Supreme Court of California Justia
Citation 53 Cal. 4th 421, 269 P.3d 446, 137 Cal. Rptr. 3d 1

Vandermost v. Bowen

Filed 1/27/12




IN THE SUPREME COURT OF CALIFORNIA



JULIE VANDERMOST,

Petitioner,

v.

DEBRA BOWEN,

as Secretary of State, etc.,

S198387

Respondent;

CITIZENS REDISTRICTING

COMMISSION,

Intervener.





On December 9, 2011, we issued an order to show cause in this matter to consider

an election-related question that must be addressed expeditiously to avoid potential

disruption of the statewide primary and general elections to be held in June and

November 2012. A proposed referendum (designated No. 1499), for which petition

signatures have been gathered and submitted to election officials, would require the

electorate to decide, at the November 2012 general election, whether to accept or reject

the California state Senate district map that has been certified by the Citizens

Redistricting Commission (Commission).1 The Commission, a new constitutional entity

1

Under the California Constitution, the referendum power refers to the authority of

the people to require that a statute that has been adopted by the Legislature, or a
redistricting map that has been certified by the Citizens Redistricting Commission, be

(Footnote continued on following page)

1


recently established by the voters to draw voting district boundaries (instead of the

Legislature)2 in light of population changes identified in the national census undertaken

at the beginning of each decade, completed its eight-month-long task in August 2011 and

certified new voting district maps for not only the state Senate, but also for the state

Assembly, the United States Congress, and the State Board of Equalization. The

Secretary of State and county election officials have been using these four Commission-

certified maps since mid-August 2011 in preparation for the upcoming June and

November 2012 elections.

County election officials and the Secretary of State currently also are in the

process of verifying the petitions submitted to determine whether there are sufficient

valid signatures to qualify the proposed referendum for placement on the November 2012

general election ballot. If the referendum qualifies, the state Senate map certified by the

Commission will automatically be stayed, presenting the question of what Senate districts

should be used for the 2012 primary and general elections of the state Senate. In view of

the numerous interconnected election-related events that must occur soon after the end of

January 2012 in order to avoid disrupting the 2012 primary and general elections,3 this


(Footnote continued from previous page)

submitted to a vote of the electorate, and be approved by the electorate before such
measure becomes effective. (Cal. Const., art. II, § 9; id., art. XXI, § 2, subd. (i).) The
initiative power, by contrast, refers to the authority of the people to propose statutes and
constitutional amendments to be submitted to a vote of the electorate, and the authority of
the electorate to adopt or reject the proposed measure. (Cal. Const., art. II, § 8.)

2

See California Constitution, article XXI, sections 1 to 3.

3

The calendar of steps in preparation for the June 5, 2012, Primary Election is

available on the Secretary of State’s Web site, <http://www.sos.ca.gov/elections/2012-
elections/calendar/pdfs/section-6-primary-election.pdf> (as of Jan. 27, 2012). Among the
events particularly relevant to the present case are the following: From December 30,
2011, to February 23, 2012, state Senate candidates may obtain, in lieu of paying filing
fees, the requisite number of signatures of registered voters who are eligible to vote for

(Footnote continued on following page)

2

action has been filed requesting this court to decide at this juncture which state Senate

district map should be utilized if the proposed referendum qualifies and triggers a stay of

the Commission’s certified Senate district map.

Petitioner, Julie Vandermost, emphasizes the interest of referendum proponents

and petition signers in insisting on an “up or down” referendum vote by the statewide

electorate before the voting districts that are the subject of the proposed referendum are

utilized as the basis for electing any state senators. Accordingly, she asserts, if the

Commission’s state Senate map is stayed by the qualification of the referendum for the

November 2012 ballot, we should not order the use of the Commission’s state Senate

district map as an interim remedy governing the 2012 primary and general elections.

Indeed, petitioner argues, we should issue an “alternative [or] peremptory writ of

mandate commanding Respondent Debra Bowen, in her capacity as Secretary of State of

the State of California, to . . . refrain from taking any action . . . implementing the

Citizens Redistricting Commission’s certified Senate map.” Moreover, petitioner urges,

we should establish new interim state Senate boundaries by either (1) using the state


(Footnote continued from previous page)

that candidate — in other words, those who are registered in the district in which the
candidate will run (Elec. Code, § 8106); and between February 13, 2012, and March 9,
2012, candidates must file a “Declaration of Candidacy” and nomination papers (id.,
§§ 8020, 8040, 8041) for the district in which he or she will run.


The Secretary of State has submitted a declaration by Jana M. Lean, Chief of the

Elections Division, describing procedures used to implement the new district lines.
According to the declaration, a system known as CalVoter II (CVII) “is used to set up an
election. Throughout the election cycle, which begins more than five months before the
election is held, CVII is used to certify statewide candidates [and] prepare the certified
list of candidates.” The declaration describes the various steps that must be taken to
program CVII, and asserts — apparently assuming those same internal timelines, and no
effort to further expedite them — that “approximately six weeks would be required to
implement any changes to the Senate maps.”

3

Senate district map that the Legislature created in 2001 based on the 2000 census and that

has been used for the last decade; (2) using a map creating new Senate districts by using

the state Assembly districts recently certified by the Commission and combining two

adjacent Assembly districts to form each new Senate district (the “nesting” proposal); or

(3) establishing alternate, court-drawn boundaries as described in a new so-called

“model” map based on a proposal submitted by petitioner’s redistricting consultant.

Finally, petitioner prays for an order directing the Secretary of State to implement

whatever new interim district boundaries we select for the June 5, 2012, Primary Election

and the November 6, 2012, General Election.4

The Secretary of State and the Commission both urge us to hold that even if the

Commission’s certified state Senate district map eventually is stayed by the qualification

of the proposed referendum, the Commission’s map nevertheless should be employed for

the 2012 elections. The Secretary of State stresses the need to avoid disruption of the

election planning process; both the Secretary and the Commission contest the legality of

petitioner’s alternative maps; and the Commission emphasizes that the state Senate

redistricting map it has certified is the product of an open, deliberate, and nonpartisan

process that a majority of California voters created through the exercise of the

constitutional initiative power in 2008 and 2010.

As past decisions establish, if a referendum that is directed at a newly adopted

redistricting map qualifies for the ballot, triggering a stay of the new redistricting map

pending the electorate’s vote on the referendum, this court has the responsibility of

determining which voting district map should be used for the upcoming interim electoral

cycle. (See, e.g., Assembly v. Deukmejian (1982) 30 Cal.3d 638, 657-658; accord,


4

All parties agree that any interim state Senate district map that we decide should

be used for the June 2012 primary election must also be used for the November 2012
general election.

4

Legislature v. Reinecke (1972) 6 Cal.3d 595, 601.) In determining which map should be

used for the interim elections, this court must consider (1) what maps are reasonably and

practically available, and (2) the pros and cons of each potentially viable map in light of

the constitutional scheme and criteria set out in recently amended article XXI of the

California Constitution. If, after so analyzing each of the potential maps, the court

concludes that a map other than the one currently being implemented by election officials

should be used for the upcoming 2012 elections in the event the proposed referendum

qualifies for the ballot, this court would direct election officials to employ a “dual track”

planning process during the remainder of the signature verification process. Officials

would thus be able to proceed with the current district maps if the referendum does not

qualify for the ballot, but would be ready to use the alternative voting districts should the

proposed referendum qualify for the ballot.

As we explain, in the present case four alternative maps have been proposed for

use in the 2012 elections in the event the referendum qualifies for the ballot: the three

maps proposed by petitioner and the Commission’s certified state Senate district map.

After reviewing the pros and cons of each of these proposed alternatives in light of the

constitutional scheme and criteria, we conclude, for the reasons discussed below, that the

Commission’s certified map is clearly the most appropriate map to be used in the 2012

state Senate elections even if the proposed referendum qualifies for the ballot.

Accordingly, after first confirming that we properly may exercise jurisdiction in

this matter and that the petition presents issues sufficiently ripe for review, we conclude

that if the proposed referendum qualifies for the November 2012 general election ballot

and stays the Commission’s certified state Senate map, the Commission’s state Senate

map should be used on an interim basis for the June and November 2012 elections,

pending the outcome of the referendum. If the proposed referendum does not qualify for

the ballot, the Commission’s state Senate map will continue to be used for the 2012

election and future elections until replaced pursuant to article XXI of the state

5

Constitution by new maps drawn by a future newly constituted Commission following

the 2020 census.

I. Background, procedure,

and summary of conclusions

Article XXI of the California Constitution, as amended by ballot measures

approved by the electorate in November 2008 (Prop. 11, the Voters First Act) and

November 2010 (Prop. 20), removes the task of redistricting from the Legislature and

gives it to the newly created Citizens Redistricting Commission. (Cal. Const., art. XXI,

§§ 1 & 2.) The Commission is required to adjust the boundary lines of California’s state

Senate, state Assembly, congressional, and State Board of Equalization voting districts

“[i]n the year following the year in which the national census is taken under the direction

of Congress at the beginning of each decade . . . .” (Id., art. XXI, § 1.)

The membership of the Commission selected to create new districts in light of the

2010 census was finalized in late 2010, and in the first eight months of 2011 the

Commission held more than 70 business meetings and 34 public hearings in 32 cities

throughout the state. The Commission produced draft statewide maps on which it sought

and responded to public comment, and finally, in mid-August 2011, it approved and

certified all four required maps. (We describe the Commission’s structure and process

and the requirements of article XXI in greater detail post, part II.) Two challenges to the

Commission’s certifications were initiated shortly thereafter.

First, and roughly contemporaneously with certification by the Commission, an

organization designated Fairness and Accountability in Redistricting (FAIR), a

Republican-funded entity,5 was established. Under FAIR’s sponsorship, Julie


5

See <http://www.fairdistricts2012.com> (as of Jan. 27, 2012). FAIR is not

mentioned in the petition itself, but the petition states: “Republicans have sponsored and
funded the referendum against the Commission’s Senate plan.”

6

Vandermost, a registered California voter and the petitioner in this proceeding, initiated

the process of attempting to qualify a referendum measure, challenging the state Senate

map, for placement on the November 2012 general election ballot.6 After the Attorney

General prepared a title and summary of the proposed referendum for inclusion on the

referendum petitions, FAIR commenced soliciting referendum petition signatures, which

were due for submission by November 13, 2011. (Cal. Const., art. XXI, § 2, subd. (i).)

Second, in September 2011, while the proposed referendum petition was

circulating for signatures, two petitions for writ of mandate were filed in this court

challenging the Commission’s state Senate and congressional district maps on numerous

constitutional and statutory grounds, and seeking to bar the Secretary of State from

implementing either map. (See Cal. Const., art. XXI, § 3, subd. (b)(2) (hereafter article

XXI, § 3(b)(2)) [authorizing such suits].) The petition in Vandermost v. Bowen

(Sept. 16, 2011, S196493), challenged the Commission’s certified state Senate map; the

petition in Radanovich et al. v. Bowen (Sept. 29, 2011, S196852), challenged the

Commission’s certified congressional map. After preliminary briefing (see Cal. Rules of

Court, rule 8.487) and thorough consideration of all the issues raised by petitioners, we

determined that the petitions lacked merit and denied the requested writs on October 26,

2011.7


6

The constitutional provision permits earlier ballot submission of a referendum to

the voters if a special election is called by the Governor. (Cal. Const., art. XXI, § 2,
subd. (i), referring to art. II, § 9, subd. (c); see also Elec. Code, § 9016, as amended by
Stats. 2011, ch. 558, § 1, approved by the Gov. on Oct. 7, 2011 [providing that all
initiatives and referendum measures that are certified for the ballot on or after July 1,
2011, will be placed on the ballot only at a Nov. statewide general election or at a
statewide special election].)

7

The 126-page petition in Vandermost v. Bowen (Sept. 16, 2011, S196493) sought

issuance of a writ directed to the Secretary of State, as the chief elections officer,
commanding her to refrain from implementing the Commission’s certified maps for the
Senate districts, and to refrain from taking any other action to hold, or to order county

(Footnote continued on following page)

7

Thereafter FAIR completed the signature-gathering process and timely submitted

referendum petition signatures to county election officials immediately prior to the

November 13, 2011 filing deadline. On November 23, 2011, the Secretary of State

confirmed that at least 504,760 “raw” (unverified) referendum petition signatures had

been submitted by FAIR, and ordered county election officials to determine, by random

sampling, the number of qualified signers and to certify that result to the Secretary.8

On December 2, 2011, Vandermost filed the present petition,9 asserting that

approximately 710,000 referendum signatures have been collected, and that in view of


(Footnote continued from previous page)

officials to hold, any election using the Commission’s certified Senate maps. Petitioner
asserted that the maps violate state constitutional criteria for voting districts, set out in
article XXI, section 2, subdivision (d) of the California Constitution, concerning
contiguity, geographic integrity, and compactness, and that they failed to afford
Latino/Hispanic voters an opportunity to elect candidates of choice under sections 2
and 5 of the federal Voting Rights Act (42 U.S.C. § 1973 et seq.). Petitioner also
requested the immediate appointment of special masters to “advise the Court on the
instant petition,” and if the court found the Senate maps to be unconstitutional, she
requested that this court direct the special masters to draw new district boundaries for the
Senate. Although the cover page of the petition requested an emergency stay, the petition
did not set forth a separate plea for emergency relief. In acting on the petition, we
assumed that petitioner sought to stay any action on the part of the Secretary of State to
implement the Commission’s certified state Senate map. Our order denying the petition
read: “The requests of petitioner and real party in interest for judicial notice are granted.
[¶] The motion of real party in interest to strike the declarations of Dr. T. Anthony Quinn
is denied. [¶] The petition for a writ of mandate is denied. [¶] The request for an
emergency stay is denied.”

8

Statutory schedules concerning the timing for such events, and related statutory

procedures, are described post, part III.

9

Petitioner is represented in this matter, as she was in the petition filed in this court

in September, by Charles H. Bell, Jr., of the Sacramento law firm Bell, McAndrews &
Hiltachk, LLP. The firm’s Web site identifies Mr. Bell as general counsel to the
California Republican Party. (See <http://www.bmhlaw.com/index.htm> [as of Jan. 27,
2012].)

8

the circumstance that 504,760 valid signatures are required to qualify the proposed

referendum for the November 2012 ballot,10 the referendum is “likely to qualify and stay

timely implementation of the [state Senate] map” and hence she is entitled to seek

“relief” under article XXI, section 3(b)(2).11

The petition seeks immediate relief,12 as well as future contingent relief that would

be triggered in the event the proposed referendum actually qualifies for placement on the

ballot. The contingent relief sought by the petition would take effect only after county

10

See California Constitution, article II, section 9, subdivision (b) (requiring a

petition “certified to have been signed by electors equal in number to 5 percent of the
votes for all candidates for Governor at the last gubernatorial election”).

11

Article XXI, section 3(b)(2) reads in relevant part: “Any registered voter in this

state may . . . file a petition for a writ of mandate or writ of prohibition to seek relief
where a certified final map is subject to a referendum measure that is likely to qualify and
stay the timely implementation of the map.”

12

With respect to immediate relief, the petition seeks an order granting

(1) suspension of statutory filing fees (Elec. Code, §§ 8103-8105) and related “in lieu-
filing-fee petition” procedures for candidates who wish to submit signatures in lieu of
paying filing fees (Elec. Code, § 8106, subd. (a)(7)), which procedures would otherwise
have commenced on December 30, 2011; and (2) appointing an expert or special master
or masters to serve in effect in a “standby/advisory” role by advising the court on “the
process of determining interim Senate Districts for 2012.”

The petition also seeks a third form of immediate relief, amounting to a request for

an immediate preliminary stay of the Commission’s Senate map. The petition asserts that
“[t]he [submitted referendum] petitions contain sufficient ‘raw’ signatures to suspend
temporarily the implementation of” the Commission’s state Senate map and it seeks as
immediate relief an order “prohibiting the Secretary of State and county election officials
acting at her direction from implementing” that map “for the June 5, 2012 primary
election, until [a] new interim Senate map [has] been implemented by this Court.”
Elsewhere the petition asserts that the Secretary of State’s November 23, 2011, order
finding an adequate number of raw signatures and directing county election officials to
commence random sampling “immediately suspends the operation of the Commission-
certified Senate maps until such time as the signature verification process is complete.”
Such a preliminary stay of the Commission’s certified state Senate map would force
county election officials to immediately halt preelection planning that they have
undertaken and continue to undertake in preparation for the June 2012 primary election.

9

election officials and the Secretary of State finish the time-consuming, statutorily

governed process needed to determine whether the proposed referendum actually is

supported by the requisite number of valid signatures and hence qualifies for the ballot —

a process that may take approximately nine to 17 weeks following submission of petition

signatures.13 If the referendum qualifies, the Commission’s certified Senate map would

automatically be stayed by operation of law.14 Petitioner asks that, in the event the

proposed referendum qualifies for the ballot, this court should establish new interim state

Senate district maps for the June and November 2012 state Senate elections by either

(1) using the old state Senate map created by the Legislature in 2001; or (2) creating a

new state Senate map by “nesting” two adjacent Commission-certified Assembly districts

within one Senate district; or (3) establishing a different new state Senate map based on a

proposal by petitioner’s redistricting consultant, addressing alleged “deficiencies . . . in

the Commission’s Senate map.”

On December 9, 2011, we denied the request for all immediate relief pending this

court’s eventual decision in this matter, issued an order to show cause concerning the

prayer for future contingent relief, and granted a motion by the Commission to intervene.

We established an extremely expedited briefing schedule, designed to permit this court to

conduct oral argument by early January 2012, and file an opinion by the end of that

month. We also specified additional issues for briefing, expressly reserving resolution of

the threshold question of jurisdiction for our eventual written decision.15


13

Statutory schedules concerning the timing for such events, and related statutory

procedures, are described post, part III.

14

See post, part III.

15

Our December 9, 2011, order stated:

(Footnote continued on following page)

10


(Footnote continued from previous page)

“In light of the short time frame imposed by the impending 2012 electoral cycle,

and the need to clarify the districts that are to be used in conducting the primary and
general elections for the California Senate in 2012 should the referendum petitions that
have been filed with the Secretary of State prove sufficient to qualify the referendum for
placement on the November 2012 ballot and to stay the Senate redistricting map drawn
and certified by the Citizens Redistricting Commission, the court has determined that it is
appropriate to issue an order to show cause in this matter at this juncture, while reserving
the question of this court’s jurisdiction for resolution in our eventual decision in this
proceeding.


“In addition to addressing issues relating to what relief, if any, this court should

order in the event the referendum regarding the Senate redistricting map qualifies for the
November 2012 ballot, the parties are directed to address the following jurisdictional
issues: (1) What standard or test should this court apply in determining whether a
referendum is ‘likely to qualify’ within the meaning of article XXI, section 3,
subdivision (b)(2) of the California Constitution, for purposes of deciding when a petition
for writ of mandate may be filed in this court under that constitutional provision? (2) Is
this court’s authority to entertain a petition for writ of mandate prior to the formal
qualification of a referendum petition limited to the circumstances set forth in article
XXI, section 3, subdivision (b)(2), or does this court have other authority (including
inherent authority) to entertain such a petition even if it cannot yet be determined whether
such a referendum is ‘likely to qualify’ for placement on the ballot?


“The motion of the Citizens Redistricting Commission to intervene in this

proceeding and for leave to file preliminary opposition is granted.


“To the extent the petition filed in this matter seeks any interim relief pending this

court’s eventual decision in this matter, the request for any such interim relief is denied.


“Petitioner’s request for judicial notice filed on December 2, 2011, is granted.

“To facilitate this court’s conducting of oral argument in this matter as early as the

first two weeks in January 2012, and the filing of an opinion in this matter as early as the
end of January 2012, the court orders an extremely expedited briefing schedule, as
follows:


“Respondent and intervener Citizens Redistricting Commission are each directed

to serve and file a return or opposition to the order to show cause on or before
Wednesday, December 14, 2011.


“Petitioner may serve and file a reply to the return or opposition on or before

Monday, December 19, 2011.


“Any application to file an amicus curiae brief and any amicus curiae brief may be

served and filed on or before Wednesday, December 21, 2011.

(Footnote continued on following page)

11

Having considered the subsequent briefing and oral argument, we conclude as

follows: (1) This court has jurisdiction to entertain this writ proceeding and it is

sufficiently ripe for our review. (2) In the event the referendum eventually qualifies for

presentation to the voters on the November 2012 ballot, triggering a stay of the

Commission’s certified state Senate map by operation of law, election officials are

nonetheless directed to use the boundaries set out in the Commission-certified state

Senate map on an interim basis for the June 2012 primary election and November 2012

general election, pending a vote by the people on the proposed referendum at the

November 2012 election.

II. California Constitution, amended article XXI

and the Citizens Redistricting Commission

We first briefly describe the structure and workings of the Citizens Redistricting

Commission.

Prior to 2008, redistricting in California was performed by the Legislature subject

to the veto power of the Governor — or by the courts, when the Legislature and

Governor could not agree. (See, e.g., Legislature v. Reinecke (1973) 10 Cal.3d 396;

Wilson v. Eu (1992) 1 Cal.4th 707.) The electorate, however, dramatically changed the

process by ballot measures in 2008 and 2010. Those measures amended California

Constitution, article XXI, transferring the redistricting task to a newly created Citizens

Redistricting Commission. (Prop. 11, as approved by voters, Gen. Elec. (Nov. 5, 2008)


(Footnote continued from previous page)

“Any reply or consolidated reply to any amicus curiae brief or briefs may be

served and filed on or before Thursday, December 22, 2011.


“All service and filings may be made by facsimile with the original and hard

copies to follow by mail. The court’s fax number is (415) 865-7183.


“No extension of time will be granted.”

12

(Proposition 11); Prop. 20, as approved by voters, Gen. Elec. (Nov. 2, 2010) (Proposition

20).)

A. Charge and selection of the Commission

California Constitution, article XXI, section 2 establishes the Commission and

defines how it is to be constituted. The constitutional provision creates a body that

excludes career politicians, reflects citizen participation at every level, and is expected to

rise above partisanship. Accordingly, subdivision (b) of section 2 charges the

Commission with “conduct[ing] an open and transparent process enabling full public

consideration of and comment on the drawing of district lines; . . . draw[ing] district lines

according to the redistricting criteria specified in this article; and . . . conduct[ing]

themselves with integrity and fairness.” Section 2, subdivision (c)(1) of article XXI

further provides that “[t]he selection process is designed to produce a commission that is

independent from legislative influence and reasonably representative of this State’s

diversity.”

The Commission has 14 members. Five must be registered with the largest

political party in California (based on voter registration), five must be registered with the

second largest political party in California, and four must be individuals who are not

registered with either of the two largest political parties. (Cal. Const., art. XXI, § 2,

subd. (c)(2).) Commission members are ineligible to hold elective public office at the

federal, state, county or city level for a period of 10 years, beginning from the date of

their appointment to the Commission (id., art. XXI, § 2, subd. (c)(6)), and, for a five-year

period beginning from their appointment, are ineligible to hold appointive federal, state,

or local public office, or to serve as paid staff for, or as a paid consultant to, the State

Board of Equalization, Congress, the Legislature, or any individual legislator, or to

register as a federal, state or local lobbyist in California. (Ibid.)

Government Code section 8250 et seq., enacted by the voters in 2008 as part of

Proposition 11, governs the process for selecting commissioners. Government Code

13

section 825216 sets forth how the commissioners are to be selected. The State Auditor,

an office that is independent of the legislative and executive branches (§ 8546), initiates

an application process, open to all registered voters, that is designed to “promote[] a

diverse and qualified applicant pool.” (§ 8252, subd. (a)(1).) According to the

Commission’s Final Report on Redistricting, August 15, 2011 (Final Report), the State

Auditor “undertook a significant outreach process throughout the state utilizing a wide

variety of communications media, including mainstream and ethnic media, social media,

a website, and staff assigned to respond to all telephone calls and e-mails.” (Final Rep.,

at p. 2, available on the Commission’s Web site, <http://wedrawthelines.ca.gov> [as of

Jan. 27, 2012].) Section 8252, subdivision (a)(2) authorizes the State Auditor to remove

from the pool those applicants with a conflict of interest. Subdivisions (a)(2)(A) and

(a)(2) (B) of section 8252 identify the relationships that can create a conflict of interest.

