Whether You Like It Or Not

Article Series

Newsom's Precedent

When he was mayor of San Francisco, Newsom didn't wait around for the law to catch up with his "principles." He took action. He sanctioned gay marriage. Ultimately, the California Supreme Court told us that Newsom was a bad boy for not letting the courts decide the constitutionality of marriage other than between one man and one woman. Nevertheless, the court held that such a marriage was constitutional.

Right after his victory in court, he made a speech where he made this now famous statement. "This door's wide open now. It's going to happen, whether you like it or not"

We contend that's he's doing this again in the context of redistricting.

As explained in the second article in this series, the Legislature has the power to enact new district maps any time it wishes.

Yes, the Citizens Redistricting Commission is tasked with certifying district maps once every ten years. That is the maximum that it is empowered to do by the adoption of Proposition 20 (2010).

The Legislature's power was never limited.

If the intention of the proponents of Proposition 20 was to prevent the Legislature from enacting maps, they failed.

What Does Proposition 50 Accomplish?

On its face, it is a constitutional amendment that adds Section 4 to Article XXI of the constitution. The new section is divided into four subdivisions, (a) through (d).

The Legislature enacted this amendment as ACA-8 in a bill (Assembly Constitutional Amendment No. 8) that did not need the governor's approval on August 21, 2025. It became Chapter 156 of the laws of 2025.

Subdivision (a) is a policy statement. It tells our Congress it should propose an amendment to the federal constitution. (Fat chance of that ever happening.) The Legislature didn't need to put that in the constitution. It could have accomplished that with a resolution much like states have historically proposed federal constitutional amendments.

Subdivision (b) is a single 97-word sentence containing the operative language of the section. It makes a related enactment, (AB 604), as the maps to be used for all congressional elections until replaced by the CRC in 2031.

(b) In response to the congressional redistricting in Texas in 2025, and notwithstanding any other provision of this Constitution or existing law, the single-member districts for Congress reflected in Assembly Bill 604 of the 2025–26 Regular Session pursuant to the requirements of Chapter 5 (commencing with Section 21400) of Division 21 of the Elections Code shall temporarily be used for every congressional election for a term of office commencing on or after the date this subdivision becomes operative and before the certification of new congressional boundary lines drawn by the Citizens Redistricting Commission pursuant to subdivision (d).

It's curious that it refers to the CRC at all. The reference is only in the context of the expiration of the maps. Wouldn't it have been simpler to just say until the CRC certifies a new map? Then there would be no need for subdivision (d) at all.

Adding superfluous words to any law, let alone a constitution, is rife with potential problems. Courts demonstrate their obeisance to legislatures by always mentioning that they must give meaning to every word that a legislature writes. Courts say that surplusage (extra language without meaning) cannot exist. That being the case, the Legislature must have had something in mind. Maybe the language is being used to strengthen the argument that the maps are only temporary. Maybe, however, the language was placed in both subdivisions (b) and (d) to account for a scenario that we can't glean from the context, such as a plan to cut out the CRC from future map drawing for congressional districts. It's curious. We'll leave it at that.

Since we mentioned it the second article in this series, we note here that even though the attorney general can't read the law, the Legislature can when it refers to the "certification" of the maps drawn by the CRC.

Subdivision (c) establishes the procedure for any legal challenges to Prop 50. There's nothing controversial about it.

Subdivision (d) is not controversial either, but it's a little weird, so we'll examine it. Since neither section 1 nor section (both referenced in (d)) are being changed, it seems superfluous. Because the CRC has no authority or duties outside years ending in one, the language "shall continue" is curious because there has been no discontinuity in the powers and duties of an organization that only exerts power in discreet nine month periods every ten years. It seems redundant at best.

(d) The Citizens Redistricting Commission established pursuant to Section 1 shall continue to adjust the boundary lines of the congressional, State Senatorial, Assembly, and Board of Equalization districts in conformance with the standards and process set forth in Section 2 in 2031, and every 10 years thereafter as provided in Section 1.

AB 604

AB 604 are a series of sections enacted into the Elections Code as Chapter 96 on August 21, 2025. It defines the geographical boundaries of California's 52 congressional districts. Nobody is likely to read the enactment because it is not humanly comprehensible as text. Similarly, the companion maps are not at a scale that is humanly comprehensible.

However, at the very end of Section 1 are two statutes that are relevant. Section 21454 makes the entire set of maps dependent on the approval of Prop 50 by the voters.

21454. This chapter shall become operative only if Assembly Constitutional Amendment 8 of the 2025–26 Regular Session is approved by the voters and takes effect, and subdivision (b) of Section 4 of Article XXI of the California Constitution, as added by that constitutional amendment, becomes operative.

Section 21455 is, again, somewhat superfluous or redundant because the maps certified by the CRC always replace the previous maps. It may be just window-dressing to assuage the unwarranted fear that the set of maps are permanent.

