts that it’s actually a case where
there’s an obvious choice. You’ve got
one part of the district that’s one of the very most registered districts in
the State of
So, I
don’t care one way or another aside from, but I don’t want to leave the
impression that there’s always an equal number of voters in the two Assembly
districts that would comprise a nested Senate district, because given the
demographics of
MR. JOHNSON: Yeah, well, and the 28th as you
mention is—
SENATOR BOWEN: But, every Senate district with 800 and some,
almost 900,000 people that’s just the way it is.
MR. JOHNSON: But, you could be challenged by someone who
has a base of 10,000 in the district today, versus someone that has a base of
____.
SENATOR BOWEN: But, the reality is that I think most of us
have a district where there is a—but, I don’t think it’s really about we could
be challenged. We generally work with
the people in the Assembly who are with us.
And again, you’re seeing not a challenge based on the size of the seat,
but just because of term limits people decide well why, and we just seen this
in spades with the Los Angeles City Council and the city races here. Why would you go challenge an incumbent when
if you just waited for four years, you know, life’s a whole lot easier? And I think it has way more to do with that
than it does with the district line. My
editorial comment.
ASSEMBLYMEMBER UMBERG: Thank you. Next, Mr. Clayton?
MR. ALAN CLAYTON: Yes, my name’s Alan Clayton. I’m the research chair for the California
Latino Redistricting Coalition. And I
also represent the L.A. County Chicano Employees Association. I’ve been involved in a major effort in nine
redistrictings, oh, since 1986. I was
involved in the ’91 redistricting and the 2001 redistricting and I want to make
a few points. Having done maps, I know
how hard maps are, because during the 2001 redistricting on a Saturday we start
at nine in the morning and finish at three in the morning. I know how the process works. I’ve been through the whole process. I advise Senators and Assemblymembers in the
last redistricting as a part of a consulting group. So, I drew maps that were used in the
discussions. Some of you know that,
because some of you went in and talked to me because I had the only possession
of a series of maps that were used in a lot of negotiations. So I’m an insider in the process.
I
also criticize the process. I also
follow the Section 5 case with the Justice Department against it, so I have a
record out there of taking on a plan when I don’t like it. But, I will not be here to support 77 for a
variety of reasons. And that doesn’t
mean I’m fond of the plan that’s there now.
I’m not fond of it. I filed with
the Justice Department. I went to
The
problems are I think it would take a minimum of 120 to 160 hours under
maptitude to draw the congressional, Senate, and Assembly with somebody
experienced redistrict, at redistricting.
Then in addition to that as you’re doing that, you have to know the law,
so you have to prepare your brief. And
that’s going to take you another 50 to 75 to 100 hours. If you’re going to go and testify before the
masters, and I went through a ____. I
prepared some peoples’ testimony. I
wrote a 43 page one that took me a lot of time to do, because I was analyzing
plans. It’s very tedious and you have to
have a strong knowledge of the Voting Rights Act.
There
are other problems. One percent
deviation is not required. You can go up
to 10 percent of reasonably compact plan.
I mean I hear ____ information here today is just not correct. The majority of cases around the country
allow the discretion for Assembly and Senate to go to 10 percent. There was one case where they found there was
a violation of ____ because it was so gerrymandered and that one a lot of us
who study redistricting and been involved don’t understand why the Supreme
Court had one ruling on the Pennsylvania and another ruling on _____, another
ruling on the Texas case, because I can sit down and talk to you some about it. It didn’t make any sense to us.
But,
the key is when you talk about keeping counties whole, and you’ve talked about
keeping cities whole and you strait jacket to one percent, you don’t have
to. As you go to a larger deviation, I
did this, I was involved in city redistricting, school district, and I have a
map for you. This one was adopted and
put on the ballot where I drafted it and the LAFCO adopted it. It’s a map that and I talked about the
criteria—
SENATOR BOWEN: Is that what would go on the ballot under
Prop. 77?
MR. CLAYTON: No.
What I’m pointing out to you is I’ve been through the process. I think the time line is way too soon—
SENATOR BOWEN: Not that particular map, but I think—
MR. CLAYTON: No, that map, the issue went forth, but this
was the map that would, if succession had passed, I did not support or oppose
succession. I mapped it. I presented a map to LAFCO. Their experts presented a map. LAFCO adopted my map. If succession had of passed in
SENATOR BOWEN: I’m just wondering what exactly is going to go
on the map when we ask them for—
MR. CLAYTON: Well, I don’t believe that—
SENATOR BOWEN: --ballot for when we ask the voters whether
they approve this or not.
MR. CLAYTON: That’s one of my real concerns is that it
makes no sense to have a vote of the people on something as complex as
redistricting. How can you put a map on
the ballot and people understand it with all the demographic information out
there? Nobody does that. The other problem is if, here you go. Let’s say this happens. And let’s say 77 goes through. We have the judges, they review it. We go through the process. It gets tested in court. It’ll be tested on Section 5, Section 2,
maybe under the 14th Amendment, under a Shaw violation or maybe
under one person, one vote. There’s a
whole variety of tests you can challenge.
And I did a Section 5 on one, so it’s a very difficult process, but it
can be won. Well, the problem is, let’s
say the courts uphold it and then the voters vote it down. What do you tell the next panel of
judges? Violate federal law? Federal law trumps state statute. It trumps the State Constitution.
ASSEMBLYMEMBER UMBERG: Mr. Clayton, the purpose of this hearing is to
focus upon Prop. 77 and I recognize—
MR. CLAYTON: That’s what I am focusing on.
ASSEMBLYMEMBER UMBERG: --that you’re raising the legal issues that’ll
be tested in the court. Right now we’re
focused on practical issues. But, even
more importantly with respect to your comments, you’ve made some cogent
comments concerning what might have we voted on by virtue of the Proposition’s
requirement that the maps be approved by the electorate. But, what I was going to say is that at this
point if you could submit whatever else you have in writing, we will be happy
to upend the record.
MR. CLAYTON: But, what I want to do is listen to what the
testimony was, and I think you really need to bring in people that have
actually drawn lines and been through the process. There are some of us out there that actually
went through the process. A number of
them were insiders, but we’ve been through it twice. We know how it works. And there are problems with this initiative. We have not taken a position on it.
ASSEMBLYMEMBER UMBERG: I think that the, at least the members who
have remained would concur that there are serious problems with the mechanics
of the proposition, among other things.
Thank you so much for your testimony.
Is there anyone else that would care to testify? Alright.
Senator Bowen?
SENATOR BOWEN: I just want to thank everyone for their work
explaining and participating and redistricting by its nature is arcane and
often makes peoples’ eyes glaze over, so I particularly want to thank the staff
and the support staff who’ve been here, came down from Sacramento and enabled
us to have an orderly hearing, come in and have a room all set up and be able
to have a discussion on the policy issues and really focus on those
issues. And thank all of you for caring
about the future of
ASSEMBLYMEMBER UMBERG: Let me just conclude by thanking all of you
who’ve come here to testify, to observe, particularly the panel members. I will note for Senator Bowen that I think
the Assembly outdid the Senate by a margin of about
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