September 26, 2005 - Informational Hearing: Proposition 77

Joint Hearing of Senate Elections, Reapportionment and Constitutional Amendments Committee and Assembly Elections and Redistricting


Proposition 77


September 26, 2005
Junipero State Building
320 West Fourth Street
Los Angeles, California



SENATOR DEBRA BOWEN:  Good morning everyone. Thank you for joining us. My name is Senator Debra Bowen. I am the chair of the Senate Elections, Reapportionment, and Constitutional Amendments Committee. Joining me today are Kevin McCarthy who is Minority Leader in the Assembly, to my right, Tom Umberg, the chair of the Assembly Elections Committee; Johan Klehs, Merv Dymally, and Mark Leno, all Assemblymembers from various other parts of the state. And I understand that Senator Jim Battin will be joining us at any moment.

Elections Code 9034 requires that the relevant policy committee of the Legislature hold joint informational hearings on all initiatives that qualify for the ballot. So we are here today to discuss Proposition 77. These hearings are informational only, and for better or for worse, no one at this podium has any ability to alter Prop. 77 or to affect its appearance on the ballot.

I’m certainly not going to defend the current redistricting system. I arrived in the Legislature in 1992 after the special masters redistricting following the 1990 census. I voted against the Senate maps in 2000, and earlier this year I supported Senator Lowenthal’s SCA 3 that would have created a reapportionment commission and taken the reapportionment out of the hands of the Legislature. But, I have serious concerns with many aspects of Proposition 77 and especially the mid-districting process it envisions, the failure to recognize communities of interest, and the possibility of multiple redistrictings that could disenfranchise thousands of voters for much of a decade.

I tend to run fairly interactive hearings, so if members and I think Senator, Assemblyman Umberg—sorry, I’m promoting you a little early, also would like to do that, at the end of the schedule, the agenda here, we will open the meeting for comments from the public. If you want to testify during the public testimony portion of the hearing, I would appreciate it if you would sign in with the sergeants ahead of time and provide us with your name and the organization you represent. They’re in the back. This just helps us run an orderly meeting. It’s not a requirement for public participation.

So with that, let me turn it to Assemblyman Umberg, and then ask if any of my other colleagues have opening comments.

ASSEMBLYMEMBER TOM UMBERG: Well, thank you, Senator Bowen. I’m particularly pleased to see a large number of legislators attend this informational hearing of a very important issue. And thank you for your leadership with respect to elections and redistricting, Senator Bowen. As you mentioned, we are required to hold this informational hearing. With respect to any initiatives qualified for the ballot, this is a rather unique initiative and has dramatic impact upon the State of California and how we do business. I agree with you that the issue is not whether or not we can do a, not whether we can do a better job drawing the Congressional and Legislative boundary lines, it’s whether this initiative, Proposition 77, is the right method of going about it.

As I understand it, not only will this be the first time in the State of California’s history that we’ll engage in mid-decade redistricting, but should this initiative pass, this would be the first time that redistricting would be voluntarily done so late after a decennial census. One of the other issues that I think bears exploration is not just the fact that 3.4 million or so Californians who have arrived in the state since the last census will be in essence, left out of the process, but also is whether a group of three retired judges is the best way to, or the best decision makers with respect to who should draw the lines, whether that reflects California’s diversity and that’s the best group to designate the lines in which we’ll run.

And also another issue is the issue of whether if this should pass and the lines are redrawn and we have another election to, in essence, ratify the lines. If those lines are rejected, what the impact is on the State of California in holding sort of sequential elections to determine whether or not we have the appropriate boundaries for congressional and legislative districts.

We’re blessed to have a very, very, very dedicated and talented group of panel members testify here today, and look forward to hearing their testimony. Thank you, Senator.

SENATOR BOWEN: Thank you. Mr. McCarthy.

ASSEMBLYMEMBER KEVIN McCARTHY: Well, thank you for letting me join you today. Redistricting to me is the essence of what this state should actually be working on. Representation and fair representation is the most important thing we can do after the last election, we all know out of 153 races, none of them being competitive and none of them changing hands. I mean, the sad part if you actually analyze the last Assembly races, and you took first place and second place. In the presidential race it was a 10 point difference and people thought that was a landslide in California. In the State Assembly, it is more than 34 percent difference on average between first and second place. You’re taking it away.

I know there’s a lot of debate whether legislators should draw their own lines. I say that’s inherently wrong. I think taking a panel of judges is probably one of the best methods. We’ve done it before in the 70s. We’ve done it before in the 90s. And we had competitive seats. We had the legislature changing hands from within my own party being in the minority, going to the majority, and going to the lowest it’s ever been. There’s no guarantee for either party, but who wins in this is the people. And when analyzing Prop. 77 I’ll be interested to hear today, in the end, the people who have the power are the people themselves that get to have the choice, which I think is what government should be made up of. So I’m very interested in listening today and I think we’ve got a great opportunity if we all agree there’s a problem.

You know, this weekend at my son’s football game, unfortunately he got injured and got taken away in an ambulance. He got his neck hurt. And when we were going to the emergency, I didn’t sit there and say, yeah he’s got a bad problem, but I should wait until the next doctor’s appointment. We took him right then. And we have the problem and we’ve got a little solution to it, but I mean, that’s what I think. We’ve got a bad problem in California and we shouldn’t wait until the next doctor’s appointment. We should take care of it now.

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

SENATOR JIM BATTIN:  Thank you. Nice to be here. I’m glad I don’t live here. I want to thank you for having the hearing. I get a lot of questions about Prop. 77 and I will just keep my comment here brief, and as we go through I’m sure I’ll have others, but what I tell everyone is that any elected official that tells you what their opinion about Proposition 77 is, you should fully understand that it is coming through the lens of their own personal self interest. It is amazing to me to see and hear the wide variety of opinions that we have, and I always think then about the person that’s telling me that, okay well, this is the district that he’s in. He’s up for reelection then. This is who lives by him or her. Ad this is why they have all the opinion that they do.

It is imperative that the Legislature have informational hearings on propositions. It’s very important that we do that. It’s a tradition that we do every couple of years. But, we should not lose sight of the fact that the people that were making, up here making comments today are going to be alcoholic beverages affected by it with actually, maybe the exception of a couple of us, the chair and I won’t be. But, everybody else and kind of in general will be affected by it and we should understand our comments given for what they are.

SENATOR BOWEN: Alright, with that, let’s turn to our first panel. And we’ll begin with Tim Storey, Karin MacDonald, and J. Morgan Kousser. They are here so let me ask you to—is there, do you have an order among yourselves?

MR. TIM STOREY: I think I’ll go first.

SENATOR BOWEN: Tim goes first.

MR. STOREY: We’ll just go off the list, I guess. Yeah, that’s fine with me.

SENATOR BOWEN: Yes, and if you have written statements, the—

MR. STOREY: I don’t have anything to hand out. Yeah, but I’ll gladly email it after the fact. So, and I hope your son’s okay, by the way.

Thank you, good morning. My name is Tim Storey and I do appreciate the invitation to appear and it is an honor for me to be here. I am a senior fellow with the National Conference of State Legislatures based in Denver, Colorado, and for the past 15 years I have been the staff director for NCSL’s Redistricting and Elections Committee and our Redistricting Task Force, which is the predecessor of that committee.

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

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

So, there are 12 states that employ some form of a board or commission to conduct redistricting. And there are six—for state legislative lines. And there are six states that employ some form of board or commission to adopt the congressional plans. The make up and approach of these commissions vary considerably. Some of them are more bipartisan in their design than others, and some of them are quite partisan as you’ll see as I describe a few of them. In many of these boards and commissions, the legislative leaders make the appointments to the commission with relatively few limits on who they can appoint. Some of them do specify that members who serve on the commission are prohibited from serving in public office for some period after the passage of the plan. But, in those 12 states, generally the legislative leaders and the governor in a few of those states have fairly unlimited ability, or unconstrained ability to appoint whoever they want to appoint to the commission.

Only two states use some sort of a pool that’s predetermined that the appointing authority has to choose from. And that sort of is as I understand the way the California proposition is designed, and those states are Arizona and Missouri. But, in the rest of the cases they can choose from any one in the state.

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

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

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

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

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

And finally, I would like to add there is sort of a fourth way that redistricting gets done and that’s through the state and federal courts. In 2000, about 30 percent of all the plans were either corrected or drawn by a state or federal court, because either the commission or the Legislature failed to adopt a plan. Commission plans are successfully challenged in court at the same rate as legislatively drawn plans.

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

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

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

It would be the only commission where unanimous approval is required to enact the plan. And I do sort of--it led me to wonder as well what happens if the commission fails to adopt the plan. I wasn’t sure if that was in the proposition or not. I assume like other states where there’s a vacuum or a failure then it would go to court. And you know, you’d have a number of lawsuits filed in various courts. It would be the first redistricting commission to draw up plans in the mid-decade for the next year’s elections, a point that you made, Assemblyman.

Certainly in the modern redistricting era there are some cases in the 1800s where states did do redistricting multiple times during the decade. And certainly as an aside, let me just say there are couple of things about redrawing lines a second time in the middle of the decade. Since 2000, a few states have done this. Texas, Colorado, Georgia, and New Hampshire have come back and revisited redistricting voluntarily after holding elections in districts that have been drawn using 2000 census data. This practice was essentially unheard of since the reapportionment revolution of the 1960s. And in the cases of Texas and Colorado, the Legislature’s past plans to replace ones that had been drawn by the court, so the Legislature was coming back to replace a court drawn plan. I think that’s something sometimes gets lost in that whole discussion. And subsequently, of course, Colorado State Supreme Court has overturned the mid-decade redistricting in my home state of Colorado. In Texas, there is still litigation pending against the re-redistricting. And in Georgia the plan is still before the Department of Justice pending preclearance under Section 5 of the Voting Rights Act, and I think it’s a safe bet there’ll be lawsuits filed there, as well.

So, that’s my prepared remarks. I really do appreciate the invitation. Again, it’s an honor to be here and I’d be happy to take any questions.

SENATOR BOWEN: Thanks for giving us the big picture.

ASSEMBLYMEMBER UMBERG: Just a couple questions. So as I understand your testimony, this initiative if passed would make California unique in that we would have the smallest group of individuals making those decisions, correct?



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


MR. STOREY: So, yeah, it’d be unique in that respect.

ASSEMBLYMEMBER UMBERG: Alright. And it would be unique in the respect of using data that’s as dated as it would six-year-old data, correct?

MR. STOREY: Well, yeah. I mean, in the modern redistricting era, it gets a little, it’s less convincing when you get into the 1800s about when redistricting was done. But, yeah, I’d say in the last 100 years that would be true.

ASSEMBLYMEMBER UMBERG: And the only state to use retired judges, is that right?

MR. STOREY: Yes, that’s correct.

ASSEMBLYMEMBER UMBERG: And have other states considered using retired judges and rejected that?

MR. STOREY: I don’t know.

ASSEMBLYMEMBER UMBERG: Okay. And also, well, I’ll leave it at that. Thank you.

MR. STOREY: Thank you.

SENATOR BOWEN: Anyone else?  Mr. McCarthy.

ASSEMBLYMEMBER KEVIN McCARTHY: If we did it mid-decade, the current lines are dealing with the census used the last sentence, the most current information, right?

MR. STOREY: Well, yeah. The current redistricting plan was drawn using the 2000 census data, yes.

ASSEMBLYMEMBER McCARTHY: So this ____ plan would use that same, the most current census, would it not?

MR. STOREY: Unless the state made some attempt to revise it or update it, yeah.

ASSEMBLYMEMBER McCARTHY: So, it’s the same data that is currently used.

MR. STOREY: The same data that was used to draw the original plan, yes.

ASSEMBLYMEMBER McCARTHY: So, if there are current districts that are overpopulated, would there not be currently?  Are there any current districts overpopulated as we speak today?

MR. STOREY: You know, that’s the beauty of my position here is that I get to defer that to the California data expert—

ASSEMBLYMEMBER McCARTHY: Let me ask you one more question.

MR. STOREY: -- because I don’t know.

ASSEMBLYMEMBER McCARTHY: Mr. Umberg said that we would be unique in a couple different manners. Would we not be unique that would this be the only state that allows the people the final decision?

MR. STOREY: It would be the only state where the voters would essentially vote on the plan, yes.

ASSEMBLYMEMBER McCARTHY: And then the comparison with Arkansas where three elected officials had all the power that we would have three judges chosen as random in a selection, correct?

MR. STOREY: Yeah, if I understand the initiative or the proposal before the voters, the three commissioners would be retired judges, yes.

ASSEMBLYMEMBER McCARTHY: And they could, they’d have to sign not to run for office for the next five years.

MR. STOREY: As, yeah, as it’s written in the proposal, yeah, the proposition.



SENATOR JIM BATTIN: I just wanted to kind of follow up on the point that Assemblyman McCarthy was making which was on the data—if the data used on the next redistricting as mandated by the Prop. 77, it’s the same data that we used for the current redistricting, is that correct?  So the assumption would be if the data was good then, it should be good now?  Or conversely, if the data is flawed now, does that mean that our redistricting that we have is flawed today?

MS. KARIN MacDONALD: Would you like me to answer that before my testimony?

SENATOR BATTIN: Why don’t you answer it as part of your testimony.


ASSEMBLYMEMBER KLEHS: Can someone tell me what the turnover has been nationally in congressional elections, let’s say the last reapportionment was 2001, so let’s say from the ’98 cycle to the 2004 cycle, or from the 1994 cycle to the 2004 cycle, the theory being that if legislatures draw the lines of these members, there’s an inherent conflict. There’s never any turnover. What’s the turnover nationally in the Congress?

MR. STOREY: For Congress, I don’t know. I’m sure someone knows. I  mean, I don’t. And we’re all looking at the political scientist here. He’ll know.

ASSEMBLYMEMBER KLEHS: It certainly bears ____ this issue.

MR. STOREY: In legislatures—

ASSEMBLYMEMBER KLEHS: The reason I’m asking the question is therefore you’re kind of looking at every state blindly whether you’ve got a commission, the legislature’s doing it, or somebody else is doing it, so as there is this partisan turnover meaning one party loses, one party wins a seat, I’m just kind of curious what that effect is with all these different plans.

MR. STOREY: Well, I can answer for legislative plans across the country. I mean, the average turnover in state legislatures is roughly 20percent, a little bit higher than that, 22, 23 percent. We have looked at sort of the differential between turnover in states with commission system redistricting, versus turnover in the states with traditional legislative redistricting, and it’s essentially the same.

ASSEMBLYMEMBER KLEHS: You mean for Congressional seats or for legislative seats?

MR. STOREY: For legislative seats.

ASSEMBLYMEMBER KLEHS: I’m looking for Congressional seats.

MR. STOREY: For Congressional, I don’t know.

ASSEMBLYMEMBER KLEHS: Is the theory in California is that we’re all in safe seats the theory is that you have to reapportion to eliminate the safety in seats, so by looking at what has happened in Congress nationally where you have all states having various forms of reapportionment, we want to see what really happened in Congress, too. Was there very much turnover among partisan power over the years even with the, you know, overlapping a census _____?

MS. MacDONALD: If I may, I’m not an expert on this, but I do know being a political scientist that in general Congressional races have become less competitive. And in fact, we’re seeing this all over the nation that there’s just, there are just less competitive races even with Senate races, in fact.


MS. MacDONALD: So there is not a lot of turnover.

ASSEMBLYMEMBER KLEHS: So perhaps it could be other factors—

MS. MacDONALD: Absolutely.

ASSEMBLYMEMBER KLEHS: --that affect the fact that there is not a turnover across parties in Congress other than perhaps reapportionment.

MS. MacDONALD: Correct. And I could probably email you some citations on people that have actually looked at this systematically.

SENATOR BATTIN: You actually hit on a very important point about redistricting is the contributing factor in elections, no one doubts that. It’s a significant contributing factor, but of course your point is there are other factors that drive elections, incumbent advantages, and that. So, yeah, I think the research supports that. And I'm sure the data exists about the turnover in congress. It’s just we don’t, we don’t have ____.

ASSEMBLYMEMBER McCARTHY: Can I just ask something to clarify here?  You said that state legislatively the turnover is about 22 percent did you say?


ASSEMBLYMEMBER McCARTHY: Did you mean turnover, it is partisan turnover or people?

MR. STOREY: No, people turnover.

