Legislature Has Power to Enact District Maps at Any Time
Article Series
Gold Standard
It's really tiresome to hear blabber about there being a "gold standard" for redistricting. Just more lies. Citizen redistricting bodies, like the Citizens Redistricting Commission ("CRC") in California, are neither impartial nor standard. This is just propaganda.
Think.
The purpose of the commission is to draw impartial maps. The commission members are appointed by a convoluted process that involves multiple levels of complexity in an effort to demonstrate a lack of bias. We dare you to read and understand Government Code section 8252. The entirety of Citizens Redistricting Commission chapter was added by Proposition 11 (2008), left untouched by Proposition 20 (2010), and then, get this, amended by the Legislature SB 1096 in 2012.
The entire point of the process is to substitute an elected legislature with an unelected body of 8 people who have actively sought to be appointed. Part of the process is similar to creating jury pools, especially the falsely named "civil" grand juries in California. ("Civil" grand juries are another fraud perpetrated on the people by the judicial branch.) Briefly, the selection process is: solicit applications, divide the applications into one of three pools (Democrat, Republican, Other), select the 20 "most qualified" in each pool, allow certain politicians to strike (remove) up to two members from each pool, draw lots from each pool to pick the members. Qualifications are whatever the selectors decide they are. It's anything but random. Regular people with common sense will never end up in a pool, let alone become CRC members. And of course, it's all done in secret.
The Legislature infused the CRC with DIE (diversity, inclusion, equity). That was even before you ever heard of the new euphemism for discrimination. After all, "All animals are equal, but some animals are more equal than others." (George Orwell, Animal Farm.) This is what the people in this state vote for.
Plenary Power
In the first article in this series, we mentioned plenary power.
The adjective plenary is not some special legal term. It's a regular, ordinary, English word. Here's Merriam Webster's definition of plenary. Each of the two definitions comes with an example usage.
1 : complete in every respect : ABSOLUTE, UNQUALIFIED| plenary power2 : fully attended or constituted by all entitled to be present| a plenary session
As you can see, plenary is so often associated with power that it is used in the example.
The second definition is often associated with meetings, you know, Roberts' Rules of Order. Specifically, under Roberts' Rules, conventions are examples of plenary sessions. The convention in Philadelphia in 1787 was a plenary session of the Congress established by the Articles of Confederation. The quadrennial convention of political parties to nominate a candidate for President of the United States is also a plenary session. Almost every political party organizational meeting, if it's called a convention, rather than a meeting, typically is a plenary session of that party, either at the national, state, or local levels.
Unlike the federal constitution which grants powers to the Congress, the President, and the Supreme Court, state constitutions presume plenary powers. The California Supreme Court has held over and over that "we do not look to [the California] Constitution to determine whether the [L]egislature is authorized to do an act, but only to see if it is prohibited. In other words, unless restrained by constitutional provision, the [L]egislature is vested with the whole of the legislative power of the state." Fitts v. Superior Court (1936) 6 Cal.2d 230, 234
Does the federal constitution limit the states' power to draw district maps?
The Enumeration Clause (Article I, Section 2, Clause 3) says:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers ... The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
This clause concerns apportionment of Representatives. That is the allocation of Representatives among the states based on population. The apportionment occurs once every ten years. It says nothing about when or how often a state may draw maps for electing Representatives to Congress.
The clause doesn't even speak of districts. It doesn't tell states how to elect its Representatives. The clause addresses only how often the number of Representatives in Congress are determined.
Is practice or tradition the same as law?
Ok. Today, states that are apportioned only one Representative elect a Representatives at large. Today, states that are apportioned more than one Representative draw district maps. There is no federal law requiring the states to draw maps based on population, but they do so either by their constitutions or by statutes. The Elections Clause ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ...") actually gives the power to state legislatures. (But see: )
For nearly two hundred years, state legislatures decided how to elect Representatives. Why do states draw district maps every ten years today? Because the United States Supreme Court, in a decision that has been controversial since it was published, says so. It was the opinion of the court in Reynolds v. Sims 377 U.S. 533 (1964) that created the entire redistricting nightmare that has existed since then.
Reynolds implemented what is known as the one-person, one-vote rule. In fact, it was a one-person, one-fraction-of-a-vote rule. It's also known as vote dilution. Unfortunately, the courts never really fix things, because, so they claim, they don't have any legislative power. Ha. Ha.
So, in California in 1980, the Legislature changed the rules for redistricting via a constitutional amendment. Since then, your vote has been diluted or enriched (depending on where you live) by counting people other than voters and other than citizens in the populations for population counts.
Does the federal constitution prohibit mid-decade redistricting?
