*1 24348, 24349. Nos. Jan. [S.F. 1982.] al., et CALIFORNIA THE STATE OF
ASSEMBLY OF Petitioners, v. al., General, etc., DEUKMEJIAN, et Attorney as
GEORGE Respondents; Chairman, etc., al., in Interest. JUNCO, et Real Parties as
TIRSO del No. 24354. Jan. 1982.] [S.F. al., BURTON, et Congressman as United States
PHILLIP Petitioners, v. etc., al., EU, State, Respondents; et Secretary as
MARCH FONG etc., al., JUNCO, Chairman, et Real Parties Interest. as TIRSO del No. Jan. 24356. 1982.] [S.F. al., Petitioners, et v. OF CALIFORNIA THE STATE
SENATE OF etc., al., EU, State, Respondents; et Secretary MARCH FONG as JUNCO, Chairman, etc., al., et Real Parties Interest. TIRSO del *4 Counsel Purcell, Remcho, Johansen, Kathleen J. Mitchell B. Robin
Joseph *5 Marson, Remcho, Rivkind, C. Zimmerman, & Charles Nina R. Rosen Petitioners in Nos. 24348 D. Balloun for Steven F. Shatz and Kristen and 24349. Borow, Sheldon E. H. Manella, Steinberg, H. Jonathan
Irell & Richard No. 24354. for Petitioners in Lowenstein and Daniel Eisenberg Hays Ervin, Barton, Teresa M. Tuohey, Ferguson, G. & Conrad Tuohey Petitioners in No. 24356. & and Allan Browne for Jessup Cohen Manzano, Huerta, Baller, E. Martinez, Angel Morris J. John Vilma S. Sideman, Elizabeth and Jr., Wong, Meyer Linda Maria Rodriguez, on behalf Petitioners. Amici Curiae & Modrak as Franco Meyer, Martland, Assistant General, Richard D. Deukmejian, Attorney George At- General, Geoffrey Graybill, Deputy L. Burton Robert Attorney General, Attorney General. Respondent for torneys for William P. Yee Miller, Respon- Maness and Richard B. L. Anthony of State. Secretary dent Larson, Counsel, Hickok,
John H. and Philip H. Coun- County Deputy Counsel, ty Los Respondent Angeles Registrar of Voters. County Gibson, Crutcher, Swenson, Warren, Dunn & Robert S. John J. Mary Davis, Amber, Laura Robert Cooper, E. Daniel M. Gregg A. Kolkey, Musick, Garrett, & Mullin, Peeler Charles E. Sheppard, Wiggins, Richter & A. Hampton, Jr., John Charles W. Sturgeon, Dobbs McCoy, Nielsen, & Parrinello, James R. John E. Mueller and Marguerite Mary Leoni for Real Parties in Interest. Kohn,
Michael Kane, J. Brady, Ropers, Majeski, Wagner & Bentley, Clifford, Brown, Jenkins & Falsetti, Crafts, Arnold Anchordoquy, Pritchard & and Scott Darling Edward Amici Darling as Curiae on be- half of Real Parties in Interest. Wasser,
Michael J. Halliwell and Mark (Madera), A. Counsel County as Amici Curiae.
Opinion BIRD, C. J.These consolidated proceedings mandate raise difficult questions referenda concerning challenges Congressional, Senate and statutes Assembly reapportionment passed by majority (Stats. 1981, 535, 536, signed by Governor. chs. because, Are the petitions referendum defective violation (c), Elections Code section required subdivision they signer to *6 use his or her “address as to vote” rather than ad- registered “residence dress,” thereby it making impossible for election officials to determine if the were signers qualified registered voters?
(2) defect, Even if the petitions contain a substantial should the court qualify may upon by people allow them to so the referenda be voted the of this state?
(3) Even if the would petitions technically otherwise the qualify, may referendum be to process used statutes? challenge reapportionment Does the stay provision of referendum section of the state Constitu- tion to effective date of the apply reapportionment statutes?
644 stat- reapportionment If the effect of the 1981 the referenda stay old,
utes, be conducted? Should the how should the 1982 elections in the districts be this court and used 1982 adopted by unconstitutional adopt to the and new- Legislature elections? Should court defer drawn, districts enacted Legislature ly equally apportioned If the court has no choice but to man- law the Governor? signed into is there a reapportionment plan, date the use of the 1981 congressional use the reason the court should not also 1981 legally compelling why plans? Assembly reapportionment and Senate I.
Statement of Facts passed reapportionment three September In of the state’s Senate and revising Congressional, statutes the boundaries to districts to conform the results Assembly respectively signed by These statutes were Governor en- federal census.1 of on 1981. September rolled into law State Secretary interest, the chairman of Califor- real parties That same day, Committee, a began National Republican and the Republican Party nia the ballot a referendum on each aimed at qualifying drive petition Const., II, (See 10.)2 Cal. art. statutes. of these §§ requires Legislature reapportion of that the Article XXI the California Constitution following year in Assembly, Congressional year which Senate and districts “[i]n Congress beginning of at the each the national census is taken under the direction decade....” (a) provide “Sec. 9. The referendum is the 10 of article II as follows: 2Sections 9 and urgency reject parts except statutes or statutes power statutes, approve of the electors or elections, calling providing appropri for tax levies or and statutes statutes the state. expenses for usual current ations Secretary of proposed by presenting to the “(b) may A measure referendum statute, State, petition the percent certified the enactment date of days within 90 after of the votes for all candi- signed by equal electors in number have been election, asking part gubernatorial that the statute for Governor at last dates it be submitted to the electors. general next elec- the measure at the “(c) Secretary shall then submit State prior election held days special it or at statewide qualifies after tion held at least to special statewide election for the general may call a election. The Governor measure. *7 by approved majority of votes or a (a) initiative statute referendum “Sec. 10. An provides If the measure otherwise. day after the election unless takes effect the thereon de- against part a the remainder shall not be a statute petition filed referendum layed going effect. from into conflict, those approved at the same election “(b) 2 or provisions If more measures The General titles and summaries to on Attorney prepared appear (See Const., II, (d); the face of the referenda. Cal. art. subd. Elec. § Code, 3503.) if The summaries stated that signed by requisite § electors, number would petitions require statutes to be placed on the ballot for or the vot approval rejection by ers and would prevent the statutes from effect unless taking approved a vote. majority 18, 1981,
On November real their parties submitted completed peti- tions to the On Secretary State. December of State Secretary announced that the petitions contained the number of requisite signa- (See Const., II, tures. (b) Cal. art. subd. [petitions must contain § signatures equalling percent of the votes cast for all candidates for governor at the last However, gubernatorial election].) she also an- nounced that she was refraining from clerks to directing county place the ballot, referenda on the June this court’s pending resolution of these (See mandate proceedings. 3520-3523.) interim, In the she di- §§ rected the clerks and county registrars prepare conduct primary election under either the old election boundaries or the new districts approved Legislature.4
The instant mandate were filed proceedings various members of the Assembly, Senate and House of Representatives and other interest ed parties. Petitioners attack defects in the referendum which, petitions they render allege, the petitions invalid. also assert that They even if the petitions valid, the referenda do not operate stay implementa tion of the new reapportionment statutes. Petitioners seek writs of mandate compelling state and local officials to omit the referenda from of the measure receiving highest affirmative prevail. vote shall “(c) Legislature The may amend repeal referendum statutes. may It amend or re- peal an initiative statute another statute that becomes effective approved when by the electors unless the permits initiative statute repeal amendment or without their approval. “(d) Prior to circulation of an initiative or petition signatures, referendum copy shall be submitted to the Attorney General who shall prepare a title summary provided measure as by law. “(e) provide shall circulated, manner in petitions which shall be presented, certified, and measures submitted to the electors.” statutory 3All Code, references are to the Elections unless otherwise noted. 4Two statewide elections are scheduled for primary 1982—a election on June 8 and a general election on parties agree November 2. All that the election districts used in the primary general must also be used in the election. If the referendum petitions qualify, the referenda appear will on the ballot in June. *8 Man 1982 elections. new districts to use the June ballot and (See v. Gage circumstances. under these remedy is an appropriate
date
to
proper
P.2d
(1944) 23
Cal.2d
Jordan
387] [mandate
Leg
ballot];
from
measure
initiative
to omit
of State
compel Secretary
I) (Reinecke
Cal.Rptr.
6 Cal.3d
v. Reinecke
islature
481,
This court issued alternative II.
Challenges Petitions to the Referendum to comply fail petitions the referendum contend that Petitioners therefore, are, fa and Elections Code requirements with several flaws is the failure of of these asserted The most serious defective. tally address, as or residence affix his her to a to petitions require signer (c).5 subdivision mandated section direct mail two methods: were circulated petitions The referendum “residence Neither version contained a hand. public and distribution a each Instead, provided versions space both address” instruction. Regis- address, the words affix an with to as signer “Your Address addition, In the cover of direct beneath. Vote” printed tered at their addresses version, was sent to all voters Republican mail which bore the directions: registered, following as ... “Attention! When Signing Petition, and Use the Name Address Infor- Your Please Exactly (Even Incorrect) to Insure it Is Listed Here if mation (Italics added.)6 ....” Qualify Your Petitions designed pertinent part: petition “The sections be so provides, shall 5Section address, (c) giving signer personally each shall affix his or her: ... Residence number, exists, designation of adequate and or if no or number residence street street ascertained; person is a [¶] Only quali who may readily that the location be ... so fied ” sign (Italics is registered signing petition entitled it.... voter at the time of added.) “Wherever, by provisions: or laws of this Section 41 contains similar Constitution voters, state, petition paper, required signed is any referendum ... or ... ... signs only person registered petition pa- at the time he or qualified who a voter signing or sign signer petition paper time of per is entitled to it. Each shall at the number, residence, if place giving no street or number include his street ... exists, designation place his which will enable the location to be then a residence (Italics added.) readily ascertained....” “slightly half’ more that “about argument, parties for real stated 6At oral counsel this direct mail gathered as a result of signatures were than half’ of the total effort. collected
647 Nowhere referendum call to petitions specifically upon signers do the 3516, the address” information section provide required by “residence (c). With requirement simple. subdivision The reason for this is quite minor individual must continue to reside at the address exceptions, an stated in in qualified his or her affidavit of order to be to registration (See Code, 1, 2, 300-320.) vote. It is the Elec. div. ch. generally, §§ of the clerk or voters to cur- duty registrar compare signer’s of county rent residence address on the with that address as petition individual’s to registered vote in records of maintained the coun- registration match, clerk. If the ty requirement addresses of section 3516 that be “a at the time signer qualified registered signing pe- voter of However, tition” has been satisfied. without the current petition signer’s residence it impossible petition, address on is for the clerk to deter- mine whether the was a signer “qualified registered voter.”7
In the case of
petitions
parties,
circulated
real
if the
du-
signer
tifully followed the instructions on
petitions
those
his or
provided
her “address as
to
vote” or “address ... as it
listed here
registered
(even
incorrect),”
if
petition
address on the
and the
in
address
records of
clerk,
would
be the
registration
automatically
same. Thus
whose
is limited to
comparison
examination
of the
and the
petition
records of
can come to no other
than
registration,8
conclusion
that the
signer was
registered at the time he or she
properly
signed
petition.
court,
Secretary
7As the
State has
of
informed this
of
elections laws
California
“long
have
required
registration
prerequisite
signing
voter
as a
initiative and referen
otherwise,
petitions.
dum
If it were
no
method
reliable
could be devised to determine
enough
whether the
popular support
qualify
measure had
on
appear
the ballot.”
3520,
(d), provides
registrar
8Section
subdivision
“the
that
clerk or
voters
of
shall de
qualified
signed
termine the number of
voters who have
the petition ...
from the
”
registration....
records of
limitation,
registrar
This
prohibits
examining any
which
the clerk or
from
extrinsic
evidence,
long
recognized by
has
appellate
(See Wheelwright
been
this state’s
courts.
v.
448,
County
809,
(1970) 2
Cal.Rptr.
537]; Ley
Marin
Cal.3d
456
467 P.2d
v.