Section 8252 also authorizes the State Auditor to establish an “Applicant Review

Panel” to screen the applicants. (§ 8252, subd. (b).) The panel consists of three

independent auditors randomly drawn from a pool comprised of “all auditors employed

by the state and licensed by the California Board of Accountancy at the time of the

drawing” (ibid.); one of the three must be registered with the largest political party in

California, one must be registered with the second largest political party in California,

and the third must not be not registered with either of those two parties. (Ibid.)

Prospective panel members are to be screened for conflicts of interest under the same set

of standards that are applied to applicants. (§ 8252, subd. (a)(2).) Once the panel is

constituted, the State Auditor provides it with the applications of prospective commission

members. (§ 8252, subd. (c).)


16

Subsequent unlabeled statutory references in this part (pt. II) and in part III are to

the Government Code.

14

The panel then selects “60 of the most qualified applicants,” 20 of whom must be

registered with the largest political party; 20 must be registered with the second largest

political party; and the final 20 must not be registered with either of those two parties.

(§ 8252, subd. (d).) Selection is to be made on the basis of “relevant analytical skills,

ability to be impartial, and appreciation for California’s diverse demographics and

geography.” (Ibid.) The panel presents its pool of recommended applicants to the

Secretary of the Senate and to the Chief Clerk of the Assembly, and those officers, in

turn, permit the President pro Tempore of the Senate, the Minority Floor Leader of the

Senate, the Speaker of the Assembly, and the Minority Floor Leader of the Assembly

each to strike up to two applicants from each subpool of 20, for a total of eight strikes per

subpool. (§ 8252, subd. (e).) The State Auditor then randomly draws eight names from

the remaining pool of applicants: three from the subpool of applicants registered with the

largest political party, three from the subpool registered with the second largest political

party, and two from the remaining subpool. These eight individuals serve on the

Commission. (§ 8252, subd. (f).) They, in turn, review the remaining pool of applicants

and appoint a final six to complete the Commission: two are to be drawn from the

subpool of those registered with the largest political party, two are to be drawn from the

subpool of those registered with the second largest political party, and two are to be

drawn from the remaining subpool. The six appointees must be approved by at least five

affirmative votes of the original eight commissioners; those five votes must include the

votes of two Commissioners registered with the largest political party, two

Commissioners registered with the second largest political party, and one from a

Commissioner not registered with either party. (§ 8252, subd. (g).) The six appointees

are to be “chosen to ensure the commission reflects this state’s diversity, including, but

not limited to, racial, ethnic, geographic, and gender diversity.” (Ibid.) The Commission,

however, need not comply with any specific ratio or formula. (Ibid.)

15

B. The redistricting process

California Constitution, article XXI, section 2, subdivision (b) and related statutes

establish a public redistricting process. The constitutional provision requires the

Commission to “conduct an open and transparent process enabling full public

consideration of and comment on the drawing of district lines.” Section 8253 implements

that charge, and requires the Commission to “establish and implement an open hearing

process for public input and deliberation that shall be subject to public notice and

promoted through a thorough outreach program to solicit broad public participation in the

redistricting public review process. The hearing process shall include hearings to receive

public input before the commission draws any maps, and hearings following the drawing

and display of any commission maps. In addition, hearings shall be supplemented with

other activities as appropriate to further increase opportunities for the public to observe

and participate in the review process. The commission shall display the maps for public

comment in a manner designed to achieve the widest public access reasonably possible.

Public comment shall be taken for at least 14 days from the date of public display of any

map.” (§ 8253, subd. (a)(7).)

The Commission was sworn in during the month of January 2011, and conducted

an open bidding process to hire independent counsel and experts to advise it on matters

related to the federal Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) (Voting Rights

Act) and technical issues. It thereafter held more than 70 business meetings and 34 public

hearings in 32 cities throughout the state. (Final Rep., at p. 4.) Generally, the

Commission’s hearings were scheduled in the early evening hours at school or

government locations in the center of a community, making it convenient for “average

citizens” to participate. (Ibid.) It regularly allowed public input and comment at its

business meetings as well. (Ibid.) Its educational materials were broadly distributed in

English and six other languages (Spanish, Chinese, Japanese, Korean, Tagalog, and

Vietnamese), and it ultimately received, in addition to oral testimony, more than 2,000

16

written submissions, including maps reflecting statewide, regional, or other districts.

(Ibid.; see also Final Rep., at pp. 3-5 [listing representative groups providing submissions

and other testimony].) The Commission’s staff received “written comments, input and

suggestions from more than 20,000 individuals and groups.” (Id., at p. 5.) The

Commission held 23 public input hearings before issuing a set of its draft maps in June of

2011. After a five-day public review period, it held 11 more public input hearings around

the state to collect reactions to and comments concerning those draft maps. (Ibid.) It held

22 business meetings in Sacramento to discuss the draft maps, at which more than 276

people appeared and commented. All of the Commission’s public meetings were “live-

streamed,” captured on video, and placed on the Commission’s Web site for public

viewing. All of the Commission’s completed documents, and those of its staff, were

posted on the Commission’s Web site for public viewing as well. (Ibid.) All such

materials remain archived on the Commission’s Web site, <http://wedrawthelines.ca.gov>

(as of Jan. 27, 2012).

Pursuant to California Constitution, article XXI, section 2, subdivision (c)(5), the

structure of the Commission’s vote on each map mirrored the balanced process described

above, under which the Commission’s members were selected. An affirmative vote on

each map was required to be supported by a supermajority of at least nine Commission

members, including three from each subpool of members: those registered with the

largest political party in California (that is, three Democrats), those registered with the

second largest political party (that is, three Republicans), and three who are not registered

with either major party. With regard to the state Senate map — the subject of the

proposed referendum — the Commission’s vote was 13 to 1 in favor.

C. Redistricting criteria

California Constitution, article XXI, section 2, subdivision (d) requires the

Commission to “establish single-member districts for the Senate, Assembly, Congress,

and State Board of Equalization pursuant to a mapping process” that complies with

17

criteria expressly set forth in article XXI itself. It is of considerable consequence to our

analysis that the constitutional provision ranks the applicable criteria by order of priority.

First, “[d]istricts shall comply with the United States Constitution. Congressional

districts shall achieve population equality as nearly as is practicable, and Senatorial,

Assembly, and State Board of Equalization districts shall have reasonably equal

population with other districts for the same office, except where deviation is required to

comply with the federal Voting Rights Act or allowable by law.” (Cal. Const., art. XXI,

§ 2, subd. (d)(1).)

Second, “[d]istricts shall comply with the federal Voting Rights Act (42 U.S.C.

Sec. 1971 and following).” (Cal. Const., art. XXI, § 2, subd. (d)(2).)

Third, “[d]istricts shall be geographically contiguous.” (Cal. Const., art XXI, § 2,

subd. (d)(3).)

Fourth, the Commission’s maps must respect “[t]he geographic integrity of any

city, county, city and county, local neighborhood, or local community of interest . . . in a

manner that minimizes their division to the extent possible without violating the

requirements of any of the preceding subdivisions.” (Cal. Const., art. XXI, § 2,

subd. (d)(4).) The Constitution defines a “community of interest” as “a contiguous

population which shares common social and economic interests that should be included

within a single district for purposes of its effective and fair representation.” (Ibid.)

“Examples of such shared interests are those common to an urban area, a rural area, an

industrial area, or an agricultural area, and those common to areas in which the people

share similar living standards, use the same transportation facilities, have similar work

opportunities, or have access to the same media of communication relevant to the election

process.” (Ibid.) The term “communities of interest” expressly excludes “relationships

with political parties, incumbents, or political candidates.” (Ibid.)

Fifth, “[t]o the extent practicable, and where this does not conflict with the criteria

above, districts shall be drawn to encourage geographical compactness such that nearby

18

areas of population are not bypassed for more distant population.” (Cal. Const., art. XXI,

§ 2, subd. (d)(5).)

Sixth, and finally, “[t]o the extent practicable, and where this does not conflict

with the criteria above, each Senate district shall be comprised of two whole, complete,

and adjacent Assembly districts, and each Board of Equalization district shall be

comprised of 10 whole, complete, and adjacent Senate districts.” (Cal. Const., art. XXI,

§ 2, subd. (d)(6) [commonly referred to as the “nesting” goal].)

Subdivision (e) of article XXI, section 2, provides that “[t]he place of residence of

any incumbent or political candidate shall not be considered in the creation of a map.

Districts shall not be drawn for the purpose of favoring or discriminating against an

incumbent, political candidate, or political party.”

Subdivision (f) of article XXI, section 2, provides that “[d]istricts for the

Congress, Senate, Assembly, and State Board of Equalization shall be numbered

consecutively commencing at the northern boundary of the State and ending at the

southern boundary.”

These criteria are derived, for the most part, from the standards developed by the

special masters appointed by this court in 1973 after the Legislature failed to pass

legislative and congressional redistricting bills that were acceptable to the Governor.

(Legislature v. Reinecke, supra, 10 Cal.3d at pp. 400-402.) This court approved the use

of these criteria in Legislature v. Reinecke, and they subsequently were added to the

Constitution as article XXI when the voters approved Proposition 6 in 1980. The current

version of article XXI, as amended by the voters in 2008 (Prop. 11) and again in 2010

(Prop. 20), expands upon the original criteria articulated by the special masters in 1973,

based, in large part, on decisions of this court applying the criteria developed by the

special masters. (See, e.g., Wilson v. Eu, supra, 1 Cal.4th 707.) Unlike former article

XXI, section 2, or the judicial decisions on which that provision was based, however, the

current version of article XXI, in section 2, subdivision (d), expressly ranks the criteria in

19

order of priority, stating explicitly that a lower-ranked criterion is to be followed only

when doing so does not conflict with a higher-ranked criterion or criteria.

III. Did this court have authority to issue an order to show cause

in this original writ proceeding in the absence of a showing

that the proposed referendum was “likely to qualify” for the ballot?



And does this court at this juncture have authority to determine which

state Senate district map should be used in the event the referendum

qualifies for the ballot and stays the operative effect of

the Commission-certified state Senate map?

In considering petitioner’s request for relief, we must first address the threshold

question whether this court had authority to issue an order to show cause in this original

writ proceeding in the absence of a showing by petitioner that the proposed referendum

was “likely to qualify” for the ballot. In her preliminary opposition to the petition, filed

prior to this court’s consideration of the petition, the Secretary of State maintained that

the petition in this proceeding was not properly filed and should be summarily denied

because petitioner had not demonstrated that the underlying proposed referendum was

“likely to qualify” for the ballot within the meaning of article XXI, section 3(b)(2) of the

California Constitution. We will analyze this threshold question in light of the

circumstances that were before this court on December 9, 2011, when we issued the order

to show cause, both to explain why this court’s December 9 action was authorized and

appropriate, and, as importantly, to provide guidance on this procedural point for the

future in the event similar circumstances arise in the course of subsequent redistricting

efforts.

As we will explain, we conclude the petition’s allegations adequately invoked our

traditional extraordinary writ authority under article VI, section 10 of the state

Constitution over a question that was, and is, ripe for our decision. For this reason, it is

not necessary for this court to apply the language in article XXI, section (3)(b)(2)

20

providing that a “registered voter . . . may file . . . a petition for a writ of mandate . . . to

seek relief where a certified final map is subject to a referendum measure that is likely to

qualify and stay the timely implementation of the map.” (Cal. Const., art. XXI,

§ 3(b)(2).)

As noted above, the petition filed in this case on December 2, 2011, stated that the

proponents of the referendum had submitted a total of approximately 710,000 raw

(unverified) signatures in support of the referendum to local election officials throughout

the state. The petition asserted that because only approximately 504,000 valid signatures

were required to qualify the referendum for the ballot, the number of signatures that had

been submitted established that the proposed referendum was “likely to qualify” for

placement on the November 2012 ballot and thus that the petition was properly filed

under the provisions of article XXI, section 3(b)(2) of the California Constitution and

should be entertained and acted on by this court. Article XXI, section 3(b)(2) provides in

this regard that “[a]ny registered voter . . . may file . . . a petition for a writ of mandate

. . . to seek relief where a certified final map is subject to a referendum measure that is

likely to qualify and stay the timely implementation of the map.” (Italics added.)

As also noted above, the preliminary opposition filed by the Secretary of State

took issue with the petition’s contention that the number of raw signatures that had been

submitted to election officials established that the proposed referendum was likely to

qualify for the ballot. The preliminary opposition pointed out that in the prior separate

mandate proceeding filed in this court (see ante, fn. 7 and related text), petitioner had

asserted that she anticipated obtaining more than 780,000 raw signatures on the

referendum petition but that petitioner instead submitted only approximately 710,000 raw

signatures. The preliminary opposition, noting that a 2008 study of initiative petitions

reported that initiative proponents “lose up to 40 [percent] of gross signatures in the

verification check” (citing Center for Governmental Studies, Democracy by Initiative:

Shaping California’s Fourth Branch of Government (2d ed. 2008) p. 149), asserted that

21

given the relatively low number of raw signatures that had been submitted, it was too

soon to tell whether the proposed referendum was likely to qualify for placement on the

November 2012 ballot. For this reason, the Secretary of State took the position that the

petition was not properly filed and should be summarily denied.

As we have pointed out (ante, at p. 10), our order to show cause in this matter

specifically reserved resolution of this threshold issue for our eventual opinion and

directed the parties to brief two questions related to this issue, regarding (1) the test or

standard this court should apply in determining whether a proposed referendum is “likely

to qualify” within the meaning of article XXI, section 3(b)(2), and (2) whether this

court’s authority to entertain a petition for a writ of mandate prior to the formal

qualification of a referendum petition is limited to the circumstances set forth in article

XXI, section 3.17

The briefs responding to the order to show cause filed by the Secretary of State

and the Commission argued that in order to comply with the “likely to qualify” provision

of article XXI, section 3(b)(2), a petitioner must demonstrate by “a preponderance of the

evidence” that it is “more probable than not” that the referendum petition will qualify for

placement on the ballot. Both briefs further contended that because the relatively low

number of raw signatures submitted in support of the proposed referendum left it unclear

whether there was a sufficient number of valid signatures to qualify the referendum for

the ballot, petitioner failed to meet the “likely to qualify” standard. In addition, both

asserted that if the petition failed to satisfy the “likely to qualify” standard set forth in

article XXI, section 3(b)(2), this court lacked authority to entertain the mandate

proceeding. Accordingly, both maintained that the petition should be dismissed on this

basis.


17

The two questions are reproduced in full ante, footnote 15.

22

In her reply, petitioner disagreed with the proposed interpretation of the “likely to

qualify” language, arguing that in light of the provision’s purpose, the phrase “likely to

qualify” should not be interpreted to mean that a petition for writ of mandate may be filed

only when it can be shown that it is “more probable than not” that a proposed referendum

will qualify for placement on the ballot, but instead that such a petition may be filed on a

lesser showing. (The reply did not specify or quantify the lesser showing that petitioner

believes is contemplated by the “likely to qualify” language.) In addition, the reply

maintained that, in any event, the number of raw signatures that had been submitted in

support of the proposed referendum was sufficient to establish that it was more probable

than not that the referendum would qualify. Finally, the reply asserted that, apart from

article XXI, section 3(b)(2), this court possesses authority under article VI, section 10 of

the Constitution — establishing this court’s original jurisdiction “in proceedings for

extraordinary relief” — to entertain the petition for a writ of mandate in this case because

the petition presented a matter of great public importance that had to be resolved

promptly in light of the impending 2012 electoral cycle.

For the reasons discussed below, we conclude that there is no need for this court to

decide the meaning of the term “likely to qualify” as used in article XXI, section 3(b)(2)

or to determine whether the “likely to qualify” standard of section 3(b)(2) was satisfied at

the time the petition in this case was filed or is satisfied at the present time. As we

explain, in light of the statewide importance of the issue presented by the petition and the

need for an expeditious judicial resolution of this matter, this court had authority, under

article VI, section 10 of the California Constitution, to issue an order to show cause in

this original writ proceeding at the time the petition was filed and also possesses the

authority at the present time to determine, through the exercise of its original writ

jurisdiction, what state Senate district map should be used as an interim measure if the

23

proposed referendum qualifies.18 The sentence of article XXI, section 3(b)(2) in

question — containing the “likely to qualify” language — was not intended, and cannot

reasonably be interpreted, to limit or restrict this court’s authority under article VI,

section 10 to determine that such an original writ proceeding is appropriately ripe for

adjudication and resolution at an earlier point in time. As the facts of this case illustrate,

in light of the great public interest and exigencies of the electoral process, this court may

need to assume jurisdiction and act expeditiously when such a petition is filed if the court

is to retain the ability to render a meaningful decision that can be realistically

implemented. This is so even under circumstances in which it cannot reasonably be

predicted whether the proposed referendum is likely to qualify for the ballot. Nothing in

the background or purpose of article XXI, section 3(b)(2) suggests that the provision was

intended to deprive this court of its fundamental and long-standing constitutional

authority to accept such a filing and to act in such a setting when the court determines

that it is appropriate and prudent to do so.

In analyzing this issue, it is important to recognize at the outset that it is firmly

established that this court possesses “jurisdiction,” in the fundamental sense, to entertain

a petition for an original writ of mandate that is directed to the Secretary of State and

concerns her official duties related to the electoral process, and to grant appropriate relief

in such a proceeding. Article VI, section 10 of the California Constitution explicitly

provides in this regard that this court possesses “original jurisdiction in proceedings for

18

Although the petition in this case asserted that it was filed under the authority

granted by article XXI, section 3(b)(2), the representations disclosed by the petition
demonstrated that petitioner, as a registered voter and the official proponent of the
proposed referendum in question, unquestionably had standing to file a petition for an
original writ of mandate seeking the relief in question under the so-called “public-interest
exception” applicable to mandate proceedings. (See, e.g., Hollman v. Warren (1948) 32
Cal.2d 351, 356-357; see generally 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary
Writs, § 84, pp. 970-973, and cases cited.)

24

extraordinary relief in the nature of mandamus, certiorari, and prohibition,” and this court

has long exercised such original extraordinary writ jurisdiction with respect to public

officials’ exercise of their official conduct. (See, e.g., Hollman v. Warren, supra, 32

Cal.2d at pp. 354-357; see generally People ex rel. S.F. Bay etc. Com. v. Town of

Emeryville (1968) 69 Cal.2d 533, 537-538 [discussing 1966 state constitutional

amendment that “deliberately broadened the constitutional language relating to

jurisdiction in extraordinary writ proceedings”].) In past cases, this court has repeatedly

exercised authority to entertain and decide petitions for original writs of mandate related

to the referendum, initiative, and redistricting process in circumstances in which an

expeditious ruling was necessary to the orderly functioning of the electoral system. (See,

e.g., Senate v. Jones (1999) 21 Cal.4th 1142; Wilson v. Eu (1991) 54 Cal.3d 546; Wilson

v. Eu, supra, 1 Cal.4th 707; Assembly v. Deukmejian, supra, 30 Cal.3d 638; Legislature

v. Reinecke, supra, 10 Cal.3d 396; Silver v. Brown (1965) 63 Cal.2d 270.)

Accordingly, we disagree with the Secretary of State’s and the Commission’s

argument and analysis regarding this court’s alleged lack of authority to issue an order to

show cause in this writ proceeding in light of the petition’s asserted failure to establish

that the proposed referendum was likely to qualify for the ballot. Properly analyzed, the

issue does not implicate this court’s fundamental jurisdiction over petitioner’s mandate

action. Rather, the issue presents a question of the “justiciability” of petitioner’s claim,

and, more specifically, whether the action is “ripe” for adjudication under the “ripeness”

doctrine that constitutes one aspect of justiciability. As this court explained in Pacific

Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170: “The ripeness

requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely

advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role

of the judiciary does not extend to the resolution of abstract differences of legal opinion.

It is in part designed to regulate the workload of courts by preventing judicial

consideration of lawsuits that seek only to obtain general guidance, rather than to resolve

25

specific legal disputes. However, the ripeness doctrine is primarily bottomed on the

recognition that judicial decisionmaking is best conducted in the context of an actual set

of facts so that the issues will be framed with sufficient definiteness to enable the court to

make a decree finally disposing of the controversy. On the other hand, the requirement

should not prevent courts from resolving concrete disputes if the consequence of a

deferred decision will be lingering uncertainty in the law, especially when there is

widespread public interest in the answer to a particular legal question. [Citations.]”

(Italics added.) As the Court of Appeal observed in California Water & Tel. Co. v. Los

Angeles (1967) 253 Cal.App.2d 16, 22, “[a] controversy is ‘ripe’ when it has reached . . .

the point that the facts have sufficiently congealed to permit an intelligent and useful

decision to be made.”

In past cases this court has repeatedly held that this court may appropriately

exercise its jurisdiction over a petition for an original writ of mandate when “the issues

presented are of great public importance and must be resolved promptly.” (County of

Sacramento v. Hickman (1967) 66 Cal.2d 841, 845; see, e.g., Clean Air Constituency v.

California State Air Resources Bd. (1974) 11 Cal.3d 801, 808; see generally 8 Witkin,

Cal. Procedure, supra, Extraordinary Writs, § 146, pp. 1043-1046.) We have frequently

found challenges ripe for the invocation and exercise of our original writ jurisdiction

under this standard in cases involving significant legal issues affecting the electoral

process, when a speedy resolution of the underlying controversy is necessary to avoid a

disruption of an upcoming election. (See, e.g., Wilson v. Eu, supra, 54 Cal.3d at pp. 472-

473; Assembly v. Deukmejian, supra, 30 Cal.3d at p. 646; Thompson v. Mellon (1973) 9

Cal.3d 96, 98; Legislature v. Reinecke (1972) 6 Cal.3d 595, 598; Jolicoeur v. Mihaly

(1971) 5 Cal.3d 565, 570, fn. 1; Silver v. Brown, supra, 63 Cal.2d at pp. 277-278; Perry

v. Jordan (1949) 34 Cal.2d 87, 90-91.)

In this case, the legal issue posed by the petition plainly presented a question of

significant statewide public importance. The petition noted that a referendum petition,

26

challenging the state Senate redistricting map that had been certified by the Commission

and that was currently being implemented by election officials throughout the state, had

been circulated for signatures and had been timely filed with election officials with a

number of raw signatures that was greater than the number of verified signatures required

for qualification. The petition also pointed out that if the proposed referendum proves to

have a sufficient number of verified signatures to qualify for placement on the November

2012 ballot, the existing Commission-certified state Senate map would, as a matter of

law, automatically be stayed pending the electorate’s November 2012 vote on the

referendum measure. (See Cal. Const., art. II, § 10, subd. (a); Assembly v. Deukmejian,

supra, 30 Cal.3d at pp. 654-657, and cases cited [construing the cited constitutional

provision to mean that a “duly qualified referendum” stays implementation of the

challenged electoral maps].) And the petition further explained that if the existing state

Senate map is stayed by qualification of the proposed referendum, this court would bear

the direct responsibility of deciding which state Senate districts are to be used by election

officials for the interim June 2012 primary election and November 2012 general election.

(Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 657-658.) Thus, there is no question

that the legal issue presented by the petition — what state Senate districts should be used

for those elections in the event the proposed referendum qualifies for the ballot — is

clearly an issue of sufficient statewide public importance to warrant this court’s exercise

of its original writ jurisdiction.

At the time the petition was filed, however, the proposed referendum had not yet

qualified for the ballot (indeed, at the time of filing this opinion, it still has not qualified),

and the question raised by the informal opposition to the petition was whether the matter

was sufficiently ripe to render it appropriate for this court to issue an order to show cause,

establish a briefing schedule, and proceed to adjudicate the matter, or whether the petition

was premature.

27

As we will explain (see, post, at pp. 29-32), both on December 2, 2011 (when the

petition for writ of mandate was filed in this court), and on December 9, 2011 (when this

court considered whether to issue an order of show cause), it was apparent (1) that it was

a close question whether a sufficient number of valid signatures had been filed to qualify

the proposed referendum for placement on the November 2012 ballot, and (2) that the

ultimate resolution of that question might not be determined until early March 2012. As

we also will explain, however, under the circumstances shown by the petition, our timely

intervention was critical because of practical impediments faced by election officials

preparing for the 2012 election cycle.

Under the applicable California statutes (Elec. Code, § 9030 et seq.), when, as in

this case, the proponents of a referendum filed with election officials petitions containing

a number of raw signatures greater than the number of valid signatures required for

qualification, local election officials were required to conduct a random sampling of the

raw signatures to make an initial determination of the percentage of raw signatures that

would be found to be valid signatures.19 Here, the last day for counties to complete

random sampling was January 10, 2012. (Elec. Code, § 9030, subds. (d), (e).)