21455. This chapter shall remain in effect only until a new map of congressional districts is certified by the Citizens Redistricting Commission pursuant to Section 2 of Article XXI of the California Constitution and, as of that date, is repealed.

The other noteworthy language in AB 604 is Section 3, the urgency declaration, which is discussed below. Just note that all urgency statutes "go into immediate effect."

So, the entire act, Chapter 96 is in effect right now. There is a difference between "effective" and "operative" in legislation. You'll note that Section 21454 establishes the "operative" date. A regular statute is both effective and operative on January 1 of the year following the date the statute was enacted. Sometimes, however, the Legislature needs or wants to delay the operation of a statute for a period of time to allow those effected by it to come into compliance.

For example, a major transparency change to the Brown Act notice provision (Government Code section 54954.2) was enacted in 2016 and became effective on January 1, 2017. Because it affected all local governing bodies, the Legislature gave them a two-year grace period to comply. It only became operative on January 1, 2019. Of course, not a single (literally) local governing body, almost nine years after it became effective, complies with its provisions. Corrupt governments do what corrupt district attorneys allow them to get away with.

Another example is CalRecycle's food separation mandate, which was enacted in 2016, but only became operative in 2022. For all you slaves out there, just wait until the fines for not separating your food waste become operative. The Legislature did the same kind of thing with water usage limits. Eventually, you'll be fined for using too much water.

But back to the subject matter.

So the operative date for the new maps, if a majority of voters vote yes, is whatever date the law provides for measures -- some point after the election is certified.

But remember, it was an urgency statute. It's already effective.

Emergency, Urgency, Schmurgency.

AB 604 is an urgency statute. The constitution requires that urgency statutes comply with some rules. The first two rules are:

Urgency statutes are those necessary for immediate preservation of the public peace, health, or safety. A statement of facts constituting the necessity shall be set forth in one section of the bill.

This is how Section 3 of AB 604 addresses those rules.

This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order that congressional redistricting plans may be implemented as soon as possible, and to ensure the rights of all Californians to equal protection of the laws, it is necessary that this act take effect immediately.

Notice the phrase "within the meaning of." Remember that, as Newsom was reminded in his gay marriage case, only the courts can make the determination of the meaning of language in the constitution. The constitution, after all (as we discussed in the second article of this series), is a limitation on the Legislature.

So, the Legislature follows the second rule by making the statement of facts. However, the first rule is that an urgency statute is only available "for immediate preservation of the public peace, health, or safety." A fair reading of that clause is "for immediate preservation of the public peace or for immediate preservation of the public health or for immediate preservation of the public safety." In other words "peace," "health," and "safety" are a list. Riddle me this. How is waiting four months (three months for the election, one month for counting the votes) for an election to be decided immediate? How are any rights of Californians affected by what Texas has done?

Emergencies involving "the public peace," "the public health," or "the public safety" by their very nature involve police powers. Police powers by their very nature (that's always, 100% of the time) result in the abrogation of the people's rights under the guise of an emergency. They never involve "ensuring" any rights.

Just think back a few years to the plandemic. We are not aware of a single urgency statute that was enacted to deal with the purported "public health" emergency. Why? Because the Legislature had long ago given the executive department broad emergency powers in the California Emergency Services Act. In theory, there will never be a need for an urgency statute because the Emergency Services Act covers all emergencies of the nature envisioned by Section 8.

The Legislature uses "urgency statutes" regularly for stated facts that, by no stretch of the imagination, meet the conditions. The statements of fact don't even attempt to couch the urgency in the language of the constitution. As we always remind people, a law without a consequence is merely a suggestion.

In the minds of the Legislature a putative "emergency" is always a "political" emergency. Those occur all the time, such as when the Legislature forgets to make some law or other that it should have passed earlier or such as when some unforeseeable event occurs, exactly like the redistricting in Texas, which is about 1000 miles from California.

We note that none of the legal proceedings connected with Prop 50 have raised the self-evident unconstitutional use of the urgency statute exception to regular order and rules.

In our view, urgency statutes, along with their evil twin, the gut-and-amend scheme, should be expressly prohibited in the constitution.

Believe it or not, Proposition 54 (2016) a purported "transparency" initiative retained the urgency statute language and instigated the gut-and-amend scheme as the Legislature's work-around to prevent transparency. As Peter, Paul, and Mary sang, "When will they ever learn?" You can't trust the Legislature. It has plenary power. You have to take power away when it acts like the criminal enterprise that is its nature.

Is Prop 50 an Advisory Measure?

Many years ago the California Supreme Court ad

Issue of First Impression

The specific issue raised by Prop 50 is one of first impression. That means no court, either in California or anywhere else in the country, has ever addressed it.

Here's our take on the issue that a court might be asked to decide on. We'll break it into two parts. Part one is '

How a court would rule on an issue of first impression is engaging in speculation. However, one can analyze how a court might rule on such an issue based on cases (precedent) that have dealt with similar or related issues in the past.

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