Despite requests from more than 20 civic groups that she keep recruiting applicants for the California Citizens Redistricting Commission past the present Aug. 9 deadline, state Auditor Elaine Howle doesn’t appear to believe it is necessary. 

Last week, California Common Cause, the California NAACP and the National Association of Latino Elected and Appointed Officials were among the organizations that asked that the deadline be moved to Sept. 30. They cited statistics showing that whites were heavily overrepresented in the first 7,500 applicants, that Latinos and Asian Americans were heavily underrepresented, and that women were somewhat underrepresented.

“California voters only get one shot every 10 years to draw the lines that shape our future,” their letter to Howle said. “We, the people, want a chance to make a real impact for our families, neighborhood and state.”

Common Cause chief says applicants not diverse enough

Rey Lopez-Calderon, executive director of California Common Cause, told the San Francisco Chronicle that the redistricting commission had gotten a much worse response than in its recruitment efforts before the 2010 census, when there were about 30,000 applicants. That was the first time the commission handled redistricting after being created by Proposition 11, a 2008 ballot measure that put the state auditor’s office in charge of setting up the commission.

“We need differing views on the commission, and not just ethnic views,” Lopez-Calderon said. “[We] need people who know the different parts of the state.”

But in a news release on Tuesday, Howle didn’t address or give any credence to the civic groups’ concerns.

“I am pleased to announce that as of this morning, over 10,300 Californians have stepped forward for a chance to serve on the second 14-member Citizens Redistricting Commission,” Howle’s statement said. “This is great news for direct democracy! As we enter the final days of the initial application period, my staff and I will continue working to encourage even more eligible individuals throughout the state to apply.”

After applications close, Howle’s office expects to come up with a list of 40 finalists by next April. The committee’s 14 members will be chosen by Aug. 15, 2020. Under the rules of Proposition 11, the commission includes five Democrats, five Republicans and four people who are independents, decline to state a party preference or are members of another party. 

U.S. Supreme Court: Partisan gerrymandering allowed

The ballot measure was passed over the bipartisan objections of most of the state’s political establishment at the behest of then-Gov. Arnold Schwarzenegger and good-government groups. They successfully argued that the task should be taken away from the state Legislature because it had long since proven it drew election district boundaries to protect incumbents. In 2004, for example, not a single one of California’s then-51 House seats changed parties.

But the belief that partisan gerrymandering is fundamentally bad and must be avoided took a huge blow from the U.S. Supreme Court in June. On a 5-4 vote, the court’s conservative majority declined to force changes to extreme gerrymanders adopted by Republican lawmakers in North Carolina and by Democratic lawmakers in Maryland.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice John Roberts wrote. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” 

A lawsuit brought by lawmakers in Phoenix, now before the U.S. Supreme Court, argues that only state legislatures have the right to draw — and redraw — congressional districts. According to the U.S. Constitution, redistricting must take place once every 10 years after the U.S. Census.

Like Californians, Arizonans passed a ballot measure vesting that power in the hands of independent citizens’ commissions. For Arizona, it was Proposition 106 in 2000.

As a result, the Supreme Court also has placed California’s Proposition 20 in the crosshairs.

The first step in the Golden State was Proposition 11 in 2008, which voters passed. It put state legislative and Board of Equalization redistricting under the control of the California Citizens Redistricting Commission.

Two years later, with Prop. 20, voters extended the reform to include congressional districts. Backed by then-Gov. Arnold Schwarzenegger and spearheaded by influential Republican reformer Charles Munger Jr., Prop. 20 passed over the strenuous opposition of California Democrats in the House of Representatives, including then-Speaker Nancy Pelosi of San Francisco.

Litigating the gerrymander

The case now at hand, Arizona State Legislature v. Arizona Independent Redistricting Commission, could bring far-reaching consequences, not just in Arizona and California but around the country. Legislative district-drawing has come under fire for decades as an often corrupt and manipulative practice.

For even longer, critics have slammed lawmakers for self-servingly shaping “gerrymandered” districts — named for one of the early classic offenders, lampooned for possessing an outlandish shape reminiscent of a salamander.

In California, the most extreme gerrymander was for the 23rd Congressional District during the last decade. It’s the map at the top of this article. The map shows a thin district 200 miles long, hugging the coast.

After Prop. 20 was passed, the new 23rd Congressional District was given a more regular shape for the 2012 election, shown in the second map. The district currently is represented by Majority Leader Kevin McCarthy, R-Bakersfield.

In an ironic twist, the Arizona case was launched by the Republican-led Legislature there. But if Prop. 20 goes down as a result, California observers are unanimous that Golden State Republicans will be adversely affected.

Yet nationwide, some career liberals have weighed in strongly against the Arizona Legislature’s action. As Politico reported:

“‘For entrenched political interests around the country, it would be the biggest New Year’s Eve of all,’ if the court backed the legislature, said Michael Waldman, president of the Brennan Center for Justice at New York University Law School, which has been following the case closely and filed a friend-of-the-court brief on behalf of the Arizona commission.”