Thereafter, based on the county certificates, the Secretary of State was required to

determine the statewide result of the random sampling by January 18, 2012. Under the

governing statutory provisions, if the random sampling projected a number of total valid

signatures that was less than 95 percent of the required number of valid signatures, the

petition would fail without any further count. If the projection of valid signatures was

110 percent or more of the required number, the petition would qualify without any


19

Random sampling is conducted in each county with regard to 3 percent of the

signatures presented, or 500 signatures, whichever number is greater. If fewer than 500
signatures are submitted in a county, the county election officials must check each
signature. (Elec. Code, § 9030, subd. (d).)

28

further count. If the projection of valid signatures was between 95 and 110 percent, the

Secretary of State would notify counties that a full count of all submitted signatures

would be required to verify the number of valid signatures that had been submitted.

(Elec. Code, §§ 9030, subds. (f) & (g), 9031, subd. (a).) If a full count was required, the

last day for counties to determine the number of qualified signatures would be March 6,

2012. (Id., § 9031, subds. (b) & (c).) Thereafter, by March 12, 2012, the Secretary of

State would determine whether the referendum petition qualifies for placement on the

November 2012 ballot. (Id., §§ 9031, subd. (d), 9033.)

At the time the petition in the present case was filed, all parties in this proceeding

agreed that the available data indicated that the random sampling of the petition

signatures was very likely to result in a projection falling between 95 and 110 percent of

the required number of valid signatures. Thus, although the parties disagreed whether the

available data demonstrated that it was more probable than not that the proposed

referendum would qualify, the parties agreed that the data established that there was at

least a substantial possibility that the referendum would ultimately qualify for the ballot.

And because the parties also agreed that it was quite likely that the final result of the

random sampling process would mean that the verification process would have to go to a

full count of all signatures, at that time it appeared very probable that it would not be

definitively known whether the proposed referendum qualified for the ballot until early

March 2012. However, the Secretary of State informed the court that a number of actions

for the 2012 electoral cycle were required to begin well before that date.

Thus, at the time the petition was filed and this court had to decide whether to

issue an order to show cause, we faced a serious problem of timing and coordination. As

noted in Wilson v. Eu, supra, 54 Cal.3d at page 548, “preparing for elections is a complex

and ‘sequential’ process, requiring various tasks be performed before others may begin,

including identifying the various district boundaries, developing county election

precincts, assigning such districts to all registered voters, designing ballot styles, printing

29

ballots, providing polling places, and training precinct workers. Early delays in one

function can impact all other functions. As the Secretary [of State] points out, the need to

know precise district boundaries ‘is at the front end of the process.’ ” According to the

Secretary of State here, “[t]hese words are particularly applicable to the 2012 election

cycle, where elections officials will implement not only new redistricting plans, but also

the new ‘top two’ or ‘voter-nominated’ election scheme adopted by Proposition 14 (June

2010).”

At the time the petition was filed, all four maps certified in mid-August by the

Commission — including the state Senate map — were then the legally applicable maps,

and county election officials and the Secretary of State and others were using and relying

upon them for purposes of state election planning and “preclearance” under section 5 of

the federal Voting Rights Act,20 and would continue to do so unless and until the state

Senate map is automatically stayed by qualification of the proposed referendum or this

court orders otherwise. The Secretary of State, citing a declaration by the chief of the

elections division, explained that up to six weeks would be required “for state and local

elections officials to implement [any] changes [that might be ordered] to the new maps.”

This court was also informed that the Secretary of State and county election officials

needed to know by the end of January 2012 whether they would be required to implement

any changes in the state Senate districts in the event the proposed referendum qualifies

and automatically stays the Commission-certified state Senate redistricting map.

As the circumstances of the present case demonstrate, even when the available

data may be insufficient to show just how likely or probable it is that a proposed

referendum will qualify for placement on the ballot, detrimental consequences to the

orderly process of an election may result if the court fails to exercise jurisdiction


20

See post, footnote 44.

30

expeditiously and the referendum does ultimately qualify for the ballot. The potential

detrimental consequences resulting from this court’s deferring action until later in the

signature verification process may reasonably support a judicial determination that the

proposed mandate action is sufficiently “ripe” to permit this court to exercise jurisdiction

over the mandate action at that earlier juncture.

The combination of the redistricting process embodied in California Constitution,

article XXI and the electoral schedule often leaves very little time between the deadline

for filing referendum petition signatures and the beginning of the numerous tasks that

must be undertaken by candidates and election officials during the upcoming primary and

general election electoral cycle. Thus, it may be necessary for this court to issue an order

to show cause, elicit briefing, and hold oral argument before it can be determined with

any substantial degree of accuracy or confidence how likely or probable it is that the

proposed referendum will qualify for the ballot. Such immediate action by this court may

be essential in order for this court to retain the ability to render a decision (regarding what

districts should be used in the event the referendum qualifies) at a time when the court’s

decision can actually be implemented. If issuance of an order to show cause is deferred

until later in the signature-verification process, then by the time a judicial decision

ultimately is rendered it may, as a practical matter, be impossible for election officials to

use any districts other than the districts that the officials have been utilizing up until the

date on which the Commission-certified maps are stayed by the official qualification of

the proposed referendum. In other words, if this court were to conclude that other

districts should be used in the event the referendum qualifies, it may be too late at that

time to apply the court’s decision to implement those other districts.

Accordingly, we conclude that, in order to preserve this court’s ability to render a

meaningful and realistically enforceable decision regarding which districts should be

used in the event a proposed referendum qualifies, this court properly may determine that

a proposed mandate proceeding is “ripe” for adjudication and may issue an order to show

31

cause in such a proceeding in the absence of a showing that the referendum is “likely to

qualify” for placement on the ballot. Given the realities of the timing of redistricting and

the statutory electoral process, we hold that this court has authority to find that a mandate

action satisfies the ripeness doctrine when we conclude that, in light of the relative

probability that the proposed referendum will qualify for the ballot and the time

limitations and potential detrimental consequences of refusing to consider a mandate

petition at that point in time, it is prudent to issue an order to show cause and decide

which districts should be used in the upcoming elections in the event the proposed

referendum does qualify for placement on the ballot. (Accord, People ex rel. S.F. Bay

etc. Com. v. Town of Emeryville, supra, 69 Cal.2d at pp. 537-539 [an appellate court has

inherent power to order interim relief in aid of its own jurisdiction and to preserve the

effectiveness of its ultimate decision].)

Furthermore, not only may this court issue an order to show cause in the absence

of a showing that the proposed referendum is “likely to qualify” for the ballot, but this

court’s authority to decide what districts should be used in the event the referendum does

qualify and to grant relief based upon that decision also is not contingent upon a showing

that the proposed referendum is “likely to qualify” for the ballot. Even when it cannot be

determined from the available data how likely it is that a referendum will qualify for the

ballot — or when there is a substantial possibility that the proposed referendum will

qualify but it is not “more probable than not” that it will qualify — a court may conclude

that it is prudent to determine, at that time, which districts should be used in the event the

referendum does qualify so that election officials are not left without meaningful

guidance if the referendum ultimately qualifies.21 Thus, at the relief stage, just as at the


21

As explained earlier, current California statutes mandate a full count of all

submitted signatures whenever the results of the random sampling process project a
signature validity rate between 95 and 110 percent of the required number of valid

(Footnote continued on following page)

32

order to show cause stage of an original writ proceeding, this court may properly grant

relief before a proposed referendum actually qualifies for the ballot when the court is of

the view that there is a sufficient chance that the proposed referendum will qualify to

make it prudent for the court to advise election officials of the districts that should be

used on an interim basis if the proposed referendum ultimately qualifies for the ballot.

We also emphasize that it is perfectly appropriate for this court, after the issuance

of an order to show cause and while such a proceeding is pending before the court, to

continue to consider all relevant factors that may affect both the need for relief and the

prudence and appropriate timing of affording the relief that the court determines may be

warranted.22


(Footnote continued from previous page)

signatures. (Ante, at pp. 28-29.) This statutory scheme indicates that even when the
random sampling process projects that the number of valid signatures submitted will be
only 95 percent of the required number of valid signatures, the Legislature is of the view
that there is a sufficient chance that a full count of all signatures will show that the
proposed referendum actually has obtained a sufficient number of valid signatures to
qualify for the ballot to require that a time-consuming and expensive full count be
conducted. Accordingly, the suggestion advanced in one of petitioner’s supplemental
briefs — that this court should adopt a rule under which a proposed referendum that
obtains a random sampling rate of less than 100 percent of the required number of valid
signatures should be considered insufficient to permit this court to advise election
officials of the districts that should be used in the event the proposed referendum does
qualify (see post, fn. 22) — would appear to conflict with the underlying premise of the
statutory scheme.

22

In the present case, for example, we asked the parties during the pendency of this

proceeding to file supplemental briefs addressing what significance the signature validity
rate from the completed random sampling process would have with regard to the issue of
whether a proposed referendum is “likely to qualify” under article XXI, section 3(b)(2).


In response, the parties informed the court of the then-current signature validity

rate of the proposed referendum based on the incomplete random sampling process that
had been conducted as of the date the supplemental briefing was filed. Although the
parties reported the same data — obtained from the Secretary of State’s Web site — they
disagreed whether the signature validity rate obtained from the random sampling process

(Footnote continued on following page)

33

Thus, for example, if in this case, after we issued an order to show cause, the

completed random sampling process had projected less than 95 percent of the required

valid signatures, it would have been clear that the proposed referendum had failed to

qualify for the ballot and that there was no longer any need for a decision by this court

because there was no longer any chance that the Commission-certified state Senate map

would be automatically stayed. Under such circumstances, notwithstanding the fact that

this court had properly issued an order to show cause, this court would simply have

dismissed this writ proceeding as moot.

Furthermore, other relevant factors that develop while such an original writ

proceeding is pending in this court also may affect the timing and nature of the relief that


(Footnote continued from previous page)

is a sufficiently reliable indicator concerning whether a referendum is “likely to qualify”
for the ballot.


Petitioner maintained in this regard that “a petition that attains less than a 100

[percent] signature validity rate from the completed random sampling cannot be said to
be ‘likely’ to qualify,” whereas “[a] petition that attains more than 100 [percent] is likely
to qualify.”


The Secretary of State, by contrast, explained that although the random sampling

process is adequate to do what that process is designed to do — namely to determine
“whether the number of valid signatures on petitions is within a broad range, 95 [percent]
to 110 [percent]” — “the sampling technique is not designed to give reliable results at a
greater level of precision.” The Secretary of State advised the court that “to use the
completed sampling process to determine at what point a petition becomes likely to
qualify, or to determine whether a 101 [percent] random sample petition is more likely to
qualify than a 100 [percent] random sample petition, is beyond the capacity of the
process
.” (Italics added.) On this point the Commission, in its own supplemental filing
and at oral argument, deferred to and agreed with the Secretary of State.


For the reasons discussed in the text, we conclude that there is no need to

determine whether the current available data establishes that it is likely or more probable
than not that the proposed referendum will qualify. There is a sufficient probability that
the referendum will qualify to make it prudent to decide at this time which districts
should be used in the event the proposed referendum does qualify. (See, post, at p. 42.)

34

this court will provide. For example, as the briefing and oral argument process

progresses, and as this court, through its deliberations, arrives at a consensus concerning

the substantive question of what districts should be used in the event the proposed

referendum qualifies and stays the Commission-certified districts, the court will continue

to assess the relative probability that the referendum will qualify for the ballot and the

prudence of resolving the proceeding prior to the referendum’s actual qualification.

If this court, after deliberation, concludes that even if the proposed referendum

qualifies for the ballot and automatically stays the operative effect of the Commission-

certified map, election officials should be directed to use the Commission-certified map

on an interim basis because the court has concluded that that map best complies with the

constitutionally mandated criteria embodied in the federal and state Constitutions (a

scenario, as we discuss later in this opinion, that reflects this court’s decisionmaking

process in this case), this court could also reasonably conclude that it should issue its

decision as early as possible so as to eliminate the uncertainty that inevitably arises from

the ongoing signature verification process and the pendency of the writ proceeding in this

court. In such a case, when this court has concluded that the Commission-certified map

should be used, so long as there remains a substantial possibility that the referendum will

qualify for the ballot it would not be necessary for the court to decide whether it is more

probable than not that the proposed referendum will qualify. Even if, after the court

issues its opinion, the referendum ultimately does not qualify for the ballot and the

Commission-certified map is not stayed, issuance of the court’s decision — approving

the Commission’s map — could have no adverse effect upon the Commission-certified

map.

By contrast, based on the Commission’s processes and the Secretary of State’s

statutory responsibilities, different considerations may come into play when this court,

after briefing, oral argument, and deliberation, concludes that a map other than the

Commission-certified map should be used in the interim elections in the event the

35

proposed referendum qualifies for the ballot. Because of the possibility that the issuance

of a court decision favoring an alternative map over the Commission-certified map might

— in the event the referendum does not qualify — unnecessarily cast a cloud over the

legitimacy of that Commission-certified map for the ensuing decade, this court may

determine that it is prudent to consider just how likely it is that the proposed referendum

will not qualify for the ballot. In determining whether it is prudent to issue its decision in

advance of the proposed referendum’s qualification notwithstanding this potential

adverse consequence (and if so, how far in advance), this court would undoubtedly take

into account the particular reasons underlying its analysis and determination that an

alternative map is more consistent with the constitutionally based criteria than the

Commission-certified map, and then decide if and when to issue its opinion based in part

on such considerations.

As the foregoing examples illustrate, under this court’s traditional California

Constitution, article VI, section 10 authority over original writ proceedings, this court

properly retains broad discretion to take into account all such considerations as well as

any other relevant factor in deciding what relief is appropriate in such a proceeding and

when it should be ordered. Because of the variety of circumstances that may be

presented in the future, and the impossibility of predicting the nature of the controversies

that may arise in this context, we conclude that it would not be wise or appropriate to

establish a fixed and inflexible rule or standard that would restrict this court’s discretion

to take appropriate action in light of all the circumstances that may be presented in a

particular case. Thus, we reject any suggestion that this court may determine which

districts are to be used for interim elections in the event a proposed referendum ultimately

qualifies for the ballot only if, at the time the court issues its decision, the available data

demonstrates that the referendum is “likely to qualify” for the ballot.

In their briefs, the Secretary of State and the Commission do not deny that under

the general provisions of article VI, section 10 of the California Constitution regarding

36

original writs of mandate, and the discretion courts may generally exercise under the

ripeness doctrine, this court ordinarily would have authority to issue an order to show

cause in this setting and to provide appropriate relief in light of all of the circumstances

of the case, even if petitioner fails to demonstrate that it is more probable than not that the

proposed referendum measure will qualify for the ballot. The Secretary of State and the

Commission maintain, however, that the specific provision of article XXI, section 3(b)(2)

authorizing “[a]ny registered voter [. . . to] file a petition for a writ of mandate or writ of

prohibition to seek relief where a certified final map is subject to a referendum measure

that is likely to qualify and stay the timely implementation of the map” should be

interpreted to limit this court’s authority to issue an order to show cause and grant relief

in an original writ proceeding in this setting to instances in which a petitioner establishes

that the proposed referendum measure is “likely to qualify” for the ballot. (As discussed

above, both the Secretary of State and the Commission maintain that “likely to qualify,”

as used in article XXI, section 3(b)(2), means “more probable than not.”) In advancing

this argument, the briefs rely upon decisions of this court holding that when constitutional

provisions conflict, “a recent, specific provision is deemed to carve out an exception to

and thereby limit an older, general provision.” (Izazaga v. Superior Court (1991) 54

Cal.3d 356, 371; see Greene v. Marin County Flood & Water Conservation Dist. (2010)

49 Cal.4th 277, 290.)

The fundamental flaw in this argument lies in its implicit assumption that the

sentence within article XXI, section 3(b)(2) upon which the briefs rely was intended, and

may reasonably be interpreted, to impose a limitation on the circumstances under which

this court is authorized to issue an order to show cause or to provide relief in this setting.

In our view, it is evident — both from the language of article XXI, section 3(b)(2) itself

and from the judicial background against which the provision was drafted (see Assembly

37

v. Deukmejian, supra, 30 Cal.3d 638)23 — that this section was intended to expand,

rather than to limit, the ability of referendum sponsors or supporters to institute an

original writ proceeding in this court by explicitly providing that when a proposed

referendum is “likely to qualify” for the ballot, any registered voter has the right to file

such a petition in this court before the Secretary of State formally certifies that the

referendum has qualified for placement on the ballot. The language of article XXI,

section 3(b)(2) does not purport to limit this court’s jurisdiction or its ability to

determine, at a time prior to when the referendum is “likely to qualify,” that a case falling

within its jurisdiction is ripe for adjudication, and nothing in the ballot pamphlet related

to this initiative measure indicates an intention to limit this court’s broad article VI,

section 10 authority in such a fashion. Indeed, it would clearly defeat, rather than further,

the purpose of article XXI, section 3(b)(2) to interpret the section as limiting this court’s

authority to entertain a writ petition at an earlier time when an earlier commencement of

the action may be necessary, as a practical matter, to enable the court to provide the relief

sought in the petition should such relief be found appropriate. Accordingly, we reject the

argument that article XXI, section 3(b)(2) should be interpreted to limit this court’s

traditional authority under California Constitution, article VI, section 10 in the manner

suggested by the Secretary of State and the Commission.


23

In Assembly v. Deukmejian, supra, 30 Cal.3d 638, the referendum proponents

gathered an extraordinary large number of signatures (well over two times the number of
required valid signatures — see id., at p. 682 (dis. opn. of Richardson, J.)) in an
exceptionally short period of time (see post, fn. 29), and thus may have been able to
demonstrate even before the petitions were filed with election officials that it was more
probable than not that the referendum would qualify for the ballot. The drafters of the
relevant sentence of article XXI, section 3(b)(2) apparently wanted to make it clear that
in such circumstances any registered voter would have the right to file an action for writ
relief in this court even though the proposed referendum may not yet have formally
qualified for the ballot.

38

Our determination in this regard does not render the pertinent sentence of article

XXI, section 3(b)(2) meaningless or “surplusage.” In the absence of article XXI,

section 3(b)(2), the ripeness of any petition seeking an original writ of mandate that is

filed prior to the qualification of a proposed referendum would be a question for this

court’s discretionary authority over original writs of mandate under article VI, section 10.

Under article XXI, section 3(b)(2), however, when a petitioner is able to show that a

proposed referendum is likely to qualify for placement on the ballot, the petition is, as a

matter of law, sufficiently ripe to permit the petition to be entertained.24 Thus, by virtue

of article XXI, section 3(b)(2), when it is shown that a proposed referendum is likely to

qualify, this court may not properly deny the petition for lack of ripeness. By contrast, a

petition that is filed prior to the time that it can be determined that the proposed

referendum is likely to qualify is unaffected by article XXI, section 3(b)(2) and continues

to be evaluated by this court under all the considerations ordinarily taken into account

under the ripeness doctrine. Accordingly, our conclusion does not render article XXI,

section 3(b)(2) surplusage.25

24

When a petition is properly filed under article XXI, section 3(b)(2), this court is

required to give priority to ruling on the petition. (See art. XXI, § 3(b)(3).) Of course, in
any case in which this court issues an order to show cause in an original writ proceeding
because of the importance of the issue presented and the need for a prompt decision, this
court naturally gives priority to the proceeding in order to provide an expeditious ruling.
The present proceeding is an apt example.

25

Relying upon the “likely to qualify” language in article XXI, section 3(b)(2), the

concurring opinion proposes that the court adopt “as a general rule — indeed a
presumption — that where a petitioner has not shown that a referendum is likely to
qualify, the court should not decide the merits of the mandate petition.” (Conc. opn.,
post, at p. 9.) Because the concurring opinion also concludes that the “likely to qualify”
language is properly interpreted to mean “more likely than not” (conc. opn., post, at
p. 11), under the concurring opinion’s approach this court, as a general rule, would not
decide which map should be used for interim elections if a proposed referendum qualifies
for the ballot unless a petitioner has shown that it is more probable than not that the
proposed referendum will qualify. Thus, in the absence of such a showing, this court

(Footnote continued on following page)

39


(Footnote continued from previous page)

would often be unable to provide timely guidance to election officials, leaving them
without sufficient time to implement this court’s eventual ruling should the referendum
ultimately qualify for the ballot.


For a number of reasons, we believe that the concurring opinion’s approach is

untenable.


First, as we have explained above (ante, pp. 37-39), the “likely to qualify”

language in article XXI, section 3(b)(2) was not intended, and may not reasonably be
interpreted, to limit this court’s authority under article VI, section 10 of the California
Constitution to issue an order to show cause or to decide the merits in an original
mandate proceeding at a point in time earlier than when a referendum is likely to qualify
for the ballot. The concurring opinion fails to identify anything in the language of the
provision or in the ballot materials accompanying the initiative measure that added this
language to the California Constitution indicating that the provision was intended to have
this type of limiting effect on this court’s authority. Under these circumstances, article
XXI, section 3(b)(2) provides no support for the concurring opinion’s conclusion that that
provision’s “likely to qualify” language constitutes the appropriate standard against
which this court’s discretion to grant relief under article VI, section 10 should be
measured or limited.


Second, although the concurring opinion maintains that the “likely to qualify”

standard should be adopted as the general standard for determining when this court will
“decide the merits” in such a mandate proceeding, the “likely to qualify” language of
article XXI, section 3(b)(2), by its terms, is not directed to the time when the court may
or should decide the merits
of the mandate petition, but rather to the time when a
registered voter may file such a petition in this court. (“Any registered voter . . . may . . .
file a petition for writ of mandate
. . . to seek relief where a certified final map is subject
to a referendum that is likely to qualify
and stay the timely implementation of the map.”
(Italics added.)) Although the concurring opinion contests this point, and argues that “the
‘likely to qualify’ language in section 3(b)(2) is better read as specifying when relief is
available and may be granted by this court” (conc. opn., post, at p. 9), in our view a plain
reading of the constitutional language, as well as the purpose of the provision, belie the
concurring opinion’s contrary interpretation.


Third, because the concurring opinion ultimately concludes that “we need not

apply the ‘likely to qualify’ standard in this case because of our ultimate disposition”
(conc. opn., post, at p. 14) — that is, because of the court’s determination that the
Commission-certified state Senate map should be used if the referendum qualifies for the
ballot (see conc. opn., post, p. 3) — the opinion makes clear that its proposed likely-to-
qualify “general rule” is not intended to apply in all cases but only “in circumstances
where [the court] finds or contemplates finding that an alternative to the Commission

(Footnote continued on following page)

40

In sum, for the reasons discussed above, we conclude that, under California

Constitution, article VI, section 10, this court is authorized to issue an order to show

cause and decide which districts should be used in the event a proposed referendum

directed at a Commission-certified redistricting map qualifies for the ballot, even in the

absence of a showing that the proposed referendum is likely to qualify for the ballot.

Finally, applying the general considerations of the ripeness doctrine to the facts of

this case, we conclude that petitioner’s claim was sufficiently ripe to support this court’s

issuance of the order to show cause on December 9, 2011, and that it continues to be

appropriate for this court to determine which state Senate districts should be used in the

interim elections in the event the proposed referendum qualifies for the ballot.

First, as discussed above, at the time the petition was filed on December 2, 2011,

the undisputed facts established that there was a substantial possibility that the proposed

referendum would ultimately qualify for the ballot, but that the determination whether or


(Footnote continued from previous page)

map should be the interim map.” (Conc. opn., post, p. 4.) In advocating the adoption of
a likely-to-qualify rule that applies only in such limited circumstances, the concurring
opinion again departs substantially from the language of article XXI, section 3(b)(2),
which draws no such distinction. The concurrence’s apparent response to this point —
namely, that this court is not granting “relief” when, as in this case, it issues a writ of
mandate directing election officials, in the event the Commission-certified map is stayed
by qualification of the referendum, to use a specified map other than a map sought by
petitioner (see conc. opn., post, at p. 10, fn. 1) — is totally without merit; this court is
clearly granting relief when it directs which map is to be used in the event of a stay,
whether or not the particular outcome ordered by the court is the relief petitioner is
seeking.


