Some Political and Constitutional Questions Raised by Tim Draper’s “Six Californias” Plan to Split Up California

Updated:
Posted in: Constitutional Law

Silicon Valley billionaire investor Tim Draper recently unveiled a plan to divide up California into six separate states because, in his view, “California’s diverse population and economies [have] rendered the state nearly ungovernable.” In the space below, I begin to identify some of the political and constitutional hurdles this proposal faces. Because the topic is vast and complicated, in today’s column I can do no more than spot and preliminarily analyze some of the major issues; if and when the proposed measure successfully moves through various stages of the political process, I shall likely offer a more detailed analysis of many of these questions.

A Summary of Mr. Draper’s “Six Californias” Proposal

Mr. Draper has drafted and submitted to the California Attorney General an initiative measure that would, if it qualifies for the ballot and is then enacted by the State’s voters, amend the California constitution and statutes to provide for the creation of six separate states out of what currently makes up the Golden State. The six new states the measure creates are: the State of Jefferson (consisting roughly of the rural counties north of the Sacramento area all the way to the Oregon border); the State of Northern California (consisting roughly of an area from Marin and Sonoma Counties on the Pacific Coast, extending eastward through the Napa and Sacramento regions, and to the northern Sierra mountains all the way to Nevada); the State of Central California (consisting primarily of the agriculture-based Central Valley and the middle part of the Sierra mountain range); the State of Silicon Valley (consisting generally of the San Francisco-Oakland-San Jose metropolitan region, extending South to the Monterey/Carmel area); the State of West California (consisting primarily of the Los Angeles region North to the Santa Barbara area); and the state of South California (consisting generally of San Diego, Orange and Riverside Counties).

The proposed lines dividing each of the six new states are provisional; under Draper’s proposal, over the next few years, any county that adjoins any of the proposed states can choose to become part of that contiguous state, provided that the counties that are provisionally in that neighboring state also agree to add such a county. On January 1, 2018, the Governor of California is to certify to Congress that California has consented to the creation of six separate states that are defined along the lines described above—subject to any modification that has occurred because some counties have successfully attempted to join contiguous proposed states—and to ask Congress to approve the creation of these six new states.

Draper’s initiative also has a provision appointing the “official proponent” of the measure (presumably himself) as an “agent of the State of California” for purposes of defending the initiative measure against legal challenge (presumably in federal, as well as state, court). That provision gives the official proponent the power to “supervise” any legal defense provided by the Attorney General, and the power to hire, at public expense, outside counsel who will then be made “Special Deputy Attorney General,” to defend the measure if the proponent, in his “sole determination,” feels that the Attorney General is “not providing an adequate defense.”

On its face, the plan sounds far-fetched; indeed, it may be tempting to treat this proposal as one of the hundreds of initiative ideas in California that never go anywhere. But to do so would be to ignore the fact that Draper has indicated that he will provide whatever resources are needed to gather the signatures to qualify the measure for the ballot. And with his money, stature, and connections, Draper is likely to be able to succeed in at least getting the measure in front of the state’s voters.

What Happens After the Measure Qualifies: Political Hurdles in California

Let us assume that Mr. Draper’s measure is put before the voters. It would then, of course, face political as well as legal hurdles. As a political matter, it would have to win support both in California, and in Washington DC, because the creation of new states requires, under Article IV of the federal Constitution, the consent both of the legislatures of the involved states and of Congress. As to the state electorate, while it may be true that California (like the nation and like many other states) has endured problems in self-governance over the last decade-plus, whether Californians are ready to make such a radical change is far from clear. There is, to be sure, tension between different parts of California—the communities that make up the large and densely populated metropolitan areas on or near the coast have very different demographic, economic, cultural, and political characters than do the smaller communities located in the more rural areas to the East and Far North of the State. And there are rivalries between the Bay Area/Silicon Valley region, on the one hand, and the sprawling Southern California, Los Angeles-based, region on the other.

