Joint Hearing of

Senate Elections, Reapportionment and Constitutional Amendments Committee and

Assembly Elections and Redistricting

Proposition 77

September 26, 2005

Junipero State Building

320 West Fourth Street

Los Angeles, California

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 California and how we do business. I agree with you that the issue is not whether or not we can do a, not whether we can do a better job drawing the Congressional and Legislative boundary lines, it’s whether this initiative, Proposition 77, is the right method of going about it.

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 California in holding sort of sequential elections to determine whether or not we have the appropriate boundaries for congressional and legislative districts.

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 California. In the State Assembly, it is more than 34 percent difference on average between first and second place. You’re taking it away.

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 California and we shouldn’t wait until the next doctor’s appointment. We should take care of it now.

SENATOR BOWEN: Welcome, Senator Battin. Senator, Mr. Klehs, comments? Mr. Dymally? Let me get you—alright. Mr. Leno? Mr. Battin. Welcome to L.A.

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 Denver, Colorado, and for the past 15 years I have been the staff director for NCSL’s Redistricting and Elections Committee and our Redistricting Task Force, which is the predecessor of that committee.

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 California compares with redistricting systems around the country. As is often the case when you talk about states doing ____ redistricting exactly the same way. But, generally states fall into sort of one of three categories in my mind in how they conduct redistricting: through the typical legislative process like you currently have here in California, using some form of a board or commission. I’ll go into a little bit of detail about that. And finally, there’s Iowa which is so unique it sort of winds up in its own category, and I’ll briefly go over that.

So, first let me talk about the legislative process. In 37 states including California, the Legislature has the initial responsibility for drawing and adopting the state legislative plans as well as the congressional plans. In 43 states, I’m sorry, in 37 states the legislatures do the legislative plans, and in 43 states the legislatures have first and initial responsibility for adopting the Congressional plans. It’s your standard legislative process. Bills are introduced in the form of maps and descriptions of districts, hearings are held, chambers vote on the bills, and the bill goes to the Governor for approval or veto, I suppose. There are a handful of states including North Carolina and Florida where the governor does not have any authority of veto on the redistricting plan. It’s set out, especially in the state constitution as purely a legislative function. So, the governor plays no role at all in a few states like I said, North Carolina, Florida, and a couple of others.

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 California proposition is designed, and those states are Arizona and Missouri. But, in the rest of the cases they can choose from any one in the state.

The commissions range in size from the smallest in Arkansas where the board is three members. It’s the governor, the attorney general, and the secretary of state in Arkansas. That’s the smallest. It’s the only one that’s three members. And of course, that Arkansas model raises a lot of questions about three executive branch officials drawing the legislative plans. There’s some serious separation of power, so I wouldn’t necessarily advise that model in Sacramento.

The largest commission is the one that draws the Missouri House plan. Missouri is the only state where there are two separate commissions. One draws the House plan and one draws the Senate plan. The House commission is made up of 18 members. And most of the commissions generally have somewhere between 5-10 members. Most of the commission systems stipulate some specific criteria that the commissioners must follow when adopting the plans. Arizona and Washington are the only two states who are drawing competitive districts as expressly one of the criteria that the commission has to follow. And in Washington it’s not a mandatory criteria. In Arizona it is. And of course, that’s been litigated in Arizona.

Before I get to Iowa I want to mention two other types of commissions that are used in addition to the ones I described above. A few states use what are best termed as advisory commissions. Probably Maine is the only state where the advisory commission really plays a key role, because the plan that’s developed by the advisory commission in Maine must get a two-thirds vote to be changed by the legislature, otherwise it becomes the plan. And then a few other states have advisory commissions which play a relatively minor role in developing the plan. Six states employ some form of back up commission, so there’s a date specific whereby the legislature has to enact a plan, and if they don’t do that by the specific deadline following the delivery of the census data, then the back up commission is empanelled and they have the authority to enact the plan. States like Texas, Illinois has a plan like that. As a matter of fact, Illinois, of the six states has the most unique back up commission because they’re the one state that’s sort of leaves the whole thing to chance. In Illinois there’s, it’s an eight-person commission. There’s essentially four Democrats and four Republicans. If they can’t agree on a ninth member to be their chair, then they flip a coin or they draw a name out of a hat. So what’s interesting in both the 19, and 1990, and the 2000 round of redistricting in Illinois, the legislature failed to enact a plan. It went to this back up commission. And rather than agree on a ninth member, they decided to leave it to chance and leave it to the stars and draw a name out of a hat. In fact, in 1990 they used Abraham Lincoln’s hat. They drew the name out of Lincoln’s hat. So there’s a historical footnote for you.

Now let me talk a little bit about Iowa. It’s by far the most unique approach to redistricting in the United States. They have essentially a nonpartisan legislative staff bureau that draws up a set of plans using only census data. They draw up a package of plans. House, Senate, and Congressional plans are all put into one bill. That package of three maps is submitted to the legislature for an up or down vote in Iowa. The legislature in Iowa is not allowed to amend the plans. They can only make technical changes. If the legislature rejects the first set of plans that the service bureau gives them, then they’re given a second set of plans and if they reject the second set of plans, they can amend the third set of plans. What makes Iowa truly unique is that when the staff are drawing up the plans, they’re prohibited by law from using any election data, any incumbent address data, election indices, partisan registration information, anything like that which is part and parcel to redistricting in every other state whether it’s a commission system or the legislature doing the process.

