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The Judicial-Electoral Comedy Show

By aphrael in Op-Ed
Sun Jul 24, 2005 at 04:21:19 AM EST
Tags: Politics (all tags)

RPI's argument that "copy" does not necessary mean "exact copy" is one example of mincing and then stretching the meaning of words beyond reason.

Nobody does farce like California does farce.

Under US law (propounded by the Supreme Court in a series of cases beginning with Baker v. Carr), states are required to redraw the boundaries for electoral districts after each census. (Prior to that, it was not uncommon for states to not redraw their district boundaries for decades; Tennessee had failed to do so for sixty years, resulting in a legislature which resembled nothing so much as the 17th-century Parliament). After the 2000 census, California's legislature redrew the state's congressional districts along bipartisan lines: the leaders of both parties agreed that the Democrats, then the dominant political force in the state, could pick up the new Congressional seat, while each house of the state legislature would draw its own districts in such a way as to guarantee that every incumbent would be re-elected by almost Soviet margins.

It was a stunning concession of power by state Democrats, who eschewed the chance to pack the legislature and virtually eliminate the carping Conservative minority; and it was a stunning concession of principle by state Republicans, who thereby endorsed a scheme by which the legislators chose their voters and legislative elections became a farce.

Some Republicans, backed by both angry conservative activists who have deluded themselves into believing that "fair" districts would have returned a Texas-style legislature and angry citizen activists who are disgruntled at the effective rendering inoperable of democratic choice, have since had second thoughts, and the state's politics have in recent years been the scene of much grumbling.  Grumbling which started in the Rotary Club, drifted down the street into the churches, and echoed through the halls of the legislature. Grumbling which our publicity-hungry Governor, always in search of a stick with which to beat the Legislature (and with which to demonstrate himself to be a Hero of the People) seized on and made a cause of his own.

While the Governor was hedging, trying to decide whether it would be better to seek a deal with the legislature or to go straight to the voters, the activists acted. Ted Costa, a long-time purveyor of citizen initiatives marketed to voters with a conservative bent, sent a petition in to the Attorney General for preparation of a title and summary - a petition regarding the reform of the redistricting system, which would vest the power to redistrict in the hands of retired judges, subject to a popular vote on the results. Once they got back the title and summary, his office hired an army of mercenaries to stand in front of every WalMart and McDonalds in the state, flogging the proposal at random passers-by, gathering the needed signatures for qualification.

The signatures were gathered and sent to the Secretary of State's office, Arnold enthusiastically backed the measure and made it the centerpiece of his political strategy for the year, and a special election was called. An election to deal with the urgent redistricting crisis. An election in which this ballot initiative was the paramount issue, although other issues tagged along.

There was, it seems, one small problem.

The initiative that Costa's people turned over to the mercenary signature gathering army was not, in fact, the same initiative that they'd submitted to the Attorney General. Depending on your political leanings, the differences were either minor technical trivialities, a perfidious attempt to mislead the voters, or both; and most people have only their political leanings and abject rumor to go on in determining the matter, as none of the people involved - nor the media covering them - have seen fit to provide a side-by-side comparison of the two texts.

The Attorney General responded to this by suing the Secretary of State to prevent him from placing the initiative on the ballot. Or, since this political crime was discovered after the ballot initiatives had been numbered and during the preparation of the ballot pamphlet, to remove the initiative from the ballot that was already being prepared. Various left-wing activist groups who have deluded themselves into thinking a fair redistricting would result in a Texas-style legislature attempted to join in the lawsuit but were rebuffed by the court. Ted Costa launched a small publicity campaign in which he observed that every ballot initiative faces lawsuits; what he didn't admit is that most of those lawsuits are of the rhetorical caliber of "having a recall election discriminates against Mexican-Americans!" rather than the somewhat more compelling "the law says X and Y must be identical and they aren't!".

