BILL ANALYSIS SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND CONSTITUTIONAL AMENDMENTS Senator Debra Bowen, Chair BILL NO: SCA 3 HEARING DATE:3/15/06 AUTHOR: LOWENTHAL ANALYSIS BY:Darren Chesin AMENDED: 3/9/06 FISCAL: YES DESCRIPTION Current law provides that in the year following the year in which the federal decennial census is taken, the Legislature shall adjust the boundary lines of the Senate, Assembly, congressional, and Board of Equalization districts in conformance with the following standards: Each member of the Senate, Assembly, Congress, and the Board of Equalization shall be elected from a single-member district. The population of all districts of a particular type shall be reasonably equal. Every district shall be contiguous. Districts of each type shall be numbered consecutively commencing at the northern boundary of the State and ending at the southern boundary. 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. Overview This measure would instead provide for the appointment of a five member Independent Redistricting Commission (IRC) which would establish congressional, Assembly, Senate, and State Board of Equalization districts by February 28 of each year ending in the number one. The provisions of this measure are deemed to be self-executing. IRC Eligibility No more than two members of the IRC may be members of the same political party and no two or more may reside in the same county. Each member must be continuously registered with the same political party, or registered as unaffiliated with a political party, for three or more years immediately preceding appointment. SCA 3 (LOWENTHAL) Page 2 Within the three years immediately preceding appointment, a member may not have been appointed to, elected to, or have been a candidate for any public office, and may not have served as an officer of a political party, or served as a registered paid lobbyist or as an officer of a candidate's campaign committee. Legislative and congressional staff and consultants, contractors to the Legislature, and any person with a financial or family relationship with the Governor, a Member of the Legislature, a Member of Congress, or a member of the State Board of Equalization, are not eligible to serve as members of the IRC. During their terms, and for three years thereafter, IRC members shall be ineligible for public office in this State or for registration as a paid lobbyist. IRC Appointments No later than January 8 of each year ending in the number one, a panel of 10 retired judges of the Court of Appeal (who will be appointed by the Judicial Council) must establish a pool of 25 qualified persons who are willing to serve on the IRC with 10 nominees from each of the two largest political parties and five who are not registered with either of the two largest political parties. The panel of retired judges must make every effort to ensure that the pool of candidates is representative of both genders and California's racial, ethnic, and cultural diversity. No later than January 31 of the same year, one appointment to the IRC from the pool of 25 nominees must be made in this order by each of the following officials: the Speaker of the Assembly, the Assembly minority leader, the President pro Tempore of the Senate, and the Senate minority leader. Each official shall have a seven-day period in which to make an appointment. The four IRC members appointed by the legislative leadership must then select, by majority vote, from the nomination pool a fifth member who is not registered with any party already represented. That fifth member will serve as chairperson of the IRC. SCA 3 (LOWENTHAL) Page 3 The term of office of each member of the IRC expires upon the appointment of the first member of the succeeding IRC. The IRC may not meet or incur expenses after the redistricting plan becomes final except with respect to any pending litigation or as otherwise specified. IRC Proceedings Three members of the IRC, one of whom is the chairperson or vice chairperson, would constitute a quorum and three or more affirmative votes would be required for any official action. The IRC could only conduct business in meetings open to the public and noticed at least 14 days in advance. With specified exceptions, the records of the IRC pertaining to redistricting, and all relevant data would be open to inspection. Ex-parte communications with members would be prohibited. The IRC would be required to display a draft map of congressional, Assembly, Senate, and State Board of Equalization districts to the public for comment for at least 30 days. The Assembly or the Senate, or both, may act within this period to make recommendations to the Commission by majority or by minority report, which must be considered by the IRC. The Commission would then establish final boundaries for these districts and certify them to the Secretary of State. The Legislature would be required, by majority vote, to make the necessary appropriation adequate to meet the IRC's estimated expenses. The IRC would have procurement and contracting authority and may hire staff and consultants, exempt from civil service, including legal representation. The Supreme Court will have original and exclusive jurisdiction in all proceedings in which a plan adopted by the IRC is challenged. Redistricting Criteria Each member of the Senate, Assembly, Congress, and the State Board of Equalization would continue to be elected from SCA 3 (LOWENTHAL) Page 4 single-member districts. The territory of each Senate district must be divided into two Assembly districts. Party registration and voting history data must be excluded from the initial phase of the mapping process but may be used to test maps for compliance with other specified goals. The places of residence of incumbents or candidates may not be identified or considered. The IRC would initially create districts of equal population in a grid-like pattern across the state then adjust the grid as necessary to accommodate each