In sum, we conclude that article XXI, section 3(b)(2) does not support the

concurring opinion’s approach. For the reasons fully set forth in the text (ante, pp. 23-
39), this court’s authority either to issue an order to show cause or to decide what districts
should be used in the event a proposed referendum qualifies for the ballot is not limited to
circumstances in which the proposed referendum is “likely to qualify” for the ballot.


41

not the referendum would qualify might not be made until early March 2012, when it

would, as a practical matter, be impossible to implement a decision of this court requiring

the use of state Senate district maps other than those certified by the Commission. Under

these circumstances, we conclude that the ripeness doctrine was satisfied and that this

court had authority on December 9, 2011, to issue an order to show cause in this original

writ proceeding.

Second, the relevant factors that have developed while this matter was pending in

this court do not alter our conclusion that it is appropriate to determine in this proceeding

what state Senate districts should be used in the event the proposed referendum qualifies

for the ballot and stays the operative effect of the Commission-certified state Senate map.

During the pendency of this proceeding, the random sampling verification process was

completed, resulting in a determination by the Secretary of State on January 10, 2012,

that the referendum petition had a signature validity rate projecting a total number of

valid signatures between 95 and 110 percent of the required number of valid signatures.

As a consequence, the Secretary of State has directed local election officials to conduct a

full count of all submitted signatures, a process that the Secretary of State indicates will

be completed by those officials no later than February 24, 2012. According to the

Secretary of State’s representations, however, if this court were to wait until it is finally

determined whether the proposed referendum has actually qualified for the ballot, it

would be too late to permit this court’s decision to be implemented if the court were to

determine that a map other than the Commission-certified map should be used for the

June and November 2012 elections. Given these circumstances, we conclude that, even

though the proposed referendum has not yet qualified for the ballot, it is appropriate for

this court to determine at this time which state Senate district map should be used for the

2012 state Senate primary and general elections in the event the referendum does qualify

for the ballot and automatically stays the effect of the districts certified by the

Commission.

42

Accordingly, we now turn to that question.

IV. If the proposed referendum qualifies, triggering a stay

of the Commission’s certified map, under which Senate

district map should the 2012 elections proceed?

A. Relevant case law

Petitioner emphasizes the interest that referendum proponents and petition signers

have in insisting on an “up or down” referendum vote by the statewide electorate before

the subject of that measure becomes effective. She acknowledges that 30 years ago in

Assembly v. Deukmejian, supra, 30 Cal.3d 638, this court held, by a four-to-three vote,

that redistricting maps that had been enacted by the Legislature and approved by the

Governor, but stayed by the qualification of a referendum challenging those maps, should

be used as an interim measure pending the electorate’s vote on that referendum.

Petitioner asserts we should not follow that course here, but should instead establish new

interim state Senate district boundaries by either (1) ordering use of the expired state

Senate map that the Legislature created in 2001 based on the 2000 census — a remedy

similar to the one adopted 40 years ago in Legislature v. Reinecke, supra, 6 Cal.3d 595 —

or (2) ordering use of one of two alternative state Senate redistricting maps (other than

the Commission-certified map) that petitioner has proposed. Indeed, petitioner suggests

that the amendments made by Propositions 11 and 20 to article XXI of the California

Constitution “vitiate” the main holding of Assembly v. Deukmejian with respect to the

permissibility of using a stayed map. In order to put petitioner’s argument into context,

we more fully describe the relevant past decisions of this court to which petitioner refers.

In Legislature v. Reinecke, supra, 6 Cal.3d 595, a Republican Governor vetoed

new state Senate, state Assembly, and congressional districts that had been passed by the

Democratic-controlled Legislature after the 1970 census, leaving in place only the old

voting districts that had been based upon the 1960 census. When the petition in Reinecke

was filed, this court did not have sufficient time to appoint special masters and establish

43

court-approved districts for use in the upcoming 1972 elections. Under those

circumstances, this court unanimously concluded that the new Legislature-passed state

Senate and Assembly districts that had been vetoed by the Governor should not be used

on an interim basis for the 1972 elections, and held instead that the old legislative

districts, which had been based on the prior census, should be used for the 1972 elections,

even though, due to population shifts, the old districts did not comply with the “one

person, one vote” principle embodied in the equal protection clause of the Fourteenth

Amendment. (Legislature v. Reinecke, supra, at pp. 601-602.) The court in Reinecke

expressed the view that under the circumstances presented, “it will be far less destructive

of the integrity of the electoral process to allow the existing legislative districts, imperfect

as they may be, to survive for an additional two years than for this court to accept, even

temporarily, plans that are at best truncated products of the legislative process.” (Id., at

p. 602.)26 With respect to congressional districts, however, the court held that the vetoed

map should be used, on an interim basis, in the upcoming elections.27


26

Thereafter, following the failure of the Legislature and Governor to agree on new

district lines in 1973, we appointed three special masters to recommend to the court new
district lines for the succeeding elections in 1974 through 1980, and we eventually
accepted and adopted those recommendations with minor adjustments. (Legislature v.
Reinecke, supra,
10 Cal.3d 396.)

27

The court explained: “There are . . . compelling considerations that impel us to

adopt as a temporary court plan, for the 1972 elections only, the bill passed by the
Legislature to reapportion the congressional districts. (Assembly Bill No. 16, 1971 First
Extraordinary Session.) Unlike the numbers of assemblymen and state senators, which
remain unchanged, the number of representatives in the United States House of
Representatives to which California is entitled increased following the 1970 census from
38 to 43. Accordingly, unless congressional districts are reapportioned, the offices of
five representatives will either have to be left unfilled or filled by statewide elections.
We cannot accept either alternative, for Congress has expressly provided that California
shall elect 43 representatives from 43 single member districts. We need only add that we
fully agree with the congressional mandate. It would be wholly unacceptable to avoid
statewide congressional elections by depriving the state of the representation of five

(Footnote continued on following page)

44

Ten years later, in Assembly v. Deukmejian, supra, 30 Cal.3d 638, the three

redistricting statutes at issue in that case (again, covering the state’s Senate, Assembly,

and congressional districts) had been passed by a Democratic-controlled Legislature and

signed by a Democratic Governor in mid-September 1981. A referendum signature drive

by the California Republican Party began the next day, challenging all three maps.

Shortly thereafter, legislators who supported the legislative reapportionment statutes and

who opposed the referendum filed a writ petition in this court, challenging the

Republican-sponsored referendum on various procedural grounds.28

Although petition signatures were gathered and submitted to election officials very

quickly and the Secretary of State was able to determine expeditiously that the

referendum had sufficient valid signatures to qualify for placement on the statewide

ballot,29 in light of the pending writ challenge to the referendum the Secretary of State


(Footnote continued from previous page)

congressmen to which it is entitled, but to conduct statewide elections to fill five
congressional seats in a state of California’s geographical size and large population
would not only tremendously increase the burdens and expenses of effective campaigning
but, by increasing the choices confronting the electorate from the candidates for one to
the candidates for six congressional seats, would seriously impede the casting of
informed ballots.” (Legislature v. Reinecke, supra, 6 Cal.3d at pp. 602-603, fn. omitted.)

28

Three issues ripe for preelection review were directly presented: (1) Because the

referendum petitions directed signers to use their “address as registered to vote,” rather
than their “residence address,” as required by the then-existing Elections Code, were the
petitions defective? (2) If defective, should the petitions be allowed to qualify for
placement of the referendum before the voters? (3) May the referendum process be used
to challenge reapportionment statutes? (See Assembly v. Deukmejian, supra, 30 Cal.3d at
p. 643.) A fourth issue subsequently arose after the referendum qualified and
approximately six weeks before the court filed its opinion: In light of the intervening
qualification of the referendum and the consequent automatic stay of the challenged
maps, under what maps should the upcoming election be conducted? (Id., at p. 644.)

29

Within only 60 days — 30 days fewer than the 90 days authorized for signature

gathering — the referendum proponents submitted their completed signature lists to the

(Footnote continued on following page)

45

announced that she had refrained from directing county clerks to place the referendum on

the June primary ballot, pending this court’s resolution of the writ challenge to the

referendum. The Secretary of State also directed that in the interim, county election

officials should proceed on a dual track, preparing to use either the newly adopted maps

or the old maps from 1973 (see ante, fn. 26) for the June 1982 election.

This court in Assembly v. Deukmejian thus faced a timing problem: the June 1982

primary elections were only a few months away, and election officials needed lead time

to prepare ballots. In order to do so, they needed to know the district boundaries. The

prior boundaries had become outdated and unconstitutional — because of population

shifts, they violated “one person, one vote” requirements. The new boundaries, however,

had been stayed by operation of law by the “duly qualified” referendum. (Assembly v.

Deukmejian, supra, 30 Cal.3d at pp. 654-657.)

As already noted, ultimately, in a four-to-three decision, this court decided that the

new boundaries should be used as an interim measure for the June 1982 primary election

and for the subsequent November 1982 general election. The majority concluded that use


(Footnote continued from previous page)

Secretary of State. Approximately 30 days later, after reviewing the signatures, the
Secretary of State announced that the referendum was duly qualified for placement before
the voters on the statewide ballot. (Assembly v. Deukmejian, supra, 30 Cal.3d at p. 645.)
Prior statutes in place at the time of Assembly v. Deukmejian provided shorter time lines
for the required signature verification at each stage of that process. (Compare current
Elec. Code, §§ 9030 & 9031 [allowing county election officials eight business days for
counting of raw signatures, 30 business days for random sampling of 3 percent of raw
signatures, and 30 business days for verifying all signatures by a full count] with former
Elec. Code, §§ 3520 & 3521 (as amended by Stats. 1980, ch. 1287, §§ 11.3 & 11.4,
pp. 4358-4360) [allowing county election officials five business days for raw counting,
15 calendar days for random sampling of 5 percent of raw signatures, and 30 calendar
days for verifying all signatures by a full count].) The longer timing schedules of the
current statutes, combined with the mid-August deadline for certification by the
Commission, exacerbate the time crunch we face now.

46

of the new, albeit challenged maps, which were based on then-current 1980 census data,

“more nearly comports with the requirements of the federal and state equal protection

clauses and is least disruptive of the electoral process” in view of the limited options and

time constraints. (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 665-666.) The court

also reasoned that permitting the voice of 5 percent of the electorate who had signed the

referendum petition “to delay implementation of a constitutionally required

reapportionment plan for two to four years” would “perpetrate a potentially grave

injustice on the majority of the people of this state” (id., at p. 670): “Although the

Constitution of our state grants the power to initiate a referendum to 5 percent of the

voters, it does not require that the effect of that referendum be articulated in a manner

that does such serious injury to conflicting and equally compelling constitutional

mandates.” (Ibid.)

The three dissenting justices in Assembly v. Deukmejian argued that although it

would be proper to apply the new boundaries with respect to congressional elections

(because the number of California seats had increased by two, and there would be no

valid way to elect the new number of congresspersons without using the new boundaries),

the court should abide by its 1972 decision in Legislature v. Reinecke, 6 Cal.3d 595, and

use the decade-old boundaries for state Senate and Assembly elections despite the federal

constitutional flaws concerning those old boundaries. (Assembly v. Deukmejian, supra,

30 Cal.3d at pp. 679-694.) Justice Richardson, speaking also for Justices Mosk and

Kaus, argued that the majority’s decision to employ the stayed map “can only be

perceived as an official alignment of the court with one side in a partisan dispute as to

which we should remain scrupulously neutral.” (Id., at p. 680.) Justice Mosk, writing

separately, deplored the majority’s having become “entangled in the ‘political thicket’ by

ignoring their obligation of neutrality on a partisan issue, a neutrality that can be

47

observed only by maintenance of the status quo in legislative districting until the people

speak [on the referendum] at the forthcoming election.” (Id., at p. 693.)30

Quoting from the dissenting opinions in Assembly v. Deukmejian, supra, 30 Cal.3d

at pages 679 and 693, petitioner asserts that the court faces now, and should avoid, a

similar “political thicket.” She argues that “the political situation [today] is analogous to

1981. Republicans have sponsored and funded the [proposed] referendum against the

Commission’s Senate map plan.” She alludes to speculation that “the Commission may

have ‘delivered a two thirds majority in the Senate’ to Democrats,” and states that

“Republicans have been dissatisfied with the Commission’s Senate lines for these

reasons.”31 Further, petitioner relies upon the majority opinion’s conclusion in

Legislature v. Reinecke, supra, 6 Cal.3d at page 602, that, on the facts there presented, “it

will be far less destructive of the integrity of the electoral process to allow the existing

legislative districts, imperfect as they may be, to survive for an additional two years than

for this court to accept, even temporarily, plans that are at best truncated products of the

legislative process.” (Italics added.) Petitioner thus argues that the “Commission’s


30

In June 1982, the people, voting by referendum, rejected the Legislature’s

redistricting map. (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 667.) Thereafter,
“Democratic legislators rushed to redraw the lines, passing a compromise plan before
lame duck Democratic Gov. Jerry Brown had left office and his Republican successor
George Deukmejian could be sworn in. The plan was generous enough to Republicans to
garner a two-thirds vote in each house, allowing it to go into effect swiftly and avoid
another referendum [citation]. Those lines stayed in place for the remainder of the
decade.” (Kogan & McGhee, Redistricting California: An Evaluation of the Citizens
Commission Final Plans
, 4 California Journal of Politics and Policy ___ (forthcoming
Jan. 2012; available via Google Scholar at
<http://polisci2.ucsd.edu/vkogan/research/redistricting.pdf>, p. 4 [as of Jan. 27, 2012].)

31

Petitioner elaborates on these statements in her reply brief. She asserts: “Media

commentators all have noted that the Commission’s maps favored Democrats. Many
signers, alarmed about the state of California’s economy, may have signed to better
prevent the prospect of a safe, two-thirds majority in the State Senate to raise their taxes.”

48

Senate map is now part of a truncated process [in that] a [proposed] referendum has been

filed against it.” She asserts that, in the event the referendum petition eventually is

determined to be supported by an adequate number of verified signatures, we should

order that the June and November 2012 state Senate elections proceed with alternative

interim maps other than the Commission’s certified map that is the subject of the

proposed referendum.

For two reasons, we do not find persuasive petitioner’s claim that the

circumstances in this case are comparable to the circumstances that were presented in

Legislature v. Reinecke, supra, 6 Cal.3d 595, and Assembly v. Deukmejian, supra, 30

Cal.3d 638.

First, the redistricting process here has not been “truncated” as it was by the

Governor’s veto in Legislature v. Reinecke. The constitutionally mandated procedure has

been completed by the Commission’s certification of a Senate map. If the referendum on

that map qualifies for the ballot, the effectiveness of the Commission’s product will be

stayed pending the referendum’s outcome, but qualification itself does not terminate or

reverse the Commission’s redistricting process. As with the stayed product of legislative

redistricting in Assembly v. Deukmejian, supra, 30 Cal.3d at page 671, the certified

Senate map here has “never been rejected by any government entity” and the redistricting

process thus “has been lengthened but not terminated.”

Second, petitioner overlooks a crucial distinction between the redistricting process

as it existed at the time of those decisions and the redistricting process that is in effect in

California today. At those earlier times, voting districts were created by state legislators

and it was frequently charged that redistricting maps were commonly drawn on a partisan

basis to give maximum political advantage to the political party that enjoyed majority

control of the legislative branch. Given the difference between the origins of the stayed

maps at issue in the former cases and the Commission’s state Senate map, any criticism

49

of Assembly v. Deukmejian, as improperly intruding into the “political thicket” would

simply not apply to the present case.

As we have explained ante, the redistricting process in California has been

completely changed from the earlier process. Under California Constitution, article XXI,

redistricting is now performed by a Citizens Redistricting Commission, whose

membership and procedural requirements are carefully designed to ensure that

redistricting is undertaken on a nonpartisan basis. When a redistricting map adopted by

such a nonpartisan entity is challenged by a proposed referendum measure sponsored by

one political party, we believe it is unrealistic to maintain that a court should be viewed

as improperly intruding into the “political thicket” if it determines, after reviewing the

pros and cons of all viable alternative maps in relation to the constitutional scheme and

criteria, that the map devised by the nonpartisan Commission is the most appropriate one

to be used in an interim election. We also question petitioner’s suggestion that a court

should be viewed as properly avoiding the same political thicket if it were to decide that

the most appropriate map to be used in the interim election is one proposed by the

proponent of a referendum sponsored by one political party.32


32

In addition, we note a further significant distinction between this case and

Assembly v. Deukmejian, supra, 30 Cal.3d 638. Use of the Commission’s districts for the
2012 elections would not carry with it another problem that was inherent in the situation
this court faced in Assembly v. Deukmejian. The use of the Legislature’s redistricting
maps for the interim elections in that case had the effect of giving an advantage to that
party not only to elect legislators in the interim year elections, but also permitted the
legislators thus elected from those districts to adopt new redistricting maps that would be
needed if the first legislative districts were rejected by the voters in the referendum
election (as ultimately occurred — see ante, fn. 30). Thus, the decision to use the
legislatively devised districts in Assembly v. Deukmejian had a direct effect upon the
districts that were in use in California for the entire decade, and did not affect only the
interim year’s elections.

In the present case, by contrast, if the proposed referendum qualifies for the ballot

and the voters reject the Commission’s districts at the upcoming November 2012

(Footnote continued on following page)

50

Furthermore, contrary to petitioner’s assertion, we do not believe that respect for

the constitutionally based referendum power requires that a court, faced with the question

of which voting district map should be used for an interim election, must exclude from its

consideration a redistricting map that has been stayed by qualification of a referendum.

(See Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 658-660.) A referendum’s

qualification for the ballot is given full respect by recognizing that the qualification stays

the operative effect of the redistricting map that otherwise would lawfully govern the

upcoming election in the absence of the referendum, and requires this court to determine

what districts to use in the interim elections. The stay of the challenged redistricting

map, however, does not necessarily or logically restrict this court’s authority and

responsibility to consider and evaluate on the merits all of the potential redistricting maps

that could be used in the upcoming interim elections to determine which map the court

should direct elections officials to implement for those elections.33


(Footnote continued from previous page)

election, the new districts would not be drawn by legislators elected from the very
districts that the voters have rejected. Rather, pursuant to California Constitution, article
XXI, section 2, subdivision (j), new districts would be established by this court with the
aid of special masters. For this reason, interim use of the Commission’s state Senate map
for the June and November 2012 elections would not produce the same type of long-term
adverse effect that the use of the partisan legislatively drawn districts had in Assembly v.
Deukmejian,
supra, 30 Cal.3d 638.

33

As we have seen, even in Legislature v. Reinecke, supra, 6 Cal.3d 595, this court,

while declining to adopt on an interim basis the new state Senate and Assembly districts
that had been passed by the Legislature but vetoed by the Governor, recognized that it
possessed the authority to adopt on an interim basis the new congressional districts that
had been passed by the Legislature, even though the Governor had also vetoed the new
congressional redistricting map. In like manner, the fact that qualification of a
referendum operates to stay the effect of a Commission-certified map does not limit this
court’s authority to consider the merits of that map along with other alternatives in
determining what districts should be utilized at the elections that are to be held before the
referendum is voted upon.

(Footnote continued on following page)

51

In sum, in light of the fundamental change in the redistricting process in

California, we conclude that it would not be appropriate for this court to, in effect, adopt

a presumption against the use of a Commission-certified map as an interim measure in

the event the Commission-certified map is stayed by the qualification of a referendum

petition. Instead, we believe it is most appropriate to fairly evaluate the pros and cons of

all the potential alternative redistricting maps in relation to the constitutional scheme and

criteria in order to determine which should be used in the upcoming elections if the

proposed referendum qualifies for the ballot.

B. Potential interim maps

In so reviewing the pros and cons of each of the redistricting maps that have been

proposed for use on an interim basis in the event the proposed referendum qualifies for

the ballot, we begin with the three alternative maps proposed by petitioner, and then

consider the Commission-certified map.


(Footnote continued from previous page)

Indeed, petitioner’s alternative proposals regarding the relief that she requests this

court provide implicitly acknowledge that the qualification of the proposed referendum
and resultant stay of the Commission-certified state Senate district map would not
deprive this court of the authority to adopt interim state Senate districts that differ from
those embodied in the preexisting 2001 redistricting map. In fact, under one of
petitioner’s proposed alternatives — the “nesting” map described below — this court, in
fashioning Senate districts for use in the interim elections, would utilize without change
the new state Assembly districts that were created and certified by the Commission and
thus adopt a map that includes at least several state Senate districts that precisely mirror
the Senate districts contained in the Commission-certified map.

52

1. Use of the “old map” adopted by the Legislature in 2001 based
on the 2000 census


The first alternative proposed by petitioner is to follow the approach of Legislature

v. Reinecke, supra, 6 Cal.3d 595, and use the outdated state Senate district map that was

formulated by the Legislature in 2001, based on the 2000 census.

The most obvious problem with the 2001 map concerns the principle of “one

person, one vote,” under both the federal equal protection clause (as construed in, e.g.,

Reynolds v. Sims (1964) 377 U.S. 533) and under California Constitution, article XXI,

section 2, subdivision (d)(1). As noted earlier, article XXI, section 2, subdivision (d)(1)

lists as the first order of priority for redistricting that “[d]istricts shall comply with the

United States Constitution. Congressional districts shall achieve population equality as

nearly as is practicable, and Senatorial, Assembly, and State Board of Equalization

districts shall have reasonably equal population with other districts for the same office,

except where deviation is required to comply with the federal Voting Rights Act or

allowable by law.” (Italics added.)

The United States Supreme Court has explained that with regard to legislatively

enacted reapportionment, “ ‘[m]inor deviations from mathematical equality among state

legislative districts are insufficient to make out a prima facie case of invidious

discrimination under the Fourteenth Amendment so as to require justification by the

State. Our decisions have established, as a general matter, that an apportionment plan

with a maximum population deviation under 10 [percent] falls within this category of

minor deviations. A plan with larger disparities in population, however, creates a prima

facie case of discrimination and therefore must be justified by the State.’ ” (Voinovich v.

Quilter (1993) 507 U.S. 146, 161, quoting Brown v. Thomson (1983) 462 U.S. 835, 842-

843.) Although the high court has not identified an upper limit of deviation that simply

cannot be justified, one of the court’s decisions suggested that the outer limits might be

reached if the deviation exceeded 16.4 percent. (Mahan v. Howell (1973) 410 U.S. 315,

53

329 [stating that a 16.4 percent deviation “may well approach tolerable limits”]; see also

Brown v. Thomson, supra, at pp. 849-850 (conc. opn. of O’Connor, J.) [noting the Mahan

court’s statement that a 16.4 percent deviation may approach the maximum that is

permissible]; Daly v. Hunt (4th Cir. 1996) 93 F.3d 1212, 1218 [same].)34

Court-ordered reapportionment, contrasted with legislatively enacted

reapportionment, is subject to even stricter standards, and “ ‘must ordinarily achieve the

goal of population equality with little more than de minimis variation.’ ” (Connor v.

Finch (1977) 431 U.S. 407, 417; see also Perry v. Perez (2012) 565 U.S. ___, ___ & fn. 2

[2012 WL 162610, 2012 U.S. Lexis 908] [de minimus standard applies to court-drawn

maps responding to challenged portions of state maps]; Abrams v. Johnson (1997) 521

U.S. 74, 98.) As explained post, the disparities would not be de minimis if we were to

order interim use of the Legislature’s 2001 map.

Petitioner observes that some of the deviations considered by this court in

Assembly v. Deukmejian, supra, 30 Cal.3d 638, were higher than the deviations that

would be created now, if this court were to order interim use of the Legislature’s 2001

map that was crafted in light of the 2000 census.35 According to petitioner: “In the case


34

Petitioner, in her reply brief, cites Brown v. Thomson, supra, 462 U.S. 835, as an

example of a case in which the high court accepted a much larger deviation. (See id., at
pp. 839, 846 (lead opn. of Powell, J.) [referring to a 16 percent average deviation and an
89 percent maximum deviation].) In that case, however, the state’s overall redistricting
was not at issue (id. at p. 846); rather, the challenge was limited to a single district that,
because of its status as a county, was accorded a representative despite its small size. The
limited scope of the decision also was recognized by the two concurring justices (id., at
p. 849 (conc. opn. of O’Connor, J.)), and the four dissenting justices agreed that the
court’s holding was “extraordinarily narrow.” (Id., at p. 850 (dis. opn. of Brennan, J.).)