The obvious answer is no. But what about the Supreme Court? It has never held that mid-decade redistricting, as an issue, violates any law or constitutional right. In League of United Latin American Citizens v. Perry 548 US 399 (2006) ("LULAC"), the court allowed a 2003 Republican gerrymander in Texas that replaced the 2001 Democratic gerrymander. The primary factor was that in 2001 the Democrats controlled the state legislature. In 2003, the legislature had flipped to the Republicans.
State law (either constitution or statute) is literally all over the map on redistricting. A super-majority of states are ambivalent on the issue. A small number of states expressly prohibit. A smaller number of states permit it either by law or by court decision.
If you're really interested to learn how it works in other states, the National Conference of State Legislatures covers the subject in depth since it has become so newsworthy. Ohio, one of the states which expressly permits it, has been in the process of redistricting this year under its conditional law. What is the condition that can instigate redistricting? It's the way its legislature voted on the decennial redistricting. We believe this is the first time that the condition has occurred in Ohio. Ohio will gerrymander out several Democratic Representatives for 2026.
California is one of those ambivalent states. Despite the conflicting reasoning in the 1983 Legislature v. Deukmejian [(1983) 34 Cal.3d 658] decision, parts of which may be considered overturned by United States Supreme Court rulings since then, the current court will almost surely permit the congressional district maps of Prop 50 to become effective, whether Prop 50 passes or not. Deukmejian ignored the court's own precedent at that time and the composition of the court now reflects the politics of our last two governors.
Conclusion
Past practice or tradition is not law. Our constitution does not prohibit the Legislature from redistricting between decennial censuses.
The voters will not decide Prop 50 based on some principle. The voters will not be influenced by education. The voters will also not be influenced by facts. Because both sides are lying about just about everything, it comes down to which lies and liars will they believe.
Both sides blabber about "saving democracy." Ultimately, almost everything coming out of the mouths of the pros and the cons are stereotypical Barnum1 statements. (See Barnum World.)
Quod Erat Demonstrandum ("Q.E.D")
Or "that which was to be demonstrated."
This term is often used in mathematical proofs. Most science involves theories, based on observations, which can never be proven.
We're going to quickly demonstrate that the chickens (see first article in series) don't know a thing about what they are running around about.
The question to be answered is whether or not the Legislature has the power to enact district maps. Remember, the Prop 50 opposition is spouting a lot of rhetoric.
First, we'll look at Article XXI, as it was enacted in 2010. You may want to look up enact. It's how either the Legislature, under Article IV, or the people, under Article II, make law.
- Aside: Prop 50 Ballot Title and Summary
- You'd think the hack who poses as our attorney general, or his deputies, could at least get this right. If you read the summary of Prop 50 on your ballot, you'll read this: "Directs independent Citizens Redistricting Commission to resume enacting congressional district maps in 2031."
Does Article XXI give the Citizens Redistricting Commission ("CRC") the power to enact the maps it draws?
The only reference to that word, in the entirety of Article XXI, is "enactment" in this sentence in Section 2(i):
The date of certification of a final map to the Secretary of State shall be deemed the enactment date for purposes of Section 9 of Article II.
The reference to Article II, Section 9 is a reference to the referendum power. So, the certification date is "deemed" the enactment date for the limited purpose of determining the date that starts the statute of limitations running for a referendum -- 90 days.
Certification refers to the only substantive power given to the CRC: "Upon approval [by the CRC], the commission shall certify the four final maps to the Secretary of State." Section 2(g).
So Article XXI gives the CRC the power to certify its maps to the Secretary of State. The date of certification is to be equivalent to the date of enactment. Nevertheless, the power to enact the maps was not given to the CRC. Only the Legislature or the people have the power to enact law in California.
Is "Voter Education" a Solution?
You've got to be kidding.
Virtually without exception, opponents on the "purported" right purport to "fight" by "educating" people. You know, "if we just educate them about some issue, they will realize that they agree with us." You can't fight stupid with stupid.
Again, almost without exception, one part of the political spectrum thinks that people want to be educated. They are looking in the mirror and thinking everyone else is like them. Well, not exactly, because those doing the "educating" themselves don't really want to be educated either. They just want others to agree with whatever stance they take on some issue or another. They call that "education."
The so-called "tea party" is an example within recent memory. After a brief 15 minutes of success, it failed massively. Reality quickly kicked in. They found that people don't want to be educated. Remember, Jonathan Gruber of Obamacare fame and his reliance on the stupidity of the American voter.
Lack of transparency is a huge political advantage. Call it the stupidity of the American voter or whatever, but basically, that was really, really critical for the thing to pass.
