Supreme Court considers whether the referendum is “likely to qualify”

by Brian Leubitz

UPDATE: Well, I’ve had a bit of time to digest the hearing, and I’m still as unsure what they will do as I was at 9AM.  There are essentially a few different options:

1) Don’t intervene until there is more indication of whether the referendum will qualify.  While there is great speculation in the political world whether it will qualify, the hearing itself didn’t seem to really focus all that much time on this issue.  “Likely to qualify” has some history as a term in the Court’s jurisprudence, but much of it essentially comes down to a fluidity based on context.  The Court could use this in many ways to justify one outcome or another.

2) “Intervene” now, but leave the map in place.  Justice Liu brought up this suggestion. As there is a dearth of time to create a new map, and the map drawn by the commission represents the best attempt at trying to draw a map that meets all the goals of the legal requirements.  This, as you would expect, would make the Republican proponents none too happy.

3) Intervene and have voters vote on the old map.  This idea came up a couple of times during the hearing, and it just seems insane to me.  The old maps had to be changed because we had population shifts. Thus, using the old maps would mean that people would have unequal representation in the Senate.  Now, there is some legal precedence for this when there is a really good reason, but I just think this “solution” raises a lot more questions than it answers.

4) Intervene and have voters vote on a new map.  Where do we start on this one. Well, you could have a special master draw the map. The Republicans wouldn’t be guaranteed that they would like that one any more than they like the Commission’s map. And, as a bonus, you get a process that essentially has no transparency because the judges and the special master just wouldn’t have time to take any public comment.  

The related system that came up was “nested Assembly districts”, meaning just smush two Assembly districts and bam, you have a Senate district map. But that system would result in some pretty nasty Voting Rights Act questions, and then you are back at square one with having to design a new map.

I think that John Myers was right when he tweeted that the Justices were inclined to intervene.  However, I just don’t know that they have any good options to replace the Commission’s map.  We should have a ruling by the end of the month at the latest.

See also a good wrap up from John Myers on the hearing.

Back to the original post  

As I write this, the CA Supreme Court is considering whether to produce their own maps, use the old maps, or stick with the Commission’s maps.

You can watch the hearing live here.  

John Myers has been tweeting the hearing, and while he thinks that the Supremes are leaning toward intervening, I think it is still something of an open question.  I have learned to never underestimate James Brosnahan.

Follow my twitter feed for more.

There are a few points that are important here:

1) Is the referendum “likely to qualify”?

That is a difficult question of fact, and not at all clear.  The proponents did not turn in the usual cushion that would make it really likely to qualify.  The number of signatures puts qualification at risk.

2) What alternative map would you use?

Using the old maps, one of the proponents suggestions, presents the question of equal representation. The other main alternative would be to hire one special master, and basically have that person draw the maps. Is that really what the voters wanted when they voted for the commission?