ASSEMBLYMEMBER McCARTHY: So in California with term limits the way we have it, the Assembly turns over about 30 percent a year.

MR. STOREY: You’d be in high—

ASSEMBLYMEMBER McCARTHY: That would be part of your—so you’re not talking about the competitive change of districts?

MR. STOREY: Not change, not talking about party ____--

ASSEMBLYMEMBER McCARTHY: Just talking about new people.

MR. STOREY: --the turnover of new legislators and—

ASSEMBLYMEMBER McCARTHY: But, you were answering it differently.

MS. MacDONALD: I was answering it for Congressional districts.

ASSEMBLYMEMBER McCARTHY: By were you answering it by new people or by change of party?

MS. MacDONALD: Party, change of party.

ASSEMBLYMEMBER McCARTHY: So, you’re answering the same question with different—

MS. MacDONALD: Correct.


MR. STOREY: That’s a good point.

ASSEMBLYMEMBER McCARTHY: If I may follow up one thing. If you take the last election during the ____ election where we came on with redistricting, you just go back to your home state. Did the parties not change the power in Colorado?

MR. STOREY: In the state legislature?


MR. STOREY: Yeah, the Democrats took control of the legislature for the first time in 40 years, actually.

ASSEMBLYMEMBER McCARTHY: So how many seats were that?

MR. STOREY: It was a handful of seats. The Senate was only a one seat difference, and the Democrats picked up two.

ASSEMBLYMEMBER McCARTHY: And if I recall correctly on the map, wasn’t that a red state?  Didn’t the state, Colorado, vote for Bush?


ASSEMBLYMEMBER McCARTHY: So the state voted for Bush, and you had redistricting drawn by the courts where the power shifted where the incumbents lost where the minority party won and became the majority. Is that correct?

MR. STOREY: No, actually, in the legislative plan was drawn by a commission. The Congress—

ASSEMBLYMEMBER McCARTHY: But, were not drawn by elected officials, the commission, correct?

MR. STOREY: Yeah, yeah. The legislative plan was drawn by a commission and it did, and the Democrats did assume the majority in the State Senate, and so they had majority in the legislature for the first time in 40 years.

ASSEMBLYMEMBER McCARTHY: And wouldn’t that be true in Washington state, democrats took more seats and majority?  What about in, I believe it was Iowa or Wyoming, was it the minority party?  How many states did the minority party overtake during that presidential year after the census, redistricting?

MR. STOREY: Oh, boy. How many—


MR. STOREY: Twelve state legislative chambers switched party control in the 2004 election.

ASSEMBLYMEMBER McCARTHY: And they were all after redistricting would they not be because we do redistricting every 10 years?

MR. STOREY: Well, no, because it was the 2002 elections would be the election cycle right after redistricting.

ASSEMBLYMEMBER McCARTHY: But, this is one _____ cycle after that. This is 2004.

MR. STOREY: Yeah, and there were, I think, 11 legislative chambers that switched hands after, in 2002, and then 12 legislative chambers switched hands—

ASSEMBLYMEMBER McCARTHY: And that’s party changes.

MR. STOREY: Right.

ASSEMBLYMEMBER McCARTHY: Now, in California, how many seats changed parties out of the 153 races?

MR. STOREY: I don’t know off the top of my head.



SENATOR BOWEN: Let me welcome Senator Romero and Senator Dunn. He’s down there at the far, my far right, which is not usually where he is. And we’ll go on to Ms. MacDonald, because I think your testimony is going to help us shed a lot of light on the practicalities of some of these matters.

MS. MacDONALD: Good morning. Karin MacDonald. I am the director of the statewide data base which is a redistricting data base for the state located at U.C. Berkeley. And I have also done local redistrictings as a consultant and worked with commissions in those particular areas.

I am here to talk about data and logistics in general and some of the data issues we’ve already touched on. Let me start with just outlining redistricting in general so we all get on the same page. Redistricting is basically governed by two sets of criteria, tier one and tier two criteria we refer to them as sometimes. Tier one criteria are constitutional criteria that have to be met. They’re equal population which is basically the reason for why we do redistricting in the first place. And secondly, the Voting Rights Act—Voting Rights Act in California we’re looking at three sections in general, Section 2, Section 5, and Section 203 for the purpose of this talk. We’re going to be talking about Section 5, because we have four counties in California that are covered, it’s called covered by Section 5, and those are Kings, Merced, Yuba, and Monterey.

Tier two criteria are also called traditional redistricting criteria and those are _____ county boundaries, compactness, ____, and communities of interest, things of that nature. For redistricting generally speaking, we use census data, or everybody uses census data, and census data that are released after the census is collected. So usually the data for redistricting gets released first. As you know, the census releases a lot of different data sets in between census collection. And the first data set is called the PO94171. It gives us block level data for the population, so it gives us total population, gives us some racial and ethnicity indicators, and it tells us how many people we have that are of voting age. And city blocks basically are roughly comparable to the unit of analysis on which the census releases these data. And I’m kind of pushing that point, because in order to draw districts that are equal in population, one needs a very small unit of analysis to actually use as building blocks.

Estimates in general cannot be used. They’re generally not good. ____ employment _____ statisticians _____ say to look at estimates of census data, because they’re all generally very bad. There are no systematic data available between census collections. And certainly whatever data are available are not available on the block level.

One might consider that courts have held that even adjusted data that the census releases cannot be used for redistricting and those adjusted data are actually “fresh data” and very good algorithms are being used to produce these data. So, they’re usually assumed to be much better than the estimates, so I think we can all agree that estimated data are out for redistricting, especially for mid-decade redistricting.

So, since redistricting is about equalizing the population under one person, one vote, we’re looking at extreme accuracy. And especially Congressional districts are held to the strict scrutiny standards which means that most districts have to be very equal in population. And in the last round of redistricting, not only the Congressional districts, but also the Legislative districts in the State of California were basically didn’t deviate a whole lot from the ideal population. We had I think a maximum deviation on any district of two or three people. So that in fact is much smaller than what Proposition 77 would have us do.

In terms of what, you know, if we’re looking at redistricting right now, we’re running into one big problem, and that is really that we don’t have accurate data available and we can talk about this in more detail, I’m sure, in a second. In, just as an example, in 2000, or in 2001, our Assembly districts had roughly 423,396 people in them. And if you look at how many people are in California right now and you divide that population by 80, we would have about 451,800 people. So that’s ____ 20, 27, 28,000 people more that we would have to add to each Assembly district and then twice that for each Senate district, right?  And then for Congressional districts we would have to add roughly, you know, 40,000 people.

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

I was asked to kind of go over logistics a little bit which is, you know, what are you doing in redistricting?  What is involved with drawing a plan?  And I think generally speaking the process that a commission would go through is not that different from what the Legislature went through or would have to go through if it would stay with the Legislature. One needs to acquire data somehow. And then, you know, usually drawing begins at that point. Data that are needed to satisfy the criteria are census data for the equal population criterion, and then political data for VRA, Voting Rights Act compliance, and public input, I would say, for communities of interest. But, some people may also tell you that you could use political data for communities of interest, you know, to meet the community of interest requirement, or actually, other census data such as, you know, SF3 data, maybe income variables and things like that. In, you know, for Prop. 77, we would pretty much look for the same data, and again, the one problem is that the census data at this point are quite outdated, because they’re five years old.

One would then once the data are acquired, the commission obviously has to be seated. And then one would have to hire experts for a 77. I mean, the Legislature also oftentimes hires experts or, you know, decides to do redistricting in house and where they have experts. Computers, computer programs have to be ordered. One has to set up a website I would guess. That’s pretty much a standard, a standard thing to do these days. And then the commission would have to figure out what the guidelines for public submissions are. And that’s no trivial task, because I would say that if one really wants public input in a redistricting process, a commission or legislature should accept anything that the public submits. That may be a half a district. That may be just, you know, a submission that says here’s my neighborhood. Make sure you don’t split it. Here are the boundaries. It may be you know, things of that nature, because there are not that many people in California that have actually California wide, you know, interest. I mean, when it comes to districts people are interested in their neighborhoods and, you know, their particular locality. They’re interested in staying together with the people that they, you know, that they have an electoral interest with, or that they’re, you know, doing any kind of activism with.

So, you know, the submission criteria is a pretty big one, so you’d have to set that up and then figure out how you will receive these submissions. Will it just be by, you know, by email, you’re going to fax them in. I mean, these things sound trivial, but they’re not, because you need to also evaluate these things. So if they’re not all coming in the same format, for example, you have one map that, you know, somebody’s, you know, mother drew, and somebody else has a geographic information system and they’re sending you maps that way. There’s a totally different process for evaluating the input and actually incorporating the input.

Then, you know, hearings have to be held. And in the last redistricting I believe that the Assembly held five hearings. And I may be wrong on this. Proposition 77 requires three hearings, two before the plan is finished, and then one after. That’s, I think even five hearings is not a whole lot for a state as big as California, and three, of course, is even less, so. Then, you know, the commission would have to go through the rest of the proscribed process and once the districts are finalized, you would have to go through _____ which was what Tim was just talking about. And ____ if anybody has ever been in that process, it’s a tedious process of just describing basically which way the district lines go. That’s the process where all your staffers have to take a vacation all of a sudden.

And then you need preclearance, and that’s also, that’s actually a somewhat time consuming process. Preclearance comes in because we are covered by the voting rights act. While there are just four counties covered in California, when you have a statewide plan, basically the entire statewide plan has to be precleared. So that means that you have to submit the lines to the Department of Justice and the Voting Rights Division will take a look at it and make sure that these lines do not discriminate against protected minority groups or make them worse off. That’s call retrogression. Once that process is complete—

SENATOR BOWEN: Let me just stop you for one moment. I think probably a lot of people who are listening don’t know what preclearance is or how California got there. And I’m not sure who the best person ____ that’s what I thought. So, we’ll—is it okay to just take two minutes to sketch preclearance so that as you have this technical discussion about it, we understand what it is that we’re talking about?

MS. MacDONALD: Sure.

SENATOR BOWEN: Okay, thank you.

MR. MORGAN KOUSSER: I’ve just finished an 80-page paper on Section 5 and I’ll read it now. (LAUGHTER)  No—

ASSEMBLYMEMBER UMBERG: Mr. Kousser, if you could identify yourself.

MR. KOUSSER:  I’m Morgan Kousser. I am a professor of history and social science from Caltech, and I served as an expert witness in more than 20 federal voting rights cases, including the last two California redistrictings. One I served as an expert witness for congressional democrats, and the second I served as an expert witness critical of the democratic plan for MALDEF.

So the Section 5 was a section of the Voting Rights Act adopted in 1965 to ensure that any changes in jurisdiction, states, counties, cities, school districts, etcetera, which the Congress had reason to believe were likely to discriminate. And that’s defined by particular sets of formulas. They had to—before the election laws went into effect, they had to send them to the Justice Department where the Attorney General or his designates would make a decision as to whether the purpose or affect of the new law was discriminatory. So there, there are four counties covered in California as Karin said, and the voting section has 60 days to decide whether the particular law is discriminatory. And if it needs more information, it can get another 60 days. So this process can take a quite long time.

SENATOR BOWEN: Okay, thank you. I think it’s helpful for us to know. So you’re talking about just procedurally what it takes. You’ve just spoken to us about preclearance. And now Professor Kousser’s clarified that that preclearance requires a minimum of 60 days once the lines are submitted for preclearance and could take double that. So which I think leads me to wonder how we could—state law requires that districts be set by December 30th of 2005 for the 2006 election cycle. The special election in which the voters will decide on Prop. 77 is November 8. We’ll know, informally, we’ll probably know the results the next day, but they are not formally certified for another 30 days and we certainly had many elections where it took almost the full 30 days in the last election cycle. Even if we assume that we can start on November 10th, how do we get all of these things done in a way that complies with the federal Voting Rights Act, gives the public an opportunity to participate, and gets the lines drawn by December 30th so that candidates can be into campaign and people can know who they’re going to be electing in their new district.

MS. MacDONALD: I think it will be extremely, extremely difficult. And I wasn’t actually even talking about the time it would take to get it precleared, you know. Even just the process that I described would be just incredibly difficult. It would be incredibly difficult if not impossible to do all of this before December 30th, partially also because there’s Christmas in between and we all know what happens over Christmas and people just don’t go to hearings and many people don’t work. And you know, submitting essentially a plan to the DOJ for preclearance—

SENATOR BATTIN: I’m sorry, is it the people submitting plans you think is extremely difficult, or do you think it’s the federal government engagement in preclearance?

MS. MacDONALD: Both, I think both. After, you know, I’m a bit of an activist where I live and I will tell you everything shuts down around December, because you can’t get anybody to come to a hearing.

SENATOR BATTIN: If, if it’s, do you imagine that it would be alcoholic beverages impossible if California is the only state in the country that is engaged in this, the federal government is focused on this. There’s a mandate by the people of the State of California, do you think it is physically impossible for the federal government to do the preclearance in time under those conditions if it’s the only game in town, it’s the only thing going on and that there’s a lot of pressure to get it done because of the California voters?

MS. MacDONALD: Do you want to take that?

MR. KOUSSER: It may be the only reapportionment, but it’s not the only voting law. There are voting laws annexations, polling place changes, there are all sorts of things that come up all the time. But the Justice Department has over 30,000 submissions per year under Section 5 now, and this might be the biggest one. They might be able to finish it, but they probably have a great deal more to do.

SENATOR BOWEN: Well, I think we can actually assume for discussion’s sake for the purpose of Ms. MacDonald’s discussion, because she wasn’t really getting into this as a time frame. Now, I’m willing to make the assumption that the preclearance takes one day just for the sake of argument, even though I think, okay. I understand you think that’s ridiculous, but just for the sake of argument, if it took one day, how do you deal with selecting commissions, hiring experts, setting up a data base, drawing plans, holding public hearings, getting public input, and then getting this done by December 30th?  Just pretend we don’t have preclearance. Can you do it?

MS. MacDONALD: I couldn’t, no.

MR. STOREY: You couldn’t, you can’t submit the plan until it’s certified, so you’re exactly right about that. So, you can’t even send it to the DOJ until it gets certified. And then I would say that in certainly in the 1990’s round of redistricting, less so in the 2000 round of redistricting the Justice Department did tend to go right up to the end of the deadline of their allowed deadline under the Voting Rights Act which is 60 days plus, 60 if they ask for any piece of information. And often in the 1990’s round of redistricting they took the full 120 days plus the lag time between the two. Now in 2000, the department did turn around from redistricting plans quicker than that, and—

SENATOR BATTIN: And so certainly in this particular case it would be the only one in the country that they’d be working on with a lot of pressure behind it, because everybody knows there’s a clock ticking, so I mean if you’re going to make assumptions, then make assumptions with, you know, what the fact _____.

SENATOR BOWEN: I’m assuming one day. I don’t want to take this out of the equation. Even though it’s a ridiculous assumption, I think the other tasks and the mechanism for creating public involvement even without the preclearance are going to give us significant difficulty. And I’m speaking as someone who actually participated as a citizen in the 1990 redistricting. I spent time at a computer program looking at maps of Los Angeles County. An original map with drawn with district lines down Venice Boulevard which split the community of Venice, not a city, but a community of interest, into—I spent time testifying on that map. I spent time on the Assembly maps as did then Assemblyman George Nakano, or then city councilman, George Nakano, a map that split the Asian Pacific community in North Torrance from the rest of Torrance was how the map was drawn.

So that process, I guess I understand from the process and I think you’re absolutely right. These people aren’t interested in the whole big map ____. They want to know what’s going on in my neighborhood. And it takes ____ time. Senator Umberg, I’m sorry, Assemblyman Umberg.

ASSEMBLYMEMBER UMBERG: Thank you. I actually take Senator Battin’s point. I would assume that if Governor Schwarzenegger called President Bush and said we want this cleared instantaneously, that perhaps it would only take as long as email is required to go to Washington, D.C., and return back. But, again, assuming that it’s instantaneous, there are some other impediments. Let me as a quick question. As I understand the initiative is silent with respect to what data is actually used. We’re all assuming it uses the 2000 census data. Is that correct? 

MS. MacDONALD: I think that’s the only reasonable assumption you can make is that 2000 census data would be used if this initiative passed.

ASSEMBLYMEMBER UMBERG: Well, as I also understand it that census data is merely a snapshot, right?  I mean, immediately after the census is taken, people move, people are born, people die. So by the year 2006, that snapshot is fairly inaccurate. Is that correct?  Okay. And it would be more accurate actually to use estimates in 2006 than use the census data to create one person, one vote districts, is that right?