Some people don't learn from their mistakes. Some might call those people stupid. Others might call them insane.
There Are Enough Idiots Among the Lawyers to Fill A Stadium
We can't ascribe any particular motive to the lawyers who take up cases that they know from the beginning are "without merit." Courts tend to call such cases frivolous. In the lawyers' Code of Professional Conduct, lawyers agree, as officers of the court, to not bring frivolous cases to a court. Rules are meant to be broken. So they are broken. All the time.
There is one important aspect of cases and controversies brought before any court in the United States that you should recognize. The courts will only address the issues and the arguments that are raised by the lawyers on each side. Rarely, an amicus curiae (friend of the courts) may be able to get a court to address another issue. The point is that if the lawyers don't raise the issues or make the arguments, the courts will not step in to correct them.
In California, while there are some instances where the supreme court has original jurisdiction and must hear and decide the case, they are very few. For all other instances, the supreme court decides among the justices whether or not it will hear the case. Consequently, our supreme court hears and decides only a tiny fraction of the cases for which it receives requests for review.
There's an old adage that says "bad cases make bad law." What lawyers won't admit is that it's equally true that "bad lawyers make bad law."
Legislature v. Deukmejian
We're going to discuss this briefly, because this is the case that the lawyers cite in their wildly fanciful claim that what the governor and the Legislature are doing is unconstitutional.
As they say, everyone is entitled to their own opinion, but they are not entitled to their own facts.
Factually, the caption for the case is highly misleading. The actual plaintiffs were several citizens who had qualified an initiative to draw district maps for congress and the legislature. The holding in the opinion was that the peons, that's the people, had no power to draw district maps via the initiative process. The court reached its conclusion using logic that would make Rene Descartes turn over in his grave. However, that opinion has never been overturned and the peons have never tried to draw district maps again.
Interestingly, a liberal majority of the United States Supreme Court held that congressional maps drawn by Arizona's commission have power equivalent to its legislature. The reasoning was that because the voters that passed the voter-initiative had power equivalent to its legislature that the voters could create a commission with the same power. See Arizona State Legislature v. Arizona Independent Redistricting Commission 576 U.S. ___ (2015).
Proposition 11 (2008) used Arizona's Proposition 106 (2000) as a guide. Thankfully, the proponents of Prop 11 put most of the language into the Government Code and not into the constitution as Prop 106 had done. Consequently, the language and the process in California is very similar to that in Arizona. It would require more than pretzel logic for California courts today to use Deukmejian as precedent to prevent the voters from enacting redistricting maps via a voter-initiative.
Even when you get into the weeds on the decision in LULAC and consider the four separate conservative justice dissents, you're really at the place we are today in California. The operative language in Arizona's constitution (Ariz. Const. Art. IV, pt. 2 § 1) is very similar to California's regarding the commission. In other words, it's silent on whether the power of the legislature to establish districts has been prohibited.
(3) By February 28 of each year that ends in one, an independent redistricting commission shall be established to provide for the redistricting of congressional and state legislative districts ... (14) The independent redistricting commission shall establish congressional and legislative districts.
Without any discussion, Deukmejian concluded that the Legislature could only draw district maps once per decade. That conclusion spat in the face of the fact, mentioned in the opinion, that the Legislature had already drawn a second set of maps that decade. Considering LULAC, it would be equally as difficult to hold that the Legislature, without express language to the contrary, can't redraw district maps at any time it wishes.
The dissenting justices in LULAC didn't argue that the legislature couldn't draw district maps. The only issue before the court was whether or not the commission could draw congressional maps. The dissenters presumed that the power had been taken away. One dissenter merely argued that the Enumeration Clause prohibited more than one set of maps within a decade. Another contended that only a "legislative body" could draw the maps. Their arguments also completely ignored the fact that, since Sims, both federal and state courts have redrawn and approved district maps without any legislative authority at all.
Summary and Conclusion
Governor Newsom was astute in his original analysis that the Legislature can do anything it wishes in the legislative arena unless the constitution prohibits it. Our constitution does not prohibit the Legislature from redrawing congressional district maps.
It appears safe to conclude that with the dozens of times, all over the United States, that maps have been redrawn within a decade, that, unless expressly prohibited, a legislature or the people can redraw maps for any reason they deem appropriate.
As we suggest in the first article in this series, the question for opponents is whether or not the Legislature has already enacted new maps. In other words, are the redrawn congressional maps a fait accompli? That would make Prop 50 an expensive, but effective, diversion, preventing the possibility of a referendum by leaving no time to qualify one.
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Copyright 2025, Richard Michael. All rights reserved.