But there are also important centripetal forces at work here, forces that might be highlighted by some of the specific state lines that Draper proposes. Even though Draper’s proposal allows for some tinkering with the boundaries pursuant to each county’s authority to attempt to opt in to contiguous states, his provisional lines are an important starting point that will greatly influence voters throughout the state who have to approve the measure before any tinkering might begin. (And remember that a county can move only to a contiguous state—not to any of the six it might like best—and only if the counties in the contiguous state agree, which is far from guaranteed.) Although Mr. Draper has posited publicly that all six new states would prosper (presumably more than each of these regions does today) once they are freed from the currently unworkable yoke of California government, could the Central Valley and rural Northern counties really make do without state tax revenue that comes from the coastal and Sacramento areas? Would the new states of Jefferson and Central California have nearly the money they need to educate their children, or to maintain their infrastructures? (There is only one University of California campus – the promising but still very young UC Merced – and a few Cal State campuses located in these two new proposed states). Would relatively wealthy Marin County want to subsidize the Sierra communities of Placer and Nevada counties more or less all by itself, without the help of the rest of the Bay Area or the LA or San Diego regions? Does the Bay Area really want to let go of all the entertainment resources of the LA region? And does SoCal really want to give up all of the natural, cultural and educational resources associated with the North? And so forth.

Political Hurdles in DC

But let us imagine that Californians want to carve up the State, more or less along the lines that Draper offers. What about Congressional approval? There are plenty of political hurdles there too. Indeed, there at least two axes on which one might imagine opposition in Congress—interstate federalism and partisan posturing. As to interstate federalism, some states (and their representatives in DC) might be reluctant to reduce their current relative voice in the federal government, a consequence that would result from increasing California’s share in the Senate from 2% (two out of 100) to 11% (12 out of 110, because six states would mean 12 Senators under the federal Constitution’s command that the “Senate shall be composed of two Senators from each State.”) Getting low-population states—that currently enjoy the fact that they have equal say with more populous states in the Senate—to effectively dilute their share of congressional ownership might be difficult.

On the other hand, some members of Congress may be moved, when considering a measure like Draper’s, more by political-party considerations than by the clout their state wields in DC. Under the provisional lines Draper proposes, of the 12 Senators who would come from the six Californias, we could expect four (from Silicon Valley and West California) to consistently be Democrats, and four (from Jefferson and Central California) to lean Republican, with the other four (from Northern California and South California) harder to predict. But we could conceivably have a situation in which California moves from its current position of consistently producing two Democrat and zero Republican Senators (a net plus-two for the Democratic Party) to a situation in which the Californias could produce as few as four or five Democrats and as many as seven or eight Republicans (resulting in a net minus-two or even minus-four for the Democratic Party.) If the Democrats retain control of the U.S. Senate in 2018 (when Draper’s proposal would be sent to DC), or if the President in 2018 is a Democrat, then Draper’s measure might face partisan opposition in the Senate or in the White House (which has the power to veto any such measure), And all of that is to say nothing about how the creation of six Californias might affect the electoral college and partisan presidential politics, an extremely complicated question in its own right. My own back-of-the envelope calculations suggest that Mr. Draper’s plan would result, at least these days, in a non-trivial loss (of about eight or more votes) for the Democrats in the electoral college, and a corresponding gain for the Republicans.

