Thoughts on the Lawsuit Against Prop. 50

As I have been asked about my thoughts regarding the legislative process challenges to the redistricting legislative package, I prepared this brief article in response. Being the legislative geek that I am, as well as teaching the course “Lawmaking in California” for the past decade at my law school alma mater, this is a fascinating case study.

As many are aware, on Monday, August 25, a lawsuit was filed in the California Supreme Court by several legislators and voters. There are the four central arguments presented in this writ petition (along with my short response):

1. One ballot measure cannot lawfully pose a question on two separate subjects. I believe there is only one amendment proposed to the Constitution by ACA 8. The first statement is one of the People’s intent or wishes.
2. The state Constitution currently vests exclusive authority to engage in the redistricting process in the Citizens Redistricting Commission after taking that power away from the Legislature and imposes other requirements the Legislature ignored. While that is true, the voters are being asked to make an exception, and this is why ACA 8 uses the common phrase, “notwithstanding any provision of law.”
3. The state Constitution limits redistricting to once per decade. While that is also true, this provision applies only to the Commission’s work and the voters are being asked to make an exception to that provision in ACA 8.
4. The state Constitution prohibits action on legislation unless it has been published for 30 days. This is not how the Legislature has interpreted or applied Article IV, Section 8(a). In addition, Prop. 54 and the 72 hours in print rule was passed by the voters to provide a window, albeit short, of public review specifically for gut-and-amend bills.

To be clear, the California courts have not been presented directly with a challenge based on the 30-day in print rule, nor Prop. 54, and they have not revisited the Enrolled Bill Rule in a very long time. All of these issues are set forth in the writ petition, which makes it particularly interesting. As a result, the questions raised in this petition are all appropriate for consideration for our state courts. I just have doubt they will rule favorably on the petition.

In reviewing the petition to the Supreme Court, I think the question presented is correct. It says: “This case presents the straightforward but urgent question of whether the Legislature may, in the middle of the decade, usurp the Citizens Redistricting Commission (the “Commission”) and impose new congressional district lines with criteria that differ from the state Constitution’s requirements for a redistricting process.”

My views below are not on the substance of the question because, in my mind, that is an appropriate query for the voters of our state to decide on November 4 when they cast their vote on ACA 8. Instead, my view is limited strictly to the procedural aspects of this case (i.e., did the Legislature properly place ACA 8 before the voters?).

In reviewing the key points of the petition, I have the following thoughts:

Cases such as the Weber decision from last year can be distinguished because it dealt with a “core power” of government (i.e., the power of the legislative branch to tax). I do not view redistricting as a core power of state government to function. ACA 8 is being placed before the voters to ask, “notwithstanding” what you did in 2010 by Prop. 20, do you want to approve these alternative Congressional districts for the next three election cycles? 

“This Court has interpreted this requirement (the “separate vote requirement”) as precluding the Legislature from, within any single amendment, proposing “two changes to the state Constitution that are not germane to a common theme, purpose, or subject.” (Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735, 738.)”

This is not being violated in this case from my perspective because there are not two amendments being proposed. There is a single amendment and they are germane to each other, or “reasonably related” (another court test of the single subject rule). In fact, the first “proposal” is simply a statement of intent by the voters. It does not enact a substantive change to the constitution, as opposed to the second item in Section 4 of ACA 8.

“When the Legislature takes actions that conflict with the constitutionally defined limits of its authority, this Court is empowered to intervene and declare such actions unconstitutional.”

A true statement, but my view is that AB 604 does not contravene Article 21 because it has a contingent enactment clause. In other words, if the voters do not pass Prop. 50, then AB 604 never goes into effect. But, if the voters decide ACA 8 is an appropriate exception, then I doubt the courts will view there has been a contravention of the Constitution by AB 604.

“Recognizing the significant power that the Constitution granted to the Legislature in this area and how the Legislature historically exercised it, the people of California amended the Constitution in 2008 and 2010 to vest redistricting authority exclusively in the Commission.”

I think Article 21 of the Constitution is quite clear, but ACA 8 is asking the voters to make an exception in the same Article. Moreover, Article IV, Section 8(c)(2) states, in part: “(2) A statute, other than a statute establishing or changing boundaries of any legislative, congressional, or other election district, enacted by a bill passed by the Legislature..”