MS. MacDONALD: That depends on whom you ask, but I don’t know anybody who you would want as an expert witness who would tell you that estimates for California are actually better. And estimates are not available on a small unit of analysis, moreover. So we just do not, we just don’t have data right now, that we could possibly use.

ASSEMBLYMEMBER UMBERG: ‘Kay, well, the essential purpose of redistricting is to make sure that each person has equal representation in the Legislature and the Congress, as I understand it.

MS. MacDONALD: Correct.

ASSEMBLYMEMBER UMBERG: And so we try to do the best job we can by doing the redistricting immediately after the census, right?

MS. MacDONALD: Correct.

ASSEMBLYMEMBER UMBERG: So if you wait six years by definition the data is old and so you’re not going to have one person, one vote. Is that right?

MS. MacDONALD: Correct.

ASSEMBLYMEMBER UMBERG: Okay. Well, what would be the best way to remedy that assuming Proposition 77 passes, what would be the best way to remedy that situation so that you get as close as possible to one person, one vote? 

MS. MacDONALD: Short of correcting data for California just like a census would in a systematic, unbiased way?  I honestly can’t think of another way.

ASSEMBLYMEMBER UMBERG: The best remedy would be a new census.

MS. MacDONALD: Correct.

ASSEMBLYMEMBER UMBERG: A statewide census. Do you have any sense of how much that would cost? 

MS. MacDONALD: Well, I actually just divided the cost of the census nationally by, you know, the population of California and it came up to about $22 per person. So $22 times, you know, depending on where we’re at, 30, 35 or 36 million, that’s considerable. And it takes time.

ASSEMBLYMEMBER UMBERG: So if we wanted to do redistricting in a way that was both as equitable as is possible and consistent with Proposition 77 we would take another census irrespective of the cost.

MS. MacDONALD: I suppose we would have to.

ASSEMBLYMEMBER UMBERG: Alright. Okay, thank you.

SENATOR BOWEN: Alright, I have wanting to ask questions in this order: Mr. McCarthy, Ms. Romero, and Mr. Leno, and I cannot see on this flat podium if there are members who have questions, so you will have to pass notes. Mr. McCarthy.

ASSEMBLYMEMBER McCARTHY: Thank you very much. A couple different points if I may ask. If the argument is that if we go forward and we do redistricting and I believe the time table is in the initiative when individuals have to appoint the individuals to move forward. If I look at history in 1990, or if you look at the last four decades. In 1970 we did it by retired judges, correct?  In 1980 we did it by legislators. And if I recall correctly it wasn’t done until 1984 because of the referendum, so this would not be the only time that it would be a mid-decade redistricting. Nineteen ninety was done by judges. What was the time table that it took for the special masters. If I recall correctly, Pete Wilson was the governor. It was vetoed and it went to a special masters. Is my memory correct that it was less than 60 days if they drew the line?

MS. MacDONALD: They did it pretty quick, I know that, because the person who actually drew the lines is on our advisory board, so I talked to him at length. He also does not think you could do particular redistricting. They use census track.

ASSEMBLYMEMBER McCARTHY: Okay, not to quote other people, but I could quote other individuals that did redistricting and say something different than you are, but if I could just ask you that are present. We did it in less than 60 days, correct?

MS. MacDONALD: They did quickly, yes.

ASSEMBLYMEMBER McCARTHY: In here there is a criteria much like in the 1990s that you keep cities and counties whole.

MS. MacDONALD: Correct.

ASSEMBLYMEMBER McCARTHY: Now, I like to play games. And sometimes I like to put puzzles together. If I buy the big 1,000 piece puzzle where you have to worry about where every little thing goes, it takes me a long time. If I do it with my little nephew and I get the great big pieces where I have to keep cities and counties _____, it doesn’t take me very long to make a puzzle. There’s a big difference between the thousand piece and the other. This criteria says you keep cities and counties whole and you put Senate and Assembly, two Assembly seats in every one, seems to me it’s more like my nephew’s puzzle--a little easier to do. Much like we did in 1990, because it’s the same criteria, correct? 

So, in 1990, when I was still in college, my computer was a Tandy computer and it was a 5.5 floppy that I put in. Today I’m getting emails on my Blackberry. I mean, the technology is different, and if we’re going by a time line here of where we are technology and the time that it takes to do it, I would have an argument that if we did it in 1990 in 60 days, and we’re using a criteria of cities and counties together and we’re nesting Senate and Assembly, I don’t think we have to be farfetched to say, yes it can be done, especially in the initiative that it set the time table when they have to be nominated and when you have to get going on the public opinion hearing. Now where in that thinking of mine would cause problems?

MS. MacDONALD: There are a number of them. I think you are absolutely right that if you start nesting, obviously, it’s going to be faster.

ASSEMBLYMEMBER McCARTHY: But, does the initiative call for nesting?

MS. MacDONALD: Yeah, it does.

ASSEMBLYMEMBER McCARTHY: So we would have to nest.

MS. MacDONALD: So, but that’s only one aspect of the initiative, you know. I mean, you’re talking about city and county splits. I mean, we just, we received a grant from the Urban Foundation where we actually looked at this, like how cities and counties could be kept together, and we looked at whether you could get competitive districts when you’re keeping cities and counties together and things like that and evaluate it actually, the old plans in the systematic way. We looked at all the different criteria, and one of the big, really to me, surprising findings were that the last plan is actually the one that is current and legal right now is actually very good with respect to keeping cities and counties together. And if you are trying to draw competitive districts, which, by the way, is not called for in 77, I mean, there is an assumption that that might happen, right?  But, basically there is no real criteria that says you have to shoot for competitive districts. If you’re trying to keep cities and counties together, it’s actually harder to draw competitive districts, believe it or not. And we’re going to release these data and the findings of the study in two weeks. So, that’s part of it.

But, the other thing is that also they used census tracks in 1990 when the special masters drew the maps. And it did not go down to the block level. And the deviations were higher. Now deviation standards have really changed between 1990 and 2000 and definitely by 2005, because we’ve had a number of law cases, of court cases that came down and said even in the Legislature you have to have very, very small deviation, which is why I think the California Legislature have these incredibly small deviations even for the Legislative districts the last time. They’re like two or three people, which, by the way, a lot of people think is ridiculous, because that’s also something that makes it harder to keep cities and counties together or to represent communities of interest without splitting them.

I guess my point is, you know, if you’re looking all these criteria, if you’re shooting for one, something else has to give. There are always these little tradeoffs. But, at this point under the current legal climate, you have to have deviations that are very, very small, so tract level data are out. And you’re right. When you these days draw up plans, you grab a city, you put it into your plan that’s really quick. But you still have to carve around, and don’t forget that you still have those four districts, the voting rights districts. So they have to be, you know, drawn with apolitical data and you have to just be very careful when you ____.

ASSEMBLYMEMBER McCARTHY: I believe those voting rights districts petitioned to not be a voting rights district.

MS. MacDONALD: Yeah, you k now what?  Section 5 is right now up for renewal and a lot of people think that the bailout, what’s called the bailout criteria might actually get changed in the renewal. I don’t think they have, but I think they’d like to.

ASSEMBLYMEMBER McCARTHY: My understanding is one half, but, let me just follow back up on two things that you said.

MS. MacDONALD: Okay.

ASSEMBLYMEMBER McCARTHY: You said under this criteria we cannot do it well. Is that correct?  Under redistricting, under Prop. 77 you said we could not do it well.

MS. MacDONALD: With the data we have available right now we could not do it well.

ASSEMBLYMEMBER McCARTHY: Is it your opinion the current redistricting is done well because you made a statement earlier because of cities and counties and I don’t want to put any words in your mouth. Would you believe that the current redistricting is done well?

MS. MacDONALD: You know, it depends on what side of the table you sit on. For some people—

ASSEMBLYMEMBER McCARTHY: You’re on that side. What side do you—

MS. MacDONALD: My personal one?


MS. MacDONALD: I think it was done well for cities and counties.

ASSEMBLYMEMBER McCARTHY: You think it’s done well. So the lowest ____ speed that goes along—

MS. MacDONALD: For city and county splits it’s done well. You know, there are some areas that are done very well, and there are other areas probably—

ASSEMBLYMEMBER McCARTHY: But, you made the whole opinion on Prop. 77 that you couldn’t do it well. So you would say—

MS. MacDONALD: With respect to data.

ASSEMBLYMEMBER McCARTHY: It’s your belief currently it’s done well.

MS. MacDONALD: I didn’t say it. What I’m saying is that I don’t think you could draw good districts right now, because you just don’t have proper, accurate data. So you couldn’t do it well even if you wanted to, even if you had the best intentions.

ASSEMBLYMEMBER McCARTHY: Is there any criteria that should be higher than other criteria?

MS. MacDONALD: Only the constitutional ones.


SENATOR BOWEN: Actually, she’s the data person. I think that’s probably more properly a question to the—

ASSEMBLYMEMBER McCARTHY: Okay, let me just follow up with the last question for the data person. In here the cities and counties in the current one, you say does a good job from that standpoint. How many competitive seats by data, and if we go back to the last. Because in the last four decades, we’ve had two by judges and two done by legislatures. How many competitive seats were currently and how many competitive seats were under judges?

SENATOR BOWEN: What’s a competitive seat?

MS. MacDONALD: Well—

ASSEMBLYMEMBER McCARTHY: Within 10 percentage points you can go through. There’s lots of different methods that you can ______ competitive seats.

SENATOR BOWEN: I think, no, it’s an interesting discussion, but I don’t even know that we can get into that with that—

ASSEMBLYMEMBER McCARTHY: I thought she made that point to me coming back about—

SENATOR BOWEN: I believe what she said was that there’s, if Prop. 77 does not call for—

ASSEMBLYMEMBER McCARTHY: Well, I don’t know if she was nodding. Why don’t we let her in ____. Were you referring to competitive seats when you said this, Prop. 77 does not ask for?

MS. MacDONALD: It does not ask for a competitive seat.

ASSEMBLYMEMBER McCARTHY: That’s why ____ back, she made that comment.

MS. MacDONALD: Right, well, but it’s also true what Senator Bowen said which is that because it doesn’t call for it, we haven’t really identified what exactly competitive seat is, because that is the full employment _____ political scientist, because you can measure competitive seats based on—

ASSEMBLYMEMBER McCARTHY: Political scientist, did he say competitive seat?

SENATOR BOWEN: Actually, we haven’t given him a chance for his testimony.

ASSEMBLYMEMBER UMBERG: Could I add a couple of facts, though, to the equation that was propounded by Assemblymember McCarthy?  In 1970 and 1990 as I understand it, the data that was used was approximately one year old, number one. Number two is that there had been extensive hearings and analyses done before the special masters. It wasn’t the judges, at least in 1990. It was special masters that reported to the Supreme Court, concluded their analysis. And that would be a critical difference between doing it in 2005, 2006 and in 1991 or 1971. At least it would appear to me to be a critical difference. Are those facts correct?  I see heads shaking. Yeah, okay.

SENATOR BOWEN: Senator Romero has been patiently awaiting an opportunity to ask a question, as has Assemblyman Leno. And then I do want to get to Professor Kousser’s actual testimony, and then we need to get to the proponents and opponents. We’re still on the, if I may lovingly call you all the pointy heads here. We’re note even talking about the people who have an opinion on prop. 77. These are the people who are just trying to just help us understand. They have no opinion, right?

SENATOR GLORIA ROMERO: Thank you, Madam Chair. I actually walked in a little bit late, so I didn’t hear the introductions overall, but let me just say that I was a bit dismayed seeing at what we have in this auditorium. I think there are probably as many people on this side of the room as there on that side of the room, and I would not counting staff from members’ offices. So I guess the question I would ask first and foremost are where are the people?  It somewhat seems like insider baseball.

With respect to the question of what can be done, obviously anything can be done. You know, what’s the quality, what’s the public notification?  Assemblymember McCarthy, you talked about Blackberries. Not everybody has Blackberries. Come to East Los Angeles. It’s called the digital divide and there’s been quite a bit of discussion about public notice and many other issues that we’ll see as we go forward. So, obviously anything can be done. What’s the quality, what’s the integrity, what’s the public outreach, what’s the inclusiveness linguistically, as well, in a state as diverse as California?  Under this proposal I rather think that even if we can do it, it’s probably not what we would want to lay claim to.

I would hope that we get into some discussion as well as to even what’s the purpose of redistricting. I’ve heard different answers in discussions already. I always thought it was about equal representation, reapportionment, the population changes, and you try to reapportion based on population. This proposition and this debate for this election has gotten into competitive seats. It’s about Democrats versus Republicans. It’s about how many parties have changed, how many seats have changed political parties. I don’t think that’s what the founding fathers and founding mothers, dare I add, intended when we talked about redistricting and reapportionment. And to me it really comes down to this is simply about a political power grab. You know, one party trying to get greater control of seats, and quite frankly, another party trying to defend against it. But, I would hope at some point we can talk about what is the purpose of redistricting, because if it’s about competitive seats, I don’t think we’re going to find that anywhere in the Voting Rights Act of the Constitution.

Finally, Madam Chair, with respect to the time frame, I am a little bit confused. We’ve got at least eight names on this agenda, plus ____ public testimony. It’s after 11 o’clock. I know I’m on a short time frame. The three witnesses here are excellent, but I also would like to get to the other witnesses. I don’t know if there’s a tighter rein, dare I ask, that we put on—we maybe let them speak, we just be silent and listen, or maybe ask a few questions, send them over in writing to you, so that we can get through the rest of the agenda before ____.

SENATOR BOWEN: Your point’s well taken. I think we’ve had our questions take over the panel. Mr. Leno. And then we’ll do Mr. Kousser, and I do want then dismiss this panel and bring up the opponents and proponents, which is the heart of this.

ASSEMBLYMEMBER MARK LENO: Thank you, Madam Chair. That’s a great introduction and invitation to speak. And I do want to also respect the comments made by Senator Romero, because we clearly do have to move forward. I want to just preface a brief comment and then I have a question for Ms. MacDonald, by saying that I, no attachment to our current system. I wasn’t a part of it in 2000. I’m going to be termed out in short time. This is not about any landscape or real estate that I’m attached to.

But, I do have a real concern about the whole process that has brought us Prop. 77 given our initiative process. We have no public hearings whatsoever. This is taking us down a path that would be a complete experiment. As Mr. Storey’s pointed out, there are a handful of elements in Prop. 77 which would make us unique--the only state in the country doing something a certain way. So if we can in crafting any kind of new policy turn to states for best practices, we’ve gone completely the other way. We’ve decided that no matter how any other state is doing it in the very complex issue, we’re going to do it our way and any historical information or any other kind of experiential information that could actually benefit the state, we are saying we have no interest in it. We’re going to do it our way, uniquely, completely different from anybody else.

My greatest concern has to do with the issue of reapportionment and some of the information you shared with us, Ms. MacDonald. And I don’t want to suggest that we all are experts in ways that you are not. You clearly know this in a depth that I certainly don’t and I would really challenge any member of this committee, given it’s not our life work as it is yours. You had said that estimates cannot be used. Even adjusted data cannot be used, and I wanted to ask if that’s just your personal opinion or if you are stating that as a result of decisions the courts of law have made?

MS. MacDONALD: Yeah, there are a number of court decisions that basically pointed out that estimates cannot be used for redistricting. And part of it—

ASSEMBLYMEMBER LENO: Can you be more specific?  Which courts have said that estimates can’t be used?  You don’t have that—

MS. MacDONALD: I don’t have them with me, but I can email them to you, no problem.

ASSEMBLYMEMBER LENO: That’s fine. And again, this is out of concern for one person, one vote, 14th Amendment concerns?

MS. MacDONALD: Yeah, it’s about the strict scrutiny idea, and the fact that you really have to have very equal populations, especially in congressional districts.

ASSEMBLYMEMBER LENO: Sure. And Mr. Storey, or Professor, if you wanted to add in, as well, please.

MR. STOREY: Yeah, the U.S. Supreme Court ruled that the census couldn’t be adjusted or changed. That it was the actual numeration data that had to be used for congressional redistricting. The, some states do make adjustments to their census data before using it for redistricting. I say some, too, states do that where they actually move military and college students before they conduct redistricting and that’s been upheld by courts.