It’s hard to know how any of these forces in DC might play out. Some analysts have argued that partisan considerations, more than other factors, have driven earlier episodes in American history in which new states have been added. If that was, and remains, true (a big “if”), perhaps some of the small states (that like being overrepresented in the Senate) tend also to be Republican states (that would like to take away the Democratic Party advantage in U.S. Senators from California.) And maybe some small states might think that they will share some rural, agriculture-based attitudes with at least two and maybe three of the newly created six Californias—attitudes that tend not to be currently reflected in the two Senators whom California currently sends to DC (because these two Senators are understandably influenced more by the coastal regions of California, where voters are concentrated.) Or perhaps federal Representatives and Senators from other states will be risk-averse, and simply not want to take a chance of increasing California’s clout in federal processes (especially because all of the six new Californias might, for some time, continue to be tied to each other economically and culturally). In this regard, it bears noting that no new states have been added to the United States in over 50 years, and that no new state has been created out of an existing state for more than 150 years (when West Virginia was created out of territory wholly located in Virginia.) And remember, any congressional approval (which may turn, of course, on which party controls Congress) is subject to presidential veto.

Several Constitutional Issues Implicated by Draper’s Proposal

Since space is limited, I shall simply list five kinds of constitutional questions implicated by Draper’s plan; I have much to say about each of the items below, but detailed analysis of these, and other, constitutional questions must await another time.

  1.  Can the people of a State validly authorize the creation of a new state by popular initiative? Article IV, Section 3, of the federal Constitution requires, for the creation of new states, the “Consent of the Legislatures of the States concerned.” Can the people act directly as a “legislature” for these purposes, or do the elected folks in Sacramento have to sign on?
  2. Even if the people can constitute the “legislature” of the state for these purposes, would enactment of Draper’s proposal constitute “consent” when the precise boundaries of the six new Californias are not definitively before the voters when they vote? Can you meaningfully “consent” to a proposal without knowing its important aspects? Draper’s proposal makes clear that its enactment is intended to constitute Article IV “consent” to the creation of six new states, but can that consent be effective when the voters have no way of knowing what the new states will actually look like until the county opt-in process is completed? In other words, might the power Draper’s proposal gives to counties to modify the provisional state lines constitute an impermissible delegation of the state legislature’s authority to consent to the actual creation of the new states?
  3. Can new states be validly created out of territories located entirely within existing states? Founding history and past practice (especially the additions of Kentucky and West Virginia) would suggest that the answer to this is clearly yes, but some scholars (most elaborately Michael Paulsen) have pointed out that Article IV’s text and punctuation could easily be read to mean that while new states can be formed out of the territory formerly belonging to two or more states, a single state cannot be carved up into multiple ones.
  4. Would the people (or their representatives) of each of the newly created six states have to agree to the new arrangement, or would it be enough for the people (or legislature) of the State as a whole (as California currently exists) to agree?  In other words, when Article IV speaks of the need for the consent of the “States concerned,” does that mean (in the context of a single state that is being subdivided) only consent of the mother state (which is to be divided),  or also of the newly created states?  That is, are these new states “States [that are] concerned” within the meaning of Article IV?
  5. Would the part of Draper’s proposal authorizing Draper as an “agent of the State of California” for purposes of defending the measure in Court survive the standing analysis in the Supreme Court’s Hollingsworth v. Perry case last year, in which the Court rejected the claim of standing by official proponents of Proposition 8 (California’s initiative ban on same-sex marriage) to defend that measure in federal court? And how does the authorization provision in Draper’s proposal square with Article II, section 12, of the California constitution, which provides that “[n]o amendment to the Constitution . . . by the Legislature or by initiative, that names any individual to hold any office. . . may have effect”?

I recognize, of course, that all of these constitutional questions are complicated, and that some might be avoided by federal courts under the so-called “political question” doctrine. But each is worthy of further exploration, and many of them might influence (or at least be cited by) members of Congress or others who are inclined against the measure. I’ll write more on these constitutional questions if Draper’s proposal turns out to have legs.

  • Victor Grunden

    I fail to understand how dividing an ungovernable entity into six entities with 150 years of combined history and connections will create governance. Governance was created throughout the United States as States were created from foreign owned land to join a Union with a common purpose and the ideal of individual rights and freedoms. Caste, or class, systems are the antithesis of this ideal. Attempting to govern by the class, or caste, system while trying to convince the publi you are governing according to American ideals probably creates the “ungovernable” situation.