Since the 1970s when Iowa adopted this process, the plans submitted by the staff have been enacted by the legislature every time. They have never gone to an overhaul or an amending of the plans that were given to them by the nonpartisan legislative service bureau in Iowa. Part of the reason that the system works in Iowa, I have to say, is that the state has a very low minority population so there’s really no substantial voting rights issues. So, when you draw the plan using only census data, you don’t have to worry about racial block voting analysis which you have to do when you’re in a state that has a voting rights act requirements, or a sizable minority population.

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 California’s proposal as I understand it. If the California voters approve Proposition 77, I think I’d have to add another column to my table, because it would truly be unique among the states and how redistricting is conducted. The process being considered here is unique in a number of ways. First, as you know, no other state places the task exclusively in the hands of retired judges. California would be the only state that would specifically say a certain group of people would be empanelled on the commission. California would be the only state where the commission will be chosen essentially at random from a pool of qualified people and all the other commission systems, the commissioners are chosen by appointing authorities and they know exactly who they’re choosing so that the random aspect of choosing the final panel would be unique.

California would join Arkansas as the smallest redistricting commission. I think it’s fair to say that because California’s of course the largest state with the largest Congressional delegation, and because the commission would be drawing all three plans, then the three commissioners would easily be the three most powerful redistricting practitioners in the entire country. So it would be a unique board in that respect.

California would be the only state where the voters would actually vote on the plans, something that I find very interesting and I’m sort of curious as to how the plans would actually appear on the ballot. If you have ever actually read redistricting plans and they assign blocks and tracks to districts and that it’s a pretty interesting, sort of build to read, if you’ve ever actually tried to read a redistricting bill, so, I’m kind of curious as to what would wind up on the ballot, but as I understand it, the fact that it would go to the voters, it would be the only state where that would be the case.

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. Texas, Colorado, Georgia, and New Hampshire have come back and revisited redistricting voluntarily after holding elections in districts that have been drawn using 2000 census data. This practice was essentially unheard of since the reapportionment revolution of the 1960s. And in the cases of Texas and Colorado, the Legislature’s past plans to replace ones that had been drawn by the court, so the Legislature was coming back to replace a court drawn plan. I think that’s something sometimes gets lost in that whole discussion. And subsequently, of course, Colorado State Supreme Court has overturned the mid-decade redistricting in my home state of Colorado. In Texas, there is still litigation pending against the re-redistricting. And in Georgia the plan is still before the Department of Justice pending preclearance under Section 5 of the Voting Rights Act, and I think it’s a safe bet there’ll be lawsuits filed there, as well.

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 California unique in that we would have the smallest group of individuals making those decisions, correct?

MR. STOREY: Well—

ASSEMBLYMEMBER UMBERG: Unique as to—

MR. STOREY: For both plans. Arkansas has a three-person commission, but only does the Legislative plan.

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 California data expert—

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 Arkansas where three elected officials had all the power that we would have three judges chosen as random in a selection, correct?

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 California with term limits the way we have it, the Assembly turns over about 30 percent a year.

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 Colorado?

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, Colorado, vote for Bush?

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 Washington state, democrats took more seats and majority? What about in, I believe it was Iowa or Wyoming, was it the minority party? How many states did the minority party overtake during that presidential year after the census, redistricting?

MR. STOREY: Oh, boy. How many—

ASSEMBLYMEMBER McCARTHY: Montana? Was Montana?

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 California, how many seats changed parties out of the 153 races?

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 California we’re looking at three sections in general, Section 2, Section 5, and Section 203 for the purpose of this talk. We’re going to be talking about Section 5, because we have four counties in California that are covered, it’s called covered by Section 5, and those are Kings, Merced, Yuba, and Monterey.

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 California right now and you divide that population by 80, we would have about 451,800 people. So that’s ____ 20, 27, 28,000 people more that we would have to add to each Assembly district and then twice that for each Senate district, right? And then for Congressional districts we would have to add roughly, you know, 40,000 people.

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 California. There’s you know, Department of Finance has some estimates out there. There’s the CPS which is the current population survey by the census. And, you know, the current population survey has a lower bound estimate, this is a statistical term, so basically we have a range of where we’re guessing we’re about right. Lower bound estimate is about 35 million and something, 35,225,000, and then the upper bound is 300,000 higher. And the Department of Finance from last year, actually, has almost a million people more in their estimate. So even trying to figure out how many people should be in a district, is already difficult. Let’s assume, you know, we actually have to draw districts, I mean, the problem of trying to figure out where these people are and how to put them into districts just becomes huge. It just becomes just, in my professional opinion, I mean, you just can’t do it well. And I guess well is the point here. You cannot do it well.

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 California that have actually California wide, you know, interest. I mean, when it comes to districts people are interested in their neighborhoods and, you know, their particular locality. They’re interested in staying together with the people that they, you know, that they have an electoral interest with, or that they’re, you know, doing any kind of activism with.

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 California, when you have a statewide plan, basically the entire statewide plan has to be precleared. So that means that you have to submit the lines to the Department of Justice and the Voting Rights Division will take a look at it and make sure that these lines do not discriminate against protected minority groups or make them worse off. That’s call retrogression. Once that process is complete—

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 California got there. And I’m not sure who the best person ____ that’s what I thought. So, we’ll—is it okay to just take two minutes to sketch preclearance so that as you have this technical discussion about it, we understand what it is that we’re talking about?

MS. MacDONALD: Sure.

SENATOR BOWEN: Okay, thank you.

MR. MORGAN KOUSSER: I’ve just finished an 80-page paper