MR. STOREY: And you can do some adjustment to the data. You just—

MS. MacDONALD: But, part of that has to do with the fact that the census also had a lot of problems and in the last census collection with what’s called group quarters which is what he’s talking about right now. So they actually, there were just some data problems. And they have to adjust the census data to actually reflect how many people they had in the districts.

ASSEMBLYMEMBER LENO: Right. But, getting back to this mid-decade redistricting again. I had heard a couple of my colleagues comment, well, we have the same inequity or the differential between the 2000 census and current California population with our current lines, so what’s the problem?  If that’s the problem, then we got the same problem.

But, I think the point is that short of a new census, that’s just the way we have structured this by doing it at least once by law every 10 years. So if we’re so concerned that there is this differential because of the significant shifts, additional populations that have come to California in short periods of time—we’re talking about millions and millions and millions of people, though we have, of course, as you have said, no idea where they live, then we should be looking at potentially a system where we would have a mid-decade new census taken. And then we could proceed because of our great need to adjust with a mid-decade redistricting. But, again, turning to other states, you would best mention, Mr. Storey, that Texas tried this and Colorado tried this and got overturned.

MR. STOREY: By the State Supreme Court.

ASSEMBLYMEMBER LENO: Texas has tried this and it’s presently challenged in court.

MR. STOREY: Well, it’s been upheld several times by lower courts and was remanded by the U.S. Supreme Court back to Texas, was upheld by the District Court in Texas, and the plaintiffs are seeking an appeal with the U.S. Supreme Court.


MR. STOREY: Can I make one clarification and ____ in terms of mid-decade redistricting, I did say that it was uncommon that you got these cases in the 1990s, but your point is a good one that there have been a number of mid-decade redistrictings undertaken by courts in the 1990s. That was a fairly, sort of common thing. I think that was the point you were making. There’s a distinction. If didn’t make that clear, I apologize. Because it was on point to that.

ASSEMBLYMEMBER LENO: And then what’s the situation in Georgia right now? 

MR. STOREY: It’s pending pre  clearance with the Justice Department. They’ve just asked for more information, so that the 60-day clock is ticking and within 60 days they’ll have to rule on it.

ASSEMBLYMEMBER LENO: Okay, I will conclude with just the last comment. Also reference to comparing decades here within California and using those comparisons to state a premise which is the need for Prop. 77. So, 1990 legislature drew lines, challenge, Governor vetoes, it gets thrown to special masters. And as a result of that redrawing, 1990, we saw significant “competitiveness” in that power shifted from one party to another back and forth in the mid-1990s. And then at the end of the decade still with those same lines, we saw a differential between the two parties of 20 seats. So as I see it, as a result of the 2000 census, Legislature draws lines, the Governor signs, there’s no court challenge, and now we have an 18 differential.

So, I just don’t get the basic premise here. Clearly, states change. We have these maps of red states and blue states across entire sections of the country with regard to presidential races, they aren’t competitive. It’s not because the state lines have been redrawn, it’s because of demographic shifts. I don’t believe California is going to be very competitive in a presidential race for some years because of demographic shifts. Not because our state lines have changed. The same with different counties. They are not competitive. The county lines have not changed.

So I just want to challenge the premise that has brought us to this hearing which is the result of Prop. 77, and also _____. You know, you had mentioned as a response to Assemblyman McCarthy’s question about competitiveness that there’s nothing in it, in Prop. 77, but I think the amendment that took it out actually came a day or two after Governor Schwarzenegger held his press conference to announce we’re going to the people, and that was that seven percent maximum, or seven point maximum spread in party registration which got ripped out at the last minute. No one even knew about it until a couple days after.

So, whole process seems to be a bit rushed, and again, this is a very important issue. I would like, and I’ll credit the authors for bringing us greater attention to the issue, because I think the issue does need to be addressed and I think we collectively may have been guilty of not addressing it, but so many complexities to it. We’ve had no public hearings even to bring us to the proposal in front of us, I think we need to step back and take some time, do it right, look at best practices.

ASSEMBLYMEMBER UMBERG: Thank you, Mr. Leno. If we could turn to Professor Kousser now and perhaps you could respond to some of the issues raised, including the issue of voluntary versus mandatory redistricting in connection with mid-decade redistricting. So, Professor Kousser.

MR. KOUSSER: I will try. I will try to be as brief as possible, though it’s out of character. After the 1990s redistricting, I wrote a paper, long paper called “Reapportionment Wars: Party Race and Redistricting in California 1971-1992”. I thought they were over, but apparently they go on. In fact, this is, this proposition is déjà vu all over again. We saw redistricting propositions again and again in the 1990s. I think the people voted on them four times. Turned them down four times--one that was rather similar to this one.

A lot of you have been around redistricting for a long time. Senator Dymally was chair of the redistricting committee in the early 1970s and drew plans that I wish had been adopted. They were very good plans. And I say so in this paper, sir.

I want to start by quoting somebody else. Nate Percily who got his Ph. D. at Berkeley is a political scientist and law professor at Penn. And he actually drew the districts in Georgia that were drawn after the, after Georgia vs. Ashcroft, and after Larios vs. Cox. So he was the expert who drew the districts. He wrote an email that was sitting around on the election law list which I subscribe to, and he says after the 2004 election, he looks at the Georgia legislative races. “As one who drew the lines, I can vouch for the extreme non-partisanship of the process and the resulting map. We did not look at partisan data at all. I am struck, as I am sure you will be if”, he referenced the website where the data was, “by how non-competitive these elections were, despite non-partisan districting.”  And the 180 person House, only eight districts had a margin of victory between zero and five percent. Another 10 had margins between five and ten percent, but most were eight percent or more. In the 55 person Senate, only three districts had a margin between zero and five percent. And another two were between five and ten percent. Of course, there ended up being huge turnover in both chambers with the Republicans capturing the House, and increasing their margin in the Senate. But, much of that was due to open seats following resignations and a few primary losses. Only six incumbents lost in the House. And almost all of these cases were where a Democratic incumbent was placed in a Republican district. That is to say those districts will be safe next time. Only four incumbents in the Senate lost.

So the proposition that you have a process, this is an—the Prop. 77 process at the beginning is incredibly complicated. I defy you to teach this to a high school government class and hold a snap quiz and have them try to get it right. Three people appoint, oh, let’s see, they have to be, oh gosh. I can imagine what those papers are going to look like. What the guess is, is that this non-partisan process is automatically going to lead to more competitive districts. We have a recent example in Georgia. This is a non-partisan, in fact, a self-interested, against a self-interest, evaluation. And it goes the other way.

SENATOR BOWEN: Can I ask you to focus on, help us focus on a question I think Senator Romero raised which is the tradeoff between competitiveness as a criteria, and the risk for fair representation of minorities. I know this is an issue that you have spent some time on, and also help us understand the places where because of the demographics, it may be impossible to draw a district that is competitive and compact, remembering, of course, that Prop. 77 does not call for competitiveness, so this is all a theoretical discussion.

MR. KOUSSER: You all know something about the demographics of the state. Many of you know much more about the demographics of the state than I do. Imagine drawing a Republican district in the middle of the San Francisco Bay area. Imagine drawing a Democratic district in southern Orange County, northern San Diego County. Imagine drawing a competitive district in South Central Los Angeles. Impossible. You can’t do it. If you try to draw competitive districts that take in South Central Los Angeles or the coast of Los Angeles, you’d have to draw districts that would go from Santa Monica to San Bernardino. You’d have to draw districts in the north that would go from Marin County to Modesto. You could draw districts. Think of drawing competitive districts in the San Fernando Valley. You draw districts about two blocks high and 25 miles long. Draw one after the other, strip districts, bacon strip districts on top of each other. I suppose that you could have those.

Imagine the effect of trying to draw a competitive district that takes into account East Los Angeles. Where do you go?  San Marino?  Alhambra?  Arcadia?  If you do, if you maximize with respect to one criterion, for example, keeping cities or counties together, you will not be able to maximize with regard to other criteria, for example, having equal population or having districts that are fair to minorities. Let me point out further on the minority point. The vast majority of retired judges in California are old, while males. They’re like me. The likelihood is if they are drawn at all randomly, the three judges who will be chosen will be old, white males. Two of them will probably be Republican, one of them will probably be Democratic. There will be no African-Americans, there will be no Latinos, there will be Asian-Americans. They will not have the same sorts—


MR. KOUSSER: No women, indeed, sorry. I had already said white males, so yes, no women, also. Straight males, yes indeed. I don’t want to leave anybody out, I apologize. So, and furthermore all of these groups have access currently to the people who are drawing districts. The representatives in the Legislature, Latinos in the Legislature, African-Americans in the Legislature, women in the Legislature, Asian-Americans in the Legislature, people of different sexual preferences in the Legislature, they all have access to the people who were drawing the districts. It is not at all clear that they will have the same sort of access or any sort of access at all to the people, to the judges or most crucially, the political consultants, the redistricters who are drawing the districts.

The judges will have two basic decisions to make. The first, maybe the most important decision they make is who’s going to be the person who actually does the line drawing?  And that will not be transparent at all. They’ll choose this person. It will probably have to be done rapidly. Who is it going to be?  I don’t know. This is a pig in a poke. If you’re asking what the influence of anybody is going to be in this particular proposition, we simply don’t know. There’s too much that’s not spelled out.

The second thing is that they will make a decision on the lines. And those are the lines that will be used if somehow this all gets done. If Mr. McCarthy is right and this all gets done by 2006, those will be the lines that are used in 2006. Maybe the people can vote to throw out those lines causing further chaos afterwards. But, they will be the people who will do that. We don’t know who we’re voting for. We don’t know what we’re voting on. And we do know most likely that they will be three unrepresentative people making these two most important decisions.

If I may, I’d like to say something quickly about the master’s plans of the 1970s and 1990s comparing them with what went on in the post-2000 redistricting and the 1980s. There’s a rule in political science that you have to hold other things equal in order to try to determine that one variable is most important. The other things that might be held equal with respect to the outcomes of elections weren’t equal across the 1980s, ‘90s, 2000. In 2004, there were only two counties I think, in California which switched having voted for George Bush or Al Gore in 2000. There were only two counties that voted differently in 2004. We have stasis in 2000 so far in elections. Compare it with the 1970s or the 1990s. In the 1970s they drew districts, the masters drew districts, or the consultant for the masters drew districts and as soon as in the next election after the districts finally were drawn, 1974, you had Watergate. You had a huge recession. You had this tremendous turnover, a huge shift toward the Democratic Party. You went from 40-something Democrats to 57 Democrats, I think, in the Assembly. And similarly in the Senate and the Congress.

Later on in the decade you had Proposition 13. Nineteen eighty you had Ronald Reagan who had coattails in 1980.

ASSEMBLYMEMBER McCARTHY: How do you equate then—you never mentioned the recall. We’ve never recalled a governor before and that was done less than a year prior to that election, but you mentioned Watergate which was held in Washington. This was just California. I wonder from a political science point of view do you equate that in the, as this as well?

MR. KOUSSER: No, because as it turned out in 2004 much to your chagrin and much to your governor’s chagrin, Arnold Schwarzenegger did not have coattails. And he did not manage to pull in other people, though they particularly targeted a certain number of Assembly districts. I’m sure that you can—

ASSEMBLYMEMBER McCARTHY: But, I wouldn’t equate—how many times have we recalled the governor in California regardless of whether he’s yours or mine just from a, not from a party point of view, but from a California point of view?

MR. KOUSSER: There was—the thing about the recall is that it was relatively concentrated on Davis and then on Schwarzenegger. It had relatively few effects on other office holders. That’s very different from Watergate and from the recession. If I could go on quickly and I’ll come back.

SENATOR BOWEN: I want to when you finish we want to get to Mr. Costa and to the opponents.

MR. KOUSSER: Certainly, I apologize. In the 1990s you had the worst recession in California since the Great Depression. George Bush was very unpopular, George Bush the first, was very unpopular in California. There was a huge shift towards the Democratic Party in during the 1992 election. In 1994 you got a shift back nationally which affected California. The tides ran the other way. But, there was then a reaction against the ’94 election against the perceived racism of the Pete Wilson campaign. You got huge surge of Latinos into the electorate, unprecedented surge of Latinos into the electorate. And they voted overwhelmingly Democratic. So, things shifted very much and it worked across the board. It was cities, counties, it was congressional districts, legislative districts, everything in both the ‘70s and the ‘90s, so very different situations from the redistricting that’s taking place now.

I will agree, Mr. McCarthy, that there was a bipartisan gerrymander in the 2001 redistricting. And I was critical of parts of that. It is not the redistricting that I would have chosen had I had a choice. The question that we have, that we’re concerned with here is given the chaos that will take place if Proposition 77 is put into place before 2010 which it will be, given the fact that minorities will have much less access to representation here, given that there is certainly no guarantee of competitive districts, no part in the law for competitive districts and no likelihood that you can automatically say that there will be competitive districts. Given this choice between two things, is that the right thing to do?  And that’s what you have to decide.

ASSEMBLYMEMBER McCARTHY: I’ll be very brief. The study of last four redistrictings and this is Rose Institute just in. It says a competitive seat is when a Republican or Democrat switches within a decade. That’s their definition of highly competitive. The two times the judges did it, there were 30 seats that they can, because they switched, you know, by history. In the 1980s there was 15. This time there’s five. You don’t say competitiveness in there, but I think when you use the criteria where you keep cities and counties whole, that happens.

The only other statement I would make from your standpoint, you disagree with the current redistricting model. You say you would not have selected that one. Inside this Rose Institute study, as well, it says that minority groups, if you took the criteria that asks for in Prop. 77 would have greater representation under Prop. 77 than without. They state by Assembly districts even up by San Francisco you could go from 30 percent Asian to 35. You would have congressional seats that would be Hispanic within the San Fernando Valley that are currently are not. I mean my own question from a policy point of view, if you take from the Tehachapi’s down and you look at the Congressional districts alone, did minority representation go up or go down in the last redistricting for Congressional districts?

MR. KOUSSER: It went up. It could have gone up further.

SENATOR BOWEN: Actually, I think what I’d like to do is call up the next panel and we’ll ask the communities, the minority communities who are here, MALDEF, the Asian Pacific American Legal Center, and so forth, to address their view of whether Prop. 77, of Prop. 77.

ASSEMBLYMEMBER DYMALLY: Madam Chair, while the panel is changing, I just want to make a, take this time—

SENATOR BOWEN: Bring up Mr. Costa and the remaining panelists will, can come on up and will save us transition time.

ASSEMBLYMEMBER DYMALLY: Madam Chair, just want to make an observation before we start the next panel. There’s a lot of discussion about community of interest. Prior to this last reapportionment, Compton City had two senators. And to this day I hear praise about the work of one of the two senators, our chair, Ms. Bowen. So therefore, community of interest is not the say all and do all, because Compton is better off with two senators. And so, although I think San Francisco is unique because of its population and its exodus of population, but it is not always the worst thing in the world to have more than one or two members of a particular district. Take Long Beach, now has three Assemblymembers. In my judgment, they’re better represented than just one Assemblymember. And again, I said every time I go on campus I hear praise of Ms. Bowen’s work as Senator from Compton along with Teresa Hughes. So it’s not always the worst thing in the world when a district is divided.

SENATOR BOWEN: Thank you. Alright, Mr. Costa. Welcome.

MR. EDWARD COSTA: Thank you very much. It’s a pleasure to be here. First I think you all know that Proposition 77 is under the jurisdiction of the California Supreme Court, and is another action that my good friend here has brought in the Ninth Circuit. And so I, this is a legislative hearing. I want to get into the legal aspects of that. I think it’s best that the court handles all those legal aspects of the thing. However, if you want to ask your questions, I’m here to answer your questions.

In lieu of a paper, because I was invited here and I asked what the format was and no one ever got back to me, I brought editorials from the New York Times, from the Orange County Register, and the Fresno Bee. And I submit those because they say about everything that I want to say about this initiative. Of course, it is the intention of the drafters of this initiative that we believe first and foremost that legislators and politicians have an inherent conflict of interest. And we wanted to help you by relieving you of that duty, but yet give you input into that duty. And that’s why that we went to a panel of judges.

Now, the panel of judges—remember, the point was made here that why don’t other states use judges. Because in California we have 1,250 retired judges. Other states have very few retired judges. There’s a massive pool of retired judges and incidentally, we’ve reached _____ diversity amongst the retired judges. And I’m very honored to hear that Kevin McCarthy says that when he, if he is the one who chooses, he will give consideration to diversity when he chooses. And I’m waiting for any time for the Speaker’s going to say he will do the same thing.