Mobilization

In California, meanwhile, Republicans have begun to mobilize support of redistricting commissions. With Bill Mundell, Munger co-authored an op-ed in the Sacramento Bee, breaking down the likely issues of constitutional interpretation at stake.

The case, he wrote:

“Rests on the Supreme Court’s interpretation of the Elections Clause of the U.S. Constitution, which states: ‘The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.’

“The Arizona Legislature argues that the word ‘legislature’ must mean the members of its two chambers voting as a body. But the dictionaries of the era defined legislature as ‘the power that makes laws.’ Hence the case will likely turn on the Supreme Court’s conclusion about the intent of the Framers in 1787 and on how political thinking in that remarkable era conceptualized the structure of government.”

Former Rep. David Dreier has filed an amicus brief in the Arizona case with Munger, former California governors and the California Chamber of Commerce. Dreier took to the Orange County Register to press the issue. “California’s redistricting commission has flaws,” he conceded, “but they can be addressed before the next go-round in 2020.”

However, he maintained, Prop. 20’s constitutionality was not in question:

“An adverse court ruling would deprive the states of the power to structure their own government in the way they choose, and would sentence California to a return to the days of legislative gerrymandering. We’ve already seen that movie.”

The case for citizen commissions

Corruption has not been the only argument against gerrymandering. Part of the popular support for independent commissions has come from the notion that both major political parties have a mutual interest in creating “safe” seats, drawing districts which are certain, thanks to their forced shape, to include voters that will reliably return to office members of just one party.

Conceivably, this could lead to increased political polarization, as the parties run increasingly “extreme” or ideologically “pure” candidates that can win in safe districts, but not in competitive ones. (A similar logic led Californians to embrace the “jungle” primary system, also called the Top Two system, with Proposition 14 in 2010.)

Some scholars, however, have recently called that argument into question. In an analysis, Princeton Professor Nolan McCarty showed redrawing districts to avoid gerrymandering would not significantly reduce polarization in Congress.

Democrats and Republicans, he claimed, contributed to polarization mostly by the way they voted when they occupied relatively “unsafe” districts. McCarty even argued that doing away with gerrymandering would decrease diversity of representation, harming not only ethnic minorities but ideological ones as well.

Still, McCarty emphasized, leaving redistricting in the hands of legislators themselves “is an invitation to overt corruption. A key to any successful democracy is a widespread belief in the fairness and impartiality of elections.”

Although the Arizona case may have some California Republicans in political panic mode, their reliance on accepted principles of democratic governance has so far gone unquestioned.

By WAYNE LUSVARDI

Is Gov. Jerry Brown dangerously inferring that if he does not get his proposed state budget balanced high, urban riots are not only inevitable but permissible?

On April 10, he spoke at the Reagan State Building in downtown Los Angeles using Civil War metaphors for describing the level of political partisanship he is finding over the inability to reach consensus on a state budget.

Gov. Brown told CBS News reporter Dave Bryan:

[T]he country hasn’t been this divided since the Civil War…. We are at a point of civil discord, and I would not minimize the risk to our country and to our state. It is not trivial. I’ve been around a long time.  I’m a student of history.  I’m a student of contemporary politics. We are facing what I would call a ‘regime crisis.’ The legitimacy of our very democratic institutions are in question.

Is Gov. Brown trying to persuade the electorate to vote for his high-balanced state budget, or is he dangerously trying to extort the outcome he wants?

No Mandate for Taxes

Brown and a fawning press continue to portray the Nov. 2, 2010 election, a clean-sweep victory by the Party of Government for all statewide public offices up for election, as a mandate for tax increases.  The fact is that in the same statewide election Brown’s party lost every ballot initiative  that had anything to do with raising taxes. That included Proposition 25, which passed and allowed the legislature to pass a state budget with only a bare majority vote, but only — read the fine print — if taxes are not raised!

Brown continues to pretend that he and his party were granted the “consent of the governed” to raise taxes — when they most definitely were not.   Put in the intellectual terms that Jerry Brown uses, raising taxes was deemed an “illegitimate” option.

It most certainly is a legitimacy crisis for his party’s regime, just as it was for former Gov. Schwarzenegger when he lost his package of reform initiatives in 2005.  But how dare Brown raise the legitimacy issue when his political party has opposed the will of the people again and again with Proposition 187 (immigration reform) and the two same-sex marriage measures, Proposition 22 and Proposition 8? His party also has helped create government agencies with unelected officials far removed from the consent of the governed such, as the California Air Resources Board (CARB) and the Water Resources Control Board.

Tax and Spend Regime Was Declared Over by Voters in Nov. 2010

But how can it be called a “crisis” when the voters spoke loud and clear beforehand that raising taxes was not legit? The electorate already sent a message that the “tax and spend regime” of the past is over.  But Gov. Brown and the media want to spin that it never happened and that rejection of his tax package would spell a “regime crisis.”  Denial is a fictional river in California, not Egypt.