This provision remains in the Constitution even after the People adopted Props. 18 and 20 on redistricting. As a result, I think the courts could reasonable find that the Constitution still contemplates that the Legislature can enact some type of statute on redistricting, including Congressional districts.

In addition, all of the citations to the provisions of Article 21 apply to the Commission itself, not to any other entity or branch of government. And, ACA 8 asks the voters, “notwithstanding [Prop. 21],” do you want to create this exemption from all of the provisions of Article 21 for these Congressional districts for these 3 upcoming election cycles. ACA 8 includes this critical legal phrase (which is an often used phrase in both statutes and contracts): “notwithstanding any other provision of this Constitution or existing law.” ACA 8 has broad language exempting its proposed amendment to Article 21 from any other contrary provision of state constitutional or statutory law.

“Even if the Legislature or the voters have or are given the authority to engage in a map-drawing process, a power that the Commission currently holds, the ballot measure is unconstitutional for a separate and independent reason: Our State Constitution unambiguously permits redistricting only once per decade.”

I agree this is a clear statement in Article 21, but it applies to the Commission’s work. Again from my perspective, this provision does not apply, just as the redistricting commission’s requirements on map drawing do not apply. That is because of this language in ACA 8: “notwithstanding any other provision of this Constitution or existing law,”

In other words, if the other provisions of Article 21 do not apply because the voters created an exemption (by voting in favor of Prop. 50), then all of these other actions inconsistent with Article 21 will likely fail for the same reason.

“The Legislature’s passage of AB 604 only 4 days after its contents were first introduced renders AB 604 unconstitutional.”

“The 72-hour rule, by contrast, focuses on the end of the legislative process and requires that the final text of a bill be disclosed at least 72 hours before it is passed, ensuring legislators have time to see the text they will be voting upon. “

This is a novel question being presented to the California courts. It would create a new definition of what the word “introduction” means. It has been the custom and practice, and interpretation of both houses of the Legislature, that introduction is the date that the bill is introduced. That is why, for example there is a table published every time an Assembly or Senate Daily File is published that has a chart listing the 31^st day in print of each introduced bill.

Moreover, because of this generally-accepted definition of “introduction,” the proponents of Prop. 54 in 2016 (and also the opponents of so-called “gut-and-amend” measures) promoted the 72-hour in print rule as addressing this problem with not having sufficient review time for gut-and-amend bills. That term is actually used in arguments on Prop. 54 as a reason to support that measure and impose this period of review.

As a result, in recognition that gut-and-amends do not restart the 30-day in print rule, a new constitutional rule was created for those types of bills. Therefore, a gut-and-amend bill cannot be acted upon for 72 hours after the new language is “introduced” into the already existing bill. Note that there is no constitutional prohibition against gut-and-amend bills. There is a germaneness rule in the Joint Rule, but that is only enforceable by the Legislature itself.

“This Court’s application of the Enrolled Bill Rule under these circumstances to preclude review of the Legislature’s aggressive violation of Article IV, § 8(a) raises the question as to whether Article IV, § 8(a) is effectively a dead letter. No bill gutted and amended like AB 604 would ever be subject to review for compliance with Article IV, § 8(a).”

“The longstanding rule in California, as well as less than half the states, is that this presumption is conclusive. “

These are correct statements about how California courts currently apply the Enrolled Bill Rule. The petition cites my short law review article that recommends a new approach for the courts to take, which the petition appropriately argues for. However, based upon the Supreme Court’s application of the Enrolled Bill Rule, challenged procedural violations are usually not considered under the separation of powers doctrine.

Despite this, I have long advocated for the position that the petition takes for application of the EBR (i.e., that the court should, in fact, consider any constitutional procedural items that may be violated, but not consider alleged violations of the internal rules of the Legislature). I agree with the petition that the Court should definitely take this alternative approach and perhaps they will use this case to limit the application of the Enrolled Bill Rule. However, my thought is that, on other grounds raised above, the courts are likely to reject the procedural challenges for the reasons explained.

Editor’s note: this article was written before it was announced that the California Supreme Court denied this writ challenging the validity of the gerrymandering bills under the state constitution without issuing a statement explaining its reasons.