So, _____ initiatives checks and balances over the system. Yes, I know it’s a little complicated, but you have an awful lot to check and an awful lot to balance, and we want to get it buttoned up and we believe that we have buttoned it up. And with that, I think I’ll just open it up to your questions.

ASSEMBLYMEMBER UMBERG: I thought first maybe introduce who’s at the panel so we know.

SENATOR BOWEN: We can do that. Let’s have the panelists do, introduce themselves and please take the microphone before you do that.

MS. CHRIS CARSON: I’m Chris Carson from the League of Women Voters of California.

MR. EUGUEN LEE: My name is Eugene Lee. I’m with the Asian Pacific-American Legal Center.

MR. JOHN TRASVIÑA: I’m John Trasviña, Senior Vice President for Law and Policy at the Mexican-American Legal Defense and Educational Fund.

MR. ADRIAN DOVE: I’m Adrian Dove, chairman of the CORE, Congress of Racial Equality of California Legal Defense and Education Fund.

ASSEMBLYMEMBER UMBERG: Mr. Costa, thank you so much for testifying today. Let me just ask a couple questions. With respect to the data, would you agree with me that it would be better to have data that’s one year old as opposed to six years old to do redistricting?

MR. COSTA: Well, absolutely.

ASSEMBLYMEMBER UMBERG: And would you agree with me that the data that would be used under Prop. 77 would, if we use the census data, would be five or six years old. Is that right?

MR. COSTA: It’s a possibility, it could be, yes. ____ process and the United States Constitution and the remedy if someone wants to change that is to amend the U.S. Constitution, and you could have a census every year if you want. But, they do it every 10 years and during that 10-year period, is that’s where we are. Right in the middle of it.

ASSEMBLYMEMBER UMBERG: This is, I know you’d agree with me also that this is a unique situation where the proponents are asking for redistricting in the middle of the decade as opposed to immediately after the federal census, right?  Wouldn’t you agree with that?

MR. COSTA: Yes. Yes, we want it now.


MR. COSTA: We call it fair districts now, because we think that the system is broke and it needs repairing and we cannot wait another six years to do it.

ASSEMBLYMEMBER UMBERG: And in order to get the fairest districts would you agree that having data from a state census conducted beginning immediately after the passage of Prop. 77 would be the fairest way to do it?

MR. COSTA: Would I agree to that?  I might agree to that, yeah. Let me tell you something. We have data that is conducted by the census. And then we have this data that’s right now that’s in my opinion, is total speculation. Let me give you an example of it. The other day when I was debating, I was told that, my gosh, if this thing passes, the people in San Francisco will have 100,000 fewer people in their districts than the people in the Inland Empire. But, my gosh, isn’t that true if we don’t have redistricting next year it will be the same?  So what kind of an argument is that?  How do we know that there’s 100,000 more people there unless someone went out and counted them?

ASSEMBLYMEMBER UMBERG: The essential purpose of redistricting is to ensure that one person has one vote and equal representation in the congress and the legislature as I understand it. Is that right?  That’s the—

MR. COSTA: That’s one of the criteria, yeah.

ASSEMBLYMEMBER UMBERG: That’s the essential criteria, right. That’s the primary purpose.

MR. COSTA: For Legislative and Congressional, yeah.’

ASSEMBLYMEMBER UMBERG: Right. And so, again I assume you’d agree that the best way to do it would be to have a census perhaps beginning immediately after passage of Prop. 77.

MR. COSTA: No, I don’t agree to that at all. I mean, that’s, it’s not part of what we’re doing in this initiative. That is part of the U.S. Constitution, and the remedy for that is to change the U.S. Constitution if you want to change the way the census is done.

ASSEMBLYMEMBER UMBERG: No, I’m talking about state census, not a federal census.

MR. COSTA: Well, it’s in federal court right now. The federal judges could do that if they wanted.

ASSEMBLYMEMBER UMBERG: But, we certainly could in California. There’s nothing that would provide or prohibit or preclude us in California from doing our own census, right?

MR. COSTA: Yeah. Let me—I’m not trying to evade your question, but let me tell you something. We chose this three judge panel because we thought they were the best qualified for the very reason that they are judges. Alright?  Judges have a lot of leeway. A lot of things that judges could do. They can make their own rules. Okay?  It’s kind of silent on this, because we want the panel to have the flexibility to do what they want, okay?  Now, if you personally have a remedy or any one at this table has a remedy, when that judge panel comes together, they can submit anything to those judges they want.

ASSEMBLYMEMBER UMBERG: In terms of the judges and the diversity of the judges, it’s, the panel would consist of retired judges, is that right?

MR. COSTA: That’s correct.

ASSEMBLYMEMBER UMBERG: And retired judges in the State of California, would you agree with me, are overwhelmingly white?

MR. COSTA: _____ agree with you on that.

ASSEMBLYMEMBER UMBERG: Would you suggest that perhaps majority are minorities, retired judges?

MR. COSTA: No, they’re not. Not by any means are the majority of them minorities.

ASSEMBLYMEMBER UMBERG: In fact, over 80 percent are white, is that correct?

MR. COSTA: I don’t know the exact percent.

ASSEMBLYMEMBER UMBERG: Well, would you agree with me that it’s over 80 percent?

MR. COSTA: Judges Retirement System knows what it is. I do not know what it is. I know there are significant numbers of minorities and significant numbers of women that can be chosen in the pool.

ASSEMBLYMEMBER UMBERG: But, Mr. Klehs informs me it’s about 89.3 percent white. I would suggest that’s overwhelming, would you agree with that?

MR. COSTA: Not unless I really see the numbers. I won’t agree with that.

ASSEMBLYMEMBER UMBERG: I see. Would you agree—let’s just assume for purposes of this discussion it’s 89 percent.

MR. COSTA: I do have those numbers in my office and I could get them for you. But, I don’t have them—

MR. COSTA: Let’s just assume that Mr. Johan Klehs’ data is accurate. Would you agree that 89 percent being white would mean overwhelmingly white? 

MR. COSTA: Well, easily 130 minorities could be chosen. We only have to choose 12 of them.


MR. COSTA: So judges in their wisdom they can if they want, they can set their priorities to have diversity in the pool. And the four people who choose can set their priority to make sure that they have—

ASSEMBLYMEMBER UMBERG: But, that’s not required, is it?  In the initiative?

MR. COSTA: No, it’s not—

ASSEMBLYMEMBER UMBERG: Would you also agree with me that it would be, I don’t have the number in front of me, but this is my estimate—about 90 percent male?

MR. COSTA: I don’t know. That’s in your estimate?  Fine, that’s your estimate.

ASSEMBLYMEMBER UMBERG: Would you agree that that would be overwhelmingly male?

MR. COSTA: Ninety percent would be overwhelmingly male, yes.

ASSEMBLYMEMBER UMBERG: And in terms of the compensation, how would the panel be compensated?

MR. COSTA: They’d be compensated the same. It’s under the initiative as the ____ commission.

ASSEMBLYMEMBER UMBERG: They get paid per day, right?


ASSEMBLYMEMBER UMBERG: Is it $100 per day? 

MR. COSTA: Something along that line.

ASSEMBLYMEMBER UMBERG: I see. And so, in terms of $100 per day for a retired judge would you agree with me that that’s fairly low compensation for a retired judge?

MR. COSTA: No, I wouldn’t. They are volunteering. They’re not being drafted. They are volunteering for the position, just as the people who get on a salaried commission are volunteering for the position. They’re going in there knowing full well that they’re going in there for public service. They’re going to spend 30 days, maybe 45 days and their duty is over. And during all that time they’re going to get their retirement.

ASSEMBLYMEMBER UMBERG: Would you characterize these judges then as volunteers?

MR. COSTA: I would hope so.


MR. COSTA: I would hope they’re volunteers. Our governor is a volunteer. Why can’t these guys be volunteers?

ASSEMBLYMEMBER UMBERG: Alright. Well, would you agree with me, though, that that would eliminate a certain number of individuals who didn’t have the financial resources to volunteer? 

MR. COSTA: I don’t know of any retired judges that don’t have the financial resources. If you do, let us know real good. We’ll have a fundraiser for them, okay? 

ASSEMBLYMEMBER UMBERG: You’re not suggesting that you would want to compensate them on the side, are you? 

MR. COSTA: (LAUGHTER) I would be sure they don’t starve. Okay, I would want to do that.

ASSEMBLYMEMBER UMBERG: Okay. Let me turn it back to the chair. Thank you.

SENATOR BOWEN: Just a few questions about the mechanics of the measure—what happens if the redistricting plan, people run under the plan as proposed and then it’s defeated. What happens?  Who gets seated in the Legislature at that point?

MR. COSTA: The people who won at that election would serve their two-year term, and then there would be redistricting again and then there would be new districts two years later.

SENATOR BOWEN: And same scenario. So we could just go every two years and have a continual rejection.

MR. COSTA: Theoretically you could go every two years and see how far, how long it will take for the people of the State of California to totally get disgusted. Yes, we could do that.

SENATOR BOWEN: Well, I think they’re there now, but ____ matter. One of the things we talked about a little bit was the issue of criteria. And I thought Professor Kousser’s point about not being able to hold every criteria equally important is a very critical. You have to decide what’s most important. Is it equal representation, one person, one vote?  Is it competitiveness?  Is it communities of interest?  Is it city and county boundaries?  There’s simply no way to make all of those things equally important in redistricting. Prop. 77 seems to be, place an emphasis on city and county boundaries, rather than communities of interest. Can you explain why you chose to use the existing geopolitical boundaries, rather than the actual interests of people in communities as the first criteria?

MR. COSTA: Yes, I can, but let me explain something first. The professor talked about the _____ political science of random universe. And as long as I’ve been in politics, it is not random, okay?  And no two things are the same in politics. So that’s why we have all these arguments about back in the ‘70s, back in the ‘80s, and all that because you can’t compare them to today. Yes, we, the drafters of this initiative thought communities of interest were extremely important. And when we looked there is more important community of interest than a county. They were created with the state at the same time, and secondly, are the cities of this state are communities of interest. So we set those out. And there are other communities of interest, as well. And we would like them protected.

Let me give you the most important example of this. All the time when we talk about communities of interest we all talk ____ demographic. I live in Sacramento County real close to Placer County. The people of Placer County and El Dorado County overwhelmingly would like to build a dam at Auburn, okay?  But, as long as that community of interest all goes into the city of Sacramento and it’s a hub on a wheel in Sacramento, they’re never going to get a chance to have their dam, have a fair hearing, and so we think those areas that have those interests that want a dam should be able to have representatives _____ a dam and then the City of Sacramento where they have their interests where they want to build levies and they don’t want to have a dam, they’ll have their representatives to do that.

SENATOR BOWEN: But, are you suggesting that we try to draw boundaries based on a particular issue?  Because, if I took the Auburn Dam and said, well we’re going to use that as a measure of community of interest, then I would necessarily have to not use other things where people might have, for example, an interest in not sending water to Southern California where their interests are the same. So, you know, I’m concerned about the use of a particular criteria, and I am so also concerned about what happens in California’s very large counties that are multi-district counties. Los Angeles County has many districts. There are parts of Los Angeles County I suspect, that for example, abut Kern County that have more in county with Kern County than they do with certain other parts of Los Angeles County.

MR. COSTA: I can’t imagine. I can’t imagine Los Angeles having more in common with Kern County.

SENATOR BOWEN: Parts of Los Angeles County. Have you ever been to Lancaster or _____?

MR. COSTA: Yes. Let me tell you something. I mentioned the dam. There are a thousand issues similar to the dam in the state. Every community of interest has issues that are important to them. And if they didn’t have issues that were important to them, we wouldn’t even need a legislature.

SENATOR BOWEN: What I’m suggesting to you is that the community—if you’re just looking at the phrase “communities of interest” that it’s going to very radically depending, the map will not be the same depending on whether you choose education issues, environmental issues, water issues, transportation issues, language issues. You’re going to have radically different maps where communities align differently on different issues.

MR. COSTA: Yes, that’s what the legislature’s job to articulate all those divergent points of view.

SENATOR BOWEN: So that judges will have to figure that out.

MR. COSTA: No. Judges are going to follow the constitutional criteria which is you keep counties whole, number one criteria. Number two, you keep cities whole. Number two criteria. That is the criteria that we established in the Constitution and the masters are to follow that criteria. The first redistricting might be a little wave or two, but after that they should be so smooth that there would be minor adjustments which is what the founding fathers, what they wanted is minor adjustments to population every 10 years. That’s what you will get when you keep counties whole, keep cities whole. Counties can depend upon the fact that when the annual, when the census comes that their county will be pretty much the same as it was in the past.

SENATOR BOWEN: This whole discussion about counties is actually fairly ridiculous in Los Angeles County, because we have I don’t know, 17 senate districts and I don’t know how many Assembly districts ____ the population shifts within the cities and the county are such that you cannot possibly just add a whole city when you’re changing the census. You can’t take Senator Romero’s Senate seat in East L.A., do a new census and just, you know, shift Alhambra into it to change the population. If you can’t possibly do that and comply with the one person, one vote requirement.

MR. COSTA: Yeah, but Los Angeles has its own school district. Los Angeles has its own services, its own Board of Supervisors.

SENATOR BOWEN: The City of Los Angeles. The City of Los Angeles.

MR. COSTA: Yes, but when you take Los Angeles, put it over the hill to Kern County, then half of those people got to deal with the Kern County Board of Supervisors and the Kern County agencies and the Kern County sports team. All that. So they have more in common with Los Angeles than they could ever possibly have with Kern County. I guess we differ on that. Okay.

SENATOR BOWEN: I would respectfully suggest that if you were to go—well, again, if, you know, Los Angeles is not a monolith, it is an extremely diverse county. It has in excess of 80 cities and it’s not just the City of Los Angeles, so.

MR. COSTA: And why should Los Angeles want to dominate the regions around it?

SENATOR BOWEN: I’m, who’s suggesting that it does?  You can’t divide the 15 million people in the Los Angeles—you can’t divide the City of Los Angeles into equal Assembly districts. Have you ever looked at map of the City of Los Angeles?  It’s like Wilmington to way out in Sun Valley, Tujunga. It’s probably 60 miles from one end to the other.

MR. COSTA: If Proposition 77 passes, when we’re doing the districts, once they go into Los Angeles, they will fill up the entire county before they leave. So they can come in from the west or the east or the north, come in, fill it up, and then they go on to another county. That’s what we think should happen over time to have community of interest filled up, political associations within their community, so that they can have political expression.

SENATOR BOWEN: The practicalities of what the map looks like in Los Angeles and what the City of L.A. boundaries are, there is a, what is it, Mr. Dymally?  A 12-mile, 10-mile long strip that connects South Central to San Pedro along a little strip that’s maybe half a mile wide. And I’m sure you know the exact statistics. Yeah, Harbor Gateway it’s called. I represent it. It’s definitely got more in interest with the people on either side of it than it does with the people who are 20 miles up the road. So I think there are just some practical problems with that, but the size alone is what’s going to ____.

Let me just turn for one moment to the question of nesting. Nesting adds one more criteria to what has to be worked on. My question for you is if your concern here is the power of incumbency, doesn’t nesting increase the power of Senate members to in effect, pass the mantle to a nested member in their district?

MR. COSTA: It could possibly. However, the people are the ones who consent or the people consent to that representation. It’s theirs. You will have to go to the people to get people’s votes.

SENATOR BOWEN: Senator Romero, question?

SENATOR ROMERO: Yeah, I have a couple of questions. Mr. Costa, thanks again, too, for appearing here. Let me just as you though. The argument is, and again, redistricting absolutely. Let’s think of new ways to do it. I do have concerns and of course, am not supportive of Prop. 77, but the idea generally is take it out of the hands of the politicians. But, let me ask you. It essentially Prop. 77 doesn’t take it out of the hands of the politicians. At least as I read the initiative it actually reduces. It gives it to the politicians, but rather than 120 legislators voting on the plan and sending it to the governor for his signature, 121 of us, it basically hands it over to four politicians. How does that—I mean, to some extent, if you’re going to take it out of the hands of the politicians, then take it out of the hands. But, essentially as I understand it, and please help me understand it if I’m misunderstanding it, Prop. 77 says forget that women have been elected. Forget that minority groups have been elected. Forget that the governor has a chance to sign or veto it. Forget that there’s 121 politicians. Prop. 77 says in the name of getting it to the judges, I’m going to reduce it and give it to four politicians, all of whom are men, by the way.