How is it possible that Ted Costa, the most successful initiative vendor of our time, could make this mistake? Kevin Drum reports that Costa's answer, when he was asked that at a recent conference of conservative bloggers, was incoherent. As well it should be; for such an experienced outfit to have failed it so vividly on such an important and high-profile issue almost suggests the game was deliberately thrown.

The case went to court, and the pundits and activists complained. They complained in ironic ways: the same people who said that it was unreasonable for the Florida courts to not comply with the letter of an inherently contradictory law (in 2000) demanded that the California courts ignore the letter of an inherently straightforward law (in 2005). Meanwhile, those who demanded that the courts allow the county election boards to determine the will of the people in 2000 demanded that the courts direct the Secretary of State to ignore the will of the people, expressed by more than 900,000 signatures, in 2005. Virtually nobody seemed concerned that the true extent of the problem was unclear.

The court proceedings were, to judge by the decision, hysterical. The proponents of the measure were reduced to arguing that the Findings and Purposes section of the initiative was irrelevant. Granted, this is something that California voters have long suspected - but do we really want to introduce as a general rule of statutory construction the meaninglessness of the preamble, and its inapplicability when interpreting the attached statute? Does this actually strike anyone as a good idea?

Even the judge was in on the game, as witnessed by the opening quote. While poking fun at the absurdity of the claims before her, she could not find it in herself to identify the appropriate adverb (necessarily, instead of necessary); a fitting capstone indeed to a silly argument.

This is a serious matter, and perhaps I should not be laughing at it; but I cannot help myself. A bizarre clerical error by people who should know better has led to an inversion of normal activist principles and the collapse of the governor's high-profile political strategy. How can you not laugh?

On a more serious note, both sides have good points. If the differences really are trivial, then a court removing a ballot measure that 900,000 people have endorsed is troubling - and it remains so even when we know full well that a different measure expressing fundamentally the same concept will be back next year. On the other hand, the Attorney General's point, and that of the Judge who decided the case, are well taken: if differences not authorized by law are OK in this instance, where do we draw the line, and do we really want courts doing that on a regular basis?


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The Judicial-Electoral Comedy Show | 47 comments (27 topical, 20 editorial, 0 hidden)
Congratulations, (2.00 / 5) (#7)
by vera on Fri Jul 22, 2005 at 03:50:18 PM EST

this one gets my affirmative action +1FP vote of the week!

You cute minority you <3

Ah, California (3.00 / 3) (#8)
by LilDebbie on Fri Jul 22, 2005 at 03:58:16 PM EST

I'm amazed they haven't crumbled into the sea - not from the San Andreas fault line, but by the incredible weight of retardation there.

And does it seem to anyone else particularly absurd that they couldn't simply submit the version of the initiative people signed? Since when did petitions need government approval?

My name is LilDebbie and I have a garden.
- hugin -

it's been that way as long as I can remember. (none / 1) (#9)
by aphrael on Fri Jul 22, 2005 at 03:59:52 PM EST

The title and summary are all that actually appears on the ballot. The full text is mailed to the voter, along with an analysis of costs the measure will incur.

So what happens when the text used to generate the title and summary (and the cost analysis) are different from the text which will actually be enacted?

[ Parent ]

I'm wondering why (none / 1) (#11)
by LilDebbie on Fri Jul 22, 2005 at 04:22:08 PM EST

the title and summary need to be registered before the signatures are gathered and not after. Presumably in this case everyone signed off on the same statement, it just happened to be different than the one they registered beforehand. Am I incorrect in this assessment?

My name is LilDebbie and I have a garden.
- hugin -

[ Parent ]
because the title and summary are on the form (none / 0) (#12)
by aphrael on Fri Jul 22, 2005 at 04:27:15 PM EST

they're on the petition along with the text. so everyone signed the same petition, with a title and summary prepared for a different text.

[ Parent ]
So? (none / 0) (#14)
by LilDebbie on Fri Jul 22, 2005 at 04:30:51 PM EST

The signers all read the same damn thing, yesh?

