The Republican convention is poised to do a 180 on its lame anti-senate-map referendum and encourage its defeat.http://t.co/ODhK9IfT
They should have gone for the equal protection angle based on the staggered senate terms.
Referendum on redistricting plans don't really work since the same plan can simply be re-enacted over and over.
In California, though, wouldn't it trigger a new commission process, where the results are unpredictable?
The California Constitution provides that in cases where a popular referendum vetoes a plan by a redistricting commission that the Supreme Court appoint special masters to redistrict. The special masters are required to apply the same criteria as the redistricting commission (and approval by the public is not one of the criteria).
The redistricting commission would argue that their plan does comply with the California Constitution, and though the special masters might be able to draw another plan, there would be no basis for them doing so. In effect, the veto by the people would be considered populist bigotry, and disregarded.
If the commission had failed to produce a plan, then the special masters could craft a plan, though they might give deference to partial plans that had failed to be approved (approval required 3 affirmative votes from the 5 Democrats, 3 of 5 Republicans, and 3 of 4 others).
Special masters would also produce a map if the Supreme Court found a commission plan unconstitutional. Possible challenges to the senate plan could include:
(1) Non-Compliance with nesting.
(2) Violation of the north-south numbering requirement.
(3) Consideration of the residence of incumbents or political candidates.
But the nesting criteria (10 senate districts per BOE, 2 assembly districts per senate district) is the weakest criteria ("o the extent practicable, and where this does not conflict
with the criteria above").
I doubt that a court would sustain a claim that just because the commission implemented the numbering scheme differently for congressional districts than it did senate districts that it violated the constitution. And even though the commission deliberately did put as many voters (and potential candidates) who currently live in odd-numbered districts, into new odd-number districts as possible, it is unlikely a court would rule that this was taking into consideration the residence of anyone.
Once the referendum petition was successful, the senate redistricting plan was suspended. At that point, the current plan would be remain in effect (it was as if a referendum against any other legislation had been lodged). But it is impossible not to have senate elections. The California Supreme Court decided that the current plan based on the 2000 census violated equal protection. But the redistricting commission argued successfully that their plan was the only one readily available that could be implemented before the 2012 primary.
So currently California is using an interim plan imposed by the California Supreme Court which is identical to that crafted by the redistricting commission. If the referendum fails, the identical plan crafted by the redistricting commission will go into effect. If the referendum succeeds it is quite likely that the special master will draw the same plan the redistricting commission did.
If the challenge had been made on the basis of the stagger violating equal protection, then the decision might have been differently. 3.6 million California residents who happen to live in odd-numbered districts now, have been assigned through official state action to even-numbered districts. The terms of the senators that represent them end in December, and they will have no senate representation for the next two years. Voters in these areas will be treated no differently than if they were felons, aliens, minors, or feeble-minded.
Under these circumstances, the Supreme Court could have ordered the existing map to be used for 2012, with odd-numbered senators elected to two-year terms; or that the entire plan be put into effect immediately.