    • My guess is that the REAL intention is to establish a precedent to do the same thing on the federal level. In other words, divide and conquer and the real target is the 99% (more like 99,9%). Remember the real motto of the google is “All your attention is belong to the google.”

    • rubert griffin

      trust me orange counties history starts in the 40’s and is far differentf from LA’s and same with San Diego, their is nothing linking them except the debt that LA puts on the rest of the entire state

  • Brian B

    Seems to me the only logical and possibly workable way is to allow the coastal counties from say, Marin south, to form one state and the balance of the state to form another.
    The coastal, urban population centers are coalesced into a cohesive unit and the more rural inland and north coast counties are no longer dominated by the urban centers, yet still have Fresno and Sacramento.
    Of course it’s quite difficult to see why the urban population centers would ever vote to set free an area which they depend on for water, recreation, etc, when they presently completely dominate and control it. Where’s the incentive to split for the large majority of Californians?

    • Shawn Meredith

      Silicon valley people want to modernize cities using google cars, mass worker production automations,new power grids, 3d printing, modern public transpo, delivery drones ect.. If they were a state they could fight the federal gov directly do this. Basically innovate cities like they did technology, If they worked they would proliferate into all cities over time, right now they can’t even being to be used or implemented. They tried to leave the nation first but were rejected.

  • Max Herr

    California is not ungovernable due to its size, shape, or demographics, per se, it is ungovernable because it is governed by incalcitrant Democrats who spend more money than they have resources available, are controlled by labor union political contritbutions, and who have little experience outside the realm of politics — in a region known as the real world.

    Demographics plays only a small part in this mechanism. By deliberately creating social policies designed to attract a largely hispanic illegal immigrant population, then legislating such nonsense as allowing non-citizens to serve on juries, to obtain law licenses (and, presumably, all other manner of “professional” licenses, from physicians to truck drivers, to cosmetologists), and issuing driver licenses to these illegal immigrants as a way to legitimize their residency — can giving these folks the ability to register to vote be far behind? (Actually, it’s already here with the federal “motor voter” requirements — give anyone a license to drive and you give them the ability to register, lawfully or not . . . who’s going to check for citizenship? Now the law enforcement community cannot even detain persons known to be illegal immigrants unless they have committed a violent crime.)

    California is fast becoming a third-world nation unto itself. Draper’s cockamamie plan is a self-centered approach to carving out a well-to-do niche for himself.

    What he fails to realize is that he is living in a region that, while governable, has little or no money with which to govern. Draper’s own state of Silicon Valley would likely be the first to declare bankruptcy, what with the economically deprived Oakland, the bloated San Francisco cost of living, and the one-foot-in-the-grave-already Silicon Valley as the three constitutents of that state. No contiguous county would be fool enough to want to jump on that bandwagon.

    The City of San Jose currently consumes at least half of its annual budget to either pay retirement benefits to former employees and make contributions to CalPERS for its current ones. It was only a couple of years ago that the City Manager reported that in less than ten years, there would only be one remaining city employee — the one who writes retirement checks to former city employees — because 100% of the budget would have to be devoted to providing those mandated benefits. That’s not ungovernable, that’s fiscal insanity.

    This alone is applicable to virtually all of the regions Draper carves out. CalPERS and CalSTRS are, in their own ways, bankrupting the state as a whole, and would more quickly bankrupt at least three of the six new states in Draper’s psychotic plan.

    As a lifelong citizen of California, I have heard proposals to divide the state into two or more smaller political entities many times. Fifty years ago, it would have been easy. But there were not enough voters in the northern half of the state to make it happen. Today, the northern half of California is significantly older — with the now 60-something former hippies of the late-60s and early-70s firmly entrenched there.

    What few Republicans remain in our current single-state legislature, they are an emasculated lot without authority or power to prevent anything from happening legislatively — they might as well go home. The eunuchs of pre-Christian Rome had more authority.

