Act in haste, Repent at leisure.
Article XXI is the only provision of the California Constitution that addresses redistricting, and it clearly allows only one redistricting per decade. That has been in the California Constitution for over 100 years. It also has a number of substantive requirements that the recent Democrat initiative does not meet.
Yet despite this clear language, the Legislature and the Governor, when they enacted the redistricting scam this last month, did not suspend Art. XXI. ACA 8, the constitutional amendment that will be on the ballot, states “notwithstanding any other provision of this Constitution…” or state law, their maps take effect. They suspended every other provision of the Constitution by their amendment, but they did not suspend Art. XXI, the only provision of the Constitution that addresses redistricting. If I had been their lawyer, I would have written “notwithstanding any section of this article or provision of this Constitution to the contrary…” to make it clear that Art. XXI was suspended. They didn’t, and they left a hole in their amendment a court could drive a truck through. If the California Supreme Court follows its precedent, it will enjoin this legislative initiative for violating Art. XXI, just like it enjoined the Republican sponsored citizen redistricting initiative in 1983, because, based on the language of ACA 8, Art. XXI would still be in effect, even if the voters approve the initiative in November.
Another big problem. The urgency language in AB 604 and SB 280 rely on language that says the “emergency” relied upon to support the urgency is to provide “equal protection” to Californians. Anyone who thinks these maps provide equal protection to all Californians is suffering from the same delusions that drove this whole proposal. The other challenge is that using the redistricting in Texas as the basis of the claim for violation of “equal protection” has no legal basis at all. The 14th amendment, which is the legal basis for claims of the violation of equal protection, provides only that no state can violate the rights of its citizens, it cannot complain of what another state legislature of another does to its citizens of that state. The California Legislature can’t complain about what Texas did to its citizens. The whole legal basis for the urgency collapses because it relies on a faulty legal premise.
Finally, if I were in the US Department of Justice, I would file a lawsuit against Texas for violation of federal laws preventing race based redistricting map. Then I would settle the case with court order adopting the maps just approved by Texas. Since ACA 8 says the new districts only take effect if Texas adopts its new districts without a court order, the Democrats’ whole initiative falls apart, and is ineffective. Oops.
The only way this initiative survives and is allowed to go to a vote is if the members of the California Supreme Court, a majority of which were appointed by Democrat Governors, allow their political preferences to override their legal duty. Their recent ruling, not taking up the emergency petition of Republican legislators to stop the Legislature from adopting the bills, had some legal basis. Allowing this election to go forward would be ignoring 100 years of legal precedent.
Act in haste, repent at leisure. California’s dictator, Governor Gavin Newsom, and his minions in the Legislature, wanted to score political points by showing they want to stand up to Trump and Texas. In doing so, they acted in haste. They suppressed debate in the Legislature, rammed through maps that any court would rule were a “purely political” gerrymander, and violated the state’s Constitution, in both the substance of the maps (which in no way satisfy the requirements of section 2 of Art. XXI) and which specifically fails to suspend Section 1 of Art. XXI. I don’t think they will repent, and they will try to force the citizens of this state to pay $280 million so they can indulge their political ambitions. Maybe the citizens will repent the fact they willingly handed power to these authoritarians.