of the following goals, prioritized in this order: Districts must comply with the United States Constitution and the federal Voting Rights Act of 1965. Districts must each have equal population with other districts for the same office, to the extent practicable. Districts must be geographically contiguous to the extent practicable. District boundaries must respect communities of interest to the extent practicable. District lines must use visible geographic features, city and county boundaries, and undivided census tracts to the extent practicable. Districts must be geographically compact to the extent practicable. To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the aforementioned goals. BACKGROUND Other States According to the National Conference of State Legislatures (NCSL), since the landmark Supreme Court decisions of the 1960s that established the one-person, one-vote principle, a number of states have shifted redistricting of state legislative district SCA 3 (LOWENTHAL) Page 5 lines from the Legislature to a board or commission. There are 12 states that give first and final authority for legislative redistricting to a group other than the Legislature. Alaska, Idaho and Arizona were the most recent states to join this group, using a commission for the first time in the 2000 round of redistricting. There are pros and cons to removing the redistricting process from the traditional legislative process and the track record of success by commissions is inconsistent in terms of having plans overturned by courts. Some people often mistakenly assume commissions will be less partisan than legislatures when conducting redistricting, but whether that actually occurs depends largely on the design of the board or commission. Critics of the current redistricting process argue congressional and legislative elections aren't competitive largely due to the process of adopting new districts. Arizona voters approved a state constitutional amendment in the late 1990s, moving redistricting from the Legislature to the five-member Arizona Independent Redistricting Commission that must have at least one member who is not from the two major political parties and must draw districts using a specific list of criteria, including making the districts competitive if at all possible. In 2004, an Arizona state Superior Court overturned the plans produced by the Arizona Independent Redistricting Commission for failing to meet the competitiveness criteria, in addition to other violations of the state Constitution. The commissions vary greatly from state to state in terms of their make-up. Most of them include appointments made by legislative leaders. Recent Redistricting Initiatives Proposition 119, which failed passage in 1990 by a 36% to 64% vote, would have created a 12-person Independent Citizens Redistricting Commission appointed by a panel of three retired state appellate justices from a list of voters nominated by nonprofit, nonpartisan organizations. The Commission was to adjust boundaries of California Senate, Assembly, congressional, and Board of Equalization districts by reviewing submitted plans and adopting a plan or amending a plan which complied with specified standards including a 1% population variance and the "nesting" of Senate and Assembly districts. SCA 3 (LOWENTHAL) Page 6 Two similar measures failed passage in the early 1980s. Proposition 14, failed passage in 1982 by a 45.5% to 55.5% vote and Proposition 39 failed passage in 1984 on a 44.8% to 55.2% vote. Proposition 118, which also failed passage in 1990 on a 33% to 67% vote, would have enacted new redistricting criteria and provided that all Senate seats stand for election during the same years as opposed to the current staggered schedule. Proposition 118 did not create a redistricting commission but left that responsibility with the Legislature. Proposition 77, another initiative intended to create a redistricting panel, failed passage by a 59.8% to 40.2% vote on the November 8, 2005 Statewide Special Election ballot. The initiative would have required a three-member panel of retired judges, selected by legislative leaders, to adopt a new redistricting plan for California's Senate, Assembly, congressional and Board of Equalization districts immediately upon passage and again after each federal decennial census. The panel would have been required to consider legislative and public proposals and comments and hold public hearings. The redistricting plan would have become effective immediately when adopted by the panel and then automatically submitted to the voters for approval. If voters subsequently rejected the plan, the process would repeat itself. The criteria the panel would have followed included the following: Population equality. "Nesting" of Assembly, Senate and Board of Equalization districts. Respect for city and county borders. Compactness. A prohibition on splitting of census blocks except when constitutionally required. No consideration of potential effects on incumbents or political parties. No data regarding the residence of an incumbent or other candidate or the party affiliation or voting history of electors may be used in the preparation of SCA 3 (LOWENTHAL) Page 7 plans, except as required by federal law. The proponent of Proposition 77 is sponsoring yet another redistricting commission initiative that is currently eligible for circulation. This measure would create an 11-member commission selected randomly from voter rolls by the Secretary of State. Communities of Interest The term "community of interest" is not defined by statute but is generally considered a group of persons united by shared characteristics, interests, values, history, culture, ethnicity, background, economic ties, etc., that may or may not coincide with a specific governmental boundary. For example, a river may form a boundary between two cities or counties, but the entire river valley may comprise a recognized community of interest. Census Tracts According to the