    There is no other way to put it . . . California is doomed. We cannot afford to exist in our present configuration, so whether we remain a single state or become multiple ones makes no difference. Dividing the “Golden State” into six minuscule entities now will only speed up the inevitable — alchemy in reverse: turning gold into lead.

    This proposal, like so many others in so many different ways, is just another example of the public referendum process run amok. Each “special interest” puts its own initiative on the ballot because the other competitor “special interests” leans in a different direction. But apparently if this initiative were to pass, the voters will have elected Draper as their King. LMAO!

    California has become ungovernable by deliberate design. The various architects were only concerned about their personal/political self-interests at the moment, without consideration for what long-term consequences their actions would implicate. Now they have piled up, one on top of the other, not unlike the silt in the Delta where the snail darter controls the supply of water to the farmers in the south.

    • Jake Green

      “California is not ungovernable due to its size, shape, or demographics, per se, it is ungovernable because it is governed by incalcitrant Democrats who spend more money than they have resources available, are controlled by labor union political contritbutions, and who have little experience outside the realm of politics — in a region known as the real world.”
      Max you sum up California’s real problem in that one paragraph. It isn’t that California is ungovernable, it is just that it has been misgoverned for so long by a Extreme leftist Democrats (read Communists, Socialists, Statists) who believe in Totalitarian governance. Elections have consequences and unless the voters of California wake up to what they have done by voting for these wannabe tyrants…California is currently on the fast track to third world status.

  • Cal Elson

    I will vote for this initiative if it makes it to the ballot, and I’m sure a lot of other Californians will. The most interesting legal question to me is if it does pass at the statewide level, will all six states have to approve it individually? I also assume the state boundaries would need to be set and not flexible for it to be valid. I suspect Congress will crush our freedom to self-govern in any case, based on the Senate math (which I would peg at 6D and 6R, vs. 2D and 0R now), and especially the Electoral College math (which is 55D and 0R now, but wouldn’t be with 6 states). But I don’t see where in Article 4, Section 3 of the US Constitution that the President has any say or veto power. It only mentions the consent of Congress.

    • Mark

      I don’t very much agree with this initiative, as a student. Call me naive and correct me if I’m off-point with this, but I don’t see how this situation could help with things like the higher education system (e.g. newly formed out-of-state tuition costs possibly raising student debt) and importation of resources (can any part of SoCal really afford extra importation costs of water and agriculture from any northern region?)…

      Anyway, more to your point about veto power: http://www.law.cornell.edu/constitution/articlei

      Article I, Section 7, Clause 3 states the use of veto power of the executive. Basically, anything that is approved by Congress must also be approved by the President and they would have the option to veto whatever is put on their desk. Since Congress has to approve the legislation for the new Californias, if it happens it must also go to the President.

    • Bernard HP Gilroy

      Congress would express its consent through a bill, and the President would have veto power over that bill as any other.

      • Richard Gadsden

        No. Mark above has it right; this is not a Bill, it’s a Joint Resolution. But Presidential consent is required for Joint Resolutions too.

  • FlameCCT

    I believe Texas is the only State that wrote into it’s entry into the United States that they could sub-divide the State into 5 separate States that would receive automatic Statehood.

    It would appear that a State could divide into multiple Territories however I would expect one of the entities would retain the current Statehood status and the other newly formed Territories would have to apply for Statehood if their legislatures elected to do so. Until such time as accepted by the Congress, they would most likely be treated similarly to Puerto Rico, Guam, et.al.

  • Michael Marr

    You got one thing right, the topic is vast and complicated. Do you remember that legislation to form the State of Jefferson was set to be introduced on 12/7/1941, but then something happened?

  • Stephen Hinkle

    I think the implications are too large. I oppose the proposal and hope it doesn’t pass. I think there is significant impact for income equality, race, diversity, laws, congressional hurdles, division of state assets, social services, governance, and more with this proposal. Even if were to pass, I am not sure if it would pass in DC which is where the real state boundaries change.

