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By Peter Schrag

The California Supreme Court last Friday decisively rebuffed the Republican attack on the new state Senate maps drawn by California’s new independent Citizens Redistricting Commission. But the way it was done could invite as many future problems as it solved.

In so doing, Chief Justice Tani Cantil- Sakauye’s lengthy opinion in Vandermost v. Bowen was a perfect illustration of U.S. Supreme Court Justice Felix Frankfurter’s classic warning against courts wandering into the political thicket of the redistricting process.

In effect, while Friday’s unanimous decision kicked the Republicans out the door, at least for this year, it didn’t slam it against future attempts, even more frivolous ones, to manipulate a political process that the creation of the Commission was supposed to clean up.  

Justice Goodwin Liu, the court’s newest member, quoting Frankfurter, cautioned that the court’s ruling “leaves too much to ‘prudence’ and places insufficient emphasis on language in the California Constitution that channels and checks our discretion.”  In effect, he said, the same end could have been achieved by simpler means inviting less future litigation.

For the shrinking GOP, the stakes couldn’t be higher. It is at least possible – and perhaps probable – that the new districts will cost the party two seats in the Senate and with them its ability to block tax increases under the supermajority requirements imposed by Proposition 13.

Thus the challenge, which was based in large part on the argument that the party’s proposed referendum blocking the state’s use of the Senate maps was “likely to qualify” for the November ballot and thus, under the terms of the initiatives that created the commission, must be blocked until the electorate can vote on it.

Because we won’t know whether the referendum qualified until state officials finish counting in late February, the opinion, like the oral arguments earlier this month, wandered endlessly through attempts to parse the meaning of “likely to qualify.” And then, in effect, the judges said it made no difference. The court, using its judgment, ruled that it has broad discretion under pre-existing constitutional provisions and, given the time constraints imposed by the election calendar, would rule now.

And the ruling was eminently reasonable. The three alternatives proposed by the challengers were so obviously inferior either on constitutional or practical grounds that the commission’s map was the obvious choice.

Of the three, one would have continued the use of the 2001 map, a bi-partisan gerrymander designed to protect incumbents of both major parties; one was to simply “nest” every two Assembly districts into a new Senate district.

Both would have run afoul of a series of constitutional requirements, state and federal: one person, one vote; preserving the integrity of cities, counties and communities of interest; protecting the political rights of minorities, among others. The third alternative, appointing a special master to draw new maps, would, as the court noted, have required far more time than the calendar allowed.

What the court did not address – and perhaps couldn’t address given the constitutional language that it had to work with – was the reality of the referendum and initiative process itself.

The problem isn’t just the vagueness of “likely to quality” but qualification itself. As I noted in earlier on this site, anyone with enough money can qualify almost anything for the ballot. Tom Hiltachk, ironically a member of the law firm representing the GOP challengers in this case, famously used to ask people wanting to run ballot measures his “million dollar question” – “Do you have a million dollars?”

The number has since risen to two or three million, but the idea is the same. It prompted Robert Stern, probably California’s most knowledgeable student of the process, to suggest, only half facetiously, that it might be better – certainly better for the state treasury – if initiative proponents were merely required to pay the two-or-three million directly to the secretary of state without having to bother with collecting signatures.

Appellate judges have never been known for their wisdom about the realities of the political process. Where else could you find more confusion – maybe innocent, more likely willful -- between money and free speech than in the U.S. Supreme Court?

In cases like Vandermost, the most obvious question, never addressed in the proceedings, arises from the constitution itself: If anyone who can affirmatively answer Hiltachk’s question – anyone, that is, with money – can delay the implementation of new districts (or even persuade a court that his referendum is “likely to qualify”) where will it ever end?

What makes the question still more worrisome derives from the nature of the referendum process itself. Because of the way referendum questions are framed  -- do you support the challenged law or the political maps -- a majority of no votes is what the sponsor wants. And since voters with doubts – or simply resentful that they’re being asked to vote on the issue at all – invariably vote no, sponsors have an inherent advantage.

Republicans appointed six of the seven judges who supported the court’s conclusion in the redistricting case. The commission that drew the maps included four Republicans and four Democrats. It held countless hearings around the state and heard thousands of witnesses.

But that hasn’t kept California Republicans from loudly complaining about the court’s decision. They even managed to blame the late Chief Justice Rose Bird, who lost her seat on the court in 1986.  Blaming the umpire is hardly new in America, but an umpire who’s been dead for 12 years? 

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Peter Schrag, whose exclusive weekly column appears every Monday in the California Progress Report, is the former editorial page editor and columnist of the Sacramento Bee. He is the author of Paradise Lost: California’s Experience, America’s Future and California: America’s High Stakes Experiment. His newest book, Not Fit for Our Society: Nativism, Eugenics, Immigration is now on sale.