My name is LilDebbie and I have a garden.
- hugin -

[ Parent ]
Yes. (none / 0) (#15)
by aphrael on Fri Jul 22, 2005 at 04:31:26 PM EST

But the thing that was attached to it wasn't attached to what it was supposed to be attached to.

[ Parent ]
I get that (none / 0) (#17)
by LilDebbie on Fri Jul 22, 2005 at 04:42:59 PM EST

but what it was supposed to be attached to was just sitting in a filing cabinent in the AG's office. Can't that piece of paper be replaced with the one that did get the signatures?

My name is LilDebbie and I have a garden.
- hugin -

[ Parent ]
that depends on what the differences are. (none / 0) (#18)
by aphrael on Fri Jul 22, 2005 at 04:49:58 PM EST

Say the AG provided a summary for an initiative which said "the right of a woman to have an abortion shall not be infringed". Say that the initiative actually circulated said "abortion is murder and shall be punishable in this state by lethal injection." That would clearly be a problem, right?

What we have in this case is a much less egregious example of the same fundamental issue.

[ Parent ]

But why do you have to preregister?!!?!!~?1!~?!?! (none / 1) (#19)
by LilDebbie on Fri Jul 22, 2005 at 04:52:59 PM EST

Damn, for some reason I'm getting tildas but I'm not actually hitting the tilda key...weird.

My name is LilDebbie and I have a garden.
- hugin -

[ Parent ]
I don't know. (none / 0) (#24)
by aphrael on Fri Jul 22, 2005 at 06:21:16 PM EST

I know the election code has contained that requirement for decades. Probably to ensure that the title and summary on the thing you're signing is the same title and summary as what's going to be on the ballot.

[ Parent ]
I blame the Okies. [nt] (none / 0) (#47)
by hershmire on Sun Jul 24, 2005 at 08:12:45 PM EST

FIXME: Insert quote about procrastination
[ Parent ]
too latin american centric (1.50 / 12) (#13)
by Tex Bigballs on Fri Jul 22, 2005 at 04:28:28 PM EST


Uhh...what? (1.00 / 3) (#20)
by NaCh0 on Fri Jul 22, 2005 at 05:15:40 PM EST

Did your article say something?

K5: Your daily dose of socialism.
yes. (1.50 / 2) (#23)
by aphrael on Fri Jul 22, 2005 at 06:20:10 PM EST

[ Parent ]
+ 1, Funny even if irrelevant (2.00 / 3) (#25)
by nkyad on Fri Jul 22, 2005 at 06:48:16 PM EST

I liked the way you told the small tale of Proposition 77 so I am voting to it Section (even though I couldn't care less for the fate of Califonia districts and Legislature - I don't live in California nor in the US).

Don't believe in anything you can't see, smell, touch or at the very least infer from a good particle accelerator run

thank you. (none / 0) (#26)
by aphrael on Fri Jul 22, 2005 at 06:51:25 PM EST

that was the effect i was going for. :)

[ Parent ]
The decision is indeed hilarious (3.00 / 2) (#27)
by nkyad on Fri Jul 22, 2005 at 07:02:10 PM EST

The judge was clearly enjoying herself - I don't know how she forgot to add "comparable to asking what 'is' is" after "beyond reason" (when dismissing the funny RPI claim that "copy" does not mean "exact copy").

Don't believe in anything you can't see, smell, touch or at the very least infer from a good particle accelerator run

[ Parent ]
-1, 2000 election n/t (1.50 / 2) (#32)
by An onymous Coward on Sat Jul 23, 2005 at 08:50:00 AM EST

"Your voice is irrelevant. Stop embarrassing yourself. Please." -stuaart
Side-by-side comparison (2.50 / 1) (#35)
by shinshin on Sat Jul 23, 2005 at 11:22:50 AM EST

none of the people involved - nor the media covering them - have seen fit to provide a side-by-side comparison of the two texts

The LA Times has a comparison between the two tests, more succulently summarized on this blog.