35

For example, in Assembly v. Deukmejian, we observed: “According to figures

supplied by real parties, the current population of the old 76th Assembly District
(530,643) is 236 percent of the population of the old 16th Assembly District (224,488).
The vote of a resident of the former 16th District would, therefore, be worth more than
twice that of a resident of the former 76th District. Compared to the current ideal district

(Footnote continued on following page)

54

of the odd-numbered Senate districts that come up for election in 2012, the percent

deviation from largest to smallest is 38.7 percent; the [most populous] district, Senate

District 37, is over [the ideal population size] by 284,528 people, 30.5 percent, while the

[least populous] district, Senate District 21, is under by 76,335, 8.2 percent.”36 Petitioner

asserts that “[s]eventeen of the odd numbered districts are within 10 percent of the norm,

and eight deviate by less than five percent. Only three deviate by more than 10

percent.”37 Petitioner maintains that “the population deviations are not nearly as great as

they were in [1982] when the Court declined to follow its Reinecke decision.”


(Footnote continued from previous page)

size, the old 76th District is 79.4 percent greater than the ideal, while the old 16th District
is 24.1 percent less than the ideal. The total deviation between the two districts is 103.5
percent.


“Overall, 2 of the old Assembly districts vary by more than 50 percent from the

ideal population size of 295,857; 2 vary by 30 to 50 percent from the ideal size; and 48 of
the 80 districts vary by 10 to 30 percent from the ideal. Only 28 of the districts are within
10 percent of the ideal district size.


“In the Senate, old Senate District 5 now contains 458,587 people, 22.5 percent

less than the ideal number, while old Senate District 38 contains 904,725 people, 52.9
percent more than the ideal. Thus, the vote of a resident of former District 5 would be
worth almost twice that of a resident of former District 38. The total deviation between
the two districts is 75.4 percent. Real parties’ figures show that the population of one old
Senate district is more than 50 percent greater than the ideal; another is 41 percent greater
than the ideal; 19 vary by 10 to 30 percent from the ideal; and 19 are within 10 percent of
the ideal population size.” (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 666-667.)

36

In light of our conclusion that this proposed alternative should not be adopted even

under petitioner’s suggested analysis, we need not and do not determine whether it is
appropriate to evaluate population deviations only in the odd-numbered state Senate
districts rather than the deviation in all of the Senate districts.

37

Petitioner concedes that in addition to old Senate District No. 37, which as noted

currently is over the ideal population size by 284,528 people, or 30.5 percent, according
to petitioner, old Senate District No. 17 currently is over the ideal population size by
166,798 people, or 17.9 percent, and old Senate District No. 5, currently is over the ideal
population size by 101,265 people, or 10.9 percent.

55

The Commission asserts that the relevant deviation, as we described it in Assembly

v. Deukmejian, supra, 30 Cal.3d at page 667, is to be measured “between the largest and

smallest districts” — and not from the “ideal” Senate district population.38 The

Commission argues that the calculations of petitioner’s consultant (submitted to us in the

declarations of Dr. T. Anthony Quinn, in support of the petition) improperly “ignore the

relevant population deviation among the 2001 districts from the ‘ideal’ population of a

Senate district,” and that correctly understood, “19 out of 20 of the odd-numbered Senate

districts deviate by more than 16.4 [percent] and are thus patently unconstitutional.”

Moreover, the Commission asserts that “even using [petitioner’s] incorrect frame of

reference (deviation from the ‘ideal,’ rather than comparison to other 2001 districts),

[petitioner] concedes that three districts are unconstitutional.”

In this regard, and as the Commission observed in its preliminary opposition brief

(in which it implicitly accepted for purposes of analysis petitioner’s frame of reference —

deviation from the “ideal,” rather than comparison to other 2001 districts), petitioner’s

own consultant’s summary shows that three 2001 Senate districts, if imposed by this

court, would be constitutionally suspect, as deviating excessively from the ideal. (See

ante, fn. 37.) The Commission asserts in that opposition brief that under petitioner’s own

analysis, Senate Districts Nos. 17 and 37 would be “patently unconstitutional —

deviating by 17.9 [percent] and 30.5 [percent] respectively.” We conclude that such

results would raise serious constitutional questions in light of the court’s obligation, in

adopting an alternative interim map, to avoid any but de minimis deviations. (See

Abrams v. Johnson, supra, 521 U.S. at p. 98.)

Petitioner’s consultant, Dr. T. Anthony Quinn, in a supplemental declaration filed

December 7, 2011, asserts there is a ready fix: “This situation is easily resolved. The


38

Petitioner’s reply brief does not respond to this point.

56

Court could simply order that these three districts be reduced in size so that the districts

electing in 2012 are within the 10 percent deviation range. Petitioner would be very

happy to suggest to the court areas to be removed from the existing districts and the

Secretary of State could instruct the counties to conduct the 2012 election only in the

remaining portions.”

Petitioner’s suggestion that the 2001 lines for three Senate districts could be easily

“revised’ is highly questionable. As the Commission observes, “[f]or example, 2001

Senate district 37 in Riverside County now has a population of 1,215,876. (MacDonald

Decl. Ex. C.) To come within a 10 [percent] deviation of the least populated Senate

district (2001 district number 21), district 37 would need to shed 267,764 people. (Ibid.)

However, the districts immediately to 2001 district 37’s north (2001 districts 18 and 31)

and to its south (2001 district 40) are also overpopulated. (Ibid.) As a result, any ‘re-

drawing’ of 2001 districts would require the Court to reconfigure population clusters in

the greater Los Angeles area, which would be certain to produce population ripple-effects

throughout this densely packed region (if not through the entire state). [Citation to

Legislature v. Reinecke, supra, 10 Cal.3d at p. 403.] Moreover, re-drawing Los Angeles-

area districts would affect . . . Latino districts in Los Angeles [under section 2 of the

Voting Rights Act], causing unanticipated effects and likely violating [that act].”39


39

Congress enacted section 2 of the Voting Rights Act to combat minority vote

dilution. Section 2 prohibits the imposition or application of any “voting qualification,”
“prerequisite to voting” or “standard, practice, or procedure,” which results in the “denial
or abridgement of the right of any citizen . . . to vote on account of race or color,” or on
account of minority language status. (42 U.S.C. § 1973(a).) The test for determining
whether an electoral practice results in a denial or abridgment of the right to vote is set
forth in subdivision (b) of section 2 of the act. In order to prevail, a plaintiff must be able
to demonstrate that, “based on the totality of circumstances, . . . the political processes
leading to nomination or election in the State or political subdivision are not equally open
to participation by members of a [racial or language minority],” in that members of those
protected classes “have less opportunity than other members of the electorate to

(Footnote continued on following page)

57

By comparison, the Commission explained in its Final Report that it “strive[d] for

a total population deviation of zero” and “would allow no more than a 2.0 [percent] total

deviation except where further deviation would be required to comply with the federal

Voting Rights Act or allowable by law.” (Final Rep., at pp. 11-12.)40 The Commission’s

(Footnote continued from previous page)

participate in the political process and to elect representatives of their choice.” (42
U.S.C. § 1973(b).) (See generally Wilson v. Eu, supra, 1 Cal.4th at pp. 744-749
[discussing relevant “section 2” and United States Supreme Court authority]; Final Rep.,
at pp. 13-16 [same].)

40

The Commission’s Final Report, at page 10, observed that as originally enacted in

1980, article XXI of the California Constitution “mirrored the special masters’ standard
from the 1970s [see Legislature v. Reinecke, supra, 10 Cal.3d 396, 411, which aimed for
districts within 1 percent of the ideal and in no event deviating more than 2 percent] and
required that ‘the population of all districts of a particular type shall be reasonably
equal
.’ (Wilson v. Eu (1992) 1 Cal.4th 707, 753 . . . , italics added.)” The Final Report
continues:


“The Attorney General had interpreted that language ‘as incorporating the more

restrictive population requirements contained in [Reinecke] that the “population of senate
and assembly districts should be within 1 percent of the ideal except in unusual
circumstances, and in no event should a deviation greater than 2 percent be permitted.” ’
(Ibid., quoting Reinecke, supra, 10 Cal.3d at p. 411.) Accordingly, the special masters in
the 1990s expressly complied with that stricter deviation limit, while acknowledging that
they had selected a maximum deviation that may have been even more stringent than the
California Constitution required. (Wilson, supra, 1 Cal.4th at p. 753.) The California
Supreme Court approved the masters’ plans without explicitly ruling on the maximum
deviation permitted under the California Constitution. (See id. at p. 719.)


“Proposition 11 and Proposition 20 amended the population-equality language in

California’s Constitution to state that ‘Senatorial, Assembly, and State Board of
Equalization districts shall have reasonably equal population with other districts for the
same office, except where deviation is required to comply with federal Voting Rights Act
or allowable by law.
’ (Cal. Const., art. XXI, § (2), subd. (d)(1), amended by initiative,
Gen. Elec. (Nov. [2,] 2010), italics added.)


“No court has interpreted the population-equality language in Propositions 11

or 20. Accordingly, no court has decided whether, or how, the addition of the phrase
‘except where deviation is required to comply with the federal Voting Rights Act or
allowable by law’ to ‘reasonably equal population,’ may alter the total deviation allowed
under the California Constitution.” (Final Rep., at p. 10.)

58

certified Senate map’s maximum total deviation between districts is only 1.98 percent.

(Final Rep., appen. 3, table 1, Senate Districts.)

Petitioner’s proposal to use the Legislature’s outdated 2001 map suffers from

another substantial problem. As noted ante in part II.C., California Constitution,

article XXI, section 2, subdivision (d), as amended in 2008 and 2010, sets out six

prioritized criteria: compliance with (1) the United States Constitution (the equal

protection clause and “one person, one vote” principles) and (2) the federal Voting Rights

Act; (3) geographical contiguity; (4) respect for the “geographic integrity of any city,

county, city and county, local neighborhood, or local community of interest . . . to the

extent possible”; (5) encouraging geographical compactness, to the extent practicable;

and (6) “[t]o the extent practicable, and where this does not conflict with the criteria

above, each Senate district shall be comprised of two whole, complete, and adjacent

Assembly districts . . . .” As observed earlier, some but not all of these six redistricting

criteria currently set out in article XXI, section 2, subdivision (d), also were set out as

relevant standards for the Legislature’s consideration in the prior version of article XXI

that was in effect at the time the Legislature created the 2001 old maps based on the 2000

census. But not all of the criteria set out in the recent amendments to article XXI were

previously articulated, nor were any of the factors previously expressly prioritized; the

Legislature, when crafting the prior maps in 2001, was not required to apply the criteria

pursuant to the rank ordering that controls today.41 Petitioner has made no attempt to

41

Until amended by Proposition 11 in 2008 and Proposition 20 in 2010, California

Constitution, former article XXI, as adopted in 1980, read as follows: “In the year
following the year in which the national census is taken under the direction of Congress
at the beginning of each decade, the Legislature shall adjust the boundary lines of the
Senatorial, Assembly, Congressional, and Board of Equalization districts in conformance
with the following standards:

“(a) Each member of the Senate, Assembly, Congress, and the Board of

Equalization shall be elected from a single-member district.

(Footnote continued on following page)

59

address in what ways the Legislature’s old 2001 Senate map based on the 2000 census

comports with these prioritized criteria given population changes during the last decade.

We conclude that, insofar as this alternative map is concerned, petitioner has provided us

with no basis upon which we can conclude that it respects the constitutionally specified

criteria at least as much as any other of the other proposed maps, including the

Commission’s certified state Senate map.

Finally, in an additional significant respect the 2001 Senate district map appears

legally suspect. As discussed ante, article XXI, section 2, subdivision (e) provides that

“[d]istricts shall not be drawn for the purpose of favoring or discriminating against an

incumbent, political candidate, or political party.” The Legislature’s 2001 redistricting

map has been widely perceived as specifically designed to protect incumbent legislators

of both major political parties and as serving that purpose well over the decade in which

the redistricting map was in effect. (See, e.g., Center for Governmental Studies,

Redistricting Reform in California: Proposition 11 on the November 2008 California

Ballot (2008) p. 12 [noting that in 2001 the Legislature drew district lines “that favor the

re-election of incumbents from both parties” and that “[a]s a result, only one seat has

changed parties due to competition, and only one incumbent has lost in the 459

legislative and Congressional general election races held this decade” (fn. omitted)];

Block, Partisan Reapportionment (2003) 34 Cal. Journal 21; Plendl, Are the voters dissed


(Footnote continued from previous page)

“(b) The population of all districts of a particular type shall be reasonably equal.

“(c) Every district shall be contiguous.

“(d) Districts of each type shall be numbered consecutively commencing at the

northern boundary of the State and ending at the southern boundary.


“(e) The geographical integrity of any city, county, or city and county, or of any

geographical region shall be respected to the extent possible without violating the
requirements of any other subdivision of this section.”

60

by redistricting? (2002) 33 Cal. Journal 12.)42 By contrast, academic observers have

concluded that the Commission’s maps, including the certified state Senate map,

“represent[] an important improvement on the legislature-led redistricting of 2001. The

new district boundaries kept more communities together and created more compact

districts while at the same time increasing opportunities for minority representation. . . .

[T]hese maps . . . have the potential to modestly increase competition in California

elections and the responsiveness of the legislative branch to changing voter preferences.”

(Kogan & McGhee, Redistricting California: An Evaluation of the Citizens Commission

Final Plans, supra, 4 Cal. Journal of Politics and Policy ___ (forthcoming Jan. 2012;

available via Google Scholar at <http://polisci2.ucsd.edu/vkogan/research/

redistricting.pdf>, pp. 32-33 [as of Jan. 27, 2012].)

It was partly in reaction to the Legislature’s 2001 maps that the Commission was

created and charged with drawing district lines. (See Voter Information Guide, General

Elec. (Nov. 4, 2008) text of Prop. 11, § 2, subd. (b) [noting that “[u]nder current law,

California legislators draw their own political districts” and that, as a result, “99 percent

of incumbent politicians were reelected in the districts they had drawn for themselves in

the recent elections”]; Voter Information Guide, General Elec. (Nov. 2, 2010), Argument

in Favor of Prop. 20 [asserting that “in the last redistricting” politicians paid a consultant

to draw district boundaries “to guarantee their reelection”].) In our view, it would

contravene the intent of the new redistricting regime of article XXI of the California

Constitution if this court were to order the use of old state Senate districts that were

perceived as designed for purposes no longer permissible.


42

See also McGhee, Redistricting and Legislative Partisanship (2008) Public Policy

Institute of California, p. 1; Quinn, CA: The Bipartisan Redistricting: How It Happened
(Oct. 2001) vol. 5, No. 8, Cal-Tax Digest <http://www.caltax.org/member/digest
/oct2001/10.2001.Quinn-BipartisanRedistricting.08.htm> (as of Jan. 27, 2012).

61

2. Petitioner’s proposed “nesting” map

Petitioner’s second proposed alternative is to create new state Senate districts by

combining two adjacent state Assembly districts, of which there are 80, into single Senate

districts, of which there are 40. Petitioner refers to this as her “simple nesting plan.”

As noted, California Constitution, article XXI, section 2, subdivision (d) sets forth

six prioritized criteria, the last of which is: “To the extent practicable, and where this

does not conflict with the criteria above, each Senate district shall be comprised of two

whole, complete, and adjacent Assembly districts . . . .” (Italics added.)

Petitioner does not explain how her nesting proposal can be reconciled with article

XXI’s rank ordering of criteria. As the Commission explained in its Final Report,

although it attempted to nest Assembly districts in Senate districts “[t]o the extent

practicable” and when “not in conflict with the other” higher-prioritized criteria, in

practice the Commission, balancing those other criteria, was able to fully achieve the

nesting goal in only three of the 40 Senate districts. (See Final Rep., appen. 5.)43 As the

Commission describes in its brief: In order “to minimize city and county splits (a higher-

order criteria than nesting), the Commission created certain Senate districts from

‘blended’ Assembly districts” so as to “avoid repeating city and county splits that were

unavoidable at the Assembly level.” As the Commission further explains, it “also

blended Assembly districts to respect communities of interest ‘where more than two

Assembly districts had common interests or geographical characteristics that were

common to a single Senate district.’ ” (See Final Rep., at p. 42.)


43

In addition to three districts that achieved 100 percent nesting, three others

achieved nesting of at least 99 percent of the district’s population. The two least-nested
districts achieved that goal with respect to approximately 65 to 66 percent of the district’s
population. (Final Rep., appen. 5.)

62

In contrast to the Commission-certified state Senate map, petitioner’s nesting

proposal would require this court to adopt nesting, the lowest valued criterion, as the

controlling criterion, without regard to, and at the expense of, several other higher value

criteria.

First, petitioner’s nesting proposal appears to conflict with criterion (2) of article

XXI, section 2, subdivision (d) — compliance with the federal Voting Rights Act. Under

section 5 of that Act,44 before a state may implement any voting-related change that will

affect a “covered jurisdiction,” the state must seek either judicial or administrative

approval of the change to ensure that it does not have the purpose or effect of denying or


44

Section 5 of the Voting Rights Act requires that before certain “covered

jurisdictions” may implement any change in a voting qualification, a prerequisite to
voting, or a standard, practice, or procedure with respect to voting (a voting-related
change), the state must seek judicial or administrative approval of the voting-related
change to ensure that it does not have the purpose or effect of denying or abridging the
right to vote on account of race, color, or language minority. (42 U.S.C. § 1973c(a).)
Section 5 of the Voting Rights Act applies to only four California counties: Kings,
Merced, Monterey, and Yuba. (Wilson v. Eu, supra, 1 Cal.4th at p. 746.) Thus, section 5
applies to statewide changes to California’s voting practices and procedures only to the
extent that those changes affect these covered counties. (Lopez v. Monterey County
(1999) 525 U.S. 266, 280-281; see generally Wilson v. Eu, supra, at pp. 745-746; Final
Rep., at pp. 21-23.)

The process of obtaining judicial or administrative approval for a voting-related

change that affects a covered county is called “preclearance.” A state may seek
preclearance either from the Attorney General of the United States (Department of
Justice) or from the United States District Court for the District of Columbia, and until a
state obtains preclearance for a voting-related change that affects a covered county, the
voting-related change is unenforceable. (42 U.S.C. § 1973c(a); see, e.g., Perry v. Perez,
supra,
565 U.S. ___ [2012 WL 162610, 2012 U.S. Lexis 908].) Because the
Commission’s four certified maps constitute voting-related changes that will affect the
covered counties, on November 15, 2011, the California Attorney General submitted the
Commission’s maps to the Department of Justice. (The 44-page preclearance
submission, along with all other Commission documentation, is available on the
Commission’s Web site, <http://www.wedrawthelines.ca.gov> [as of Jan. 27, 2012].) On
January 17, 2012, the Department of Justice approved use of the maps.

63

abridging the right to vote on account of race, color, or language minority. (42 U.S.C.

§ 1973c(a).) As observed ante, footnote 44, section 5 of the Voting Rights Act applies to

only four California counties: Kings, Merced, Monterey, and Yuba. A redistricting map

will have the “effect” of “denying or abridging the right to vote” if it “lead[s] to a

retrogression in the position of racial [or language] minorities with respect to their

effective exercise of the electoral franchise.” (Beer v. United States (1976) 425 U.S. 130,

141 (Beer); see also Riley v. Kennedy (2008) 553 U.S. 406, 412; Wilson v. Eu, supra,

1 Cal.4th at p. 746.)

“Retrogression, by definition, requires a comparison of a jurisdiction’s new voting

plan with its existing plan. [Citation.] It also necessarily implies that the jurisdiction’s

existing plan is the benchmark against which the ‘effect’ of voting changes is measured.”

(Reno v. Bossier Parish School Bd. (1997) 520 U.S. 471, 478.) Accordingly, newly

drawn districts that improve or maintain the voting rights of minority groups satisfy

section 5. (Beer, supra, 425 U.S. at p. 141; see also City of Lockhart v. United States

(1983) 460 U.S. 125, 134 [finding city’s map was entitled to preclearance because it did

not “increase the degree of discrimination” against the city’s Mexican-American

population]; Wilson v. Eu, supra, 1 Cal.4th at p. 746.) By contrast, newly drawn (or in

this case proposed alternative) districts that “retrogress” the voting rights of minority

groups would violate section 5.

Petitioner’s consultant, Dr. T. Anthony Quinn, asserts that under petitioner’s

nesting proposal, the sole section 5-covered jurisdiction that would be impacted is

Monterey County, through petitioner’s proposed “nested” Senate Districts Nos. 13

and 15. The Commission asserts that petitioner “fails to address, however, that [these]

proposed Senate districts 13 and 15 fall far below the 2001 benchmark levels and thus

violate Section 5: [Petitioner’s] proposed district 13 [a combination of certified

Assembly Districts Nos. 28 and 29], covering north Monterey County, falls from the

2001 benchmark of 26.22 [percent] Latino Voter Age Population (‘LVAP’) to 17.66

64

[percent] LVAP. Similarly, [petitioner’s] proposed Senate district 15 [a combination of

certified Assembly Districts Nos. 27 and 30], reduces the benchmark for South Monterey

from 53.48 [percent] LVAP to 51.31 [percent] LVAP.” The Commission asserts that

“[n]either result is permissible under Section 5 of the Voting Rights Act.”

In a second way, petitioner’s nesting proposal would appear to exalt nesting over

yet other higher-ranked criteria, set forth in California Constitution, article XXI,

section 2, subdivision (d)(4). That subdivision requires a redistricting map to respect the

“geographic integrity of any city, county, city and county, local neighborhood, or local

community of interest . . . in a manner that minimizes their division to the extent possible

without violating the requirements of any of the preceding subdivisions.” Petitioner’s

map would result in five more splits of cities and counties compared with the

Commission’s certified map,45 and also would split more “local communities of interest.”

For example, as the Commission observes: Certified “Senate district 1 was created in

part to keep intact the Lake Tahoe basin, in light of overwhelming public support for

keeping that community of interest together. See, e.g., El Dorado County Bd. of

Supervisors Resolution No. 82-2011, submitted [to the Commission] June 28, 2011.)[46]

Ignoring this public input, [petitioner’s] proposed nesting plan splits Lake Tahoe between

her proposed districts 1 and 4.”47


45

As the Commission observes — and petitioner does not contest — the

Commission’s certified Senate map splits “20 cities and 11 counties (excluding zero-
population splits and cities or counties with populations greater than 931,349, the ideal
2010 [S]enate district population), for reasons explained in the Final Report [at p. 42].
[Petitioner’s] nesting map, by contrast, splits 22 cities and 14 counties.”

46

Like all other matters submitted to the Commission, this resolution is posted on

the Commission’s Web site, <http://www.wedrawthelines.ca.gov> (as of Jan. 27, 2012).

47

In another way, petitioner’s nesting proposal, and specifically her proposed state

Senate Districts Nos. 1 and 3, appears to violate article XXI, section 2 of the California
Constitution. As noted earlier, subdivision (f) provides that districts “shall be numbered

(Footnote continued on following page)

65

In addition to subordinating higher-ranked constitutional criteria, the Commission

argues, the nesting proposal also would increase dramatically the number of “deferred”

voters — those voters residing in 2001 districts that who did not vote for a state senator

in 2010 and who thus ideally would be placed in new districts that are scheduled to vote

for a state senator in 2012 but who are instead placed in districts that would not vote for a

state senator until 2014 — and would inevitably “double-defer” some voters.48 The

Commission points out that its own certified maps minimized the number of deferred

voters by employing three numbering alternatives. According to the Commission,

petitioner’s nesting proposal would result in deferrals for at least 4,592,350 voters, an

increase of 15.5 percent over the 3,972,984 voters who will be deferred under the

Commission’s maps.49

The Commission contends that petitioner’s nesting proposal also raises the specter

of “double-deferral” — individual voters who would be deferred in both 2012 and 2014


(Footnote continued from previous page)

consecutively commencing at the northern boundary of the State and ending at the
southern boundary.” Petitioner’s proposed nested state Senate District No. 1 does not
touch the state’s northern boundary, where petitioner would place her proposed nested
state Senate Districts Nos. 2 and 4, and indeed is located south of petitioner’s proposed
nested state Senate District No. 3, as well.

48

The Commission “agrees that some level of voter-deferral is inevitable in any

Senate redistricting plan, as voters move between ‘odd’ and ‘even’ numbered districts.”
Nevertheless, the Commission asserts, the number of deferred voters is an important
consideration when considering alternative interim plans.