United States Census Bureau, census tracts are small, relatively permanent statistical subdivisions of a county. Census tracts usually have between 2,500 and 8,000 persons and, when first delineated, are designed to be homogeneous with respect to population characteristics, economic status, and living conditions. Census tracts do not cross county boundaries. The spatial size of census tracts varies widely depending on the density of settlement. Census tract boundaries are delineated with the intention of being maintained over a long time so that statistical comparisons can be made from census to census. However, physical changes in street patterns caused by highway construction, new development, etc., may require occasional revisions; census tracts occasionally are split due to large population growth, or combined as a result of substantial population decline. COMMENTS SCA 3 (LOWENTHAL) Page 8 1.Is Five Enough ? Under this measure, the IRC would be made up of five people selected from a pool of 25 nominees (ten from each of the two largest political parties) established by a panel of 10 retired Court of Appeal judges. The four legislative leaders would select one person apiece and the four people chosen would select the fifth member of the panel. No more than two members of the IRC can be from the same political party and or county. What's not clear is whether a five-member IRC is most appropriate or whether a larger IRC would be more representative of California's voters. Some of the parties who have expressed an interest in this measure have raised the question of whether an 11-member IRC would be more appropriate. The author and committee may wish to consider what the appropriate size of the IRC should be. 2.Is Nesting for the Birds ? This measure requires that each Senate district be divided into two Assembly districts, otherwise known as "nesting." While nesting provides some administrative convenience, it may also serve as an artificial barrier to creating districts that better comply with other established criteria such as compliance with the federal Voting Rights Act, compactness, and respect for communities of interest. The author and committee may wish to consider whether the nesting of Assembly districts should be required. 3.All in the Family . This measure provides that persons with a financial or family relationship with specified officeholders are not eligible to serve as members of the IRC. The author and committee may wish to consider clarifying the definition of "financial or family relationship" for the purposes of this prohibition. 4.First and Goal . This measure sets the following as the first two prioritized goals when establishing districts: (1) compliance with the United States Constitution and the federal Voting Rights Act of 1965 (VRA), and (2) equal population with other districts for the same office. The equal population goal however, is a direct result of numerous constitutionally-based federal court cases. Furthermore, while compliance with the VRA must be required, it is obviously subordinate to the Constitution. The author and committee may wish to consider amending this bill to combine population equality with constitutional compliance and setting VRA compliance as the second prioritized goal. SCA 3 (LOWENTHAL) Page 9 5.What Is "Competitive" ? As the final prioritized goal for establishing districts, this measure provides that, to the extent practicable, competitive districts should be favored where to do so would create "no significant detriment" to the aforementioned goals. The author and committee may wish to consider amending this measure to clarify the definitions of "competitive" and "no significant detriment," or perhaps consider removing this goal altogether. This provision was not in the version of SCA 3 approved by this committee last year and since it may conflict with the other criteria delineated in this section - and since what is "competitive" or a "significant detriment" are in the eye of the beholder - the author and committee may wish to consider removing this goal. 6.Starting Out In The Dark . The measure precludes the IRC from using party registration and voting history in the initial phase of the mapping process, however it allows the information to be used to test the maps for compliance with other provisions of SCA 3. The VRA requires the use of party registration and voting history data when crafting redistricting maps, so it's not clear what benefit is achieved by preventing this information from being used early in the process. Any proposed maps will certainly be changed as they go through the public hearing process, but by excluding the use of this data early in the process, this provision virtually ensures that the first set of maps will be legally deficient. 7.Can I Have Your Number ? Existing law requires districts of each type to be numbered consecutively commencing at the northern boundary of the State and ending at the southern boundary. This measure, however, does not address how districts should be numbered, though the version of SCA 3 approved by this committee last year did included language to address this issue. The author and committee may wish to consider amending this measure to clarify how districts of a given type shall be numbered. 8.Related Legislation . The redistricting provisions of this Constitutional Revision are conceptually similar to ACA 8 (Maze) which is pending referral to Assembly policy committee, ACA 3x (McCarthy) which is pending in the Assembly Committee on District Representation, and ACA 5x (Canciamilla) which is also pending referral to Assembly policy committee. SCA 3 (LOWENTHAL) Page 10 PRIOR ACTION Senate ER&CA Committee 4-1 (This measure was pending on the Senate Appropriations Committee suspense file when it was substantially amended and subsequently referred back to this committee for further consideration.) POSITIONS Sponsor: Author Support: None received Oppose: None received SCA 3 (LOWENTHAL) Page 11