[85
587,
Dominguez (1931)
713];
(1968)
Cal.
212
596
P.
Beattie
265 Cal.
[299
Schaaf v.
904,
App.2d
79];
Cal.Rptr.
v.
Ratio
Board
Trustees
75 Cal.
724,
App.
466].)
P.
State,
Secretary
advisory
a November
county
memorandum to
registrars
subject
clerks and
ON
on
of “SIGNATURE VERIFICATION
ELECTIONS
PETITIONS,”
principle
newly
makes reference to this well-settled
*10
(See
3520, 3521.)
the referendum
ballot.
ing
petition
the
§§
course,
not
correct. The signer may
that determination
be
may
Of
without
subsequent
having
moved to a new residence
to registering
have
(See
with the
clerk.
change
county
or executed an address
reregistered
305,
situation,
a
315.)
“qualified
In
the
would not be
signer
such a
§§
Nevertheless,
the
had
time of signing
petition.”
voter
registered
address, the
she
instructions
complied
petition
regarding
he or
with
fact.
would be unable
discern that
clerk
to
real
failure to
Far from
a
technical
being
shortcoming,
parties’
mere
3516,
(c),
subdivision
to
with the
of section
comply
requirements
goes
to
enable the clerk
ensure
very
purpose—to
heart of that section’s
prevents
to do so—and
that
have been
those entitled
petitions
signed by
from
effectuated.
purpose
being
sections shall
“petition
of section 3516 is
language
mandatory:
shall
or
affix his
her . ..
designed
signer
personally
so
each
(Italics added.)
when a
past,
petition’s
address....”
In
[residence
operation
the election
proper
proce-
deficiencies have threatened
to
involved,
has
refusal
file the
regularly upheld
dures
this court
17,
Muehleisen
Forward
(See
(1935)
v.
4 Cal.2d
20
P.2d
petition.9
[46
Mayock
Gerth v.
(1934)
135];
Real parties However, address. Code plicable provisions regarding Elections respect compliance . .. means actual compliance “[substantial of the statute.” reasonable objective the substance essential to every (Stasher Cal.Rptr. 58 Cal.2d v. Harger-Haldeman of section subdi- The “reasonable 649].) objective” 372 P.2d their to determine (c), duty is enable the clerks to perform vision at the time of signing whether signers “qualified registered voter[s] That objective totally and thus “entitled to it.” petition” sign *11 residences that instructed to provide may thwarted when are signers circumstances, real such not reflect their current addresses. Under may be sustained. compliance claim of substantial cannot parties’ Real further that should their be deemed de- parties petitions contend ficient, should be excused as a form of nevertheless deficiency error, harmless based the fact that the total number of signatures on collected was in excess of the number of valid substantially signatures contention, needed to the referenda for the Such a how- qualify ballot. ever, begs the of the total collected are question—how many signatures That is that be answered because actually question valid? cannot current residence addresses. request signers’ failure Real parties that standard set forth section defin- urge election, ing circumstances under which votes undo an illegal may should to the cases before this That apply provides court. section that election shall not be set aside on account of votes” unless illegal “[a]n the number of illegal votes would sufficient to alter the election re- sults, were they deducted from the total votes of the whose person right to office is contested. Real to utilize that same being parties’ attempt test here is comparable unsound. No exists for refer- statutory provision Moreover, endum petitions. context is postelection significantly different from a An election is a com- preballot-qualification setting. act, contrast, pleted a fait In the circulation accompli. and qualification of referendum petitions part are of an that ongoing process portends, most, the of an election. potential
Most even were a standard to that of section importantly, analogous here, it would be of assistance to real be- applicable parties not cause of the nature of the defect in their Without very petitions. ac- identify information, clerk is unable the county address
residence an Without registered. not properly signers how many curately can be determination no invalid signatures, of such count accurate has valid signatures number of the requisite or not as to whether made obtained. been with section noncompliance excuse their seek to real
Finally, parties incorrect advice were given (c) they asserting subdivision However, General. Attorney and the of State Secretary of the “resi- been aware well have real parties may suggests record requirements. dence address” dated to a document attention directed this court’s have
Petitioners Plan to Qualify “Backstop—Operational entitled 22, 1981, July date, title and to the In addition Reapportionment.” Referendum On Junco, capac- in his del the name of Real Party also lists the cover page C to In Addendum Republican Party. the California chairman of ity as “Legal Requirements,” section document, the heading under this entirety. in its quoted *12 del Junco ob- 1981, Party Real 17, three days On September before the list of voters registered State’s office of Secretary tained from of him a referen- copy State sent of mailings, Secretary used in the Those clerks and registrars. to all the county dum instructions provided Propo- entitled “Note to a separate paragraph instructions included 41, 3516 and inter to sections his attention directing nent,” specifically were Further, circulating, while the petitions in October alia. for del Junco to inform office counsel telephoned of State’s Secretary use the “please cover instruction that the direct mail petition’s him (even incorrect)” if it is listed here exactly . . . address information (Declaration of problems.” could cause some was and “questionable State.) Maness, Secretary staff counsel to Richard B. attorney of a deputy reliance on the advice Real asserted parties’ is mis- Kenneth Maddy to State Senator in an informal letter general with charged ensuring is not the official General placed. Attorney That is the role the state’s elections laws. proper application (Gov. Code, State, officer. California’s chief elections Secretary misin- not constitute “official” 12172.5.) vicarious advice does Such § handbook from on a 1980 purport rely Real also parties formation. with their failure to comply office to excuse of State’s Secretary However, indi- (c). correctly that handbook subdivision section an initiative should enter his or her petition cates that signer “residence address.” not, themselves,
These would real justify sustaining circumstances However, claim of excuse. real do raise more parties’ parties troubling for their failure to with the substantially comply provi- justifications sions of section 3516.
Real
note that several
and
parties
past, pending,
currently circulating
measures
similar
initiative
referendum
have contained
instructions
“address as
to vote” or “address as
regarding
registered
registered.”10
petitions
of these
were
Many
subjected
vigorous legal challenge
counsel,
the courts
was the
competent
not once
issue of the
“residence address” defect raised
addressed
challengers
(See,
courts.
Amador
Joint Union
Sch. Dist. v. State
e.g.,
Valley
High
Bd.
Further, until real that from 1977 Secre- parties emphasize of State’s California Ballot Initiative Handbook used tary incorrectly “address as to vote” in a recommended phrase registered sample was in a format for initiative When the error corrected petitions. handbook, edition of the of State’s office neither publicly the Secretary announced the nor its explained significance. Apparently, correction. neither the of State nor the clerks have ever refused to Secretary county Thus, a tendered referendum on the basis of this defect. accept petition real relied on a that not had been parties practice accepted by entities with the referendum government enforcing procedures charged *13 from source. but also had never been to subjected challenge any 1980, through following statutory example, 10For from 1978 constitutional and appeared initiative measures on the ballot: Property Exemptions—Initiative Tax Constitutional Amendment Limitations and 13); (Prop. initiative); (1978 Murder—Penalty—Initiative penalty Statute death Statute; Employees—Homosexuality—Initiative School Amendment; Appropriations—Initiative of Constitutional Limitation Government tax); (energy business Taxation—Initiative Statute Amendment; Rent control—Initiative Constitutional (limitations personal Taxation—Initiative Constitutional Amendment on income tax). following appear are measures which will on the ballot in 1982: Canal); (Peripheral Water Facilities—Referendum Statute Inheritance Taxes—Initiative Statute. Gift and con- “‘it has been our to liberal Finally, long judicial policy apply wherever it is initiative and struction to power [of referendum] [the] If be annulled. doubts improperly in order that not challenged right this be in favor of use of reserve power, can resolved reasonably etc., (Associated it. Home Builders courts will preserve [Citations.]’” 582, 41, (1976) Cal.Rptr. 3d v. Livermore Cal. Inc. City 473, v. Acker 1038], Mervynne 557 P.2d 92 A.L.R.3d quoting 558, 340].) Cal.Rptr. 563-564 Cal.App.2d case, this circumstances of real unique par- Under the unusual and of section requirements ties’ failure with comply (c) petitions be render the referendum subdivision will not deemed to duties, her perform of State should Secretary proceed invalid. The in All ei- petitions those set forth section 3520. other which including in the as of process ther have for the ballot are circulation qualified However, date final shall be treated similarly. this decision becomes which not been General provided by Attorney all have petitions yet of title and following preparation summary to the of State Secretary, 3503) be to the section (§ express requirements will subject them (c) failure to will render invalid comply subdivision and their so se. per the technical sufficien- challenges
Petitioners raise three additional First, claim that use of petitions. they of the referendum cy petition dates on the declarations circulators signed by preprinted the declarations contain requirement violated the Elections Code (See which all were obtained.” signatures dates between § “[t]he Second, that the text of the (d).) reapportion- assert petitioners subd. errors, in in the contained violation reprinted petitions ment statutes the title and text of the copy that “a full and correct requirement (See in petition. each section printed proposed measurefs]” and of inter- that the use of small size allege type Finally, they § made them unreadable. virtually in the petitions leaved pages stressed that technical deficiencies referendum This court has if they petitions will not invalidate petitions and initiative require and constitutional statutory with compliance” “substantial *14 (1934) 1 Cal.2d Teachers Assn. v. Collins ments. (California whether determining petition A concern in P.2d 134].) paramount is whether the of the technical purpose an defect alleged is valid despite the “The re petition. the defective form of is frustrated by requirement the are intended to and and statute of both the Constitution quirements the ... peti- asked to sign who are to the electors do information give case, more little can.be given If be accomplished any tions. that the Constitu- with the law and compliance than a substantial asked that a reasonable violence to does no had, that such compliance tion be and (Ibid.) of None of the law.” requirement construction of the technical with statutory purpose the has interfered the three errors ásserted here the regulations. behind technical to this
First, signatures the “All phrase, the contained petitions The and between document were obtained _.” _ the dates, and on blanks filled in with printed were 12/13/81 9/22/81 the mail petitions. on direct street petitions, 9/17/81 12/15/81 obtained in a Petitioners the were signatures apparently out that point mid-November. much time between mid-October and range, shorter the time impeded preprinted, longer period Petitioners claim the who the petitions whether those signed clerks to determine ability the However, at the time that they signed. were to vote actually registered requirement Elections Code the declarations with the literally complied all were ob- dates between which they signatures contain “[t]he was to enable (§ (d).) range tained.” subd. of dates sufficient the the that all of signa- the clerks to make determination important Further, the tures were obtained within the time limits. proper although useful the clerks in determining have been precise might dates has number of who had no signed petitions, showing voters qualified provided prevented been made that information general more Nevertheless, objectives clerks from out that function. carrying section will be served in the circulators by requiring better future between which to enter on their declarations the actual dates personally all the on dates are signatures Preprinted were obtained. petition not a entries. personal desirable substitute for such
Second, concern petitions errors the text alleged The er in the of census tract numbers. only typographical listing errors rors were minor as to no danger signers so pose misleading therefore, validity petitions. do not affect the petitions. They, readable, the size of the despite type. were Finally, petitions fully labeled and differ- sufficiently The color-coded referenda were packets of the substantial test. compliance entiated to meet requirements Neither frustrated the to understand signer’s ability of these defects
what he or she was asked to neither of them Accordingly, being sign. renders the invalid. petitions
III. Stay The Referendum Provision Next, the court must decide whether the referendum of the provisions state Constitution statutes reapportionment passed both apply II, houses of the Governor. Article sec- signed by 9, (a) tion subdivision “The is the provides: referendum power electors to or statutes approve parts or of statutes reject except urgency statutes, elections, statutes and statutes for tax levies calling providing appropriations or for usual current of the State.” expenses (b)
Subdivision sets forth the manner in which a referendum be may proposed. “A referendum measure may proposed by presenting State, Secretary within 90 after the enactment days date of the statute, a petition certified to have been signed by electors equal number to percent of the votes for all candidates for Governor at the election, gubernatorial last that the statute or of it be asking part sub- mitted to the electors.” (c)
Subdivision sets forth the to be followed procedure the Secre- of State on tary receipt a referendum measure which has been duly qualified. “The Secretary of State shall then submit the measure at the next held general election at least 31 after it days qualifies or at a spe- cial statewide election held prior to that election if general ...” Governor calls such a election. special
Petitioners do not contend that seriously reapportionment statutes are from the In exempt referendum observe power. passing, they that re- apportionment statutes be deemed might “statutes elections” calling and, therefore, II, from the referendum exempted process under article (a). section subdivision While it is obvious that a reapportionment elections, statute relates to it is clear that such statutes do not equally (1928) call elections. v. Jordan (Boggs 204 Cal. P. 696]; Ortiz v. Board Supervisors Cal.App.3d 872 [166 Cal.Rptr. 100].) do, however,
Petitioners contend that the seriously of a ref filing erendum against a other statute any does not stay *16 of thus cen- controversy the The focus the the effective date of statute. 10, II, subdivision of article section initially interpretation ters on the (a) the of Constitution. (a) ap- initiative statute or referendum
Subdivision “An provides: the takes the after day a of votes thereon effect proved majority a unless measure otherwise. provides petition election referendum If not be delayed a statute the remainder shall against is a part filed of (Italics added.) into going effect.” from of Petitioners that the itali- negative implication acknowledge filed of a cized is that a referendum language against entirety An stays approval. explicit provi- statute that statute voter pending stay II, 10. sion was set in a to article section Former predecessor forth IV, 1966, was in in pertinent part, article section which read repealed to the of State within 90 after the “Upon presentation days Secretary refer- Legislature [qualified final of a certified adjournment any that act or section or act of asking any part endum] or approval submitted the electors their rejection, their Secretary approval of State shall submit to the electors for such act ... and no such act there- rejection, part part [or [or thereof] go shall into until and unless approved by majority of] effect thereon', if filed petition but a referendum voting electors qualified of such shall any section or act remainder act against part ány (Italics added.) delayed not be from effect.” going into effect, was Petitioners concede that while this article in predecessor this court of a referendum qualified assumed filing properly that a vote asking put stayed statute be to a popular (See v. Brown the effective date of such statute. Silver 308, 405 P.2d [dictum]; Boggs Cal.2d 277-278 Cal.Rptr. 132] Jordan, 207, 211.) v. 204 Cal. out, however, of arti- provisions that the referendum point