Prop. 77 doesn’t take it out of the hands of the politicians. It reduces it to a handful, less than a handful, four people. And with all due respect, and Mr. McCarthy, who you have faith in to say, I think he’ll pick diversity, there’s, quite frankly that doesn’t take it out of the hands of the politicians. It gives it to four people, four men in California to pick three, four men pick three unelected judges who are supposed to sign a pledge saying they’ll never run for office. What’s the enforceability of it?  They signed a piece of paper?  What happens after that?  They go to prison?

MR. COSTA: Here’s what it was. It’s explained, I think, rather really well in the voter pamphlet. I told you about checks and balances. The four leaders may not choose someone of their own party. Okay.

SENATOR ROMERO: But, they still choose.

MR. COSTA: So no matter how bad Kevin McCarthy doesn’t, wants to choose a Republican, he must choose a Democrat. That must be his choice.

SENATOR ROMERO: But, the point is he’s choosing. He’s choosing somebody. You’ve given it—Prop. 77 gives this to four politicians to ultimately pick three unelected judges who have no accountability to the public whatsoever. The question’s for Mr. Costa. Let me hear him first, please. And then when you get your chance, you can go ahead and . . .

MR. COSTA: Okay, as I was saying, there’s one other check and balance there that they each have a veto. They each have a silver bullet.

SENATOR ROMERO: But, again though, and again I hear that, but what you’re saying, though, that the previous veto might have been Senator Bowen or myself or Assemblyman Dymally, or 120 legislators. I mean, essentially the veto which means a no vote is being taken out of the hands of the politicians, but the absolute decision making is given to four executives, four hand-picked party leaders—

MR. COSTA: Actually, it’s the clerk. The clerk reaches their hand it or his hand and pulls out three at random.

SENATOR ROMERO: But, ultimately who make, who ultimately, here it is again, too, the four legislative leaders—

MR. COSTA: Only choose the pool. Only choose the pool and then it is chosen by the Chief Clerk.

SENATOR ROMERO: But, still, I guess my point is, this is not taking it out of the hands of the politicians, it’s concentrating it in a very powerful, minority, political, blatantly partisan leadership with all respect to my leader, Don Perata, ____ part of the leadership.

MR. COSTA: _____. You know that’s not true. ____ yes you do. We need to talk, yeah.

SENATOR ROMERO: Okay, but hopefully I hope the voters talk, because this is certainly what I think is going on as we are not taking it out ____ concentrating it.

MR. COSTA: If I could make one other little comment.

SENATOR ROMERO: Okay, and then I have one final comment before I know Assemblyman McCarthy wants to jump in.

MR. COSTA: There’s a program that anyone can buy for $6,000. has all the census tracks in and you could redistrict this state in about three hours. So I invite any of you when Prop. 77 passes, come over to my office, we’ll sit down and we’ll do district plan. I’m hoping it’ll be a hundred or 200 plans submitted.

SENATOR ROMERO: Okay, Mr. Costa, though, let’s not be trivial. This is an important issue. Redistricting is a serious issue ____ representation.

MR. COSTA: I can submit a plan, you could submit a plan, anyone here could submit a plan. Anyone at this table could submit three or four plans.

SENATOR ROMERO: Mr. Costa, let’s get serious, again, too. Not anybody can afford 6,000 bucks. You know, there are poor people in California. And I have a disproportionate number of them in East Los Angeles. So, let’s not be trivial.

MR. COSTA: Send them to my office. I’ll let them use the program.

SENATOR ROMERO: Finally, your comment on having fundraisers for judges, again, too, this is a serious venue. I hope it was a flip comment. But, ____ if you as the author of Prop. 77 are encouraging fundraisers for judges, then I really think that the four concentrated politicos picking judges who ultimately, who American Media might have a fundraiser for, then we’re really walking down a dangerous line. But, Mr. Costa, really let’s not be flip. This is not about money. This should be about representation. It should be about fair representation for every individual whether they can afford $6,000 or even have access to a computer which I would submit to you, they don’t. But, ultimately, if we’re going to change redistricting and I believe all of us are open to it, my hope is that if you’re going to take it out of the hands of the politicians, then take it out. Don’t put a super concentrated, four men, to pick three unelected judges with absolutely no accountability on a piece of paper that they may sign pledging to never run for office. There’s no enforceability. But, I know that the Assemblyman _____.

MR. COSTA: The one point, I will apologize to you the comment I made about judges. I made the comment because, see, I really believe that judges’ retirement is such a nice retirement, that it’s more than the average person makes and they’re doing very well on retirement and they can give _____. And they don’t have to. It’s voluntary.

SENATOR ROMERO: And I appreciate that. It’s a nice retirement, but you know what, though?  It’s all too few people. A very non-diverse set of people. Well intentioned, perhaps, but a very non-diverse set of people who enjoy that retirement.

MR. COSTA: The work that they do is going to come before the courts, some of the finest legal minds there is. And these judges are the ones that know how to button up redistricting so it will withstand all the challenges. They are the one group of people in our society that could take this issue and button it right up.

SENATOR ROMERO: Thank you, Chair.

SENATOR BOWEN: Mr. McCarthy, and then there’s nothing from this end, we’ll go to the opponents starting with League of Women Voters.

ASSEMBLYMEMBER McCARTHY: If I may just clarify as being one of the leaders what happens. The leaders do not select the three. The system says the Judicial Council selects ____ 24, so then you get a randomly selected. From there the leaders select 12. They picked in. And then what happens is like a jury system that we all support and go through each and every day of our life in this court system, get to throw one person off, not of your own party, but of the opposite party, much like a jury system that we all believe and supported. I think that is a very fair manner. Then what happens here is, that’s not the end. The point I think that is happening is people are focusing on the wrong issue. at the end the public is the final say. So it’s not a select group. It is the entire public. If you look at the last redistricting, what happened?  You didn’t get a selection. You got a few leaders get in the back and made a decision based upon how to create the puzzle and asked—number one question they asked elected officials?  What city do you want to represent?  The elected officials picked the voters. The voters did not consent.

Now, I don’t think we can have it both ways. You can’t sit here and try to make some cross examination. To sit there and say the census data is bad. If that is your belief that the census data is bad, then we’re living in a problem of census data right now. That is what the districts are. But, if everybody agrees redistricting is wrong, then we need to change it. And you know what?  We’re going to have to make that change.

Now, in my district much like everybody else’s district, they have another Assembly seat next to them. I can go to a certain school in my district even though it’s in the main population and this is where you come inside Prop. 77. It is stated as saying you keep the cities and counties contiguous as possible. So if L.A. is not all the way possible, they have the flexibility to do it. But, they had to start within. I can pick two kids in the school that can come home and live on one side of the block and one lives on the other. They ride the same bike trail, they breathe the same air. They even play on the same Little League team. But, what they have different is they have two different representatives based upon registration of parties. That is what the line was drawn on. That is what is wrong. That is when we talk about keeping cities and counties whole.

And when you talk about issues, the judges aren’t going to sit there and say Auburn Dam is the issue or another. They’re going to sit there and look at the cities and counties, because that’s the jurisdiction we’ve been going under and those are not political issues, those are issues from within. So I think from a standpoint when you’re looking at long term, how do we create redistricting better, to me structure dictates behavior. And if you set a structure that says cities and counties and you set a structure where you keep 80 Assembly members, 40 Senators, that’s not difficult math, two for one, you get greater representation because the people have the say. They people have the input, and it’s not based upon parties. And I think in the long run that is best for all and I think history has shown over the last four redistrictings, when they were done by judges and were done by legislators, this isn’t about Republicans or Democrats. This isn’t about a majority or a minority status, because I will tell you my party in a redistricting by judges has had the most and they had the least. So it’s not about that. It’s about people having the say and in the end what does Prop. 77 say?  The people make the decision. So, some people are afraid that what if the people disagree with what is done?  That is the right thing for the do. The people rejected and we have to go back. That we have to go back, then that is what the country is made up for. What if they rejected somebody at the ballot?  This is what it’s all about. The people have the say at the end and not a select few. I thank you for your initiative.

ASSEMBLYMEMBER UMBERG: May I just clarify something?  Assemblyman McCarthy analogized this system to how we select jurors, but as I understand it, there’s a self selection mechanism, Mr. Costa. First you need to have been a judge, right? 

MR. COSTA: That’s true.

ASSEMBLYMEMBER UMBERG: And to have been a judge you, in large part, had to have been appointed by the Governor of the State of California.

MR. COSTA: Either that or elected by the people. Federal judges are eligible, too.

ASSEMBLYMEMBER UMBERG: Well, then by the President of the United States. And among the pool somewhere in the neighborhood of probably 98 percent were appointed by either the Governor or the President as opposed to have been elected in a contested election.

MR. COSTA: That’s what you contend.

ASSEMBLYMEMBER UMBERG: Yes, do you agree with me on that?

MR. COSTA: I don’t know to or not to.

ASSEMBLYMEMBER UMBERG: Well, okay. So first you needed to be a judge in large part appointed by either the Governor or the President of the United States, both partisan office holders, right?

MR. COSTA: ____, sure, they’re both partisan officeholders.

ASSEMBLYMEMBER UMBERG: Then you need to actually volunteer, as well. You can’t just be plucked out of that pool. You’ve got to submit your application to be part of the process, right?

MR. COSTA: It could work out that way or they could send a note into them and they would have to submit something back not to be. Or their name would be put in, but the judges have that discretion.

ASSEMBLYMEMBER UMBERG: You mean, under your system a judge might be drafted actually.

MR. COSTA: It’s not my system. It will be the three—once the three, the panel is in, it’s their system. It’s not mine. In fact, it’s not even mine. It belongs to the people of the State of California now that’s it’s qualified _____.

ASSEMBLYMEMBER UMBERG: Let’s just clarify one point. A retired judge—is a retired judge subject to being drafted involuntarily to participate in this process? 



MR. COSTA: In the end, it’s voluntary.

ASSEMBLYMEMBER UMBERG: I see. Okay. So, one, you need to be a judge. Two, you need to volunteer.

MR. COSTA: I’m sure there’s professional courtesy amongst the profession, I’m sure.

ASSEMBLYMEMBER UMBERG: Okay, alright. ____. Thank you.

SENATOR BOWEN: Alright, let’s go to the opposition. We’ll begin with Chris Carson, League of Women Voters. And thank you for your patience and allowing us to sort through the parts we have so far, and I’m sure you’ll enlighten us as to the parts that we missed.

MS. CARSON: The League of Women Voters of California appreciates the opportunity to share with you the reasons why we oppose Proposition 77 on the November, 2005, ballot. The League supports redistricting processes and standards that promote fair and effective representation in the State Legislature and House of Representatives with maximum opportunity for public scrutiny and a bipartisan commission as the preferred redistricting body. The current method of redistricting in California falls far short of these principles and we support real change. However, the redistricting measure on the November, 2005, ballot will not bring the kind of substantive reform the League seeks.

The League and its partners spent many hours educating the Legislature and Governor as well as the public about the components of a good redistricting plan. We worked with legislators in both parties, chiefly Mr. McCarthy, and there were many good faith efforts on both sides of the aisle to find a reasonable solution. Unfortunately, even with intense last minute negotiations between the Legislature and the Governor, an alternative to Proposition 77 was not put on the ballot.

We have a number of concerns which include the nature of the panel, the timing of the redistricting and communities of interest, but I’d just like to focus for a minute or two on one particular portion of it—the ratification of a proposed plan. Currently any redistricting plan is a bill that is enacted into law and becomes operative for the state. Proposition 77 would require that any proposed redistricting plan be brought to a vote of the people, even while it is being used in elections. If the plan is rejected, then the entire process must be repeated until a plan is approved by the voters.

By any standard of government efficiency and effectiveness, this is an invitation to chaos. Who is going to spend the enormous amount of time and money needed to educate the public about the plan. Any plan is going to be so complex and so technical. And given the complexity of the plan, whatever plan is proposed, even a very small interest group could easily spread enough suspicion to cause its defeat at the polls. How many elections would it take before a plan is adopted?  Not because it is worthy, but out of sheer exhaustion.

In the meantime, confusion would reign. Voters would be unsure of which districts they resided in, let alone who actually represented them. And this is something that the League of Woman Voters is very focused upon, because when anybody has a question or a problem they call or email us. “Who’s my representative?  What district am I in,” you know, “how do I get this?  Who do I talk to about that?  Shouldn’t the state lottery computers be used to count votes?”  whatever it is, they find us and we have to answer their questions. You’ve got a situation now where the voters don’t know much as it is. What’s going to happen with this new proposal? 

We talked a lot about this, because we’re not just about technicalities. The League is about basic constitutional principles of good government. Elected officials would have real difficulties connecting with their constituents and identifying the needs and interests of their districts. And how long would it be before voters begin to question the Legislature’s authority to represent the people and do their business?  It is not too far fetched to ask if representatives are elected to district whose lines those voters reject, will the voters accept their governing power?  The first time, perhaps. But, after two or three such rejections. . .

And finally we have concerns about remedies for flaws and weaknesses in this measure. There’s no easy remedy provided for. The only way to correct any problems that would arise would be long and costly lawsuits which might not be successful and will ultimately require placing another constitutional amendment on the ballot in the hope the voters would approve it.

California needs to change the way we redistrict. The League supports a legislative measure carefully crafted by a bipartisan effort after extensive public input which would give the state the substantive reform we all seek. It will take public education, but the voters will accept it and the League pledges to support this effort. Thank you.

SENATOR BOWEN: Thank you. Mr. Lee, you’re next in line, so we’ll hear from you next, unless, well, do you want to go in the order you’re listed?  Okay, let’s do that.

MR. TRASVIÑA: Thank you, Senator. On behalf of the Mexican-American Legal Defense and Educational Fund, I appreciate the opportunity to testify on Proposition 77. I am John Trasviña, MALDEF Senior Vice President for Law and Policy. MALDEF is a Los Angeles based national civil rights legal organization established in 1968 to defend and protect the rights of Latinos in access to education, fair employment, immigrant rights, and voting rights. While MALDEF has reservations and concerns about existing methods of legislative reapportionment in the State of California and elsewhere, and believes they are in need of reform, we believe that Prop. 77 is the wrong approach at the wrong time. Indeed, if enacted and upheld by the courts, Prop. 77 would do more harm as a supposed cure for the ills of the body politic, than the ills it seeks to remedy.

Not only does Proposition 77 take us farther away from real reform, it dangerously side tracks our local state and federal elected officials, interested communities and voters from the central issues facing California’s families and futures. Focused attention on the state budget, education, health, and myriad other issues of vital important to Californians, inevitably get cast aside when every redistricting reform rears its head. One of the practical values of once a decade redistricting is that it minimizes the electoral distraction to a defined period of time between the publication of the new census data and the Secretary of State’s ballot preparation deadline so that California’s elected leadership can do the jobs they were elected to do. Redistricting is expensive and time consuming for you as legislators and for all of us as advocates. Redistricting is unnecessary and unwarranted.

The impact of redistricting under Proposition 77 does not simply commence with the selection of special masters nor end on the 40th day after the unanimously approved new districts. Re redistricting unleashes a campaign agenda which enters the political bloodstream of the state early on, mutates and enlivens political action committees, fundraisers, lobbyists, the hiring of campaign consultants and demographers and inevitably looms over the executive and legislative agendas not just in Sacramento, but in cities and counties across the state. Simultaneously, the reasonable and ____ expectations of the governing agenda get upset and the prospects of moving up the electoral ladder germinate in politicians’ minds. All of this occurs prior to the approval of new districts. Once the maps are approved, constituents’ districts are shifted from the man or woman they elected affectively lose their legislator who is off starting a new electoral relationship with new constituents. Meanwhile, political leaders are raising and spending money to challenge or defend the new districts themselves, for if the new districts fail to obtain majority support at the next election, they remain valid only for that single election, and we start the process all over again.

Proposition 77 may be a dream for perpetual campaigners, but it is a nightmare for those who look to Sacramento help address the challenges facing their communities and their futures. Even if it were timed to coincide with the next decennial census, Prop. 77 lacks essential elements of accountability and reflection of the needs and aspirations of the more than 35 million Californians. Model redistricting should it be removed from the hands of the Legislature should adhere to the following principles: drawing up districts by a citizens commission that strives to reflect the socio-economic gender, racial, and ethnic diversity of the state’s population, protection of the Federal Voting Rights Act to ensure that population increases are adequately reflected in boundary adjustments and are not subordinated to other interests, checks and balances to guarantee the commission’s decisions are fair, and open and transparent process in all stages of the redistricting process.