49

Based on analysis of the exhibits appended to the declaration of Karin

MacDonald, the Commission asserts that petitioner’s proposed nested Senate Districts
Nos. 33 and 34 “would create more deferrals by their numbering: [The] proposed
[nested] district 34 contains 529,759 residents from a 2001 odd-numbered district and
only 398,611 residents from a 2001 even-numbered district. [The] proposed [nested]
district 33, on the other hand, contains 513,062 residents from a 2011 even-numbered
district and 421,083 residents from a 2001 odd-numbered district.”

66

due to the implementation of another set of maps after the 2012 elections. In this regard,

the Commission explains, “[t]he worse-case scenario is not, as Petitioner casually asserts,

‘having the right to vote in an extra election,’ but rather being denied the right to vote in

both the 2012 and 2014 elections. [Citation.] These ill effects would not occur with the

Commission’s certified Senate districts, yet are virtually guaranteed under [petitioner’s]

nesting proposal.”

Finally, the Commission asserts, the prospect of double-deferral raises other

potential problems under section 2 of the Voting Rights Act (see ante, fn. 39), because

none of petitioner’s proposed nested districts with minority voting populations protected

by section 2 of that act (according to the Commission, proposed nested state Senate

Districts Nos. 24, 30, and 32) would vote for state senators in 2012.50 The Commission

concludes that as a result, under petitioner’s nesting proposal, “the brunt of double-

deferral will fall on voters of color who would be unable to vote for their senators of

choice in 2012 elections and could be further deferred under an as-yet determined set of

maps.” Given all this, the Commission comments, it is “not surprising that the

Commission considered and declined to draw completely nested Senate and Assembly

districts, in favor of compliance with Article XXI, section 2’s higher-order criteria.”

We conclude that, insofar as petitioner’s nesting map is concerned, she has

provided us with no basis upon which we can determine that it respects federal and state

law at least as much as any other of the proposed interim maps, including the

Commission’s certified state Senate map.


50

By contrast, the Commission asserts, under the Commission’s certified maps, state

Senate District No. 33 — “a . . . Section 2 district [under the Voting Rights Act] — will
elect State senators in 2012.”

67

3. Petitioner’s proposed “model plan”

As noted earlier, petitioner alternatively proposes that we adopt a wholly new

“model plan” — a map based on a proposal submitted by petitioner’s redistricting

consultant, Dr. T. Anthony Quinn.

The petition does not undertake to describe the model plan, except to say that it

would require the court to “redraw some but not all of the Senate Districts” and hence

unlike the prior two proposals discussed above, it “would require relatively more time” to

put into place. A November 22, 2011, declaration by Dr. Quinn, filed with the petition

on December 2, provides some elaboration: The model plan is the same one submitted

by petitioner in her September petition, Vandermost v. Bowen (Sept. 16, 2011, S196493),

challenging the legality of the Commission’s certified state Senate map. In that earlier

petition, the model plan was presented and offered as a starting point for use by special

masters whom petitioner asked us to appoint in order to recommend to this court a state

Senate map to replace the Commission’s certified Senate map. As noted, we denied the

prior writ petition on October 26, 2011. Dr. Quinn’s November 22 declaration states:

“Should the court appoint an expert or a Special Master to draft an interim Senate map,

I am prepared to present this map to the expert or master, and to provide all the necessary

computer files for the map.”

At this late stage in the schedule of election preparations, there simply does not

exist sufficient time to adequately consider such an undefined new map. We concluded

in October 2011 that there was no reason to appoint special masters or to further consider

petitioner’s proposed model plan, and, because it would be essentially impossible to

consider and implement any such map now, that conclusion is all the more apt today.



4. Interim proposal suggested by the Secretary of State and the Commission:



Use of the Commission’s certified state Senate map

The Secretary of State and the Commission each urge us to hold that even if the

Commission’s certified Senate map eventually is stayed by the qualification of the

68

proposed referendum, the Commission’s map should be employed for the 2012 elections

because it is preferable to any of the alternative maps in a number of respects. As

explained, for a number of reasons we conclude that the Commission-certified state

Senate map is the best of the alternative maps that have been proposed for use in the 2012

elections in the event the proposed referendum qualifies for the ballot.

As an initial matter, as noted ante, we reject the suggestion in petitioner’s brief

that should the Commission-certified state Senate map be stayed by qualification of the

proposed referendum, it would be impermissible for us to consider use of the

Commission’s state Senate map as an interim map for the 2012 elections. The majority

opinion in Assembly v. Deukmejian, supra, 30 Cal.3d 638, repeatedly observed that, as

decisions of the United States Supreme Court teach, a court in our situation has broad

authority to consider “any practical alternative . . . , including reapportionment plans

which are not yet in effect and which are scheduled to be submitted to the electorate.”

(Id., at p. 658, italics added; see also id., at p. 659 [“a court, in the exercise of its

equitable powers, may not only consider but also adopt reapportionment plans which are

not yet final within the framework of a state constitution. This is precisely the action

affirmed by the Supreme Court in Reynolds v. Sims, supra, 377 U.S. 533.”]; id. at p. 660

[“Given the breadth of a court’s equitable powers in reapportionment cases under federal

law, it is clear that this court may give consideration to the Legislature’s 1981

reapportionment plans, even though those plans are not yet in effect and are now

scheduled to be submitted to a popular vote.”].) Contrary to petitioner’s suggestion, there

is no indication in the text of Proposition 11 or Proposition 20, or the ballot materials

relating to those measures, that either measure was intended to, or did, “vitiate” Assembly

v. Deukmejian in this or any regard. Although we recognize, and take into account, that

if the proposed referendum qualifies for the ballot this would indicate the Commission-

certified state Senate district map has engendered a significant degree of opposition as

reflected by the number of individuals who signed the referendum petition, we must at

69

the same time recognize the reality that the public has not had a comparable opportunity

to scrutinize or express its opinion with regard to the merits of any of the alternative plans

proposed by petitioner.

Second, as the Secretary of State and the Commission point out, unlike any of the

other proposed maps, the Commission’s state Senate district map has survived

petitioner’s prior legal challenge in this court. As mentioned earlier, petitioner’s 126-

page petition, Vandermost v. Bowen (Sept. 11, 2011, S196493), presented myriad federal

and state statutory and constitutional challenges to the Commission’s certified state

Senate map. (See ante, fn. 7.) On October 26, 2011, after thorough consideration of all

the issues raised by petitioner, we determined that the petition lacked merit and denied

the requested writ. (See In re Rose (2000) 22 Cal.4th 430, 445 [“When the sole means of

review is a petition in this court . . . our denial of the petition — with or without

opinion — reflects a judicial determination on the merits.”].) We are aware of no basis

upon which to reasonably question the legality of the Commission’s certified state Senate

map. This clearly distinguishes the Commission-certified map from each of the

alternatives proposed by petitioner.

Third, and unlike the proffered alternatives, not only do the Commission-certified

Senate districts appear to comply with all of the constitutionally mandated criteria set

forth in California Constitution, article XXI, the Commission-certified Senate districts

also are a product of what generally appears to have been an open, transparent and

nonpartisan redistricting process as called for by the current provisions of article XXI.

We believe these features may properly be viewed as an element favoring use of the

Commission-certified map.

On the other hand, we emphasize that our decision does not mean that we

invariably will conclude that the Commission’s certified map or maps always should be

used on an interim basis in circumstances similar to the setting we address today. In

some instances, for example, the Commission may draft and consider a number of

70

differently configured district maps and, after public comment, may make a controversial

judgment with regard to which map to adopt and certify. If the controversy engenders a

referendum that qualifies for the ballot, the court may have before it an alternative map

drafted by a nonpartisan entity through an open process and that has been subject to

review and comment by the public, hence satisfying most of the procedural safeguards

embodied in California Constitution, article XXI.

There also are conceivable circumstances in which the “old” map or maps might be

selected as an interim measure over the Commission’s certified map or maps. As discussed

in the briefs, because the state has undergone less population growth in the last decade

compared with the 1970s, the extent of noncompliance of existing districts with federal equal

protection principles is less than it was in the case of the districts considered in 1982 in

Assembly v. Deukmejian, supra, 30 Cal.3d 638. It is possible that in the future, old districts

will remain substantially compliant with federal equal protection principles after a decade.

For other reasons, there may be less cause in the future to avoid selecting old maps as

interim remedies. Although as noted earlier, the Legislature, in crafting its 2001 maps, was

not guided by the criteria set forth in article XXI, section 2, subdivisions (d) to (f), and the

resulting 2001 maps have been widely viewed as having been designed to protect incumbent

legislators (see ante, at pp. 60-61), this will not be true of subsequent maps. All future maps,

whether certified by the Commission (Cal. Const., art. XXI, § 2, subd. (g)) or adopted by this

court with the assistance of special masters (id., §§ 2, subd. (j), 3, subd. (b)(3)), will be

guided by the ranked constitutional criteria and article XXI’s prohibition on designing

districts to protect incumbent legislators.

Moreover, in some instances, due to the procedural posture of the case, the court may

find it proper to avoid use of the Commission’s certified map or maps on an interim basis.

If, for example, we are faced with a request for interim relief in light of a pending

referendum challenge at the same time that we concurrently are considering a legal challenge

to the Commission’s maps for failure to properly follow the prescribed constitutional

71

procedures or criteria (see Cal. Const., art. XXI, § 3(b)), we may conclude that the

Commission’s maps are not a sound basis for interim relief.

Although a variety of circumstances, singly or in combination, could lead this court to

conclude in a future case that a Commission-certified map should not be used as an interim

map pending a referendum challenging that map, no such circumstance is present in this

case.

V. Conclusion and disposition

For the reasons set out above, we conclude that this court is authorized to entertain

this writ petition at this time and to determine which state Senate districts should be used

for the 2012 primary and general elections in the event the proposed referendum qualifies

for placement on the ballot and stays the operative effect of the Commission-certified

state Senate district map. We decline petitioner’s request to issue a peremptory writ of

mandate commanding the Secretary of State to refrain from taking any action

implementing the Commission’s certified state Senate map. Instead we order that, if the

proposed referendum qualifies for the ballot, the Secretary of State and local election

officials are to use the state Senate map certified by the Commission as interim

boundaries for the 2012 primary and general elections. The Commission’s certified state

Senate map is the alternative most consistent with the constitutional scheme and criteria

embodied in the federal and state Constitutions.

72



The relief sought by petitioner is denied. If the proposed referendum qualifies for

the ballot, the Secretary of State and local election officials are directed to use the state

Senate map certified by the Commission for the June 5, 2012, Primary Election and the

November 6, 2012, General Election. Each party shall bear its own costs in this

proceeding. Our judgment is final forthwith.

CANTIL-SAKAUYE, C. J.

WE CONCUR:


KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.


73










CONCURRING OPINION BY LIU, J.

More than a half century ago, Justice Felix Frankfurter observed that “[t]he one

stark fact that emerges from a study of the history of [legislative] apportionment is its

embroilment in politics, in the sense of party contests and party interests.” (Colegrove v.

Green (1946) 328 U.S. 549, 554 (plur. opn. of Frankfurter, J.).) Faced with entreaties by

litigants seeking judicial intervention in the redistricting process, Justice Frankfurter

famously warned that “[c]ourts ought not to enter this political thicket.” (Id. at p. 556.)

Although the law has not adopted the uncompromising version of this principle urged by

Justice Frankfurter (see, e.g., Reynolds v. Sims (1964) 377 U.S. 533; Baker v. Carr (1962)
369 U.S. 186), his admonition continues to resonate each decade when courts are asked

to decide what are fundamentally political disputes. Judicial restraint is especially

important in the context of legislative redistricting because, as the high court recently

observed, “experience has shown the difficulty of defining neutral legal principles in this

area.” (Perry v. Perez (2012) 565 U.S. __ [2012 WL 162610, 2012 U.S. Lexis 908].)

In this case, I agree with the court’s bottom line: the Senate district map certified

by the Citizens Redistricting Commission (Commission) is the interim map that should

be used in the event that petitioner’s referendum qualifies for the ballot. As the court

explains (maj. opn., ante, at pp. 43-72), we need not exclude the Commission map from

consideration as a possible interim map, and the Commission map is superior to the

proposed alternatives when evaluated against applicable federal and state redistricting

criteria. I write separately, however, because I believe the court’s discussion of our

1

authority to decide cases such as this leaves too much to “prudence” (maj. opn., ante, at

pp. 24, 32, 33, 35, 36) and places insufficient emphasis on language in the California

Constitution that channels and checks our discretion.

Today’s opinion concludes that “under California Constitution, article VI, section

10, this court is authorized to issue an order to show cause and decide which districts

should be used in the event a proposed referendum directed at a Commission-certified

redistricting map qualifies for the ballot, even in the absence of a showing that the

proposed referendum is likely to qualify for the ballot.” (Maj. opn., ante, at p. 41.) The

court will find a mandate action ripe for decision “when we conclude that, in light of the

relative probability that the proposed referendum will qualify for the ballot and the time

limitations and potential detrimental consequences of refusing to consider a mandate

petition at that point in time, it is prudent to issue an order to show cause and decide

which districts should be used in the upcoming elections in the event the proposed

referendum does qualify for placement on the ballot.” (Id. at p. 32.)

I believe these statements, by maximizing our discretion, will have the unintended

consequence of inviting future litigants to bring their grievances with the redistricting

process to this court. Of course, the court will exercise prudence in addressing those

litigants’ claims. However, as this court’s own experience shows, redistricting

controversies are fraught with political peril. Where one judge sees prudence, another

may see partisanship. I respectfully disagree with the court’s unduly broad assertion of

authority because it underestimates the risks of political entanglement that are inherent to

redistricting disputes and because the all-things-considered discretion it contemplates

gives insufficient weight to language in our Constitution that can help the court avoid

such entanglement.

I.

As an initial matter, I agree with the court that we have jurisdiction under

California Constitution, article VI, section 10 to entertain a petition for writ of mandate

2

and to issue an order to show cause in this matter. Our jurisdiction, in the fundamental

sense of lawful authority to hear the case, is not in question.

The question we face is under what circumstances this court should decide the

merits of a petition seeking relief in the form of an interim map to be used in the event

that a referendum challenging a Commission map qualifies for the ballot. Uncertainty as

to whether a proposed referendum will qualify for the ballot presents a timing problem

with two competing dimensions. On one hand, the court risks acting too late if it waits

for the signature verification process to indicate whether the referendum will qualify.

“[I]f this court were to conclude that other districts should be used in the event the

referendum qualifies, it may be too late at that time to apply the court’s decision to

implement those other districts.” (Maj. opn., ante, at p. 31.) On the other hand, the court

risks acting too early if it decides the merits of the petition and selects an interim map

before knowing whether the referendum will qualify. “[T]he issuance of a court decision

favoring an alternative map over the Commission-certified map might — in the event the

referendum does not qualify — unnecessarily cast a cloud over the legitimacy of that

Commission-certified map for the ensuing decade . . . .” (Id. at p. 36.)

The risk of acting too early is not present where, as here, the court concludes that

the Commission map should be the interim map if petitioner’s referendum qualifies for

the ballot. “Even if, after the court issues its opinion, the referendum ultimately does not

qualify for the ballot and the Commission-certified map is not stayed, issuance of the

court’s decision — approving the Commission’s map — could have no adverse effect

upon the Commission-certified map.” (Maj. opn., ante, at p. 35.) Under such

circumstances, there is no need to assess the referendum’s likelihood of qualification, and

the court “should issue its decision as early as possible so as to eliminate the uncertainty

that inevitably arises from the ongoing signature verification process and the pendency of

the writ proceeding in this court.” (Ibid.)

3

Today’s decision could have resolved the timing issue on that basis and left

matters there. However, in an effort “to provide guidance on this procedural point for the

future” (maj. opn., ante, at p. 20), the court goes further to broadly hold that we have

discretion and maximum flexibility to determine whether and when we may decide which

map should be used upon qualification of a referendum, even where the interim map we

choose is not the Commission map. (See id. at pp. 31-32, 35-36.) In that scenario, where

the court concludes that an alternative map is superior to the Commission map, the

problematic consequences of acting too early or too late come to the fore. This case does

not present that scenario, but it is clear that the court’s broad holding applies to that

scenario and is expressly intended to address it. (See id. at p. 31.) Accordingly, the

discussion from here forward addresses the court’s understanding of our authority in

circumstances where we find or contemplate finding that an alternative to the

Commission map should be the interim map.

In my view, the court’s articulation of its authority raises two concerns. First, the

court refers to the harm from acting too early as a “possibility” that “might” come to

pass. (Maj. opn., ante, at p. 36.) I see no reason for such tentative acknowledgment of

the substantial harm at issue. If the court issues a decision favoring an alternative to the

Commission map but the referendum does not end up qualifying, the court’s decision

would have needlessly burdened election officials with using a dual-track planning

process until completion of the signature verification process. More importantly, serious

concerns about the fairness and legitimacy of the electoral process would arise

throughout the next decade if a Commission map were to go into effect in the shadow of

an opinion by this court favoring another map even if only on an interim basis. These

problems are hardly speculative. The consequences of acting too early are at least as

serious and foreseeable as the consequences of acting too late, yet the court’s opinion

seems far less concerned with the former than with the latter. (See id. at pp. 30-33.)

4

This imbalance contributes to the second concern, and that is the expansive

discretion the court claims for itself to decide whether and when to act on a mandate

petition in cases where it finds that an alternative map is superior to the Commission’s.

The court says it may act “when we conclude that, in light of the relative probability that

the proposed referendum will qualify for the ballot and the time limitations and potential

detrimental consequences of refusing to consider a mandate petition at that point in time,

it is prudent” to act. (Maj. opn., ante, at p. 32.) Elsewhere the court says it “may

properly grant relief . . . when the court is of the view that there is a sufficient chance that

the proposed referendum will qualify to make it prudent for the court” to do so. (Id. at

p. 33.) And “[i]n determining whether it is prudent to issue its decision in advance of the

proposed referendum’s qualification notwithstanding [the] potential adverse consequence

[of acting too early] (and if so, how far in advance), this court would undoubtedly take

into account the particular reasons underlying its analysis and determination that an

alternative map is more consistent with the constitutionally based criteria than the

Commission-certified map, and then decide if and when to issue its opinion based in part

on such considerations.” (Id. at p. 36.)

These verbal formulations all boil down to the same thing: the court will act when

the court feels it is prudent to do so. (See maj. opn., ante, at p. 36 [“[T]his court properly

retains broad discretion to take into account all such considerations as well as any other

relevant factor in deciding what relief is appropriate in such a proceeding and when it

should be ordered.”].) It casts no doubt on the court’s collective wisdom to worry that

such open-ended discretion offers little in the way of an objective standard for

determining — in the face of uncertainty and the serious risks it entails — whether and

when to issue a decision as important as declaring that a map other than the

Commission’s should be used as an interim map. In effect, the court’s opinion invites

future litigants to make their best case for or against judicial intervention without

supplying a determinate legal principle that can help keep our decisionmaking, in

5

appearance and reality, above the political fray. We need not place such a heavy burden

on the dictates of our own prudence, for the text of our Constitution provides a better

approach.

II.

The voters of California fundamentally reformed the redistricting process when

they passed Proposition 11 in 2008 and Proposition 20 in 2010. Those initiatives created

the Commission, defined its membership, procedures, and responsibilities, established a

prioritized list of redistricting criteria, and provided that Commission-certified maps may

be challenged by referendum. In addition, the recent reform contemplates this court’s

intervention in the redistricting process in four circumstances. First, a registered voter

may challenge the lawfulness of a Commission map within 45 days after it is certified.

(Cal. Const., art. XXI, § 3, subd. (b)(2), (3).) Second, when the Commission does not

approve a final map by the requisite votes, it is this court’s duty to supply a map with the

aid of a special master. (Id., § 2, subd. (j).) Third, when voters disapprove a Commission

map in a referendum, the court also must supply a map with the aid of a special master.

(Ibid.)

The fourth circumstance is the one relevant here: “Any registered voter in this

state may also file a petition for a writ of mandate or writ of prohibition to seek relief

where a certified final map is subject to a referendum measure that is likely to qualify and

stay the timely implementation of the map.” (Cal. Const., art. XXI, § 3, subd. (b)(2)

(hereafter section 3(b)(2)).) This sentence of section 3(b)(2) addresses situations where a

referendum challenging a Commission map has not yet qualified for the ballot, and it

provides guidance on the timing problem we face.

Section 3(b)(2) was enacted as part of Proposition 20 along with another provision

that moved up the date by which the Commission must release its final maps from

September 15 to August 15. (Cal. Const., art. XXI, § 2, subd. (g).) The evident purpose

of these provisions was to give this court flexibility to act in situations where a

6

referendum is likely to qualify but where the signature verification and official

qualification process has not reached completion. Further, article XXI, section 3,

subdivision (b)(3) of the California Constitution (hereafter section 3(b)(3)) says: “The

California Supreme Court shall give priority to ruling on a petition for a writ of mandate

or a writ of prohibition filed pursuant to [section 3(b)(2)].”

At a minimum, section 3(b)(2) means that a petition for relief in the form of an

interim map is properly before the court and ripe for adjudication on the merits where the

petitioner has shown that a referendum challenging a Commission map is likely to

qualify. Section 3(b)(3) makes clear that the court must act expeditiously to decide the

merits of such a petition. The import of these constitutional provisions is that when a

petitioner has shown that a referendum is likely to qualify, the probability of qualification

is sufficiently high that this court must promptly provide guidance to election officials on

the interim map that will be used in the event that the referendum ultimately does qualify.

Although a referendum deemed likely to qualify may still end up not qualifying, sections

3(b)(2) and 3(b)(3) imply that the risk is sufficiently low that the court should decide the

merits of the petition.

While acknowledging that a petition is “sufficiently ripe . . . to be entertained”

when a referendum is likely to qualify (maj. opn., ante, at p. 39), today’s opinion stops

short of saying that the court should promptly decide the merits of such a petition.

Instead, the court says that “the ‘likely to qualify’ language of article XXI, section 3(b)(2)

is not directed to the time when the court may or should decide the merits of the mandate

petition, but rather to the time when a registered voter may file such a petition in this

court.” (Id. at p. 40, fn. 25.) Even if this reading of section 3(b)(2) were correct (and I

am doubtful that it is (see post, at pp. 8-11)), section 3(b)(3) leaves no ambiguity as to

what this court is supposed to do. Where a petitioner has shown that a referendum is

likely to qualify, the “ruling” contemplated by section 3(b)(3)’s mandate that this court

7

“shall give priority to ruling on a petition . . . filed pursuant to [section 3(b)(2)]” can only

be understood as a ruling on the merits.

Sections 3(b)(2) and 3(b)(3) thus answer part of the timing question we face:

when a referendum is likely to qualify, the court must act. But what should the court do

when available information does not support a finding that a referendum is likely to

qualify? If a petitioner cannot show that a referendum is likely to qualify, what

significance does that circumstance have for whether and when the court should act? I

agree with today’s opinion that because section 3(b)(2) “does not purport to limit this

court’s jurisdiction” (maj. opn., ante, at p. 38), a petitioner’s inability to show that a

referendum is likely to qualify does not deprive the court of its prerogative to decide

whether and when to act. But I do not agree that failure to show that a referendum is

likely to qualify has no particular significance to the exercise of our authority, beyond

being a factor that it may be “prudent” to consider. (Id. at p. 36.)

Once again, section 3(b)(2) says: “Any registered voter in this state may also file

a petition for a writ of mandate or writ of prohibition to seek relief where a certified final

map is subject to a referendum measure that is likely to qualify and stay the timely

implementation of the map.” Textually, the phrase “where a certified final map is subject

to a referendum measure that is likely to qualify” is sensibly read as a condition

precedent to the availability of “relief” under section 3(b)(2). Just as the “likely to

qualify” standard serves to mitigate the risk of acting too late, it also serves to mitigate

the risk of acting too early. Where the probability of qualification is sufficiently low that

a referendum cannot be deemed likely to qualify, the court generally should stay its hand

because of the sufficiently high risk that issuing a decision on the merits will prove

unnecessary and injurious to the electoral process. Section 3(b)(2) addresses the

uncertainty where a referendum has not yet qualified by balancing the public interest in

giving the referendum’s supporters a timely opportunity to seek relief in the event that the

referendum does qualify against the public interest in having a Commission-certified map

8

implemented without disruption in the event that the referendum does not qualify. In

other words, the “likely to qualify” standard strikes the very balance that the court would

relegate to its sense of prudence. Because section 3(b)(2) does not limit this court’s

jurisdiction over original writ proceedings, it is always possible that exceptional

circumstances may compel the court to act even where a petitioner has not shown that a

referendum is likely to qualify. However, I would adopt as a general rule — indeed, a

presumption — that where a petitioner has not shown that a referendum is likely to

qualify, the court should not decide the merits of the mandate petition.