Petitioners and in 1976 were revised IV of the Constitution cle California re- result of and 10 article II. One were sections 9 placed article of former stay provision was the of the express vision elimination ar- this omission. They substantive significance IV. Petitioners attach longer stays challenged a referendum no gue filing which re- statute, contrary to the implication the clear despite negative in the provision. mains current constitutional
Petitioners ask too much of this court. The 1966 revision of article IV was intended Constitution, “to shorten and simplify unnec- deleting *17 ..(Associated etc., essary provisions. Home Builders Inc. v. City of Livermore, 582, 595, 18 Cal.3d 12.) fn. In on the commenting referendum provisions IV, 1, former article section the Constitution Revision Commission declared that the proposed revision would effect only one substantive change—the effective date of a statute challenged a referendum by but subsequently approved the voters.11 “Other- wise,” the declared, commission “no change has been meaning effected” (Cal. proposed revision. Com., Const. Revision Pro- posed 46-47.) Revision at pp. There remains in the current provision, II, 10, article (a), section subdivision a clear negative impli- cation that a statute in its challenged entirety by duly qualified referendum is from effect stayed taking until it has been approved by the voters at the election. required
This interpretation is consistent with the nature of a referendum. “The referendum is the power the electors to or approve stat- reject (Cal. Const., II, utes. ...” 9, art. (a).) subd. As the Secretary of § Ap- out, State has pointed Referendum, “In a Voters asked to prove the Bill which the (‘Yes’ Legislature has enacted Vote) or to Disapprove (‘No’ Vote) .... The question which is to the put voters is Sect, (the bill) (Yes ‘Shall No).’” (Memo, Become Law? from State’s office to clerks and county registrars 24, of voters (Sept. 1981).) Approval the referendum is approval the bill.
Thus, declare, (a) does the first sentence of subdivision of arti- II, cle section that a “referendum approved by of votes majority thereon takes effect the after the day election unless the pro- measure vides otherwise ...” is to say bill takes challenged effect the after day the election. there would Obviously, be no need to define the date on which the law becomes if challenged effective it were already (Alaska 1964) effect. Walters v. Cease (Compare, 388 P.2d Therefore, Constitution, under the mandate of II article of the state of a valid filing referendum a statute challenging normally stays implementation of that statute until after the vote of the electorate. provision, the former such a days Under statute became effective “five after the date of the official declaration of the Secretary vote of State.” As revised provision commission in the new declared that such statute would take effect “5 days pro after the date of the official declaration of the vote unless ... the [statute] IV, 24; (See II, (a).) compare, vides otherwise.” former art. art. subd. § § express provision the voters. No statute takes effect if approved by the reach of the statutes from in article II excludes of the stay.12 referendum or from process application IV. Elections
Alternatives Available to the Court are to be used for the There remains the as to what districts problem of referenda chal- filing elections. Absent primary general *18 statutes, each of those laws would the 1981 lenging reapportionment Const., IV, 8, 1, (See have into effect on 1982. Cal. art. gone January § filed, (c).) But been and this court has concluded subd. referenda have that their the date which the they upon valid and that filing stays are approved statutes become law unless and until challenged they by valid, result, districts, the voters. As a the new presumptively although are not now in effect. scheme,
The old in effect since its establishment this districting by (Reinecke IV) (1973) (see v. Reinecke court in 10 Legislature Cal.3d 396 516 P.2d no meets the one- Cal.Rptr. 6]), longer [110 person, one-vote in clauses requirement equal protection embodied the (U.S. Const., Amend.; of our state and 14th federal Constitutions. Cal. Const., I, art. All that re- parties agree population changes § vealed by 1980 census demonstrate that the old districts contain population disparities that are clear violations of the state and federal are, Constitutions’ The one-vote mandate.13 old districts one-person, therefore, Moreover, no longer congressional valid. old district (Stats. 1981, l.)14 boundaries have been ch. repealed. § effect, With no valid districts the state’s election cannot machinery In order operate. for the 1982 elections to some dis- proceed, temporary alternative, petitioners argue 12In the reapportionment statutes are not “normal” statutes, they represent since practicable means which a citizen’s constitu right weighted Therefore, tional equally may to cast an petitioners vote be effectuated. contend stay filing that the effected of the referenda in this case cannot be con prohibit strued to absolutely implementation reapportionment of the 1981 statutes. question This opinion, post, pages is addressed in the next section of this at 658-661. impermissible discussion of the unconstitutional and disparities 13See population Senate, districts, Congressional Assembly, post, the old at footnote 19 and at pages 665-667. against portion chapter repealed 14No referendum was filed which congressional old boundaries. The now impasse scheme must established. tricting confronting state must be resolved.
Courts is a task best have affirmed that repeatedly reapportionment the state institution that is far the performed legislatures. “[T]he best situated to and then reconcile traditional state identify policies within the mandated framework of substantial constitutionally popula- (Connor tion ...” is the v. Finch 431 U.S. equality Legislature. 465, 473-474, 414-415 that is 1828].) L.Ed.2d 97 S.Ct. Since not a prior viable alternative to the June this court is forced to primary, (id., assume the “unwelcome L.Ed.2d at obligation” p. p. 474]) of into the stepping fray. available to the court are Were time constraints options limited.
less the court consider pressing, might to de- requesting However, an interim velop plan. June is less than five primary Eu, State, Panish, months away. Respondents Secretary of Voters of Los Registrar that it is too late to Angeles County, report use districts those in either the any except out-dated or the Legis- *19 lature’s plans. Computer two to four months of programming requiring work has been already performed for both of those There is plans. no time to do similar preliminary plan. for other Fur- programming any ther, no new districts could be into effect in put time to inform the electorate and the candidates of their districts before primary election.15
Real parties argue the 1981 reapportionment measures are not However, this court among options consider. decisions may Supreme Court are to the Those decisions contrary. demonstrate that alternative any practical available to this court be consider- may given ation, including reapportionment plans which are not in yet effect and which are scheduled submitted to the electorate. practical 15Such considerations also render any attempt by infeasible this court to I, reapportionment plans (see
draft
generally
of its own
supra,
Reinecke
From these it principles, follows that a the exercise of its equitable powers, not consider but also may adopt reapportion ment which are final within the of a state plans yet not framework constitution. This is precisely action affirmed Court Supreme Sims, Reynolds v. In during penden U.S. 533. of a federal suit of the Alabama cy challenging apportionment Legislature, two Neither was body adopted reapportionment plans. to take effect until the 1966 election. One of was a plans proposed constitutional amendment which was to be submitted to the scheduled voters for ratification at the November 1962 election. other general *20 plan was It was enacted as a measure and was to statutory. standby amendment, or, take effect if the voters the constitutional rejected should the if declared the subsequently amendment a court pass, (Id., 537, at amendment unconstitutional. at 542-544 L.Ed.2d pp. [12 513, pp. 515-517].) trial, apportionment
After the district court declared the existing (Id., at 545 L.Ed.2d at p. p. 517].) unconstitutional. Legislature [12 comprised aspects The court fashioned a certain temporary remedy (Id., at of the two for use in the 1962 election proposed plans only. 552 at p. p. 521].) L.Ed.2d [12 acted in held that “the District Court Supreme properly Court neither was to become effec-
considering proposed plans, although [the] constitutional amendment proposed tive until the 1966 election and be to in 1962.” was scheduled to submitted the State’s voters November (Id., at at Because p. 532].) Why? L.Ed.2d p. “[consideration two was . .. plans clearly necessary court below of the proposed relief, in if should be afforded ascertaining judicial any, what sort (Id., 532]; ...” for the 1962 elections.16 L.Ed.2d at see p. p. I, also, 6 Cal. 3d at p. Reinecke in powers
Given the breadth of a court’s equitable reapportionment law, cases federal it is this consider- may give under clear that court ation even Legislature’s reapportionment plans, though to those not in effect now plans are and are scheduled be submitted yet a remedy applied vote. In to be in a popular ascertaining given case, a practical court consideration to which may give any alternative is available. addition, II, 10,
In that the of article section provision ruling stay (a) of the precludes reapportion- subdivision consideration Legislature’s plans ment serious with of our provisions would create conflicts other state Constitution. 1980, XXI, Legislature reappor- that the requires
Article adopted Senate, the year districts Congressional tion the Assembly, “[i]n direc- census is taken under the in which national following year requires ...” It also tion of at the of each decade. Congress beginning elected from Congress members all (Art. XXI, (a).) Further, I, article districts. subd. single-member § clause, mandates protection adopted section the state equal principle. of the one-vote one-person, recognition To so as to consider- provision prohibit construe referendum stay would frustrate the require- ation of the 1981 reapportionment ments constitutional It newly provisions. of both of these reaffirmed state, the constitu- substantially redistricting despite would delay tional after the immediately occur requirement This with alternative but practical federal census. court would be left no old, state, districts on the impose seriously malapportioned now *21 ante, (See discussion, at in of the clause. equal protection violation concurrence, proper the District that “it was Stewart declared 16In Justice his practicable the Court, closely apportionments to framing remedy, adhere as to (Id., 588-589 pp. at of Alabama....” representatives people approved by the 542-543].) pp. L.Ed.2d at Further, is the plan reapportionment the p. Legislature’s districts, rather than congressional available that for 45 option provides If were from to that eliminated the allotted California. formerly consideration, be to the constitutional way implement there would no from single- that members of be elected requirement Congress all (See discussion, 661-664.) post, pp. member districts. the of provision in our Constitution dictates that stay state
Nothing of II effect the commands arti- article should have more force and than I, Rather XXI the clause article section 7. equal cle protection of expense at the than constitutional promoting any particular provision other, the var- this court must harmonize equally important provisions, our so as minimize any potential ious articles of Constitution of article II provision conflicts. The conclusion that the referendum stay not statutes from this court’s does remove the 1981 reapportionment from provision potential consideration saves that constitutional con- protection flict with the of article XXI and the state equal mandates clause. Constitution provisions
Petitioners’ claim that referendum do not statutes seems unfounded. apply Similarly of the ref- without merit is real assertion parties’ qualification Legislature’s plans. erenda this court from prohibits considering Constitution, The federal federal and our own Constitution precedent, available, in- require weigh options all court all currently cluding those referenda. challenged
V. Constitutional Mandates qualification the state as a result of impasse facing statutes leaves the Legislature’s reapportionment referenda challenging what districts pressing problem this court no choice but to resolve The only elections. general should used in the upcoming primary Legisla- either the new plan approved alternatives available are decade. last the old districts used ture the Governor or view, is available to plans From which of these a practical point is now entitled this California congressional reapportionment? court for that this parties argue of 43. Real court instead representatives statewide districts and fill the 2 new seats should use the old *22 that this is not a viable elections. member of this court Every agrees alternative. I, page 6 Cal.3d at
As this in Reinecke pointed court out to fill congressional federal the use of statewide elections law forbids that, “In Code provides 2c of title 2 of the United States seats. Section an ap- than one under Representative each State entitled ... to more of Representa- of the total number made the President portionment [by be established law a by there shall States], tives the several among to which of Representatives number districts to the number equal entitled, be elected from shall Representatives such State is so ” ... districts so established. that Reinecke I was that wrong holding Real assert parties section 2c from congressional representatives commands the election of 2a(c), section of title 2 com districts. contend that single-member They in their is that argument elections. The flaw at-large mands reveals, that plain language, 2c as does its section history 2a(c).17 of section supersede provisions intended 2c to Congress 2c, Howard Senator section proposed the Senate debate on During that its Baker, After observing occurred. colloquy the following law” “by single- each state establish 2c that require terms section would Birch Senator of its representatives, member districts for the election law’ “/ would interpret ‘by Baker: to Senator question this Bayh posed legislatures the State is done either to mean the reapportionment if Ten- the Senator know whether I should like to the court. from (Debate before with that interpretation.” agrees nessee Baker] [Senator added.) (1967), italics Senate, Rec. Cong. instance course, in the first was, it that responded Senator Baker districts congressional to establish the legislatures province so. failed to do if the legislature intervene a court should only that (Ibid.) had misunderstood the Senator stating perhaps
Senator Bayh, the legis government it is bad on to observe: went question, his “[I]f then it is bad at large, should run Congressmen lature say run of Congressmen an entire group have for the court to government (Ibid.) in a State.” large ning No. to House Bill as an amendment in 1967 title 2 was enacted 2c of 17Section (See immigration 81 Stat. bill. private
663 (Ibid.) Senator Baker . I responded: agree....” “When we say question. to his original Senator then returned Bayh to the equal a number of districts law shall be established by ‘. . . there entitled, and Re- State is so to which such number of Representatives established, so no from districts be elected only shall presentatives ei- we are about talking Representative,’ district to elect more than one or whether reapportions legislature ther of two situations—whether (Id., at p. 31720.) reapportions.” the court (Ibid.) During Senator is correct.”