    • dan6

      Stephen — do i read you right that you are opposed simply because it is too big a step into the unknown?

      I think, should it indeed make it past all the hurdles, that it will be a much smaller step than anybody imagines. All the real economic problems we face are connected with our endless wars and our “free trade”; those are controlled at the national level and there’s nothing a state can do to get off the sinking ship (except i guess secede).

      But nevertheless, Draper’s proposal will make control of the state much more local.

      And if it passes, there is a real chance that we’ll get another state politically like Vermont.

      That can’t be all bad. :)

      • ellid

        Give me a break. This is nothing more than an attempt by a spoiled, selfish billionaire to try to gerrymander a brand new state that will put his Randian fantasies into effect. It won’t get past the state legislature, let alone Congress.

        • Shawn Meredith

          Isn’t the state already gerrymandered in democrats favor and the fear is a more population balanced approach will disempower them? Refusing to redistrict when its logical seems just as bad as doing it for election purposes.

          • dan6

            Shawn: i think you have a point. But although gerrymandering is a constant issue in California, the Democrats certainly have a strong majority here. And should the state be broken into pieces, at least some of them will still be Democratic, certainly in the Bay Area (including Silicon Valley). National Democrats will still camp out here to raise dough and tie up traffic.

            Elid: Draper may be spoiled and selfish. I don’t know, but as you say, he is a billionaire, so it is certainly possible. I don’t think he’s a Randian, but he might be.

            But i think his motivations, whatever they are, are beside the point.

            The Bay Area is very, very liberal, and the representation we have in Congress hardly reflects that. Diane Feinstein should be representing Georgia or some place like that, at least as far as war and peace and the national surveillance state goes.

            If the state is split up so that the Bay Area counties form a majority of one of the states, there’s a significant probability we’ll elect somebody just as in touch with the people as Bernie Sanders. And that chance, imvho, would be quite worth trading for the careers of all the “Democrat” establishment types we have in Sacramento.

  • bobe123

    This is nothing more than the latest attempt by Conservatives to break up California into smaller bits, of which the plurality will be Conservative. Nothing more than a thinly veiled attempt to Gerrymander the state.

    • not that there’s anything wrong with that

    • Shawn Meredith

      Actually isn’t refusing to break it into smaller states with better population based representation based on the fear of who will come out on top really whats gaming the system?

  • searcher0

    draper is just tired of his tax dollars going to pay for the poor people in southern CA.

    • NewsObserver

      I agree with you. There is a bigger picture here that we are not aware of yet, he is a billionaire willing to put his money to work to see this through, out of the kindness of his own heart? What is he getting back? Is there a future land deal that he wants when this takes place? Something’s a mist, He’s a billionaire for a reason, plotting and planning. So what’s the real plan?

  • Archon

    Order out of Chaos. Time to divide and conquer. We must split
    California, so the population is more manageable. The phrase, “let me
    see your papers” will increase. Thus disorganizing the stars on the US
    flag. Will help boost Republican and some Democratic sellout votes,
    silencing all minor parties. A weakened state all along, as we are
    avoiding to pay are fair share the debt, us wealthy will only have to
    worry about the small debt lift in our newly made little California’s.
    Constricting travel, so it will be harder for families to move to other
    states, toll fees to increase, more taxes to weaken the middle class.
    Our plan of corporate consolidation of a united California is failing,
    so will we divide all of you, then when the union collapses from
    unfunded liabilities, our new corporation will emerge from the shadows,
    and swallow all the little California’s up in their weakened state. Then it will fulfill
    our dream of a corporate country. With your right to vote gone, my investments in China and into Bit-coin will assure the
    destruction of the dollar too. The six California’s is an executives
    dream comes true! It shall be a day of days my slaves. Wuhahahahaha!