My own involvement in redistricting and districting reform dates back to the 1980 reapportionment and 1982 reform effort. In 2002 I was the vice chair of the redistricting task force for the City and County of San Francisco, and subsequently was appointed to the City and County of San Francisco elections commission. Based upon my experiences, I recognize how difficult the process redistricting can be and the desire to place it in the hands of retired judges appointed through a complex and some would say convoluted process that would strip away the political nature of reapportionment decision making. Prop. 77 speeches do not remove the politics of redistricting. They simply replace one set of political interests with another. While retired judges may have a higher ethical standing in the public eye than members of the other two branches of government, Prop. 77 selects from a group that may not always successfully reflect upon and understand communities of interest and their needs.

Retired judges by the nature of their positions tend to be insulated from daily California life and as a historical function of the limited number of minority and women judicial appointees, fail to reflect the diversity of the State of California. Thus, Prop. 77 puts three retired judges in the virtually impossible position of understanding the districting desires of a multitude of diverse California communities, neighborhoods, and interests drawing between 130 and 170 legislative lines explaining to Californians the importance and impact of their decision, receiving knowledgeable feedback on their plans, reaching a unanimous decision all in time for the next election, an election that whi8ch the voters could undo their work for any or no particular reason and force them to start anew. Three retired judges no matter their statewide qualities are ill equipped to take on these important functions, particularly when they might be all from one part of the state and lack the essential familiarity with other regions. On our nine-member San Francisco redistricting task force we had many commissioners who had never traveled in particular districts. Redistricting is not the time for a crash course in California’s geographies or communities.

Proposition 77 suffers from other flaws that you’ve heard about today and _____. MALDEF associates itself with the remarks offered by the League of Women Voters, Asian Pacific American Legal Center of Southern California, and other witnesses in opposition to Proposition 77 and we thank you for the opportunity to share our views.

SENATOR BOWEN: Mr. Leno, question?

ASSEMBLYMEMBER LENO: Yes. Thank you, Madam Chair. I just wanted to ask a question of Ms. Carson. You touched on one of the unique characteristics of Prop. 77 which Mr. Storey had originally pointed out and wanted to also address one of the other unique characteristics of it to which Mr. Costa had already responded either flippantly or in my opinion a less than thoughtful fashion with regard to why the other 49 states in this country do not use a panel of retired judges. His response was they don’t have enough of them in their state. I wondered why you thought, because I’m sure you have conversations with your counterparts in other states, why other, no other state uses a panel of retired judges and no other state puts this to the vote of the people and I thought that your comments with regard to what could very likely happen is an argument I’ve not heard before which I, but made a great impact on me that clearly with enough money you can ____ anything in the state at the ballot. And what does that do to the credibility of the legislators who are elected when lines are not approved?

MS. CARSON: Well, as far as the other states are concerned, the League of Women Voters, although it’s a national organization, is intensely grassroots and local, so what the League of Women Voters say, of Florida or Ohio, or whatever, would support would be based solely upon the situation in their state. And that’s, our choice, you know, what we were going to do here wasn’t based so much upon what five other leagues around the country did, but what we thought was good for California based upon our grassroots. And our objection is that while we do support an independent commission, we feel it needs to better reflect the diversity of California. It could very well have retired judges on it. See, we’re, we basically believe that the Legislature ought to craft a good measure, because it’s the Legislature that is best suited to do this. You’re talking about an enormous transfer of power in the Constitution. We think that transfer of power needs to take place, absolutely. But, when you transfer that power, you better be sure that you have thought long and hard about the process and spent the time, the bipartisan effort, citizen input, and just the months or maybe a year or whatever it takes to really think it through and come up with a workable measure. Because, not to get into a civics lesson here, but as it goes through the process, the bill, people will think of objections and you can change it right up to the end. If somebody comes, Mr. McCarthy discovers at the last minute there’s a real problem and you agree with him, that bill can be changed right up to the time that it’s signed by the Governor and put on the ballot. Can’t do that with this proposition. What you see is what you get. And even if after this proposition went on the ballot Mr. Costa thought there were problems with it that he might have liked differently, couldn’t do anything about it. That’s a major problem.

ASSEMBLYMEMBER LENO: Very good. Just a final comment. Should Prop. 77 be defeated, I just want to publicly state my commitment to you as well as to other proponents of looking at other ways of doing it to work with you to find that bipartisan legislative process and imagining that we would look to other states for best practices as opposed to dreaming up untested practices.

MS. CARSON: We’ll hold you to the promise. We’re ready to go.

ASSEMBLYMEMBER LENO: Please, that’s what I’m here for. That’s what I’m here for. Thank you.


MR. LEE: Good afternoon. Thank you for inviting me to testify at this hearing. My name is Eugene Lee and I am with the Asian Pacific American Legal Center or APALC. APALC is affiliated with the National Asian Pacific American Legal Consortium, or NAPALC located in Washington, D.C.

As you know, APALC opposes Proposition Prop. 77. Although we support redistricting reform and the concept of an independent commission, we think that Prop. 77 is flawed and will make a bad process worse.

One thing that we are particularly concerned about is the likelihood that Proposition Prop. 77 will increase the potential that redistricting will provide communities tied together not only by race and ethnicity, but also by use on the environment, needs for housing and criminal justice, and similar income levels, and levels of educational attainment.

To put this into context, I’d like to describe APALC’s involvement in past redistricting processes. In 1990, APALC worked with two coalition’s of APA groups in San Francisco and Los Angeles. These coalitions were called CAPAFR or Coalition of Asian Pacific Americans for Fair Redistricting. In 2001, APALC worked with a statewide network of regional CAPAFRs that span from San Francisco to San Diego. This statewide network was also called CAPAFR. So, in August, 2001, APALC and CAPAFR submitted a statewide plan for Assembly districts. The plan proposed several districts that were based on a vision of multi-racial communities with shared interests living and working together. And in September, 2001, after the Legislature came out with a draft plan, APALC worked with MALDEF and the African-American redistricting committee to submit a unified proposal.

CAPAFR had a presence at every hearing and made well thought out demographic presentations and provided testimony. Because of this advocacy, the final 2000 plan unified many key communities of interest. For example, in Oakland in Assembly District 16, north Oakland and its African-American community were unified with Oakland in a single district. In Los Angeles in Assembly district 45, historic Filipino town and China town each cut in two by the 1990 lines were made whole and unified in one district. In San Diego in Assembly district 75, the Mira Mesa which had been previously split in two in 1990, was also made whole and unified.

CAPAFR did suffer some losses. For example in Santa Clara CAPAFR advocated placing a neighborhood called Berryessa which is a neighborhood of San Jose, wholly within district that is an ____ district, Assembly District 20. Unfortunately because of last minute maneuvering by one Assembly member, Berryessa which is a cohesive neighborhood of 53 percent APA population, was split among four Assembly districts. Also the City of Santa Clara was split between two districts.

I bring up the 2001 process, because I think it fits into context what’s at stake with Proposition Prop. 77. CAPAFR was successful on the whole, because of two primary factors. The first is the preparation that CAPAFR put into the process. CAPAFR started to work on redistricting in early 2000. For the next year and a half, CAPAFR groups met, discussed draft plans that with other racial and ethnic constituency groups and heard their concerns, and then went through the process of submitting testimony and made demographic presentations at hearings. Without this lengthy, time-consuming preparation, CAPAFR groups would not have been successful. With Prop. 77, ____ redistricting simply would not allow time for this preparation to take place. It would leave groups such as CAPAFR without a voice in the process.

We heard _____ earlier that redistricting would have to be completed by December 30th. So from November 9th to December 30th, 2005, that’s a period of less than two months and it occurs over the holiday season and stands in contrast with the year and a half of preparation that CAPAFR undertook.

We think that this incredibly compressed time frame under Prop. 77 would eliminate the ability of community groups to organize, discuss maps, and submit them. I’d like to point out that this is what—

ASSEMBLYMEMBER LENO: Can I interrupt just one second?  I know you’ve got a written statement there, and if I could ask you to highlight the points that haven’t been made by others, and then we’ll take your statement and attach it to the record.

MR. LEE: Sure, okay. Let me take one second here. Okay, I have two other points. Continuing on this timing, I’d like to point out this is what happened earlier this year in King County, Washington State. King County is home to the City of Seattle and a large APA population. In November, 2004, King County voters passed an initiative that established an independent commission and required an immediate redrawing of the lines by January 15th, 2005. Local APA community groups along with APALC and our national affiliate NAPALC expressed concern that community groups were shut out of the process. And eventually the county districts were drawn in a way that divided several communities of interest. I’ve attached to my written testimony copies of letters written by local groups as well as APALC and our affiliate, NAPALC, expressing these concerns.

I mentioned a second factor behind CAPAFR success. That second factor was the testimony and presentations that CAPAFR made to the Legislature. As I mentioned our plan included many districts that unified communities of interest. Our success _____ depended on the ability of the Legislature and we relied on the Legislature taking into account this information about communities of interest. Now, Prop. 77 requires the panel to consider a list of nine criteria. But, amidst communities of interest which is a traditional redistricting criterion recognized by California courts. Because of this admission, we have serious concerns that Prop. 77 will diminish the groups of community groups such as CAPAFR.

We have other concerns about Prop. 77 which are outlined in the position paper that APALC coauthored with MALDEF and the League of women voters of California and I’ve attached that to my written testimony, as well.

I’d like to conclude by going back to the 2001 redistricting process. The CAPAFR experience was positive and empowering for the APA community. But, ultimately we were frustrated by a process in which legislators cut deals at the expense of communities. Because of these last minute deals in which the APA community suffered the brunt of the deal, many communities were split. And because of this experience, APALC has called for redistricting reform. We’ve supported the concept of a commission and we’ve released model language. And we look forward to working with the Legislature and appreciate remarks made by Assemblymember Leno about his commitment to redistricting form and urge the Legislature to enact a true redistricting reform bill next year. Thank you.

SENATOR BOWEN: Mr. Dove, last but not least.

MR. DOVE: Thank you, Madam Chairperson. My name is Adrian Dove. I’m the chairman of the Congress of Racial Equality and Legal Defense and Education Fund. CORELDEF is California based organization created 15 years ago by Celeste King, III, and it’s a spin off from the CORE, the ____ CORE that was at the heart of the civil rights movement in Mississippi and everywhere. And we see that the 21st century as the century in which we evolved from being civil rights into full human rights and we are going for those same basics that are in the Constitution only wanting to make sure it’s applied to everybody. But, the 20th century focused on civil rights and removing the Jim Crow and apartheid laws of the early 20th century that were replacing and replacing slavery. And of course in the—that’s the 20th century. And in the 19th century our predecessors were called abolitionists. In the 20th, we’re called civil rights. In the 21st, we’re called human rights workers. In the 18th century we were busy trying to stop the slave trade and to help the Declaration of Independence of 1776 survive into the 1790 Constitution.

There’s a big difference between the two and when Mr. Lincoln drew his Gettysburg address and when he began to do the Emancipation Proclamation, he went back four score and seven years which carried him back to 1776. And that’s a document that said all men, I guess it was meant all persons, are created equal and have inalienable rights that the government cannot take away. And so we go back to that, because when we talk about strict constructionist, they came back in 1790 and created a document that said women can’t vote, that said slaves shall be three-fifths of a person, a very, very flawed document, had ten basic rights, but was missing some fundamental ones like outlawing slavery and calling for equality between men and women and for the right to vote. So we’re back to that basic point and forgive my going through that history, because I wanted to put it into perspective.

CORE, California Legal Defense and Education Fund, in 1991 I had just come from being regional director of the Census, U.S. Census Bureau responsible for California, so I was quite deep into what the census data was. And volunteered to use it in CORE California and we did the redistricting of the, we participated in redistricting. And at that time there was a Governor of one party named Pete Wilson and a Legislature with Willie Brown as the Speaker of the Assembly. There were no terms limits and so there were a lot of people who had been around a long time and were well familiar with more than one redistricting. But, in any case, it went to a complete deadlock. So, we’ve been through this and CORE California Legal Defense and Education Fund, we went through the deadlock and our organization was one of those that had been to every hearing of the Assembly and every hearing of the Senate and so we were called by the panel of masters of the Supreme Court and I’m not a lawyer, but I was admitted to the Bar for 30 minutes to—I said am I going to testify?  They said, no, you’re coming up to deliver oral arguments and so we went up and we prepared oral arguments and submitted parts of the plan which the panel of masters accepted a good deal of it and made it.

Of course we were back again at 10 years later and in the 2000 census and at that time, the folks with me here, it was Tom Sands was there ahead, and Kathy Fung. There were different people from the organizations here at the table, but we all were the ones like Mr. Lee said, there was time for us to get together and define what the community of interest would be, and more importantly to work on the coalition of what is the common interest. There is not a unanimity among the “minority communities”. The Hispanic population for example is growing rapidly and benefits by in some way by increasing the pace of, the frequency of the redistricting. The cohorts, I call it’s cohorts of the African-American, because there’s really no such thing as race, but we are cohorts of an experience. And that ____ involves slavery and in forced migration to the country and a lot of other things and the Jim Crow, and from that we still have things in common with the Hispanic immigrant population and the _____ Hispanic population as well as the Asian population which is the second largest growth immigrant group.

The cohorts of the African-American population are not diminishing in number, but because all other numbers are increasing, increasingly we share something with the non-Hispanic white population and that is our percentages are decreasing and we see results of it when we form a coalition with people in the valley who want to secede from L.A. in order to not be, not become a smaller minority while retaining the same numbers. We believe that one, accelerating the pace and increasing the frequency of redistricting is damaging, and particularly if the real data that it’s based on is the census that’s taken once every 10 years, then what you’re doing if we were to buy off on this Prop. 77 we’d be taking a second bite at the apple using the same base data. And the only possible reason for doing that would be to fine tune whatever was done. And by appointing a panel of judges, we don’t have a perfect system now, and as a minority and a permanent minority, we know that the whole system of democracy is imperfect, because if it were perfect, it wouldn’t have been able to be founded on the basis of slavery and demanding equality and liberty and justice for all and then going home to oversee slaves.

And so every place where democracy has been put in place, simple majority winner take all in Rome, in Greece, and in America at its beginning, it’s always had slavery as a part of it for the  minorities. We’ve removed that and probably more than any place in the world, America has found some ways to solve those problems and we’re determined to be a part of it and we see Prop. 17 (sic) as an effort to move that back. I’m not saying it’s intentional or unconscionable, but in any case it is a set back and it disenfranchises the minority.

And so we are saying that, well, we filed a lawsuit, and I don’t need to go into the details. Our attorney, David Martin, is here and plans to be testifying, but we believe that there was some duplicity and disingenuousness in the language that was switched on this proposition from the time it was sent to the Attorney General and the time it appeared on the ballot, little modifications in that language. We’ve gone to court and we’ve got an acknowledgement that that was the case, but it was set aside so that the matter could be put on the ballot. And so we are continuing with the lawsuit, because whether it wins or lose, I guess if it loses at the ballot, it’s no point in continuing with the lawsuit. But, if it wins at the ballot, we will continue to seek to have that removed because of the procedural aspects as well as the other unintended consequences. Thank you very much for allowing us to come before you today.

ASSEMBLYMEMBER UMBERG: Thank you. Thank you, Mr. Dove. I think that concludes the panel presentation as to those who had been invited. Now we have a period of public comment. If you care to make public comment, we notice that a couple people have signed in. If you’d approach the microphone, identify yourself, we’re going to limit public comment to two minutes. You may provide whatever you’d like in writing and we’ll make sure that the record is upended to include your written comments.

ASSEMBLYMEMBER DYMALLY: Mr. Chairman, since Mr. Dove mentioned Attorney David Martin, do you think it might be _____ if Mr. Martin comes up and responds to some of the questions Mr. Dove raised?

ASSEMBLYMEMBER UMBERG: If Mr. Martin would care to make public comment, that’s fine.

MR. DAVID MARTIN: Thank you very much, Assemblyman Dymally.

ASSEMBLYMEMBER DYMALLY: Mr. Martin, would you put the microphone closer?

MR. MARTIN: Oh, sure.