Senator Baker “The replied, it debate, “This will make mandatory asked: again floor Senator Bayh districts, whether elected by single-Member for all to be Congressmen a Federal State legislatures is done There- “That is my understanding.” court.” Senator Baker responded: (Ibid.) after, voice vote. section 2c was the Senate adopted by its consideration. An amendment The bill then went to the House for been conducting congres- was to allow those states which had proposed (i.e., Mexico) for the at Hawaii and New to do so sional elections large (See Debate before the 91st or next election as well. congressional House, (1967).) of the debate focused on Rec. 34032 Most Cong. Little was said about the of this amendment. proposed desirability However, “The merits of the itself. one remark is instructive. provision representatives] .. . will State from language prohibit any running [its (Remarks Smith, Representative at future elections.” large any id., at p. House, amended, returned to the
The measure and was passed (See Senate, (1967).) Rec. 34364 Cong. Senate. Debate before the There, allowing the House amendment the debate on whether focused in 1968 New elect their at representatives large Hawaii and Mexico to (See id., 34364-34370.) In the course of that accepted. pp. should elections, debate, that, it with the 1970 was observed “Beginning Union, thereafter, election state every congressional every with no single- its from exception, must elect Congressman [sic] id., italics add- (Remarks at p. member districts.” of Sen. Fong, debate, amended ed.) the bill as passed At the close of the Senate (Id., 34369-34370.) the House. at pp. observa- and this court’s of section 2c history
Given I, that the use it is clear tions Reinecke 6 Cal.3d at page of the 43 old districts and an election of the new at-large representa- *24 tives would contravene the set mandate forth section congressional 2c. This is consistent with the decisions of other state and interpretation federal courts.18 I,
As this court stated in Reinecke 603, supra, 6 Cal.3d at page mandate of elect all Congress representatives to from single-member districts is one with which this court conduct fully agrees. “[T]o statewide elections to fill seats in a state of congressional [the new] California’s tre- population size and would not geographical large only increase the burdens and of effective mendously expenses campaigning but, ., the electorate .. would se- by increasing confronting choices (Ibid.) Further, of informed an riously impede the ballots.” casting election would allow the voters of California to select three re- at-large instead of the one that presentatives are entitled to under law.19 they as a practical and constitutional alternative available for use is the court for this election 1981 temporary plan year congressional (Stats. 1981, reapportionment law. ch. plan
If this court
the 1981
adopt
congressional
reapportionment
must
forward,
reason
any
so that
the 1982 House elections can
is there
go
plans?
this court should not also
the 1981
and Senate
adopt
Assembly
(1)
(1971)
appear
pertinent
18There
to be three
cases: Whitcomb v. Chavis
403 U.S.
124, 158,
363, 384,
(observing
footnote 39
L.Ed.2d
91 S.Ct.
that
2c rein
[29
1858]
§
single-member
2a(c)); (2)
v.
requirement
prior
stated the
district
in effect
Preisler
§
952,
Secretary
(Preisler III)
(W.D.Mo. 1967)
F.Supp.
Missouri
279
State
law,
(observing
prior
968-969
2c
the court “was relieved of the
ex
that when
became
§
ordjer
isting Congressional
2a(c)]
congressional
command
1968 ...
[under §
large
elections in
be held at
were the Missouri
to fail to en
...”
Missouri
519,
time),
526
L.Ed.2d
act a valid
statute in
affirmed 394 U.S.
[22
1225];
(3)
(1971)
Simpson
89 S.Ct.
v. Mahan
The primary federal concern is equal protection—here, the prin ciple Further, of one-person, one-vote. considerations such as equitable the potential disruption of state’s election must process also be con Sims, sidered. (Reynolds v. U.S. at p. L.Ed.2d Thus, 541].) this court must adopt plan that best ensures equal pro tection of the law while minimizing any disruptive *25 on the impact addition, process. election In decision this any court should recognize the basic rule that is task, a primarily legislative un dertaken this court when circumstances only permit no alternative. (Id., 586 p. L.Ed.2d at p. 541].) [12
A of the diverse and weighing at times factors in conflicting volved this case leads to the conclusion that the election plans developed used, in 1981 must be as a temporary measure, in the 1982 elections. legislative
The equal protection clauses of both the federal and state Con (U.S. Const., Amend.; stitutions Const., 14th I, 7) Cal. art. mandate § that this court adopt the reapportionment that most plan meets nearly ideal, the constitutional (Cosner absent circumstances. extraordinary v. (E.D.Va. 1981) Dalton 363-364; 522 F.Supp. v. Mes Cummings kill (D.Conn. 1972) Klahr v. Williams 1176, 1177; 347 F.Supp. (D.Ariz. 1970) 148, 153; Jones v. Falcey 313 F.Supp. 48 N.J. Sims, 25 A.2d see Reynolds 109-110]; also v. supra, 377 U.S. at p. 585 p. ].)20 L.Ed.2d at 541 election,
Given the imminence of the 1982 two primary options available. This court must choose between the two district available, ing plans which more currently selecting plan nearly principle interpreted reapportion 20This of law has been to mandate the use of a new plan, through ment developed process, where it is less unconstitutional Cosner, (See, e.g., supra; Cummings, supra.) ap than the alternative. It has also been undecided, plied constitutionality reapportionment plan where the of a is but disputed plan constitutionally preferable plan was to the old and time was too short to (Jones Falcey, 222 permit development p. of an alternative. v. A.2d at 109 [al used; course,” though litigation would the old “the not run its the new be ha[d] goal” statute was “far more from the constitutional than the statute before the distant court].) with the comports requirements of federal and state equal protec- tion clauses and is least of the electoral disruptive process.
The old districts contain enormous variances. The population popula- tion of the largest old district is more Assembly percent than of the smallest. new districts to within populations appear percent to 7 the new are far equality.21 Clearly, districts closer the constitutional than the old.22 goal current
According parties, population figures supplied real (530,643) of the old 76th District percent popu- Assembly (224,488). The of the old 16th District vote of Assembly lation would, therefore, be worth more resident of former 16th District than twice that of the former 76th District. Compared resident size, is 79.4 percent current ideal district old 76th District ideal, District less percent than while the old 16th is 24.1 greater districts is 103.5 than the ideal. The total deviation between two percent. *26 50
Overall, than vary by percent 2 of old districts more Assembly 295,857; 50 2 30 to vary percent the ideal size of by from population 10 to 30 size; vary percent 48 the 80 districts by from the ideal within 10 percent 28 the districts are from the ideal. Only ideal district size. 458,587 5 contains Senate, people, District now
In the old Senate 38 number, District while old Senate than the ideal 22.5 less percent Thus, ideal. 904,725 more than the 52.9 people, percent contains twice that 5 be worth almost District would a resident of former vote of two between the The total deviation District 38. resident of former a show that the population figures 75.4 Real parties’ districts is percent. percent. less than 4 population deviations are claim that the maximum 21Petitioners Assembly plans district one dis according to the uncorrected contend that parties Real but corrected districts are 15 concede percent, much as trict deviates equality. probably percent within 7 of absolute constitutionality of the new districts. For judgment on the passes no 22This court decision, of the districts say population disparities that the suffice it to purposes of this range opinion This also does percent. of 4 to 7 to be in the parties all admitted district boundaries. gerrymandering” of the election “political not the issue of reach temporary However, adopted as a mea federal court has passing is that a it noted in [population] equality,” closer to that “come redistricting plan with districts a sure some of the districts created irregular boundaries of shapes and despite “the bizarre Meskill, at supra, F.Supp. p. 347 (Cummings v. plan....” 667 than greater more than 50 percent of one old Senate district is ideal; 10 30 ideal; vary by than the 19 another is 41 percent greater popu- of the ideal ideal; are within 10 percent from the and 19 percent size. lation limit for a numerical has not established Supreme rigid Court However, developed guidelines court has districts. high court, federal district As summarized one deviations. permissible between the largest than 10 percent
a maximum deviation of less
state.
justified by
districts is
and need not
permissible
smallest
However,
is permissible
deviation of 10 to 16.4 percent
maximum
is the result of a ra
if
that the deviation
the state can demonstrate
than 16.4
percent
tional state
A maximum deviation
policy.
greater
(M.D.Ala.
(Sims v. Amos
intolerable under the
clause.
equal protection
(1974)
222,
1973)
215,
365
sub nom. Wallace v. Sims
affd.
F.Supp.
Dalton,
Cosner v.