The court contends that the “likely to qualify” language in section 3(b)(2) has no

bearing on when judicial action is warranted and, as a textual matter, speaks “to the time

when a registered voter may file” a petition for writ of mandate or writ of prohibition.

(Maj. opn., ante, at p. 40, fn. 25.) But it makes little sense to read section 3(b)(2) as a

timing provision that pertains to filing in light of the court’s conclusion that under article

VI, section 10 of the California Constitution, a petition for writ of mandate or prohibition

may be filed whether or not the petitioner can show that a referendum is likely to qualify.

(See id. at pp. 23-24 & fn. 18, 38.) Instead of indicating when a registered voter may file

a petition, the “likely to qualify” language in section 3(b)(2) is better read as specifying

when relief is available and may be granted by this court before a referendum has

qualified for the ballot.

More fundamentally, the court objects to this reading of section 3(b)(2) on the

ground that it would limit our authority to entertain a mandate petition, even just to issue

an order to show cause, unless a petitioner has shown that a referendum is likely to

qualify. (Maj. opn., ante, at p. 40, fn. 25.) But my interpretation would not have “this

type of limiting effect on this court’s authority.” (Ibid.) Where, as here, an original writ

petition is properly filed pursuant to article VI, section 10 of the California Constitution,

the court has jurisdiction and may issue an order to show cause, entertain briefing and

oral argument, and deliberate. If the court concludes that the Commission map should be

9

1

the interim map, it may and should say so as early as possible. Otherwise, the court

generally should not decide the merits of the petition or grant relief before it finds that the

referendum is likely to qualify. The inability to make that finding at the moment the

petition is filed does not mean we must dismiss the petition. The court may retain

jurisdiction and await further information on the referendum’s likelihood of qualification.

If additional information shows that the referendum is likely to qualify, the court will be

2

poised to act expeditiously.


1

Doing so without determining whether the referendum is likely to qualify does not

“depart[] . . . from the language of article XXI, section 3(b)(2)” (maj. opn., ante, at p. 41,
fn. 25) because in cases such as this, where we deny a petitioner’s request to order
interim use of a non-Commission map, we are not granting any “relief” sought by the
petitioner under section 3(b)(2). In light of section 3(b)(2)’s text (“Any registered voter
in this state may . . . file a petition . . . to seek relief”), the illogic of the court’s assertion
that we are granting “relief” within the meaning of section 3(b)(2) “whether or not the
particular outcome ordered by the court is the relief petitioner is seeking” (maj. opn.,
ante, at p. 41, fn. 25) speaks for itself.

2

The practice of retaining jurisdiction in a mandate proceeding and postponing

action in light of possible developments is not unfamiliar to this court. (See Legislature
v. Reinecke
(1973) 10 Cal.3d 396, 400.) As a result of litigation after the 1970 census
and reapportionment, we adopted temporary maps for the 1972 elections and retained
jurisdiction to draw new maps for subsequent elections if the Legislature failed to enact
valid maps during the 1972 regular session. (Ibid. [citing Legislature v. Reinicke (1972)
6 Cal.3d 595, 603-604].) Subsequently, “at the request of the Senate of the State of
California, we postponed the time for further court action” in order to allow the
Legislature an opportunity to act in special session. (Ibid. [citing Legislature v. Reinicke
(1972) 7 Cal.3d 92, 93].) When the Legislature failed to enact valid maps in 1972, we
appointed three special masters to propose new maps, even as we made clear that “ ‘If at
any time during the proceedings contemplated by this order valid congressional and
legislative reapportionment measures are enacted the court will entertain an application to
dismiss these proceedings.’ (Legislature v. Reinicke (1973) 9 Cal.3d 166, 168.)” (Ibid.)
Although Legislature v. Reinicke did not present the same issues we face here, the case
illustrates the flexibility the court possesses to retain jurisdiction and defer decision
where the exercise of our authority depends on developments occurring after we initially
assume jurisdiction.

10

In essence, the court’s objection to my interpretation of section 3(b)(2) confuses

the issue of whether the court has authority to entertain a mandate petition with the

separate and distinct issue of how that authority should be exercised. The first issue is

settled by article VI, section 10 of the California Constitution. (See ante, at pp. 2-3.)

Section 3(b)(2) speaks only to the second issue. In exercising its proper authority to

entertain a mandate petition seeking relief in the form of an interim map, under what

circumstances may the court grant relief before a referendum has qualified for the ballot?

Section 3(b)(2) answers that question by stating a condition precedent to the availability

of relief — namely, a showing that the referendum is likely to qualify.

The advantage of this approach is precisely what the court sees as its

disadvantage: it limits our discretion. By using the phrase “likely to qualify,” section

3(b)(2) provides an objective and determinate standard for balancing the competing risks

of acting too early versus acting too late. In ordinary usage, the word “likely” is

commonly understood to mean “more likely than not.” (See, e.g., Merriam-Webster’s

Collegiate Dict. (11th ed. 2003) p. 721 [defining “likely” to mean “having a high

probability of occurring or being true”]; Webster’s International Dict. (3d ed. 2002)

p. 1310 [defining “likely” to mean “having a better chance of existing or occurring than

not”]; Garner, A Dict. of Modern Legal Usage (2d ed. 1995) p. 530 [“likely has different

shades of meaning” but “[m]ost often it indicates a degree of probability greater than five

on a scale of one to ten”]; Black’s Law Dict. (6th ed. 1990) p. 925 [defining “likely” to

mean “probable and having better chance of existing or occurring than not”].) Although

the court in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916-917 said that

the meaning of “likely” may depend on context, Ghilotti interpreted the phrase “ ‘likely

to engage in acts of sexual violence’ ” as part of an intricate statutory scheme enacted by

the Legislature to provide for civil commitment of inmates previously convicted of a

sexually violent offense. (See id. at pp. 915-929.) The particularized meaning of words

in complex, legislatively enacted statutes has little bearing on the interpretation of words

11

in an initiative, which we construe according to their ordinary meanings as understood by

“the average voter.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 902.)

To be sure, the “likely to qualify” standard does not fully immunize the court from

the risks of acting too early or too late. A referendum shown to be likely to qualify may

end up not qualifying, and a referendum not shown to be likely to qualify may end up

qualifying. But the risk of error in one direction or the other is present in any approach to

the timing problem. That is the nature of uncertainty. Rather than address the

uncertainty through the prudential exercise of discretion, I would make use of the

objective constitutional standard that already balances the competing risks.

As a practical matter, the “likely to qualify” standard does not impose a heavy burden

on the petitioner or on this court. In most cases, determining whether a referendum is “likely

to qualify” will be a simple matter. The random sampling that takes place when a

referendum has gathered a sufficient number of signatures will usually resolve the issue in a

timely fashion. As the court explains: “Under the governing statutory provisions, if the

random sampling projected a number of total valid signatures that was less than 95 percent

of the required number of valid signatures, the petition would fail without any further count.

If the projection of valid signatures was 110 percent or more of the required number, the

petition would qualify without any further count. If the projection of valid signatures was

between 95 and 110 percent, the Secretary of State would notify counties that a full count of

all submitted signatures would be required to verify the number of valid signatures that had

been submitted. (Elec. Code, §§ 9030, subds. (f) & (g), 9031, subd. (a).)” (Maj. opn., ante,

at pp. 28-29.)

According to documentation attached to petitioner’s declaration, of the 48 initiatives

and referenda submitted to the Secretary of State between 2005 and 2010, 44 of them were

projected to receive more than 110 percent of the needed signatures. Those measures

qualified for the ballot without any need to count all the signatures submitted. In such cases,

even before the referendum is officially certified by the Secretary of State, this court can

12

conclude that the referendum is likely to qualify. The random count in this case was

completed by January 10, and it is likely that such counts will be completed around the same

time in the future. That date is well before “the end of January 2012,” which is the latest

time by which the Secretary of State and county election officials need to be informed of this

court’s decision in order “to implement any changes in the state Senate districts in the event

the proposed referendum qualifies and automatically stays the Commission-certified state

Senate redistricting map.” (Maj. opn., ante, at p. 30.)

If random sampling yields a projection between 95 percent and 110 percent of the

signatures needed and a full count is required, this court will still be able to determine

whether a referendum is likely to qualify in most cases. In supplemental briefing, the

Secretary of State claimed that “to use the completed sampling process to determine at what

point a petition becomes likely to qualify . . . is beyond the capacity of the process” and that

“the sampling technique is not designed to give reliable results at a greater level of

precision” than determining “whether the number of valid signatures on petitions is within a

broad range, 95 [percent] to 110 [percent].” But the Secretary of State also acknowledged in

the same briefing that the experience of the four initiatives within the last five years that

required a full count in order to qualify for the ballot “suggests that the sampling process is

reasonably accurate within a margin of about 1.5%.”3 Although the Secretary of State said


3

The Secretary of State’s supplemental briefing identified four initiatives in the past

five years that went to a full count. Measure No. 1226, a 2009 initiative concerning
community colleges, had a random sample validity rate of 71.38 percent and a full count
validity rate of 71.08 percent. Measure No. 1271, a 2009 initiative concerning a
children’s hospital bond, had a random sample validity rate of 69.30 percent and a full
count rate of 70.84 percent. Measure No. 1311, a 2011 term limits measure, had a
random sample validity rate of 75.58 percent and a full count rate of 74.36 percent.
Finally, a 2011 attempt by the Americans Elect political party to qualify for the ballot
through a signature drive had a random sample validity rate of 69.81 percent and a full
count rate of 68.08 percent.

13

she was “reluctant to draw firm conclusions from a sample that consists of only four

examples,” the examples do offer some indication, however limited, that the random

sampling process can predict the full count within a fairly small margin of error.

Contrary to the Secretary of State’s suggestion, the Legislature’s determination that

random sampling must yield a projection of at least 110 percent of the signatures needed

before a referendum will be deemed qualified does not preclude a petitioner from citing a

projection less than 110 percent as evidence that a referendum is likely to qualify. Indeed,

because a referendum actually qualifies with a projection equal to or greater than 110

percent, logic dictates that a lesser projection may support a finding that a referendum is

merely likely to qualify. For example, where random sampling yields a projection of 105

percent of the total signatures needed, the referendum does not qualify on that basis and must

go to a full count. But the projection would still be credible evidence, given the past

relationship between random counts and full counts, that the referendum is likely to qualify.

The task of timely determining whether a referendum is likely to qualify is more

difficult when random sampling yields a projection that is very close to the minimum

number of signatures required. Petitioner asserts that whenever random sampling projects

100 percent or more of the needed signatures, the referendum should be deemed likely to

qualify. But petitioner offers no analysis or expert declarations in support of this claim. At

oral argument, petitioner asserted that more refined analysis of whether a referendum is

likely to qualify is within the competence of various experts and experienced consultants.

Although we need not apply the “likely to qualify” standard in this case because of our

ultimate disposition (see ante, at pp. 3-4), future litigants would be well-advised to bring

expert analysis to bear where the issue is a close call. Statistical certainty is not required in

order to render a legal judgment applying the “likely to qualify” standard (presumably, a

petitioner need only show that a referendum is “likely to qualify” by a preponderance of the

evidence), but the court would benefit from expert interpretation of available information.

14

Finally, it is worth noting that, although my view of section 3(b)(2)’s significance

for the timing of judicial intervention differs from the court’s, nothing I have said is

technically inconsistent with the court’s broad holding that the issue of timing should be

resolved according to the dictates of prudence. My sense of prudence, which subsumes

my reading of the law, impels me to assign particular significance to whether a

referendum is likely to qualify in deciding whether and when we should act on the merits

of a mandate petition. But whether the prudence of my colleagues would lead each of

them to the same conclusion or to different conclusions in a case where the issue really

matters is an open question. And that, in a sense, illustrates the problem with the court’s

approach.

III.

Because our disposition in this case is unanimous, the concerns I have expressed

may seem speculative. But the court typically speaks on redistricting only once a decade,

and today’s opinion deliberately paints with a broad brush. It is of course anyone’s guess

what the future will bring. But history provides a cautionary tale.

Thirty years ago, this court had a very different experience with a redistricting

controversy. After the 1980 census, the Democratic-controlled Legislature enacted and

the Governor, also a Democrat, signed in September 1981 three reapportionment statutes

revising the boundaries of the state’s congressional, Senate, and Assembly districts. The

Republican Party initiated a referendum against each of these reapportionment statutes.

By December 15, 1981, these referenda had qualified for the June 1982 ballot. Various

members of the Assembly, Senate, and United States House of Representatives filed

mandate proceedings claiming that defects in the referendum petitions rendered the

petitions invalid. They also claimed that even if the referenda did qualify for the ballot,

they should not stay implementation of the new legislative maps for the June 1982

election.

15

In Assembly v. Deukmejian (1982) 30 Cal.3d 638, this court rejected the

challenges to the validity of these referenda and affirmed that the referenda stayed the

reapportionment statutes, as they would any other statute. (Id. at pp. 656-657.) The court

then considered the appropriate remedy. The referenda proponents argued that the court

should order use of the old maps in the interim, as the court had done in Legislature v.

Reinecke (1972) 6 Cal.3d 595, a case in which the new legislative maps had been vetoed

by the Governor and never became law. By a four-to-three majority, the court in

Assembly v. Deukmejian declined to order use of the old maps, instead concluding that

the new maps should be used in the interim primarily because they were drawn to comply

with the one-person, one-vote requirement of the Fourteenth Amendment’s equal

protection clause. (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 665-668.)

The court’s holding in favor of the new maps prompted three separate dissenting

opinions. Justice Richardson, in an opinion joined by Justice Mosk and Justice Kaus,

explained that it was improper to use new maps that had been stayed by qualification of

the referenda and that using the old maps until the referenda were voted on would not

violate the equal protection clause. (Assembly v. Deukmejian, supra, 30 Cal.3d at

pp. 680-685 (conc. & dis. opn. of Richardson, J.).) According to Justice Richardson, “the

majority completely disregards [the] stay [of the new maps] and imposes upon the people

of California a state legislative reapportionment plan which has been stopped dead in its

tracks by operation of law and which is heavily veiled in a cloud of political uncertainty.

The majority’s adoption of this plan prejudges the result and its action can only be

perceived as an official alignment of the court with one side in a partisan dispute as to

which we should remain scrupulously neutral.” (Id. at p. 680.)

In a separate opinion, Justice Mosk wrote that “a bare majority of this court have

become entangled in the ‘political thicket’ by ignoring their obligation of neutrality on a

partisan issue, a neutrality that can be observed only by maintenance of the status quo in

legislative districting until the people speak at the forthcoming election.” (Assembly v.

16

Deukmejian, supra, 30 Cal.3d at p. 693 (conc. & dis. opn. of Mosk, J.).) And Justice

Kaus wrote separately to say that “the course chosen by the majority involves greater

judicial intrusion into the legislative process laid out by the California Constitution.” (Id.

at p. 694 (conc. & dis. opn. of Kaus, J.).)

I express no view on which side was correct in Assembly v. Deukmejian. But I am

confident that each of the four justices who voted in favor of the new maps, as well as

each of the three justices who voted in favor of the old maps, cast his or her vote on the

basis of a well-informed assessment of the lawful and prudent course. (Compare

Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 675-676 [use of new maps would be the

least disruptive remedy] with id. at p. 692 (conc. & dis. opn. of Richardson, J.) [use of old

maps would be least disruptive].) Even so, the court ultimately fractured in a series of

strongly worded opinions laced with charges of partisanship.

Assembly v. Deukmejian did not present the timing issue we face here. But the

case confirms that “[l]ogic, as well as experience, tells us . . . that there can be no total

sanctuaries in the political thicket.” (Dixon, The Court, The People, and “One Man, One

Vote,” in Reapportionment in the 1970s (Polsby edit. 1971) p. 32.) Today the court

unanimously agrees that the Commission map is superior to the proposed alternatives. In

a future case, the court may be divided with regard to which map should serve as an

interim map and, closely related, whether and when to issue a decision on that important

issue. Those questions will inevitably play out against a backdrop of partisan interests. I

hope the court is correct that prudence will be sufficient to guide us out of the thicket.

But I believe the language of our Constitution already provides the guidance we need.

LIU, J.

17

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Vandermost v. Bowen
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S198387
Date Filed: January 27, 2012
__________________________________________________________________________________

Court:

County:
Judge:


__________________________________________________________________________________

Counsel:

Bell, McAndrews & Hiltachk, Charles H. Bell, Jr., Thomas W. Hiltachk, Colleen C. McAndrews, Paul T. Gough,
Brian T. Hildreth and Ashlee N. Titus for Petitioner.

Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Peter A. Krause and George
Waters, Deputy Attorneys General; and Lowell Finley for Respondent.

Morrison & Foerster, James J. Brosnahan, George C. Harris and Benjamin J. Fox for Intervener.

Remcho, Johansen & Purcell, Robin Johansen and Thomas A. Willis for Senator Darrell Steinberg as Amicus Curiae
on behalf of Respondent and Intervener.

Kathay Feng for California Common Cause as Amicus Curiae on behalf of Intervener.

Nielson Merksamer Parrinello Gross & Leoni, Margueirte Mary Leoni and James R. Parrinello for Charles T.
Munger, Jr., as Amicus Curiae.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Charles H. Bell, Jr.
Bell, McAndrews & Hiltachk
455 Capitol Mall, Suite 600
Sacramento, CA 95814
(916) 442-7757

George Waters
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-8050

James J. Brosnahan
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
(415) 268-7000


The court held that it has authority to issue an order to show cause in this original writ proceeding, even in the absence of a showing that petitioner's proposed referendum was “likely to qualify” for the ballot. The court also held that the Citizens Redistricting Commission’s state Senate map should be used on an interim basis for the June and November 2012 elections, pending the outcome of the referendum. If the proposed referendum does not qualify for the ballot, the Commission’s state Senate map will continue to be used for the 2012 election and future elections until replaced pursuant to the California Constitution, article XXI.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Fri, 01/27/201253 Cal. 4th 421, 269 P.3d 446, 137 Cal. Rptr. 3d 1S198387Original Proceeding - Civilopinion issued

Parties
1Vandermost, Julie (Petitioner)
Represented by Charles H. Bell
Bell McAndrews and Hiltachk, LLP
455 Capitol Mall, Suite 600
Sacramento, CA

2Bowen, Debra (Respondent)
Represented by George Waters
Office of the Attorney General
1300 I Street
P.O. Box 944255
Sacramento, CA

3Bowen, Debra (Respondent)
Represented by Lowell Finley
Office of the Secretary of State Debra Bowen
1500 11th Street, 6th Floor
Sacramento, CA

4Citizens Redistricting Commission (Intervention requester)
Represented by James J. Brosnahan
Morrison & Foerster LLP
425 Market Street
San Francisco, CA

5Citizens Redistricting Commission (Intervention requester)
Represented by Benjamin J. Fox
Morrison & Foerster LLP
555 W. Fifth Street
Los Angeles, CA

6Munger, Charles T. (Amicus curiae)
Represented by James R. Parrinello
Nielsen Merksamer Parrinello Gross & Leoni, LLP
2350 Kerner Boulevard, Suite 250
San Rafael, CA

7Munger, Charles T. (Amicus curiae)
Represented by Marguerite Mary Leoni
Nielsen Merksamer Parrinello Gross & Leoni, LLP
2350 Kerner Boulevard, Suite 250
San Rafael, CA

8California Common Cause (Amicus curiae)
Represented by Kathay Feng
California Common Cause
3303 Wilshire Boulevard, Suite 310
Los Angeles, CA

9Senator Darrell Steinberg (Amicus curiae)
Represented by Robin Bradle Johansen
Remcho Johansen & Purcell, LLP
201 Dolores Avenue
San Leandro, CA


Opinion Authors
OpinionChief Justice Tani Cantil-Sakauye
ConcurJustice Goodwin Liu

Disposition
Jan 27 2012Opinion filed

Dockets
Dec 2 2011Petition for writ of mandate/prohibition with request for stay filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell  
Dec 2 2011Retained for consideration (mandate/prohibition)
 
