Redistricting California: Will the Removal of Prop 77 Disenfranchise Voters?

by Ken Werner, Trinity Plaza Tenants Association (TPTA) on July 11, 2005

On Friday, California Attorney General Bill Lockyer filed suit in Sacramento Superior Court to remove Prop 77, known as “Redistricting Reform: The Voter Empowerment Act,” from Gov. Arnold Schwarzenegger’s special election ballot set for November 8. Defendants are California Secretary of State Bruce McPherson (Republican appointed by the governor) and Geoff Brandt, Acting State Printer with the Office of the State Publishing.

I’ve been following the redistricting battle nationwide and statewide since last year when the Washington Post geared up its investigation into Rep. Tom DeLay’s (R-TX) 2003 redistricting of Texas (as well as the scandal involving right-wing lobbyist Jack Abramoff) allegedly using corporate contributions, which is illegal in that state. My interest focused on drawing parallels between California and Texas.

Even though the political picture between the two states’ efforts at redistricting exhibit some differences, for example, campaign contributions: corporate donations are illegal in Texas, but Schwarzenegger has collected more than $1.7-million from OUTSIDE California (a lawsuit to stop the practice failed). But the underlying premise is the same. DeLay’s intent at his mid-decade plan was to successfully alter his state’s representation from Democrat to Republican.

What’s in Store for California?

Schwarzenegger’s intent is exactly the same as DeLay’s. Though the Governor is often portrayed as a moderate because of his pro-choice stance on abortion rights and favoring solar energy, his Republican ideology is consistent with that of Tom DeLay, George Bush, and the Republican Party in general.

Schwarzenegger has been pushing his redistricting plan because he claims elections are not fair in our state, that voters really don’t have choices. He proclaims that the 153 incumbents who easily won reelection in the last statewide election are proof that the state’s districts need to be changed.

Under the strategy Schwarzenegger is backing, California will undergo a redrawing of congressional and legislative districts to make them more “competitive,” which the governor says can be achieved by appointing a 3-judge panel to redesign districts following mid-decade assumptions on the state’s changing population.

Opponents of redistricting including noted experts are demanding and/or recommending that any redistricting plan should wait until the next census (2010) so that new residents (probably disproportionately non-white) are not disenfranchised, and even then the task will be nearly impossible to achieve. Furthermore, a 3-judge panel will likely exclude minorities and women.

But Schwarzenegger’s plan is more insidious than it appears at face value. The strategy involves changing the districts so that there is nearly an equal representation between Democrat and Republican voters. The governor’s other pronged attack involves limiting (or eventually eliminating) the power of the state’s unions by making it illegal for unions to make political contributions, which typically go to Democratic candidates.

So where will candidate funding be secured? Donations from corporate interests and the state’s multimillionaires and billionaires will be funneled to Republican candidates, the same interests that have been funding the redistricting effort. In other words, the Republican Party is attempting to steal California under the guise that elections are not fair to voters.

But one part of Schwarzenegger’s multipronged attack on voters rights now appears dead in the water because of differences in the text of the initiative as presented to voters for their signature and the one submitted to the Attorney General’s office for drafting Prop 77’s title and summary.

Should Prop 77 be Removed?

Prop 77’s lead proponent is Edward J. “Ted” Costa, chief executive of People’s Advocate, Inc., and one of the leaders in the recall election that planted Schwarzenegger in the governor’s seat; Costa claims that the initiative contains only minor errors and should not be stricken from the ballot.

According to the lawsuit, Lockyer claims that the proponents violated Article II, Section 10(d) of the California Constitution in that proponents are required “to provide the Attorney General with an exact ‘copy’ of the initiative ‘[p]rior to [its] circulation’ to registered voters.”

In a July 1, 2005 letter to the Attorney General’s office from Undersecretary of State William P. Wood, McPherson’s office admitted the versions were different and included a memorandum from attorney Daniel M. Kolkey of Gibson, Dunn & Crutcher LLP, Costa’s counsel, that listed 12 differences in the version signature gatherers presented to voters compared to the version that was submitted to the Attorney General’s office for approval for signature collection.

In particular, Section 1(a) of Costa’s circulation version stated: “Our Legislature should be responsive to the demands of the citizens of California, and not the self-interests of individual legislators or the partisan interests of political parties.”

However, the version that was presented to the Attorney General’s office for approval reads as follows:

“Our Legislature should be responsive to the demands of the voters, but existing law places the power to draw the very districts, in which legislators are elected, in the hands of incumbent state legislators, who then choose their voters, which is a conflict of interest.”

Additionally, backers of the initiative admitted that voters were presented with a preamble (Section 1) that was condensed to four paragraphs from the original five submitted to Lockyer for approval.

Robert Salladay and Nancy Vogel of the Los Angeles Times also reported that a third, older version of the initiative resurfaced in several counties even AFTER petition gatherers CLAIMED the older versions had been destroyed.

Brian Melley of the Associated Press (as printed in the Sacramento Bee) quoted Lockyer’s concept for removing Prop 77:

“Permitting proponents to change a measure after issuance of the title and summary would open the door to ‘bait and switch’ tactics … Proponents could submit one version of a measure to [my office] to secure a favorable title and summary, but then revise the measure for circulation in response to polling results” (perhaps referencing the popular Field Poll).

Remembering Prop M

As you probably remember, San Francisco Judge James Warren removed Prop M from the November 2004 ballot because we had inadvertently left off Section 101.5 of the Elections Code (the section expired at the beginning of this year). Warren himself admitted that it was not a substantive alteration. Indeed, publishing the wording that was unintentionally omitted would have remedied the oversight, but Warren’s anti-tenant stance eased his conscience at removing the Housing Preservation Initiative.

Such is not the case with Prop 77. The alterations are substantive in nature and the offending measure should be removed from the ballot. Indeed, from newspaper reports it also appears the proponents attempted to further their act of wanton disregard for the California Constitution by attempting to include signatures from a third version of their initiative. In my opinion this constitutes fraud, but Lockyer has not included the claim in his Petition for Writ of Mandate.

Proponents and newspaper reports (including the right-wing Chronicle) claim that more than 900,000 voters will be disenfranchised if Prop 77 is removed from the ballot. In fact, the number stands at about 678,000 VALIDATED signatures.

However, the fight over Prop 77 is not about disenfranchising voters because of the measure’s removal from the ballot. As reported above, opponents have highlighted how the measure would not remedy the current districting of the state. Prop 77 is fatally flawed and deserves removal, and it is because of the numerous flaws in the measure that California voters would be disenfranchised if the initiative is permitted to remain on the ballot.

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