1394];
supra,
As the Court stated in v. U.S. Supreme Reynolds *27 585 541], legislative appor L.Ed.2d at “once a State’s page page unconstitutional, the tionment scheme has been found to be it would be unusual in in not taking appropri case which a court would be justified ate action to insure that no elections are conducted under the further (Italics added.) Further, held that a invalid court has high plan” dis court-ordered that which California’s old plan, such as established tricts, plan. must be held to standards than a state higher legislature’s 766, 784, 26 L.Ed.2d 95 v. Meier 420 U.S. (Chapman 1988].) S.Ct. adoption
California’s a further reason to provides prefer Constitution rather than to perpet- of the Legislature’s reapportionment plans out-dated, uate the districts followed in the past malapportioned Constitution, adopted requires decade. Article XXI of the state in the the federal following the state reapportion year a clear mandate that expresses This constitutional provision census. elec- be in effect the time of the first districts properly apportioned following tion the decennial census. potential
Use of the will also minimize the Legislature’s plans of the the state. At the disruption political processes electoral and will re- primary, the new be either affirmed or reapportionment plans jected. The court cannot and should not outcome attempt predict of the will people, except already expressed referenda. The as is unspoken. their chosen referenda through representatives, yet Both fash- possibilities be voted must considered in may up down. orderly that will do least violence to the ioning temporary remedy elections, of the ultimate result of the conduct of the 1982 regardless referenda. which the unique plan by
California faces a situation which should be of a vote at those same subject elections conducted is for the 1982 elections Legislature’s elections. Use of the If the process. reapportion- minimizes electoral any disruption at the of them now ment statutes are ratified voters primary, use will cause no at all. proceed The 1982 elections will accord- disruption plan—a approved Legislature, the new statute ing Governor, and the the state. people of would cause of the old districts
Real that use parties argue conclusion, however, im- implicit rests on an That disruption. less in the rejection will result the referenda permissible assumption—that is an assumption statutes. That of the Legislature’s into the do would thrust court make. To so this court cannot legally for the voters of realm, exclusively an issue which political prejudging the state to decide. the re- in 1982 and of the old districts
If court orders the use affirmed, faced with state will be statutes then apportionment *28 seriously malappor- run under of an election the anomalous situation districts, Legislature, the fact that the tioned, despite unconstitutional in adopting concurred of the state all have the people the Governor and malap- in those elected The legislators statute. reapportionment a new four of two and serve terms districts would unconstitutional portioned, repre- their elected and people the districts chosen years before could be effect. given sentatives
669 election, primary statutes are at the rejected If the reapportionment will no matter which plan the election occur process some of disruption with the task of formulat- will be faced now. The adopted Legislature will be elections. That new plan districts in time for the 1984 new ing least, referendum. At in the courts and subject possible challenge Novem- however, in June and if the new plans adopted temporarily that is far ber, plan will be run under a districting the 1982 elections than the out-dated constitutional mandates closer to federal and state the last decade. plan that the refer- sum, then, to the possibilities
In giving equal weight fail, statutes reapportionment or use of the 1981 enda succeed may of the electoral It eliminates disruption process. minimizes the potential old, of the unconstitu- of the worst scenario—use danger possible of the new plans in and November despite approval tional June plans Further, the use the 1981 reapportionment election. primary there will be no at all. disruption maximizes the likelihood that plans for plans temporary of the Adoption Legislature’s reapportionment restraint and def- in also furthers the related goals judicial use on the wisdom erence to the This court no Legislature. passes judgment on the likelihood that the will people of the Legislature’s plans However, at the election. primary affirm or those statutes reject conforms to longer to use an out-of-date that no whether choosing new passed by Legisla- or a statute protection requirements equal ture, that the and the court cannot be blind to fact Although stayed by their assent to the latter plan. Governor have given referenda, and political give these were the product statutes re- the branch delegated take of the branch of government, federal precedent both reapportionment sponsibility Constitution.23 California’s expressed preference for federal district courts have a Supreme Court and the 23The legislature. as a fed by state “Just redistricting plans adopted plans that resemble court, should follow the legislative reapportionment, in the context of eral district State, provi statutory and constitutional expressed policies preferences legislature, whenever by the state reapportionment plans proposed
sions or in the
Consti
of the Federal
requirements
detract from the
policy
to state
does not
adherence
tution,
in the context
similarly
policies
honor state
court should
we hold that a district
choosing
plan or in
fashioning
In
congressional
reapportionment.
upon
legislative task nor ‘intrude
pre-empt the
among
court should not
plans, a district
(White Weiser
412 U.S.
necessary.’”
v.
any
[37
more than
policy
state
Chavis,
335, 346,
supra,
p.
Any requires balancing competing In of the factors favor light strong weighing tutional considerations. revised, it is un- simply of the use a up-to-date reapportionment plan, on must be stays provision tenable constitutional argue protection the cost clauses equal followed no matter what blindly, and article XXI of the state of the state and federal Constitutions Constitution. election would districts for the upcoming the old election
Maintaining in our reapportionment the future of raise about troubling questions reapportionment plan that every It a serious risk state. would create implemented. before it could be at two years would be least delayed a could obtain decade, battle reapportionment the losers Each 5 percent signatures of the strength on grace period two-year new until voters, years implementation thereby delaying interminable seemingly Cognizant after the election. referendum decades, take this court should of the last two lawsuits reapportionment the rule and becomes whereby delay creating system care to avoid within never achieved may required reapportionment constitutionally deadlines. imposed constitutionally for the statutes 1981 reapportionment implement
The decision to
those
to vote on
people’s right
not
will
circumvent
1982 elections
the fu-
will determine
that vote
The outcome of
the primary.
at
plans
entitled, “BACKSTOP—Operational Plan
24Indeed, language
in a document
contained
may
circulators
that the
indicates
Reapportionment,”
on
Qualify
To
the Referendum
us
available to
basically two
alternatives
just
“There
have
such
result.
intended
the November
until after
the effective date
postpone
could
which
”
ante,
p.
(See,
1982 elections....
*30
ture
the
of
for the rest of
decade. This court’s decision
reapportionment
affects
the districts to be used
for the 1982 elections.
temporarily
It is an
consequence
timing
unfortunate but unavoidable
of the
of the
referenda
results of
referenda must
necessarily
that
the
those
one
behind
of
step
year
the
the 1982 elections. For this one
the
reality
only,
elections must be conducted in
of the
of a
ignorance
preference
major-
of
ity
the voters. This is the
result of the
situation now
unique
unhappy
unconstitutional,
Further,
of
the state.
use
the
confronting
out-dated
the
people,
would increase the likelihood that
will of the
as ex-
vote,
pressed in the
be thwarted.
primary
might
It is
to remember
the
have not
important
Legislature’s plans
been
ballot,
the voters. The
have
on
rejected
been
the
by
placed
statutes
based on the
of 5
or more
the
signatures
percent
actual number of
votes cast for all candidates for Governor in the last
elec
gubernatorial
tion. The ultimate
disposition
to vote
plans, although put
Thus,
referendum
is as
this
is
petitions,
yet undecided.
case
substantial
I,
different
ly
from Reinecke
To use the describe adjective “truncated” to both of these situations would stretch the power and distort the seriously descriptive definition of the word. The in Reinecke I was process “truncated” a sharp, final veto Governor. The here has been legislative, process lengthened but not terminated. A voters small has ex- percentage ercised its right put question to vote of the whole. Pending vote, derailed, been legislative process here has stalled but not slowed but not “truncated.” this court facing today situation from Reinecke distinguishable
I in another respect; crucial law has in the inter- applicable changed First, vening the voters the state amended the years. state Constitution in 1980 to “In the provide, year following year which the census is national taken under direction of Congress decade, of each shall beginning adjust boundary Senatorial, lines of the Assembly, Congressional, Equal- Board (Cal. Const., XXI, added.) ization This districts....” art. italics § *31 had that been declared unconstitu- provisions former provision replaced (Silver (S.D.Cal. v. Jordan 1964) in 1965. 241 tional on other grounds curiam, (1965) 415 Jordan Silver 576, v. 381 U.S. per affd. F.Supp. 689, 85 voters the state have thus re- 1572].) S.Ct. of L.Ed.2d [14 requirement commitment constitutional cently reaffirmed their new lines after apportionment immediately that the Legislature adopt the new census are available. figures I, held our
Since Reinecke equal pro- this court has also that state’s I, 1974, (see 7), in has adopted “independent tection art. clause § that afford- require protection at times than may greater which vitality” (Serrano (1976) 728, Priest v. 18 Cal.3d ed federal Constitution by the 345, 929]). 557 P.2d Cal.Rptr. 764 [135 I have since Reinecke us that the courts taught
Finally, years of a implementation constitutional delays cannot tolerate endless Reinecke itself before required opinions four this reapportionment plan. (See on the state. plan court a court-designed reapportionment imposed Reinecke, v. Reinecke 595; Legislature Cal.3d Legislature v. 6 supra, 552, Legislature (1972) 464]; 496 v. Cal.Rptr. Cal.3d 92 P.2d 7 [101 18, 626]; Legis- (1973) 507 P.2d Reinecke Cal.Rptr. 9 166 Cal.3d [107 Reinecke, Cal. 3d Court battles over lature v. 10 that the stretched far into decade reapportionment frequently have to serve. The courts must now plans were intended reapportionment resolution encourage prompt seek remedies will disputes. rem- this as it determines the proper
The calculus
court
confronting
different from that
substantially
1982 elections
thus
for the
edy
I. The new
Reinecke
carries
which
the court 10
years ago
faced
it
Although
and the Governor.
with it
assent of both
a pos-
is as yet only
people,
faces the
possibility
rejection by
the old
hand, the
use of
against
the other
factors
sibility.
militating
On
equal pro-
than
were in 1972. The
stronger
they
are far
plans
districting
open
less
state
federal Constitutions are
tection
of both the
clauses
Fur-
one-vote.25
requirement
one-person,
stricter in their
delay
1962,
consistently
to consider
Supreme
States
Court
refused
25Prior to
United
congressional
deprived voters
malapportionment
legislative
districts
claims that the
(See, e.g., Colegrove
right
representation.
v.
constitutionally protected
to fair
of a
1198]; MacDougall v. Green
(1946)
66 S.Ct.
Green
The Reinecke I solution—use of the old districts for
elec-
tions and the new districts for
elections—is not
Congressional
helpful
here. The
it be used
suggestion that
leads
to a
today
ineluctably
logical
conflict. If the court has the
use
power to order
of the new
plans
*32
races,
congressional
court,
a fact
to
member of
it
agreed
this
every
must be able to do the same for the state
districts. In 1982
legislative
the allure of the
I solution
Reinecke
lies more in its value as a compro-
mise than its theoretical neatness. And
between
compromise
competing
663,
signaled
U.S. 186
L.Ed.2d
82 S.Ct.
a dramatic shift in
in-
[7
691]
constitutional
terpretation, holding
requires
that the federal Constitution
one-person,
adherence to the
principle.
one-vote
Subsequent reapportionment cases of the 1960’s involved
painstaking
the at times
application
(See, e.g.,
principle.
Wesberry
(1964)
initial
of this
v. Sanders
VI.
Conclusion It this more dispute prop- is with reluctance that court enters a great at the of the state erly political resolved environs However, matter. this has choice given ballot box. court been no the citizens of this state right court must act to protect has A faith effort vote in an and constitutional fashion. orderly good one-person, one- imperative been made to meet the constitutional vote, or political proc- electoral minimizing any disruption while *33 the spheres esses into the coordinate and without intruding proper branches of government. predic- and no stance postulating from a neutral
Operating judicial on the proposed the of the referenda tions as to outcome probable districting a temporary has ordered the court plans, reapportionment this the citizens of the law to equal protection that best ensures plan year. this process least violence to the election state while doing concede, that and most agrees, parties this court member of Every not may and old, of 1973 is unconstitutional out-dated district plan open The alternative elections. be used for congressional ap- and districts adopted court is the reapportioned congressional reapportionment If the 1981 the Governor. proved by elections, it is clear be used necessity must of plan statutes the 1981 why reapportionment no reasons compelling there are old, un- for the be discarded and Senate should Assembly governing the primary allows plan This temporary of 1973. constitutional districts comply more nearly in districts that to be held elections general one-vote. one-person, mandate the constitutional with most constitutional which is law, adopt must court By old district it plan, adopt court were If the and least disruptive. Constitutions, but and federal to our state do violence would not only be construed as an impermissible judicial the action might statement of the referenda. about the success in which the only way unconstitutional, adoption old dis-
tricts could be would be if this justified court were to pronounce political conclusion that the statutes will be rejected. However, this court is forbidden from such making political assump- Instead, tions. this court is constrained to take a neutral look at the results under both the old and new districts should the referenda either fail, pass order to determine what alternative is least disruptive. When these different “scenarios” side, are laid out side it becomes evident that use of the new districts is the less disruptive alternative.