One of the many important differences is that the petition version says that "We demand that our representative system of government be fair to all, open to public scrutiny, free of conflicts of interest, and dedicated to the principle that government derives its power from the consent of the governed.", and the AG version says "We demand that our representative system of government assure that the voters choose their representatives, rather than their representatives choose their voters, that it be open to public scrutiny and free of conflicts of interest, and that the system embody the principle that government derives its power from the consent of the governed.".

The very demands that the petition makes are different between the two versions! The one delivered to the AG says that "We demand that our representative system of government assure that the voters choose their representatives", and the one nearly 1 million people signed says no such thing.

We believe he has, in fact, reconstituted nuclear weapons --Dick Cheney, Meet the Press, March 16, 2003

not true. (none / 1) (#38)
by aphrael on Sat Jul 23, 2005 at 12:40:25 PM EST

if you look carefully, they say they have a side-by-side comparison of one of the sections. not of the whole thing.

[ Parent ]
Not "not true"... (none / 1) (#41)
by shinshin on Sat Jul 23, 2005 at 02:16:18 PM EST

... just "not complete". They do compare the differences between the two texts, just not in their entirety.

We believe he has, in fact, reconstituted nuclear weapons --Dick Cheney, Meet the Press, March 16, 2003
[ Parent ]
and without it being complete (none / 1) (#43)
by aphrael on Sat Jul 23, 2005 at 04:32:06 PM EST

it's useless in judging whether or not the difference is substantive. :)

[ Parent ]
-1 (none / 1) (#36)
by codejack on Sat Jul 23, 2005 at 11:38:11 AM EST


Please read before posting.

I like the parallelism between (2.00 / 1) (#44)
by glor on Sun Jul 24, 2005 at 12:21:24 AM EST

'angry conservative activists' and 'angry citizen activists.'  Subtle.

Disclaimer: I am not the most intelligent kuron.

Redistricting Constraints (none / 1) (#45)
by Arkaein on Sun Jul 24, 2005 at 11:33:17 AM EST

I've thought for a while now that there should really be some type of constraints on how voting districts are drawn. The current system is far too brittle, the party in power has the ability to completely reorganize voting blocs to their advantage for a decade, even if their margin of power is slim.

One (partial) solution to would be to enforce constraints on how districts are drawn to limit the kind of maneuvers that are pulled in redistricting. One constraint might be to eliminate oddly shaped districts by saying that all districts must fill at least one-quarter of the smallest latitude-longitude aligned square containing them (we could use circles, or non-axis aligned squares, but this makes the system simpler to use). To deal with state boundaries (water or or other states) we could say only 1/4 of all state land area within the square. The number 1/4 was just just made up (as will a few others I'll mention), I don't know what the ideal ratio would be, or whether this rule would actually be ideal.

Other constraints might be to require that any city with less than 50% of the population of a full district must belong to one district. This would prevent moves such as breaking up cities (traditionally Democrat power centers) into pieces contained in predominantly rural districts.

Such a system would ensure fair representation while allowing districts to be tweaked as necessary for changing populations.

I actually believe an even better system than enforcing such constraints would be to augment the constraints with a set of district defining rules and then have a computer algorithm define the districts. This might be more than a lot of people would be willing to accept, especially if the algorithm was not very simple (and it might need to be complex to reconcile geometric rules with rules governing population centers, as well as considering difficult border geography), so a simple set of constraints on human redistricters might be the most realistic solution.

The ultimate plays for Madden 2005

Someone explain to my why the obvious isn't done? (none / 0) (#46)
by boxed on Sun Jul 24, 2005 at 05:23:03 PM EST

No redistriction system can ever be good because the fundamental problem is that there is a system of districts of winner-takes-all in the first place. The obvious solution is to have a representative system (isn't that what "democracy" is supposed to mean anyhow?). Why isn't THIS the proposal?

The Judicial-Electoral Comedy Show | 47 comments (27 topical, 20 editorial, 0 hidden)
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