ASSEMBLYMEMBER UMBERG: Those of you come forward, just identify themselves.

MR. MARTIN: My name is David Martin. I’m an attorney for CORE Legal Defense and Education Fund and Adrian Dove. As Mr. Dove alluded to, we have filed a petition in the Superior Court of California. We allege some what I believe are very disturbing procedural moves with respect to Proposition 77. As reflected in our petition, a copy of which we will file with this panel, we allege that a, and believe we can prove, that a very different version, a significantly different version of the current proposition is being circulated for approval from the version that was submitted to the Attorney General. There’s a very specific process and procedure that must be followed under the California Constitution.

One version of Prop. 77 was submitted to the Attorney General for title and summary. A significantly different version, significantly different in 11 different changes was submitted to the Secretary of State. We allege that that is potentially a fraud on the California voters. And we are calling for an investigation into this issue, because I don’t think this was an accident. I allege it wasn’t an accident. The backers of Prop. 77 have put forward in substance this redistricting plan at least four times over the past few years. They have failed each time, so this time they do a bait and switch. At the very minimum we are calling for an investigation into this issue. And at a minimum, I will, through the litigation process and the discovery process, look into this issue myself.

The Superior Court originally pursuant to our petition, took Prop. 77 off the ballot finding that our position was legally correct, that the constitutional process was violated, and that Prop. 77 had no valid business being put before the voters.

Now, there’s, subsequent to that there’s been a split among the courts on that issue, but we at least have two courts coming out and saying there has been a violation of the California Constitution.

SENATOR BOWEN: Mr. Martin, we’re aware of the litigation. We do know that we will have, if the Proposition 77 passes, continued litigation on that measure, but for the purposes of the November 8th election, the courts have decided that the election is going to proceed. So, I’m, thank you for briefing us, but we’re, our constitutional requirement here is to hear the measure itself and as it will be before the voters. I do think this is an important argument that you need to make to voters and I’m sure you will do so aptly.

MR. MARTIN: Absolutely. Thank you, thank you. And I’ll just be brief and I’ll just conclude. The issue still is open. We have a, the State Supreme Court has spoken on this issue, but there is a federal litigation going on. And as we have mentioned in our court papers, we believe that there are violations of both the elections Code and potentially the Penal Code. Thank you for your time.

ASSEMBLYMEMBER UMBERG: Thank you. I think we have a sign in roster here. Let’s see, who do we have next. Mr. Holtzman?



MR. HOLTZMAN: David Holtzman. Thank you _____ legislators for bringing this hearing to Los Angeles. I’m a public health scientist and a public interest attorney. I served for a dozen years as a toxicologist and a legislative analyst for the State Department of Health Services and CalEPA’s office of Environmental Health Hazard Assessment.

I’m here wearing two hats. First of all, I’m the founder of Los Angeles Voters for Instant Runoff Elections, L.A. Vote Fire, which is a county-wide effort to improve our elections by making them instant run off elections. Second, I'm a member of the board of directors of a statewide group, Californians For Electoral Reform, or CFER, which has asked me to deliver its position to you today.

As an advocate for instant runoff elections, I should tell you that it’s a form of abuse to jerk voters to the polls when there’s no particularly good reason for doing so. They shouldn’t have two round elections when there’s a perfectly good system that will let you resolve nonpartisan elections in one round, and with regard to the special election, really there’s nothing on the ballot that’s of sufficient importance to justify jerking voters to the polls for a special election.

Should also tell you that I think the Supreme Court got it wrong when it decided to allow Prop. 77 to stay on the ballot for the special election. In doing so it suggested that the signers of the petition had some sort of legitimate expectation that voters could vote on the issue at the special election, when really nobody had a legitimate legal expectation that there would be a special election. And I think the Supreme Court needs to revisit the issue of the distinction between a special election and a general election and I believe that distinction could tip the balance in favor of a post-election injunction—

ASSEMBLYMEMBER UMBERG: Mr. Holtzman, we’re going to give everybody two minutes and if you care to use your two minutes to discuss the issues with respect to litigation, that’s your decision, but that’s not what we’re here about.

MR. HOLTZMAN: I just, as a procedural matter I think Prop. 77 is vulnerable to a post-election injunction against enforcement because it’s being voted on in a special election as opposed to a general election, special election nobody had a right to expect.

Let me just move on quickly then and read the basics of CFER’s position on Proposition 77. Californians for Electoral Reform takes _____ position of neutrality on Proposition 77 because it would have at best a marginal effect on representation. And at worst it would be tied up in the courts for years. CFER believes that arguing over who should draw district lines is like arguing over who should rearrange the deck chairs on the Titanic. It does not address the fundamental problem. While it may seem egregious to have legislators draw their own districts, having someone else do it won’t bring the results the proponents of redistricting reform seek to achieve. And if this statement which I’ll leave with the Sergeants has a lot of statistics about disappointing results of other states.

ASSEMBLYMEMBER UMBERG: Thank you very much. We’ll go ahead and take your statement and we’ll upend it to the record.

MR. HOLTZMAN: Thank you very much.

ASSEMBLYMEMBER UMBERG: Thank you so much for coming to testify. And is it Ms. Choong?

MS. YVONNE CHOONG: Hi, my name is Yvonne Choong and I’m the governance policy program director with the USC California Policy Institute. The California Policy Institute has produced a series of non-partisan in-depth analyses of four initiatives that will be appearing on the November ballot, 73, 74, 76, and 77. These analyses review and apply current academic research to provide information to voters on the potential affects of these initiatives on California public policy. We are not taking any positions on these initiatives. Our only goal is to provide research information relevant to the proposition to the public.

My presentation largely echoes a lot the points that were made earlier by the first panel and I just wanted to mention that our full analysis of Prop. 77 will be presented tomorrow at a public forum at the California Research Bureau. And copies of the report and summary will be available there, as well. All information will be available on our web site at And these materials will also be made available in Spanish.

Our main points of our report are that, again, redistricting commissions are not a panacea. Our report goes into fuller detail on the work being done in other states. And that the plans being produced by redistricting commissions in other states have been challenged and have been regarded as unfair just about as often as other plans. And with respect to redistricting criteria, we wanted to reemphasize the point that the redistricting criteria as proposed in the proposition many of which are inherently in conflict with each other and that’s really an important issue to consider. And again, our summary will go into that in further detail. Thank you.

ASSEMBLYMEMBER UMBERG: Thank you so much for your presentation. Mr. Johnson.

MR. DOUGLAS JOHNSON: Good afternoon. Two parts—one, you have copies of the executive summary and on our web site is the full report, so I won’t go through all that. But, just to hit the couple of high points.

ASSEMBLYMEMBER DYMALLY: Mr. Chairman, I wonder if Mr. Johnson could pull the microphone closer.

SENATOR BOWEN: And we should, although I know who you are, not everyone does, so.

MR. JOHNSON: Douglas Johnson, fellow with the Rose Institute of State and Local Government at Claremont McKenna College. I would say we looked at both the need for redistricting reform and without endorsing or opposing, because we don’t take positions on specific initiatives, looking at what is the likely results of districts drawn under Prop. 77. And what we found is a reasonable expectation is that there be two new majority Latino voting age population districts, essentially the two that MALDEF sued over would be fixed under Prop. 77’s process. One district that is in the Bay Area would probably go from 30 percent Asian-American voting age to about 35 percent. And in terms of competitiveness, our look found that the Assembly would end up with seven competitive by reasonable measure. And there’s been talk earlier about the difficulty measuring this. The State Senate would probably have eight, and the Congressional delegation would probably have ten competitive seats. I would say a year like the 1980, 1994, or you’re like 1974 competitive measures go out the window and it can be much larger. But, I do want to highlight that.

Also, wanted to highlight that the questions about what data and chaos. I mean the record is clear that we, we being the State of California, redrew the districts in ’82 after the voters threw them out. We redrew the districts in ’73 after we had a temporary plan. All of these used the census data. We even redrew the districts in 1965 and 1967 using 1960 census data. I mean, the precedents are clear, the history is clear. I think we spent an hour this morning kind of trying to confuse what’s the clear record of how that would work.

And also on the, Senator Bowen, you had raised a question about the nesting and the impact of State Senate power. Actually, State Senators oppose nesting with the core of their being. Currently, the State Senators have their districts among two, three, four, five, sometimes even six or seven Assembly districts. They, the Senator controls that district and really gets, as we saw in 2001, it’s easy to appoint the successor. If the districts are nested, there are two Assembly districts. Each Assemblyman has just as much relationship with half the voters as a Senator does. And the reason that they don’t nest when legislators draw the lines is the Senators are afraid that the Assemblymembers will run against them. I mean--

SENATOR BOWEN: Well, actually, first if you just look at, well, take the 28th Senate District, because I’m familiar with it. It has, it roughly has two Assembly districts in it. But, the registration numbers are so different in those two districts that it’s actually a case where there’s an obvious choice. You’ve got one part of the district that’s one of the very most registered districts in the State of California. Another because it has a lot more kids, a lot more immigrants, has a very low number of reps. So, I think it’s, and I think actually with term limits, one of the things that we’re seeing is that there are very few challenges of incumbents, so I, you know, that’s a term limits issue. I think there actually would be more if you had more Assembly districts. I think we’re more effective when we have more Assemblymembers in our district, because we develop relationships with people who have various other interests. At least that’s been my experience.

So, I don’t care one way or another aside from, but I don’t want to leave the impression that there’s always an equal number of voters in the two Assembly districts that would comprise a nested Senate district, because given the demographics of California, that’s very often not the case. You can look at the 28th and you’ll see it.

MR. JOHNSON: Yeah, well, and the 28th as you mention is—

SENATOR BOWEN: But, every Senate district with 800 and some, almost 900,000 people that’s just the way it is.

MR. JOHNSON: But, you could be challenged by someone who has a base of 10,000 in the district today, versus someone that has a base of ____.

SENATOR BOWEN: But, the reality is that I think most of us have a district where there is a—but, I don’t think it’s really about we could be challenged. We generally work with the people in the Assembly who are with us. And again, you’re seeing not a challenge based on the size of the seat, but just because of term limits people decide well why, and we just seen this in spades with the Los Angeles City Council and the city races here. Why would you go challenge an incumbent when if you just waited for four years, you know, life’s a whole lot easier?  And I think it has way more to do with that than it does with the district line. My editorial comment.

ASSEMBLYMEMBER UMBERG: Thank you. Next, Mr. Clayton?

MR. ALAN CLAYTON: Yes, my name’s Alan Clayton. I’m the research chair for the California Latino Redistricting Coalition. And I also represent the L.A. County Chicano Employees Association. I’ve been involved in a major effort in nine redistrictings, oh, since 1986. I was involved in the ’91 redistricting and the 2001 redistricting and I want to make a few points. Having done maps, I know how hard maps are, because during the 2001 redistricting on a Saturday we start at nine in the morning and finish at three in the morning. I know how the process works. I’ve been through the whole process. I advise Senators and Assemblymembers in the last redistricting as a part of a consulting group. So, I drew maps that were used in the discussions. Some of you know that, because some of you went in and talked to me because I had the only possession of a series of maps that were used in a lot of negotiations. So I’m an insider in the process.

I also criticize the process. I also follow the Section 5 case with the Justice Department against it, so I have a record out there of taking on a plan when I don’t like it. But, I will not be here to support 77 for a variety of reasons. And that doesn’t mean I’m fond of the plan that’s there now. I’m not fond of it. I filed with the Justice Department. I went to Washington and asked them to sue under Section 2 because I believed it violated the voting rights of both African-Americans and Latinos. And I detailed that in detail, gave a copy to the caucuses and I still believe that’s the case regardless of what the judges said.

The problems are I think it would take a minimum of 120 to 160 hours under maptitude to draw the congressional, Senate, and Assembly with somebody experienced redistrict, at redistricting. Then in addition to that as you’re doing that, you have to know the law, so you have to prepare your brief. And that’s going to take you another 50 to 75 to 100 hours. If you’re going to go and testify before the masters, and I went through a ____. I prepared some peoples’ testimony. I wrote a 43 page one that took me a lot of time to do, because I was analyzing plans. It’s very tedious and you have to have a strong knowledge of the Voting Rights Act.

There are other problems. One percent deviation is not required. You can go up to 10 percent of reasonably compact plan. I mean I hear ____ information here today is just not correct. The majority of cases around the country allow the discretion for Assembly and Senate to go to 10 percent. There was one case where they found there was a violation of ____ because it was so gerrymandered and that one a lot of us who study redistricting and been involved don’t understand why the Supreme Court had one ruling on the Pennsylvania and another ruling on _____, another ruling on the Texas case, because I can sit down and talk to you some about it. It didn’t make any sense to us.

But, the key is when you talk about keeping counties whole, and you’ve talked about keeping cities whole and you strait jacket to one percent, you don’t have to. As you go to a larger deviation, I did this, I was involved in city redistricting, school district, and I have a map for you. This one was adopted and put on the ballot where I drafted it and the LAFCO adopted it. It’s a map that and I talked about the criteria—

SENATOR BOWEN: Is that what would go on the ballot under Prop. 77?

MR. CLAYTON: No. What I’m pointing out to you is I’ve been through the process. I think the time line is way too soon—

SENATOR BOWEN: Not that particular map, but I think—

MR. CLAYTON: No, that map, the issue went forth, but this was the map that would, if succession had passed, I did not support or oppose succession. I mapped it. I presented a map to LAFCO. Their experts presented a map. LAFCO adopted my map. If succession had of passed in L.A., that map would have been on the ballot. This is a copy of it. This is a statement from County Counsel.

SENATOR BOWEN: I’m just wondering what exactly is going to go on the map when we ask them for—

MR. CLAYTON: Well, I don’t believe that—

SENATOR BOWEN: --ballot for when we ask the voters whether they approve this or not.

MR. CLAYTON: That’s one of my real concerns is that it makes no sense to have a vote of the people on something as complex as redistricting. How can you put a map on the ballot and people understand it with all the demographic information out there?  Nobody does that. The other problem is if, here you go. Let’s say this happens. And let’s say 77 goes through. We have the judges, they review it. We go through the process. It gets tested in court. It’ll be tested on Section 5, Section 2, maybe under the 14th Amendment, under a Shaw violation or maybe under one person, one vote. There’s a whole variety of tests you can challenge. And I did a Section 5 on one, so it’s a very difficult process, but it can be won. Well, the problem is, let’s say the courts uphold it and then the voters vote it down. What do you tell the next panel of judges?  Violate federal law?  Federal law trumps state statute. It trumps the State Constitution.

ASSEMBLYMEMBER UMBERG: Mr. Clayton, the purpose of this hearing is to focus upon Prop. 77 and I recognize—

MR. CLAYTON: That’s what I am focusing on.

ASSEMBLYMEMBER UMBERG: --that you’re raising the legal issues that’ll be tested in the court. Right now we’re focused on practical issues. But, even more importantly with respect to your comments, you’ve made some cogent comments concerning what might have we voted on by virtue of the Proposition’s requirement that the maps be approved by the electorate. But, what I was going to say is that at this point if you could submit whatever else you have in writing, we will be happy to upend the record.

MR. CLAYTON: But, what I want to do is listen to what the testimony was, and I think you really need to bring in people that have actually drawn lines and been through the process. There are some of us out there that actually went through the process. A number of them were insiders, but we’ve been through it twice. We know how it works. And there are problems with this initiative. We have not taken a position on it.

ASSEMBLYMEMBER UMBERG: I think that the, at least the members who have remained would concur that there are serious problems with the mechanics of the proposition, among other things. Thank you so much for your testimony. Is there anyone else that would care to testify?  Alright. Senator Bowen?

SENATOR BOWEN: I just want to thank everyone for their work explaining and participating and redistricting by its nature is arcane and often makes peoples’ eyes glaze over, so I particularly want to thank the staff and the support staff who’ve been here, came down from Sacramento and enabled us to have an orderly hearing, come in and have a room all set up and be able to have a discussion on the policy issues and really focus on those issues. And thank all of you for caring about the future of California, including those who came long distances to be with us.

ASSEMBLYMEMBER UMBERG: Let me just conclude by thanking all of you who’ve come here to testify, to observe, particularly the panel members. I will note for Senator Bowen that I think the Assembly outdid the Senate by a margin of about six to two or something like that—three, maybe. In any event, we’re very grateful for your interest and we look forward to continuing focus on the issue of redistricting and the commitment to do things better in the future. Thanks.

Committee Address