If the old districts now, were adopted this court but the 1981 reap- portionment statutes were affirmed the voters by . of this state at the old, primary, unconstitutional districts would still have to be used in November. This would be the most disruptive this court remedy could fashion. The right the people of this state to equally weighted votes would be denied at both the primary general elections.
Thus, not only would the will of the have people been thwarted for two years in the case of the and four Assembly in the years case of the Senate, but the November election process would be totally disrupted, since the 1981 reapportionment approved Legislature, signed by *34 Governor, the and the adopted by could people not go into effect. Why? Simply because of this court’s ukase.
Under no circumstances could the use of the old districts be less dis- ruptive than the use of new fail, districts. If the referenda a new legislative reapportionment will have to be developed, regardless which districts this court for adopts the 1982 elections.
Justice Richardson’s opinion assumes that the “worst possible scenar- io” is the prospect that the state will have to vote an additional set of districts if this court adopts new districts and the referenda fail. However, in labeling scenario, this the worst the dissenting justices overlook the fact that it is only through the use of the new districts that the voters’ to rights equal protection and to prompt implementation of the one-person, one-vote mandate will be honored. The worst scenario is one in which this crucial is right violated. needlessly be
If and the referenda there will adopted pass, the new districts are understandably The dissenting opinions no whatsoever. disruption no to fur- any this will have need take point. silent on Legislature will ther of the decade. The action for remainder reapportionment votes, given will be imme- of the in their referenda people, expressed effect in the November election. diate If 5by percent is an a referendum problem. signed
There additional a for reapportionment plan can a enacted stop legislatively the voters it is the citi- adopted by two or four even if period years, subsequently will election, a could thwart the minority zens at a statewide then small a small number of by obtaining sig- of a of the citizens majority simply a a would then become not petition. petition natures on a Signing to people, a be a vote request put that statute reapportionment of a cru- but which to block the implementation a sure-fire method Governor, Senate, approved cial statute Assembly, the people.
Thus, this would have of the old districts court adoption does not in the who encouraging anyone detrimental effect future reason, im- to look plan, like for whatever a legislative if this It to to undo it. cannot overlooked the courts mediately small, view, a dis- encouraging it would be court were endorse at least this court to state reapportion to force minority satisfied this and the A disasterous for court prospect more every years. once It is neither wise nor just difficult to imagine. electoral is process basically political responsibility, place reapportionment, the burden of state. on the courts of a resolving serve as a forum for should continue to
Certainly, the courts However, should the courts legal concerning reapportionment. issues in this surrogate not themselves become permit ex- area, province political properly which *35 ecutive branches. the the merits court, political no on position takes body
As a this the referenda. or on the outcome legislative reapportionment plan with is concerned This court people. rest with the Those decisions now impact and the Constitutions and federal the of the state requirements adopt is to Our goal decision this court. by of a process on electoral the and of the electoral process be disruptive that will not plan a temporary to the political process. of violence the least amount does these which meets criteria is alternative to the court only open if result in the re- Even the referenda reapportionment plan.26 statutes, will process the election jection reapportionment the out-dated had districting plan no than if undergo greater disruption However, old, if adopted, disrup- been used. unconstitutional is plan Further, of the constitutional protec- tion election is assured. process tions of the vote and the to a right prompt reapportionment to right served recent adoption best of a based on the most census plan data.
The referendum reserved to the the Con- power, expressly people by stitution, is the to a statute to a vote all of the right put electors. This must right The outcome of the on these protected. vote refer- enda may determine scheme used the rest of the redistricting decade. vote, the outcome Pending of that this court must follow the mandates of the state and federal Constitutions. re- Equal protection that quires election districts conform as as is nearly practically possible to the principle one-person, Article one-vote. XXI of state Con- stitution requires that state be reapportioned each decade. These provisions that, impel measure, the conclusion as a use of the temporary newly fashioned districts is preferable imposition the seriously and unconstitutionally malapportioned districts old and, therefore, alternative. only
The Reinecke I solution seem an may However, alluring compromise. it requires this court make the impermissible political judgment the referenda will fail this court in places the shortsighted position of ignoring constitutional mandates and encouraging pattern of court-ordered reapportionment at least once a decade.
This court has noted repeatedly its reluctance to enter into the com- arena of plex It now legislative reapportionment. should be clear to the voters and the elected leaders of this state that under the current method of reapportionment, the constitutional requirement of a legisla- tive reapportionment the year the federal census following could ever, if rarely, be met. Reapportionment by courts decade is every solution, an not an inadequate but intolerable one well. The Legislature should address this problem procedure fashion a 26It conceded sides that primary all there is not sufficient time before the plans. have court or fashion alternative
678 the current caused by resources and wasted delay will eliminate the process. Sen- the Congressional, governing 1981 statutes
The reapportionment a temporary reappor- as adopted are hereby ate and Districts Assembly elections Guided only. and general the primary tionment for for reserved area of public policy enter into an reluctance to by proper within court acts today this representatives, the their elected and people duties. its constitutional consistent with restricted boundaries most malapportioned their solely grossly because plans rejected The old are plans temporarily The new are manifestly districts are unconstitutional. to alternative available represent because solely they adopted principles equal protection to this that both maximizes adherence court process. election disruption minimizes in nature. It does not strictly repre- This court’s decision is judicial as, sent, be an nonen- nor should it used endorsement or anyone dorsement of views either the of the re- proponents opponents of matters, The those proper ferenda measures. people judges to which this no whatsoever. It is of expresses opinion paramount court be importance necessity po- that acts not misused as levers of judicial litical expediency. their express its collective people
Since inception, right been protected will of the referendum has through power vigilantly Thus, it been bodies cannot nulli the courts. has held identical recently rejected this to enact a law fy power voting (See (1949) 414, Ashley v. 93 Cal.App.2d referendum measure. Gilbert (1920) 439- 50]; Cal.App. 415-416 In re Stratham P.2d [209 different” “essentially P. Unless the new measure 986].) faith, not and is enacted “not bad rejected provision from it referendum is invalid. petition,” with intent to evade the effect (1962) (Id., 440; 210 Cal. Reagan City see also v. Sausalito p. v. Cal.Rptr. 775]; Martin Smith App.2d 629-631 [26 here Should the referenda Cal.Rptr. 307].) 118-119 Cal.App.2d election, governed will be in the rejected primary plans new remainder these rules in fashioning of this decade. this court that she has directed of State informs Secretary pe- not to candidates with registrars provide clerks and voters
county *37 6494.1) in (§ titions lieu of fees until these paying filing consolidated mandate have been resolved. proceedings Pursuant to section sub- (b), division these otherwise would have been petitions made available as of 1982. In order to ensure January that all candidates who choose to do so make use may of these the court directs procedures, that the last date on which such be filed petitions may be extended days. To the extent that the deadlines set for declarations of intention filing 25500) to become a candidate (§ and for nomination documents filing (§ 6490) may impinge upon implementation extension, of this they should be extended administratively commensurate fashion for the benefit of those candidates However, to file in lieu choosing petitions. no event should such extensions be permitted delay primary election.
Since there is no reason to believe that the to these parties proceed- will not ings court, accede to the holdings of this no purpose would be IV, (Reinecke served by writs of issuing mandate. 10 Cal. 3d at p.
The alternative writs of mandate heretofore issued are discharged, and the petitions for writs mandate are Each denied. shall bear party its own costs in the herein. proceedings
The judgment is final forthwith.
Newman, J., Broussard, J., Tamura, J.,* and concurred. RICHARDSON, J., Concurring I concurin the ma- Dissenting. jority’s conclusion that the referendum petitions are valid and fully ballot, for the 1982 qualify that the of the refer- primary qualification enda stays operation of the state Legislature’s 1981 reapportion- statutes, ment and that because of the constraints of federal law and the seats, allocation of two new congressional as a matter of both practical we legal necessity, adopt, should the 1981 temporarily, legislative enactment of congressional boundaries. I but respectfully, vigorously, dissent, however, from the of the 1981 majority’s acceptance view, enactment of Senate and district boundaries. In this Assembly my is most unwise and unnecessary, improper. * Appeal sitting assignment by Retired Associate Justice of the Court of under
Chairperson of the Judicial Council. *38 its the as accepts thinnest of margins, majority and the
Today,
which is
validity
the
of
package,
in its entirety,
legislative
own and
in the
It does so
face of
referendum
very
challenge.
under
serious
will,
state
in
over four
just
election in which the
of this
people
pending
the
of this
months,
and
on
judgment
propriety
make a final
definitive
is not
to do so. It acknowl-
compelled
The
very legislation.
majority
must,
of the referenda for the June
as it
that the
edges,
qualification
the
of the 1981
operation
leg-
1982
has the effect of fully staying
ballot
Nonetheless,
and
the
this
completely disregards
stay
islation.
majority
a state legislative reapportion-
the
of California
imposes upon
people
its
of law
operation
has been
dead in
tracks
stopped
ment
which
plan
ma-
uncertainty.
and
veiled in a cloud of
political
which
heavily
the result and its action can
of this
jority’s adoption
prejudges
par-
of the court with one side in a
be
an official
perceived
alignment
neutral.
scrupulously
tisan
as to which we should remain
dispute
we
under circumstances
agreed,
10
Only
years ago
unanimously
here,
the ex
those
that we would retain
to
wholly analogous
presented
their
for the 1972 elections despite
district boundaries
legislative
isting
one vote
person,
principles. (Legisla
with federal one
noncompliance
481,
(1972)
(Reinecke I)
Cal.Rptr.
681 accord, Com. v. 473, Supe- Fair Political Practices A.L.R.3d 1038]; 855, 46], 599 P.2d Cal.Rptr. rior Court Cal.3d We 740].) 100 S.Ct. (1980) 444 L.Ed.2d cert. den. U.S. As mandated section this “precious” right. are “jealously guard” [to] Constitution, of this IV, power “The article of the state but the reserve is vested in California ... Legislature, people State (Italics added.) to themselves the initiative and powers referendum.” *39 Second, concede, II, 10, article section as the is forced to majority (a), mandates a of stay legis- subdivision of the California Constitution here, lation a referendum. This subdivision qualified as challenged, of statute the part recites: “If a referendum is filed a petition against remainder shall not be from into effect.” im- going By negative delayed if the referendum as here is directed to the entire plication, petition statute, the statute is stayed.
Third, again conceded statutes majority, reapportionment (Silver (1965) the referendum v. Brown 63 subject process. 270, 308, Cal.2d 277-278 405 v. Ander Cal.Rptr. 132]; Yorty P.2d [46 (1963) 312, 97, son 60 Cal.2d 316-317 384 Cal.Rptr. 417]; P.2d [33 207, (1928) v. Jordan 204 211 Boggs 696]; Cal. P. Ortiz v. Board 866, Supervisors Cal.App.3d Cal.Rptr. 100].) Despite law, nature of the how- mandatory foregoing principles ever, the refuses to of the three majority stay any challenged reappor- statutes, elections, tionment of the 1982 purposes instead relying what the upon conceives to be federal As majority overriding principles. below, I develop while a federal statute our may require temporary statute, of the adoption 1981 congressional redistricting neither any statute nor overriding principle disre- justifies majority’s complete of the gard ordained or the immediate constitutionally stay imposition of the stayed state In legislation upon legislative districts. ordering use of elections, these latter districts for the 1982 at the majority II, same time both (a), article section ignores subdivision Constitution, and thwarts the will deliberately of those hundreds of thousands of California voters whose have signatures qualified already the referendum petitions for election to approve disapprove the reap- portionment statutes. The Constitution requires there be a stay, but the refuses to honor majority it.