Political scientist Robert A. Dahl came up with an apt metaphor for explaining how legitimacy works in a state such as California with its perpetual droughts.  Dahl described legitimacy as a “reservoir.”  Inasmuch as the water is at a given level, political stability is maintained; if it falls below the required level, political legitimacy is endangered.”

In other words, political legitimacy is not gained by merely getting elected, even in a clean sweep of all offices. In California this is mainly due to the mechanics of gerrymandering that guarantees non-competitive electoral districts.  Elections in such highly gerrymandered districts do not confer the consent of the governed to raise taxes.

Proposition 11, passed by voters in 2008, is supposed to end the gerrymandering by establishing the California Citizens Redistricting Commission to draw non-partisan districts without gerrymandering. But columnist Dan Walters, among others, is skeptical that it will work as advertised.

Political legitimacy can’t be merely gained by highly gerrymandered votes, laws or regulations, the charisma of an articulate leader or even an approving press.  Legitimacy can ultimately only be gained by political “virtue,” a misunderstood concept not having anything to do with personal morality but with doing what is best for the people in the long run even at the expense of one’s popularity.

The U.S. Civil War Was Not Inevitable

With all his talk of Civil War, Brown seems to be implying that the predictable results from a failed budget will be civil war.  As historian Douglas G. Egerton describes in his 2010 book, “Year of Meteors: Stephen Douglas, Abraham Lincoln, and the Election that Brought on the Civil War,” the outbreak of the Civil War in 1861 was not inevitable.  The reason that full-scale hostilities broke out was the result of a conspiracy of a relatively few men.

Abraham Lincoln was covertly supported for president by a band of Southern extremist, pro-slavery politicians called the “Fire Eaters” who wanted to trigger the secession of Southern states.  According to Egerton, the Civil War came about not when the Southern states seceded but when the Northern states tried to stop them.

It was small provocations, verbal insults, race baiting, taunts, conspiracies, yellow journalism and other gestures that led up to the Civil War.  Such may be the case of a Civil War metaphor today in California, which may be misinterpreted to mean that without an approved state budget there will be “war.”

Which raises the question: Is Jerry Brown issuing a warning or is he granting tacit approval for a civil war?  To repeat, civil war is not inevitable.  It is something that comes about typically when leaders, and small groups of elites, together with the press, are able to indirectly communicate that violence is a permissible option and may not even be punished.

No less a role is played by the press. As Egerton writes in his book, “Democratic [Party] newspapers angrily placed the failure of conciliation squarely on Lincoln’s party and the President-elect.”

John Brown Failed Because His Violent Means Were Illegitimate

Coincidentally, it was a person name Brown, abolitionist John Brown, who helped incite the Civil War by leading a raid on the Harper’s Ferry arms depot in 1859 in the hope of arming slaves for a slave rebellion.  John Brown believed his cause was legitimate, but failed because the slaves refused to follow him and arm themselves for an uprising.

Not that there couldn’t be urban riots fomented by elites in California today, but I find that Gov. Brown’s use of Civil War rhetoric to be dangerous unless he qualifies that any such actions would be severely punished and that his role is as a reconciler.

State Needs to Carry Out Will of the People

What would be best for California right now would be for its leaders to tone down and out the rhetoric of war, to quit scapegoating Republicans and to declare that in November 2010 the people voted for an end to the “tax and spend” regime.  That’s what elections are for: to replace violent dissension and war.  Thus, the “civil war” over the state budget was already held in November 2010.  That war is over and the Democrats lost, despite gaining every statewide political office on the ballot, and a majority of the seats the gerrymandered Legislature.

Martin L. Gross wrote that “government loses its claim to legitimacy when it fails to fulfill its obligations.” Which means today:

* It is time for Gov. Brown and the legislature to carry out the expressed will of the people about “no more taxes.”

* It is time for the press to quit spinning that the voters want taxes raised.

* It is time for moral leaders to not sanction civil strife.

* It is time to exert the rule of democratic law and not descend into the anarchy of Greece fomented by Leftist groups.

* It is time for the state government to regain legitimacy if we are going to have an economic recovery.

Has Civil War Now Gained Legitimacy?

With Gov. Brown’s unfortunate statement about the plausibility of civil war has given such a war a kind of legitimacy, I asked a prosecutor friend of mine  to comment on Jerry Brown’s use of Civil War rhetoric. My friend replied:

Jerry Brown is nothing more than California’s Obama.  He ran as if he knew the answers, and was ready to make the tough decisions.  In truth, he had no answers except the wrong ones (more taxes), and has no intention of making any tough decisions unless someone puts a figurative gun to his head or a recall election on the ballot.  The Republicans have called his bluff, and now he’s in a pickle.

This new “civil war” rhetoric is like the last gasp of a drowning man.  Brown thinks he can scare people into embracing a totally bankrupt remedy that may provide a few more breaths of air, but has no chance of solving the state’s problems.

I don’t think anyone’s buying his budget proposal for one minute.  He wants to do everything but get realistic about how to solve this mess.  That would take real leadership and real guts.  Neither is his strong suit.