Dec 2 2011Request for judicial notice filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell  
Dec 2 2011Received:
  Declaration of Charles H. Bell, Jr. in support of verified petition for writ of mandate or writ of prohibition.
Dec 2 2011Received:
  Declaration of Dr. T. Anthony Quinn in support of petition for writ of mandate or writ of prohibition, submitted by Charles H. Bell.
Dec 2 2011Received:
  Declaration of Charles H. Bell, Jr. regarding the likelihood of qualification of referendum #1499 in support of verified petition for writ of mandate or writ of prohibition.
Dec 2 2011Letter sent to:
  December 2, 2011 George Waters Office of the Attorney General P.O. Box 944255 1300 I Street, 17th Floor Sacramento, CA 94244 Lowell Finley Office of the Secretary of State Debra Bowen 1500 11th Street Sacramento, CA 95814 Re: S198387- Julie Vandemost v. Debra Bowen, Secretary of State of California Dear Counsel: The court has directed that I request a preliminary opposition in the above-referenced matter. The preliminary opposition is to be served on counsel for petitioner by facsimile and filed in this court on or before Tuesday, December 6, 2011. The filing may be made by facsimile with the original and hard copies to follow by mail. Our fax number is (415) 865-7183. The preliminary opposition should address all issues presented in the petition. Petitioner will then have until 5:00 p.m. on Wednesday, December 7, 2011, in which to serve and file a reply to the preliminary opposition. The reply is to be served on counsel for respondent by facsimile. The filing may be made by facsimile with the original and hard copies to follow by mail. No extensions of time will be granted.
Dec 6 2011Motion for leave to intervene filed
  Submitted by James Brosnahan, counsel for Citizens Redistricting Commission
Dec 6 2011Received:
  Preliminary opposition to petition for writ of mandamus or prohibition, submitted by James Brosnahan, counsel for Citizens Redistricting Commission.
Dec 6 2011Received:
  Proof of service submitted by James Brosnahan, counsel for Citizens Redistricting Commission.
Dec 6 2011Received:
  Appendix of Exhibits (Volumes 1 through 4), submitted by James J. Brosnahan, counsel for Citizens Redistricting Commission.
Dec 6 2011Preliminary opposition to writ petition filed
Respondent: Bowen, DebraAttorney: George Waters   ***submitted by electronic mail and hard copy***
Dec 6 2011Received:
  Declaration of Jana M. Lean in support of preliminary opposition of Secretary of State Debra Bowen, submitted by George Waters. *** submitted by electronic mail and hard copy***
Dec 7 2011Order filed
  The court has received the Citizens Redistricting Commission's motion for leave to intervene and to file preliminary opposition, and its proposed preliminary opposition. Any party wishing to oppose the motion, or reply to the proposed preliminary opposition, must serve the opposition or reply by facsimile and file it in this court by 12:00 p.m. on Thursday, December 8, 2011. The filing may be made by facsimile with the original and hard copies to follow by mail. The court's fax number is (415) 865-7183. The Citizens Redistricting Commission must serve any reply to the opposition by facsimile and file it in this court by 5:00 p.m. on Thursday, December 8, 2011. The filing may be made by facsimile with the original and hard copies to follow by mail. No extension of time will be granted.
Dec 7 2011Reply to preliminary opposition filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell   ***submitted by fax***
Dec 7 2011Received:
  Declaration of Dr. T. Anthony Quinn in Support of petitioner's reply to preliminary oppositions and opposition to Citizens Redistricting Commission's motion to intervene, submitted by Charles H. Bell, Jr., counsel for petitioner. ***submitted by fax ***
Dec 8 2011Filed:
  Reply to motion to intervene and for leave to file preliminary opposition, submitted by James Brosnahan, counsel for Citizens Redistricting Commission.
Dec 9 2011Order to show cause issued
  In light of the short time frame imposed by the impending 2012 electoral cycle, and the need to clarify the districts that are to be used in conducting the primary and general elections for the California Senate in 2012 should the referendum petitions that have been filed with the Secretary of State prove sufficient to qualify the referendum for placement on the November 2012 ballot and to stay the Senate redistricting map drawn and certified by the Citizens Redistricting Commission, the court has determined that it is appropriate to issue an order to show cause in this matter at this juncture, while reserving the question of this court's jurisdiction for resolution in our eventual decision in this proceeding. In addition to addressing issues relating to what relief, if any, this court should order in the event the referendum regarding the Senate redistricting map qualifies for the November 2012 ballot, the parties are directed to address the following jurisdictional issues: (1) What standard or test should this court apply in determining whether a referendum is "likely to qualify" within the meaning of article XXI, section 3, subdivision (b)(2) of the California Constitution, for purposes of deciding when a petition for writ of mandate may be filed in this court under that constitutional provision? (2) Is this court's authority to entertain a petition for writ of mandate prior to the formal qualification of a referendum petition limited to the circumstances set forth in article XXI, section 3, subdivision (b)(2), or does this court have other authority (including inherent authority) to entertain such a petition even if it cannot yet be determined whether such a referendum is "likely to qualify" for placement on the ballot? The motion of the Citizens Redistricting Commission to intervene in this proceeding and for leave to file preliminary opposition is granted. To the extent the petition filed in this matter seeks any interim relief pending this court's eventual decision in this matter, the request for any such interim relief is denied. Petitioner's request for judicial notice filed on December 2, 2011, is granted. To facilitate this court's conducting of oral argument in this matter as early as the first two weeks in January 2012, and the filing of an opinion in this matter as early as the end of January 2012, the court orders an extremely expedited briefing schedule, as follows: Respondent and intervener Citizens Redistricting Commission are each directed to serve and file a return or opposition to the order to show cause on or before Wednesday, December 14, 2011. Petitioner may serve and file a reply to the return or opposition on or before Monday, December 19, 2011. Any application to file an amicus curiae brief and any amicus curiae brief may be served and filed on or before Wednesday, December 21, 2012. Any reply or consolidated reply to any amicus curiae brief or briefs may be served and filed on or before Thursday, December 22, 2012. All service and filings may be made by facsimile with the original and hard copies to follow by mail. The court's fax number is (415) 865-7183. No extension of time will be granted. Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, Corrigan and Liu, JJ.
Dec 9 2011Order filed
  The order filed on December 9, 2011 is hereby corrected to read in its entirety (correcting erroneous year): In light of the short time frame imposed by the impending 2012 electoral cycle, and the need to clarify the districts that are to be used in conducting the primary and general elections for the California Senate in 2012 should the referendum petitions that have been filed with the Secretary of State prove sufficient to qualify the referendum for placement on the November 2012 ballot and to stay the Senate redistricting map drawn and certified by the Citizens Redistricting Commission, the court has determined that it is appropriate to issue an order to show cause in this matter at this juncture, while reserving the question of this court's jurisdiction for resolution in our eventual decision in this proceeding. In addition to addressing issues relating to what relief, if any, this court should order in the event the referendum regarding the Senate redistricting map qualifies for the November 2012 ballot, the parties are directed to address the following jurisdictional issues: (1) What standard or test should this court apply in determining whether a referendum is "likely to qualify" within the meaning of article XXI, section 3, subdivision (b)(2) of the California Constitution, for purposes of deciding when a petition for writ of mandate may be filed in this court under that constitutional provision? (2) Is this court's authority to entertain a petition for writ of mandate prior to the formal qualification of a referendum petition limited to the circumstances set forth in article XXI, section 3, subdivision (b)(2), or does this court have other authority (including inherent authority) to entertain such a petition even if it cannot yet be determined whether such a referendum is "likely to qualify" for placement on the ballot? The motion of the Citizens Redistricting Commission to intervene in this proceeding and for leave to file preliminary opposition is granted. To the extent the petition filed in this matter seeks any interim relief pending this court's eventual decision in this matter, the request for any such interim relief is denied. Petitioner's request for judicial notice filed on December 2, 2011, is granted. To facilitate this court's conducting of oral argument in this matter as early as the first two weeks in January 2012, and the filing of an opinion in this matter as early as the end of January 2012, the court orders an extremely expedited briefing schedule, as follows: Respondent and intervener Citizens Redistricting Commission are each directed to serve and file a return or opposition to the order to show cause on or before Wednesday, December 14, 2011. Petitioner may serve and file a reply to the return or opposition on or before Monday, December 19, 2011. Any application to file an amicus curiae brief and any amicus curiae brief may be served and filed on or before Wednesday, December 21, 2011. Any reply or consolidated reply to any amicus curiae brief or briefs may be served and filed on or before Thursday, December 22, 2011. All service and filings may be made by facsimile with the original and hard copies to follow by mail. The court's fax number is (415) 865-7183. No extension of time will be granted.
Dec 14 2011Opposition filed
Intervention requester: Citizens Redistricting CommissionAttorney: James J. Brosnahan   ***Return to order to show cause dated December 9, 2011*** ***filed by fax***
Dec 14 2011Request for judicial notice filed
Intervention requester: Citizens Redistricting CommissionAttorney: James J. Brosnahan   ***submitted by fax***
Dec 14 2011Received:
  Declaration of Karin MacDonald, submitted by James Brosnahan, counsel for Citizens Redistricting Commission ***filed by fax***
Dec 14 2011Received:
  Supplemental Appendix of Exhibits, submitted by James Brosnahan, counsel for Citizens Redistricting Commission ***submitted by fax***
Dec 14 2011Opposition filed
Respondent: Bowen, DebraAttorney: George Waters   ***Return of Respondent Debra Bowen, California Secretary of State, To Order to Show Cause*** ***filed by email***
Dec 19 2011Filed:
  Reply to returns submitted by respondent Secretary of State and intervenor Citizens Redistricting Commission and in support of petition for writ of mandate, submitted by Charles H. Bell, Jr., counsel for petitioner. ***submitted via email***
Dec 19 2011Received:
  Second supplemental declaration of Dr. T. Anthony Quinn, PhD in support of petitioner's reply to returns submitted by respondent Secretary of State and intervenor Citizens Redistricting Commission and in support of petition for writ of mandate, submitted by Charles H. Bell, Jr. ***submitted via email***
Dec 20 2011Application to file amicus curiae brief filed
  Marguerite Mary Leoni, counsel for Charles T. Munger, Jr., requests permission to file amicus brief.
Dec 20 2011Request for judicial notice filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell   ***submitted via email***
Dec 21 2011Permission to file amicus curiae brief granted
  The application of Charles T. Munger, Jr. for permission to file an amicus curiae brief is hereby granted. Any reply or consolidated reply to this amicus curiae brief, or to any other such brief or briefs, may be served and filed on or before Thursday, December 22, 2011. All service and filings may be made by facsimile with the original and hard copies to follow by mail. The court's fax number is (415) 865-7183.
Dec 21 2011Amicus curiae brief filed
Amicus curiae: Munger, Charles T., Jr.Attorney: James R. Parrinello Attorney: Marguerite Mary Leoni  
Dec 21 2011Application to file amicus curiae brief filed
  by Kathay Feng, counsel for California Common Cause.
Dec 21 2011Application to file amicus curiae brief filed
  by Robin Johansen, counsel for Senator Darrell Steinberg.
Dec 21 2011Permission to file amicus curiae brief granted
  The application of California Common Cause for permission to file an amicus curiae brief in support of intervener, Citizens Redistricting Commission, is hereby granted. Any reply or consolidated reply to this amicus curiae brief, or to any other such brief or briefs, may be served and filed on or before Thursday, December 22, 2011. All service and filings may be made by facsimile with the original and hard copies to follow by mail. The court's fax number is (415) 865-7183.
Dec 21 2011Amicus curiae brief filed
Amicus curiae: California Common CauseAttorney: Kathay Feng  
Dec 21 2011Permission to file amicus curiae brief granted
  The application of Senator Darrell Steinberg for permission to file an amicus curiae brief in support of respondent and intervener is hereby granted. Any reply or consolidated reply to this amicus curiae brief, or to any other such brief or briefs, may be served and filed on or before Thursday, December 22, 2011. All service and filings may be made by facsimile with the original and hard copies to follow by mail. The court's fax number is (415) 865-7183. Parties telephoned. order emailed and sent U.S. mail
Dec 21 2011Amicus curiae brief filed
Amicus curiae: Senator Darrell SteinbergAttorney: Robin Bradle Johansen  
Dec 21 2011Request for judicial notice filed
Amicus curiae: Senator Darrell SteinbergAttorney: Robin Bradle Johansen  
Dec 22 2011Response to amicus curiae brief filed
Intervention requester: Citizens Redistricting CommissionAttorney: James J. Brosnahan   ***reply to amicus curiae brief of Charles T. Munger, Jr.*** ***submitted by fax***
Dec 22 2011Response to amicus curiae brief filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell   ***consolidated reply to Common Cause's and Senator Darrell Steinberg's amici curiae oppositions to petition*** ****submitted via email****
Dec 28 2011Case ordered on calendar
  to be argued on Tuesday, January 10, 2012, at 9:00 a.m., in San Francisco.
Dec 29 2011Supplemental briefing ordered
  The parties are requested to file supplemental letter briefs addressing the following question: What significance does the signature validity rate from the completed random sampling process have for the issue of whether a referendum is "likely to qualify" under article XXI, section 3, subdivision (b)(2) of the California Constitution? Simultaneous supplemental letter briefs addressing this question must be served and filed by Wednesday, January 4, 2012. Simultaneous supplemental letter reply briefs may be served and filed by Friday, January 6, 2012. All service and filings may be made by facsimile with the original and hard copies to follow by mail. The court's fax number is (415) 865-7183. No extension of time will be granted.
Jan 3 2012Request for extended media coverage filed
  by The California Channel.
Jan 4 2012Filed:
  letter dated 1/3/12, submitted by George Waters and James Brosnahan, requesting to divide oral argument time.
Jan 4 2012Request for extended media coverage granted
  The request for extended media coverage, filed by The California Channel on January 3, 2012, is hereby granted, subject to the conditions set forth in rule1.150, California Rules of Court.
Jan 4 2012Request for judicial notice granted
  The request for judicial notice, filed December 14, 2011, by the Citizens Redistricting Commission, is granted. Petitioner's request for judicial notice, filed December 20, 2011, is granted. The request for judicial notice, filed December 21, 2011, by amicus curiae Senator Darrell Steinberg, President Pro Tempore of the California State Senate, is granted.
Jan 4 2012Supplemental brief filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell   ****submitted via email****
Jan 4 2012Supplemental brief filed
Respondent: Bowen, DebraAttorney: George Waters   ****submitted via email****
Jan 4 2012Supplemental brief filed
Intervention requester: Citizens Redistricting CommissionAttorney: James J. Brosnahan   ****submitted via email****
Jan 5 2012Order filed
  The request of respondent to allocate to intervener Citizens Redistricting Commission 20 minutes of respondent's 30-minute allotted time for oral argument is granted.
Jan 6 2012Supplemental reply brief filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell   ****submitted via email****
Jan 6 2012Supplemental reply brief filed
Intervention requester: Citizens Redistricting CommissionAttorney: James J. Brosnahan   ****submitted via email****
Jan 6 2012Request for extended media coverage filed
  By The Associated Press
Jan 6 2012Supplemental reply brief filed
Respondent: Bowen, DebraAttorney: George Waters   ****submitted via email****
Jan 9 2012Received:
  errata to supplemental letter reply brief, submitted by James Brosnahan, counsel for intervener. ****submitted via email****
Jan 9 2012Request for extended media coverage granted
  The request for extended media coverage, filed by The Associated Press on January 6, 2012, is hereby granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Jan 9 2012Received:
  letter from Charles Bell, Jr., counsel for petitioner, dated 1/9/12, regarding supplemental information on signature verification status. ****submitted via email****
Jan 10 2012Cause argued and submitted
 
Jan 19 2012Received:
  letter from James J. Brosnahan, counsel for intervener, dated 1/19/12, regarding inquiry at oral argument.
Jan 20 2012Received:
  letter from Charles H. Bell, Jr., counsel for petitioner, dated 1/20/12, advising court of the U.S. Supreme Court's curiam decision.
Jan 26 2012Notice of forthcoming opinion posted
  To be filed Friday, January 27, 2012 at 10 a.m.
Jan 27 2012Opinion filed
  The relief sought by petitioner is denied. If the proposed referendum qualifies for the ballot, the Secretary of State and local election officials are directed to use the state Senate map certified by the Commission for the June 5, 2012, Primary Election and the November 6, 2012, General Election. Each party shall bear its own costs in this proceeding. Our judgment is final forthwith. Majority Opinion by Cantil-Sakauye, C.J. --joined by Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ. Concurring Opinion by Lui, J.

Briefs
Dec 21 2011Amicus curiae brief filed
Amicus curiae: Munger, Charles T., Jr.Attorney: James R. Parrinello Attorney: Marguerite Mary Leoni  
Dec 21 2011Amicus curiae brief filed
Amicus curiae: California Common CauseAttorney: Kathay Feng  
Dec 21 2011Amicus curiae brief filed
Amicus curiae: Senator Darrell SteinbergAttorney: Robin Bradle Johansen  
Dec 22 2011Response to amicus curiae brief filed
Intervention requester: Citizens Redistricting CommissionAttorney: James J. Brosnahan  
Dec 22 2011Response to amicus curiae brief filed
Petitioner: Vandermost, JulieAttorney: Charles H. Bell  
Brief Downloads
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1-s198387-pet-writ-mand-12-02-11.pdf (2727635 bytes)
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2-s198387-req-jud-notice-12-02-11.pdf (12509010 bytes)
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3-s198387-dec-charlesbell-supp-pet-writ-mand-12-02-11.pdf (1192989 bytes)
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4-s198387-dec-anthonyquinn-supp-pet-writ-mand-12-02-11.pdf (1731986 bytes)
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5-s198387-dec-charlesbell-re-likelihood-qual-ref-1499-12-02-11.pdf (7746205 bytes)
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6-s198387-motion-leave-intervene-12-06-11.pdf (214752 bytes)
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7-s198387-prelimin-opp-pet-writ-mand-12-06-11.pdf (1282334 bytes)
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8-s198387-proof-of-service-12-06-11.pdf (87538 bytes)
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9a-s198387-app-exh-vol-1-of-4-12-06-11.pdf (8475495 bytes)
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9b-s198387-app-exh-vol-2-of-4-12-06-11.pdf (12020240 bytes)
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9c-s198387-app-exh-vol-3-of-4-12-06-11.pdf (8090734 bytes)
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9d-s198387-app-exh-vol-4-of-4-12-06-11.pdf (24075694 bytes)
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10-s198387-resp-prelimin-opp-pet-12-06-11.pdf (897391 bytes)
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11-s198387-dec-janalean-supp-resp-prelimin-opp-12-06-11.pdf (16755492 bytes)
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12-s198387-pet-reply-prelimin-opp-12-07-11.pdf (513448 bytes)
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13-s198387-dec-anthonyquinn-supp-pet-reply-prelimin-opp-12-07-11.pdf (568729 bytes)
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14-s198387-reply-motion-intervene-leave-file-prelimin-opp-12-08-11.pdf (179789 bytes)
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15-s198387-citizens-redist-comm-opp-12-14-11.pdf (1611398 bytes)
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16-s198387-req-jud-notice-12-14-11.pdf (152214 bytes)
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17-s198387-dec-karin-macdonald-12-14-11.pdf (12790002 bytes)
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18-s198387-supp-app-exh-vol-1-of-1-12-14-11.pdf (3842246 bytes)
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19-s198387-resp-opp-12-14-11.pdf (1246326 bytes)
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20-s198387-pet-reply-to-returns-12-19-11.pdf (1532894 bytes)
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21-s198387-sec-supp-dec-anthonyquinn-supp-pet-reply-to-returns-12-19-11.pdf (879550 bytes)
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22-s198387-pet-req-jud-notice-12-20-11.pdf (771325 bytes)
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23-s198387-amicus-curiae-brief-of-charles-munger-12-21-11.pdf (537359 bytes)
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24-s198387-amicus-curiae-brief-of-ca-common-cause-12-21-11.pdf (655889 bytes)
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25-s198387-amicus-curiae-brief-of-senator-darrell-steinberg-12-21-11.pdf (942890 bytes)
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26-s198387-req-jud-notice-of-amicus-curiae-senator-darrell-steinberg-12-21-11.pdf (487098 bytes)
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27-s198387-citizens-redist-comm-resp-amicus-curiae-brief-12-22-11.pdf (486812 bytes)
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28-s198387-pet-resp-amicus-curiae-brief-12-22-11.pdf (641249 bytes)
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29-s198387-pet-supp-letter-brief-01-04-12.pdf (295248 bytes)
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30-s198387-resp-supp-letter-brief-01-04-12.pdf (479105 bytes)
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31-s198387-citizens-redistricting-commission-supp-letter-brief-01-04-12.pdf (211828 bytes)
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32-s198387-pet-supp-reply-brief-01-06-12.pdf (335016 bytes)
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33-s198387-citizens-redistricting-commission-supp-reply-brief-01-06-12.pdf (438196 bytes)
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34-s197387-resp-supp-reply-brief-01-06-12.pdf (293374 bytes)
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35-s198387-citizens-redistricting-commission-errata-supp-reply-brief-01-09-12.pdf (148574 bytes)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 22, 2012
Annotated by Malaina Freedman

Facts:

The petitioner, Julie Vandermost under the sponsorship of the Fairness and Accountability in Redistricting (FAIR), initiated the process of attempting to qualify a referendum measure, challenging the California Senate map for placement on the November 2012 general election ballot.

Propositions 11 and 20, passed in 2008 and 2010, respectively, amended article XXI of the California Constitution, transferring the responsibility of redistricting from the legislature to the newly created Citizens Redistricting Commission (Commission). The California Constitution, article XXI, section 2, subdivision (d), lists the criteria for redistricting by order of importance. First, districts shall comply with the United States Constitution and achieve population equality as nearly as practicable. Second, districts shall comply with the Voting Rights Act. Third, districts shall be geographically contiguous. Fourth, the Commission’s maps must respect the geographic integrity of the relevant city, county, or local neighborhood. Fifth, districts shall be drawn to encourage geographical compactness. Finally, each Senate district shall be comprised of two whole, complete, and adjacent Assembly districts, and each Board of Equalization district shall be comprised of 10 whole, complete, and adjacent Senate districts.

Petitioner asked the court to (1) grant suspension of statutory filing fees; (2) appoint an expert or special master to advise the court on the process of determining an interim Senate Districts for 2012 and; (3) order an immediate preliminary stay of the Commission’s Senate map. The petitioner asked that the court, in the event the proposed referendum qualifies for the ballot, establish new interim state Senate district maps for the June and November 2012 state Senate elections by either (1) using the old state Senate map created by the Legislature in 2001; or (2) creating a new state Senate map by “nesting” two adjacent Commission-certified Assembly districts within one Senate district; or (3) establishing a different new state Senate map based on a proposal by petitioner’s redistricting consultant.

Procedural History:

The petitioner, Julie Vandermost, initiated a proposed referendum petition to challenge the California Senate map for placement on the November 2012 general election ballot. In September 2011, while Vandermost and the Fairness and Accountability in Redistricting (FAIR) were gathering signatures, two petitions for writ of mandate were filed in this court challenging the respondent Citizens Redistricting Commission’s (Commission) state Senate and congressional district maps on constitutional and statutory grounds, and seeking to bar the Secretary of State from implementing either map. The petition in Vandermost v. Bowen (Sept. 16, 2011, S196493) challenged the Commission’s certified state Senate map; the petition in Radanovich et al. v. Bowen (Sept. 29, 2011, S196852) challenged the Commission’s certified congressional map. After preliminary briefing, the court determined that the petitions lacked merit and denied the requested writs on October 26, 2011. FAIR then completed the signature-gathering process and timely submitted referendum petition signatures to county election officials immediately prior to the November 13, 2011 filing deadline. On December 9, 2011, the court denied the request for all immediate relief pending this court’s eventual decision in this matter, issued an order to show cause concerning the prayer for future contingent relief, and granted a motion by the Commission to intervene.

Issues:

1) Does the court have authority to issue an order to show cause in this original writ proceeding in the absence of a showing that the proposed referendum was “likely to qualify” for the ballot?
2) If FAIR’s referendum qualifies, under which state Senate district map should the 2012 elections proceed?

Holding:

1) Yes; the court has authority to issue an order to show cause in this original writ proceeding in the absence of a showing that FIRE’s proposed referendum was “likely to qualify” for the ballot.
2) If FAIR’s referendum qualifies, the Commission’s state Senate map should be used on an interim basis for the June and November 2012 elections, pending the outcome of the referendum. If the proposed referendum does not qualify for the ballot, the Commission’s state Senate map will continue to be used for the 2012 election and future elections until replaced pursuant to the California Constitution, article XXI.

Analysis:

1) The petition’s allegations adequately invoked the court’s traditional extraordinary writ authority under the California Constitution, article VI, section 10, over a question that was ripe for decision “in light of the great public interest and exigencies of the electoral process.” 53 Cal.4th 421, 460. For this reason, it was unnecessary for the court to apply the language in article XXI, section (3)(b)(2) which provides that a registered voter may file a petition for a writ of mandate to seek relief where a certified map is subject to a referendum measure that is “likely to qualify” and stay the implementation of the map.

In addition, if the court were to wait until it is determined whether the proposed referendum has actually qualified for the ballot, it would be too late to permit the court’s decision to be implemented if the court were to determine that a map other than the Commission-certified map should be used for the June and November 2012 elections.

2) The court evaluated the pros and cons of the four potential redistricting maps under California Constitution, article XXI, section 2, subdivision (d) which lists the criteria for redistricting by order of importance.

The court begins by evaluating the first alternative proposed by petitioner, which followed the approach of Legislature v. Reinecke, 6 Cal.3d 595, and use the outdated state Senate district map that was created by the Legislature in 2001, based on the 2000 census. The court rejected this proposal for three reasons. First, it violates the “one person, one vote” principle under article XXI, section 2, subdivision (d)(1) of the California Constitution. Second, when the Legislature created the 2001 map, it was not required to apply to the criteria established by Propositions 11 and 20, and the petitioner failed to address the ways in which the 2001 Senate map comforts with these criteria. Third, the 2001 maps are perceived to protect incumbent legislators.

Next, the court considered the second potential redistricting map, the nesting map that would create new state Senate districts by combining two adjacent state Assembly districts, of which there are 80, into single Senate districts, of which there are 40. The court rejected this proposal for three reasons. First, the petitioner failed to explain how this proposal comports with the criteria established by Propositions 11 and 20. Second, it conflicts with one of the criteria—compliance with the Voting Rights Act. Finally, it would increase the number of “deferred” voters, particularly individuals from minority populations.

The court considered the third potential redistricting map, petitioner’s “model plan” based on a proposal submitted by petitioner’s consultant Dr. T. Anthony Quinn. The court rejected this proposal because the petitioner offered no details of the plan, and the court decided that there was not enough time to consider such an undefined map.

Finally, the court considered the interim proposal suggested by the Commission. The court concluded that this map should be used in the event the proposed referendum qualifies for the ballot. The court rejected petitioner’s contention that it would be impermissible for the court to consider using the Commission’s state Senate map as an interim for the 2012 elections. It referenced the opinion in Assembly v. Deukmejian, 30 Cal.3d 638 which stated that a court has the authority to consider “any practical alternative . . . , including reapportionment plans which are not yet in effect and which are scheduled to be submitted to the electorate.” 51 Cal. 4th 421, 484. The court based its decision on two factors. First, it explained that the Commission’s map comports with the criteria in article XXI of California’s Constitution. Second, the court explained that the Commission’s map was a product of an open, transparent, and nonpartisan process.

Disposition:

The relief sought by petitioner is denied. If the proposed referendum qualifies for the ballot, the Secretary of State and local election officials are directed to use the state Senate map certified by the Commission for the June 5, 2012, Primary Election and the November 6, 2012, General Election.

Concurring Opinion:

The Commission’s interim map should be used if the petitioner’s referendum qualifies for the ballot. However, the court’s discussion of its authority to decide cases like this will have the unintended consequences of attracting future litigants to bring their grievances with the redistricting process to court. There should be a presumption that when a petitioner has not shown that a referendum is “likely to qualify,” the court should not decide the merits of the petition.

Tags:

election, California Constitution Article XXI, Citizens Redistricting Commission, Senate district map, Senate map, referendum, Fairness and Accountability in Redistricting, FAIR, interim state Senate district map, Proposition 11, Proposition 20, Proposition 6, community interest, communities of interest, geographic integrity, special masters, random sampling, valid signature, redistrict, redistricting process, electoral schedule, likely to qualify, Voting Rights Act