The finds it anomalous that a “mere” 5 majority percent of the voters can effectively postpone The Legislature’s reapportionment plan. decision to fix the course, own
answer, people’s is that this was were in excess of In the signatures at 5 percent. actuality qualification Moreover, this feature of obtained. speedily and these were percent vote single than permitting is no more anomalous the referendum I, (See Reinecke (that Governor) the same result. accomplish 3d, argument wherein we p. rejected 6 Cal. from the Governor’s exempt statutes are Legislature’s direct appropriately score is more veto.) on this majority’s quarrel The themselves people Constitution and to the framers of the state ed to dual who, protections guber authored the provision, adopting as safeguards against and referendum stay natorial veto abuses. of vo- with the continued use coupled that a majority argues stay violate federal us in would district boundaries created
ting XXI of the in article incorporated *40 one vote” person, principles “one which I now is incorrect for reasons state Constitution. This conclusion election, members to the respectively, with reference develop and House of Representatives. Senate Assembly, A. The Assembly districts were drawn masters boundaries of present Assembly (Reinecke IV) v. Reinecke Legislature us in 1973 in
appointed by
516 P.2d We
as
Cal.Rptr.
6],
adopted
While the the contestants’ majority accepts principles, override “one one vote” there person, cannot stay properly those and the constitution- principles no irreconcilable conflict between stay. mandated ally
First, 1980) in article XXI in (adopted purports contained nothing statutes from the usual reapportionment immunize the Legislature’s includ- upon legislative process, constitutional checks and balances referendum challenge accompanied both the Governor’s veto and a ing of such statutes the vot- operation pending the immediate of the stay XXI Legislature adopt ers’ decision. Article simply requires plan district boundaries in the each readjusting voting year following Moreover, national application census. review the ref- people’s erendum will process not frustrate the of article XXI so purpose long retain, do, interim, we as we authority provide an temporary plan pending review as discussed below.
Nor are federal person, one one vote irreconcilable with the principles seen, people’s right referendum. As will be of these application instant, Rather, need principles not be immediate and absolute. ne- states are reasonable cessity, permitted flexibility adopting their implementing reapportionment plans, thus reasonable permitting attributable delays to referendum We have challenges. so held before I, under similar very circumstances in Reinecke wherein we for- mulated a for the temporary plan 1972 elections in which we then specifically employed existing legislative district bound- aries despite their failure to with the constraints of one comply person, one vote principles. No different result is required this case. I,
In Reinecke had a current adopted reapportion- ment plan, it, but the Governor had vetoed thereby creating immediate need for some for the elections. We ex- forthcoming pressly acknowledged that shifts had occurred and population that “the present no congressional apportionments meet the longer man, (6 one one 3d, vote requirement ....” Cal. at p. Nonethe- *41 less, rather vetoed, than use a temporarily although current plan, hastily attempt to an new prepare one of our own entirely pub- without lic we participation, the specifically permitted preexisting legislative boundaries to remain in effect for of the 1972 purposes elections. Speaking through then Chief Justice we said: “We believe that Wright, it will be less destructive integrity electoral process far districts, be, allow the existing legislative imperfect they may survive an additional two than this court to years even accept, for for that are best temporarily, plans truncated products legislative (P. 602, process. added.) italics Our was clear reasoning [Citations.]” and unmistakable. It should control the in result the case before us. De- our spite express of one one vote acknowledgment person, we principles, held that a relaxation those temporary as to districts goals legislative would be consistent with of the preserving integrity electoral process.
It is asserted, contradiction, interesting real have without parties that the population variances in the districts are less than present those
684 that, It is clear in terms of
which we in Reinecke I. perpetuated equally which is reapportionment plan of the electoral a “integrity process,” referendum for the June 1982 Pri- challenge qualified now to a subject Election, which, is to one comparable although legislatively mary authored, In in- has failed to receive the Governor’s each approval. stance the is Because ultimate sover- plan inoperable stayed. for appears elevating analytically rests in the no reason eignty people, veto above the reserved referendum au- power people’s Governor’s constitutional foundation of each. independent thority, given Moreover, I was consistent with federal cases which fully Reinecke one vote principles have held that the of one application person, may while a state is a faith effort temporarily postponed proceeding good (See (1971) 108, v. Klahr 403 114- Ely toward U.S. reapportionment. 352, 356-357, 91 S.Ct. Lucas v. Colorado Gen. 1803]; L.Ed.2d [29 632, 647, (1964) L.Ed.2d 377 U.S. S.Ct. Assembly [12 v. Sims 377 U.S. 583-585 L.Ed.2d 1472]; Reynolds 506, 539-541, 84 Skolnick v. Illinois State Electoral 1449]; S.Ct. (N.D.Ill. 1969) 697.) In F.Supp. Reynolds, Board high court decennial explained although reapportionment carefully standards, is that equal governing principle would satisfy protection conceived read periodic the states should “a adopt reasonably While we do not intend to justment representation. of legislative indicate that decennial is a constitutional requisite, with such an would meet minimal re compliance approach clearly current scheme of quirements reasonably for maintaining added.) italics pp. 539-540], 583-584 L.Ed.2d representation.” (Pp. court which has direct to the precise language high relevancy circumstances, us is as follows: “.. . under certain such problems before is imminent and a State’s election ma as where an election impending considerations progress, equitable might justify chinery already relief, effective in a immediately court in withholding granting *42 case, even the though existing apportionment legislative apportionment relief, immediate scheme was invalid. In or awarding withholding found the of a forthcom proximity a is entitled to and should consider court laws, election election the mechanics and of state complexities and ing (P. 585 principles.” and rely upon general equitable and should act [12 L.Ed.2d p. 541].) fashion, us the of a pendency speedily
In similar in the matters before which will be a reapportionment plan referendum to qualified challenge amply justifies in four months likewise the over people just resolved forthcoming the for districts existing use of the temporary “the and state’s is imminent” Here, “an election impending elections. Indeed, preelection certain in progress.” is machinery already election of State Secretary the and been passed, deadlines have already filing to disrupt as further so not us to act speedily and clerks county implore to us are cases before The matters machinery. the election statutory and unique precise has language Court Supreme which the foregoing application.
Those, the support contestants upon by cases which are relied people’s one vote override principles that one proposition person, v. (See, Colo- Lucas e.g., distinguishable. referendum are right plainly 632, 713, L.Ed.2d 734-737 rado U.S. Gen. Assembly, [12 580-583, (S.D.Cal. 1964) 241 F.Supp. v. 645-647]; Silver Jordan 419-420 v. 381 U.S. affd. sub nom. Jordan Silver hold 689, 691-692, cases 1572].) quite properly 85 S.Ct. These L.Ed.2d a referendum) of an initiative or (through people’s approval (1962) 369 Baker v. Carr which is violative of plan reapportionment irrelevant 691], constitutionally U.S. 186 L.Ed.2d 82 S.Ct. is Here, entirely ques- and a an different plan. cannot itself sustain such to so tion vote be principles is are one one presented, namely, person, ap- their own to applied right as to themselves strictly deny people such prove legislation or disapprove reapportionment legislation before lee- takes As we have seen on the reasonable highest authority, effect? to exercise of their way is such a case permitted protect people’s precious referendum is as established right. procedure soundly Such in precedent as it in principle. is of,
It that it would be less urged by “disruptive” the majority ac- to, were we to process purport more “deferential” the legislative hand, while referendum on the one knowledge process vitality statutes the same time adopting very a court-ordered challenged temporary which stayed part however, is neces- process, 1982 elections. referendum halt in which procedure by people undeferential sarily disruptive, Nonetheless, statutes. operation duly their tracks the enacted heard and that the voice shall both people’s Constitution guarantees It effect of the preserve peo- mandates the obeyed. clearly stay preserve such a in order to ple’s stay will. circumvent Any attempt to the “orderly” conduct of elections in deference *43 Governor, We sovereign people. frustrates and defies necessarily values which sus- should be those same democratic ever mindful that one vote” person, princi- of “one pronouncement tained the court high Carr, for the con- form the foundation very also in Baker v. ples and initiative. authorized referendum stitutionally the 1981 adopt restraint” “judicial Nor should we under the guise chal- face of a referendum qualified statutes in the reapportionment has those statutes. very which lenge stayed restraint, in this case is simi- In the choice before us terms of judicial here, the choice in in Reinecke I. As lar to the choice we confronted a new old, reap- districts and malapportioned Reinecke I was between of the state’s been portionment plan adopted by majority had I, course, the new dis- elected In Reinecke representatives. legislative the plan, tricts were effective because the Governor had vetoed not not effective because the referendum while here the new districts are instances, however, the has in both process plan; legislative stayed did not result in an the California Constitution process contemplated by effective reapportionment plan.
In I did view the of the “truncated” adoption legisla- Reinecke we not tive as a choice dictated considerations of plan by any “judicial properly even had been of the passed by majority restraint” though state’s elected was closer to one one vote representatives person, than On the we principles contrary, emphasized: “Only the old districts. the most would us to the sol- compelling impel disregard considerations emn vetoes of the and to adopt plans passed by Legis- Governor . .. complete lature as court at least the absence of a plans, hearing, which would us exercise a informed and fully independent allow with to those Insofar as judgment respect plans. (6 concerned, we find no such considerations.” compelling 3d,
Cal. Should we now accord less “solemn” to the p. weight of the statutes than a Governor’s veto? Not under people’s proscription people sovereign. which the any system I, In in Reinecke we implicitly recognized our conclusion reaching that our of a adoption incomplete leg- court’s automatic “truncated” islative deference to a proposal represent appropriate judicial would not of the state’s product contemplated process constitutionally legislative which, then, as of was in the cases before us our incomplete. Similarly, of the 1981 amounts to intervention into that adoption plans judicial the checks and balances which our state process, thereby undermining Constitution has built into the scheme to consciously guard *44 In each in- representative majority. a of a against tyranny temporary of the stance, checks balances on the actions Legislature—the these and I, here the referendum power veto in reserved gubernatorial Reinecke the of a current actions important purpose moderating —serve the interests of a broad lawmakers, to ensure that helping majority in the of legisla- are considered enactment of affected individuals range Federalist, (1942 (Hamilton) (See LXXIII No. generally, tion. Moreover, ed.) II, it that and 72-74.) seems clear these checks pp. Book to stat- are at least with significant respect balances as in the reapportionment as with to other for respect legislation, utes con- is a serious that narrow partisan context there particularly danger legislative majority be undue a current may given weight by siderations competitive at citizenry’s of the broader interest expense general IV, (See Reinecke districts and electorally responsive representatives. 402-403, 416-417.) 10 Cal.3d that legislative plan When a court automatic “deference” to accords has checks and constitutionally been “checked” one of by designed balances, served it diminishes the effect salutary tempering inevitably Thus, if we had automati- example, the constitutional safeguard. I in Reinecke adopted legislative reapportionment vetoed cally state need of the an interim we would have lessened incentive or plan, in- account the interests of party minority party take into majority so of the dependent “minority party” voters as to secure signature adopt when in the case we Similarly, present incomplete Governor. referendum legislative plan despite operation provision, of the stay we check on that is self-serving political reduce this action inevitably hand, we provided respect the referendum On the other if power. if the rec- provision, effect to referendum and give ognizes power people prevent this utilized may effect, in the future plan taking legislators from narrowly partisan they adopt more to ensure the fairness likely attempt That is important pur- to the one generally apparent public large. the reserved pose power. referendum sum, do proper we not exercise majority’s
In to the contrary analysis, to the legislative process” restraint” or “deference “judicial appropriate constitutionally stay adopt when we mandated ignore legislative redistricting plans. reasons, Assembly I that the state all of the conclude
For foregoing plan, based on our masters’ which were us and adopted boundaries *45 rather ones, than the new challenged stayed should the 1982 govern however, elections. I emphasize, that I would not foreclose the Legisla ture, if it practical, deems it from faith a adopting good reapportion ment 1981, different from that substantially adopted pur I, poses (See of the 1982 and subsequent elections. Reinecke 6 supra, Cal.3d, 602-604; Martin v. Smith at pp. 115, 176 Cal.App.2d 118-119 Cal.Rptr. 307].) [1
B. The Senate (S.F.
The Senate petition 24356) recites that the Senate was elected from 40 districts drawn IV, Reinecke us in 1973 in and that because of population growth shifts these districts no assure longer compli- ance with one one person, vote principles.
Although all 40 senatorial districts were redrawn a statute chal- lenged (Stats. the Senate 1981, referendum petition 536), ch. (ch. subsequent 538) amendment thereto purported to redraw further 12 of these districts. This later amendment was not included in the ref- erendum attack. The Senate contestants argue the referendum cannot preserve the boundaries, Senate district existing because some of these boundaries are new, irreconcilable with the 12 dis- unchallenged trict boundaries. conceded, however,
It is that these 12 new districts interlock with the and, boundaries drawn in challenged chapter 536 are whol- accordingly, ly dependent upon the of those validity remodeled boundaries. If the 536, referendum must, successfully abrogates chapter then chapter likewise An necessity, fail. examination of the two statutes discloses that chapter 538 almost all of the readopts boundaries previously adopt- 536, ed by chapter minor making only very in the 12 changes districts fact, affected. In chapter was introduced evidently as a “trail- er” or bill “clean-up” designed correct minor typographical errors in chapter 536 rather than to achieve a substantive revision thereof. Be- minor, cause the alterations made by chapter were and because the boundaries drawn in that were chapter dependent upon the boundaries statute, drawn in the real original parties are correct in assuming that chapter 538 should stand or fall with chapter 536. The referendum process should not be rendered ineffective the mere reenactment of a with challenged plan coupled inconsequential amendments thereto. correct test within this context is It well established. is “whether the first,” second legislative enactment the same as the essentially al- matter with the subject “‘deal further the legislative body may though essentially ordinance, an ordinance by enacting the suspended differ- Smith, (Martin v. ....’” ent from the ordinance against protested City 118-119, added; v. see Reagan italics 176 Cal.App.2d 775]; Cal.Rptr. 629-630 Sausalito (1962) 210 Cal.App.2d P. Annot. 986]; 439-440 In re Stratham (1920) 45 Cal.App. *46 1131-1134; (1949) 49 Colum. Comment (1954) 33 A.L.R.2d faith” and Martin 705, 706-707.) “good also requires legislative L.Rev. petition....’” the referendum evade the effect of “‘no intent to in assess- (P. sound and should 119.) apply foregoing principles of this case. 538 under the circumstances chapter the effect of ing of analysis which support foregoing Based the same reasons upon senatorial adopted the newly I conclude Assembly petitions, of the referendum qualification similarly stayed by boundaries are pre- The masters’ boundaries which them. directly challenges petition for the purposes should be used temporarily us viously adopted by senatorial elections. conducting The House Representatives
C. leg- to use the 1981 with the conclusion majority’s Although agreeing districts, the reasons I explain for plan congressional islative which The House pe- elections. from state congressional distinguish census, the 1980 California (S.F. 24354) according alleges tition members, than those authorized more is entitled to 45 House (Stats. 1981, law House reapportionment census The 1981 figures. in accor- reapportioned new districts 535) the state into 45 ch. divides Accord- the new census. reflected by with changes population dance voting old contestants, forty-three continued use of the House ing one vote person, princi- violate one would not only district boundaries House seats. How- of two new California deprive but also would ples, fairness underlying directed both to ever, challenge a serious and to the Legislature as drawn by boundaries the 1981 congressional (e). (c) XXI, 1, subdivisions and section with article their compliance I, we similar problem, In Reinecke facing very 6 Cal.3d the pre- which retained elections for the 1972 a temporary plan adopted new, used the but districts the legislative boundaries existing case in that We observed vetoed, boundaries. congressional although which, in the ab- seats new House to five was entitled that California have to be left “will either reapportionment, sence a valid legislative (6 Cal.3d, unfilled filled We re p. statewide elections.” conduct statewide elections jected the latter that “to option, reasoning fill California’s size geographical five seats a state of congressional burdens not increase the only tremendously would large population but, the choices increasing of effective expenses campaigning from the candidates for one to candidates the electorate confronting seats, in seriously impede casting for six would congressional (Ibid.) stressed that although formed ballots.” We further had been vetoed Legislature’s congressional Governor, from all members of the House. support it had bipartisan (Ibid.) two case on the present Reinecke I from
Real parties distinguish involved, seats are five, House two, additional not grounds: Only *47 of a confusion burdens, and expense reducing very substantially bi- no visible here (2) enjoys involved election, plan statewide and and however, note, Republican that both (I partisan support. delegation congressional the California members of Democratic old congressional use of the continued to united in their opposition boundaries.) disfa- considerations believe, however, aside from the practical
I con- representatives, new congressional elections of at voring large elections, for- expressly federal law to the case of state legislative trary Thus, I we noted that in Reinecke elections. large congressional bids at repre- shall elect that California provided has “Congress expressly [its (6 Cal.3d, fn. at p. districts.” member single from . .. sentatives] omitted.) 2c of title 2 of the United section this on regard We relied in Ninety- in the State entitled that “In each Code, which provides States than to more thereafter subsequent Congress in any first Congress to section made pursuant an apportionment under Representative one of dis- law a number title, be established 2a(b) there shall of this is so which such State Representatives number of tricts to the equal es- so districts only elected shall be entitled, and Representatives from ” added.) (Italics .. tablished .. 2a(c), Code, section however, States 2 United upon parties Real rely, pro- in the manner is redistricted a State which mandates that “Until the Representatives any apportionment, vided the law thereof after shall be elect- apportionment such is entitled under which such State in the increase there is an .. . manner: ed in the following if at be elected the State shall [they] number Representatives, from then the districts prescribed and the other large Representatives from ” (Italics added.) State-, Real parties urge .. .. the law each House district use of the former this section supports temporary two additional members boundaries, with statewide election of coupled 2a(c), before a is invoked this section serving large. analysis, Under 2c after applies only while section adopted, has been redistricting plan such adoption. 2c, close, en- that section is I am
Although question persuaded has implicitly repealed, intended to replace, acted was 2a(c). 2c a new adopted procedure section its terms section By very sessions whereby any the 91st and governing subsequent congressional under its to which a state became entitled representatives additional dis- from member single were to elected reapportionment plan case, redistricting tricts. In the own present although Legislature’s law, court, in own fashioning has been this our stayed by operation elections, interim must abide federal apparent the 1982 mandate reflected in section 2c. less one one
Considerably flexibility permitted applying person, (See vote boundaries. White v. Weiser principles voting congressional *48 335, 343-345, (1973) 412 93 S.Ct. U.S. 790-793 L.Ed.2d [37 526, 531, v. Preisler 394 533-536 2348]; U.S. Kirkpatrick 519, 524, 526-528, a reasonable de- 1225].) L.Ed.2d 89 S.Ct. Although in boundaries is an for state lay implementing updated plan legislative allowed the court in cases v. expressly by appropriate (Reynolds high Sims, 506, 539-541]), 377 583-584 L.Ed.2d it is U.S. in new con- much less clear that such a is delay permissible establishing distinction between congres- districts. There is thus a clear gressional hand, districts, elections, state on the sional on the one and legislative other. I, course,
In we that “We that the acknowledged regret, Reinecke available is one that reapportionment plan only readily congressional (6 Cal.3d, 603.) been the In similar p. has vetoed Governor.” by fashion, in the I that the available con- present only readily case regret referen- qualified is one which is clouded gressional plan pending, Yet, federal we must abide principles, dum under challenge. supremacy elec- the mandate federal law in federal applicable controlling tions.
D. Conclusion Thus, although I conclude that congressional reapportion- elections, ment must the 1982 we should not use the 1981 plan govern that legislative boundaries for purpose. make practical consequences majority’s
Two more rejection our I most previous majority seriously Reinecke solution unwise. (ante, 668) errs and p. utilizing challenged stayed in that assuming potential disrup- somehow “minimizes the reapportionment plans I our Reinecke following precedent, tion of the electoral process.” By we do scenario” asserted possible major- not invite “the worst (Ante, belongs that dubious distinction ity. p. To contrary, old IV masters’ dis- for it would switch from our Reinecke majority, if the those reject plans tricts to the 1981 plans, people vote, to a for the 1984 referenda we would switch third their voted, Thus, will have will have and candidates elections. each voter run, space years constituted districts in the four in three differently possible “worst scen- disruption. That is real That one day. ario.”
Moreover, if intolerable anomaly creates an majority absolutely that will the 1981 laws. The new districts reject redistricting voters decade will almost be be effective for the remainder of the certainly which elected on the basis a reap- drawn has been by Legislature factor just which the voters have This portionment rejected. scheme will it the next likely reapportionment plan would make even less will recognize the result of compromise re- districts and competitive electorally electorate’s interest general As a referenda sponsive consequence, repeated direct representatives. Moreover, are a certainty. imposing stayed legislative- near *49 boundaries, both and candidates for the 1982 ly Primary created districts, in then be boundaries running General Elections will have by people. because been they rejected which are nonexistent from fiat issued in defiance then draw life our only districts would will. recently expressed the people’s it, follow the path I would improve upon that we cannot Believing that, for of the purposes I and order defined us in Reinecke carefully elections, boundaries and new congres- the existing legislative which ruling, requires be The majority’s should used. sional boundaries forthcom- plans challenged reapportionment of all three use elections, of the power the reserved referendum defeats ing totally immediate and con- and the mandate an people requiring constitutional It also the self-evident intent of of the frustrates tinuing stay legislation. in faith and to pursuant hundreds of thousands of our citizens who good review and a petitions public law the referendum a signed permit like those in upon plans, vote these take These plans they effect. before J, are incomplete products legislative process; Reinecke merely if, as, will and when the become final and effective they people have their will. We expressed sovereign interrupt proc- should not ess a remain judicial device. The districts should exactly were they until the have people spoken.
Mosk, J.,
Kaus, J.,
and
concurred.
MOSK, J.,
and
Justice
Concurring
Dissenting.
I join
Richardson’s
and
concurring
His
irrefutable.
dissenting opinion.
position is
Neverthe-
less, a bare
this court
have become
in the
majority
entangled
thicket”
“political
their
by ignoring
on a
obligation
neutrality
parti-
issue,
san
can be
neutrality that
observed
maintenance of
only by
quo
status
in legislative
until the
districting
speak at the forth-
people
coming
(1972)
election.
v.
Reinecke
At present the do courts can little to prevent this decennial debacle. Justice Frankfurter saw the issue and the restricted role clearly four In judiciary nearly ago. decades v. Green Colegrove *50 1432, 1435, U.S. 554 L.Ed. 1198], S.Ct. he observed that one stark “The fact that from emerges of study history .. . ap- in portionment its embroilment in politics, the sense of party contests (328 at L.Ed. U.S. p. interests.” He concluded party and this thicket. The political not to enter ought “Courts that 1436]) p. secure that legislatures in is to State districting for unfairness remedy has left the performance will .... The Constitution apportion properly fidelity on the depend scheme duties in our many governmental and, ultimately, vigilance action on the executive and legislative (Italics added.) political their people exercising rights.” this solve es- it of the judiciary is not the Although responsibility that a I resist better political suggesting cannot sentially problem, found if must be equitable reapportionment solution to achieving effectively. are to be served What solution of California people of 1971 wrenching experiences be is ken. But the and should beyond my no their should representatives tarry long- 1981 indicate the and people er in an answer. seeking and Dissenting.
KAUS, J., much is to said Concurring Obviously on each side issue that divides Justice majority which I two considerations signed. Richardson’s dissent have which, First, view, scale are these: in favor dissent my tip I.1 follow Reinecke us adherence should make Sec- simple precedent ond, chosen majority it seems clear to me the course in- laid out volves intrusion into the greater judicial process Baker v. compulsion by the California Constitution. Absent Carr—and itself process I see let that out without play any judi- none—we should cial intervention. to break pity Supreme Court which will have the tie between Reinecke I 1I Assembly Deukmejian. v. notes en- acted section 45 “codifies existing (Stats. case law.” ch. That section provides, pertinent purposes verifying signatures any “For part: on ... referen- ..., petition dum the clerk ... shall determine the residence address on the petition registration.... as ... is the same the residence address the affidavit of .on petition, the case of referendum if the specified ... information in Section [I]n [a] 3516 is not signature the petition, contained in the affected shall be not counted as ” valid.... percent signatures determined the clerk to Accordingly, be would also be determined to be those of genuine qualified registered All voters. would counted valid signatures purposes qualify-