Carving California

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It is often (and rightly) said today that there are many people and forces working to divide America. In California, the effort to divide the state is literal, and may be picking up steam.

Last week, Silicon Valley billionaire investor Tim Draper unveiled and filed his second statewide initiative that would facilitate the division of California into several states. A few years back, he backed an initiative plan to divide California into six separate states, but that measure never made the ballot. His new proposal seeks instead to create three states out of what is currently California. While the three-state plan is mildly more plausible than was the six-state plan, the current idea too, in my mind, is extremely unlikely to succeed, for reasons—legal and political — I explore, respectively, in the space below and a future column. But whether the measure succeeds or not, it will likely consume time, money, and energy.

Summary of the Three-Californias Proposal

Mr. Draper’s current proposal—entitled “Three New States Within the Current Boundaries of California”—begins by asserting that as a consequence of major socio-economic developments over the twentieth and twenty-first centuries, “political representation of California’s diverse population and economies has rendered the state nearly ungovernable. Additionally, vast parts of California are poorly served by a representative government dominated by a large number of representatives [elected] from a small part of [the] state, both geographically and economically.”

Because of these problems of scale and diversity, Mr. Draper proposes that the voters of the state adopt a measure that would: (1) “[e]stablish new boundaries for three new states within the boundaries of the [current] State of California; (2) [e]stablish a procedure for the transformation of the single State of California into three new states; and (3) [p]rovide the legislative consent for the formation of three new states to Congress as required by the Constitution of the United States.”

The proposed measure goes on to delineate three new states: “Northern California” (consisting essentially of the San Francisco Bay Area counties, those counties extending eastward of Bay Area, and everything north to the Oregon border); “California” (consisting of the coastal counties from Monterey to Los Angeles, inclusive); and “Southern California” (consisting of Orange and San Diego Counties, the Inland Empire, and vast majority of the Central Valley).

Each of these three new states would have more than 10 million people, making each of the three new states still among the ten biggest in the resulting nation of 52 states (a powerful reminder of Mr. Draper’s point about how large California has become.)

The proposal is surprisingly sloppily drafted for something that has been submitted to California Secretary of State’s office for processing. For example, as the measure is currently crafted, Tulare County (in the Central Valley) is an island (or donut hole) that falls outside of any of the three new states. (I suspect that it is supposed to be part of “Southern California” but got unintentionally omitted, with Imperial County being mentioned twice instead of only once.)

Federal Legal Hurdles

Putting aside these glitches (which I assume will quickly be fixed), there remain complex legal and political challenges. On the federal constitutional side, here are some important questions on which the proposal could founder:

  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? I think a state should be able to consent by initiative (especially given the recent and correctly decided Supreme Court decision involving the initiative creating the Arizona Independent Redistricting Commission), but there still could be litigation over this.
  2. 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.
  3. Would the people (or their representatives) of each of the newly created three states have to consent 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 consent of the newly created states? That is, are the states that would be created “States [that are] concerned” within the meaning of Article IV?

State Constitutional Obstacles

On the state constitutional side, the challenges may be even greater. In particular, I think that a proposal such as Mr. Draper’s may constitute an attempt to create a “revision” to rather than an “amendment” of California’s Constitution, which would require a more involved process than the simple gathering of signatures and placement on the ballot Mr. Draper is pursuing.

An “amendment” can appear on the ballot for voter approval if two-thirds of each house of the legislature votes to place it on the ballot or if enough voter signatures are gathered to qualify the measure (the route Mr. Draper is trying to use). But a proposal to enact a “revision” can be placed on the ballot for voter consideration only if two-thirds of the houses of the legislature vote to place it, or if a legislatively proposed state constitutional convention decides to place it on the ballot. (Until a change in the state constitution in 1962, only constitutional conventions could propose revisions.) Thus, under current law, revisions must go through a process that starts in and runs through the legislature, whereas amendments can bypass the legislature altogether and rely on signature gathering.

The Key Distinction Between a Revision and an Amendment

The crucial and difficult question becomes, of course, what differentiates amendments from revisions? The California constitutional text itself offers few clues, but the California Supreme Court—in rulings that span many decades—has told us that to determine whether something is a revision, we must look “quantitatively” (that is, to the number of existing constitutional provisions a proposed change affects or the number of words the proposed change involves) and “qualitatively” to see if the proposed measure “substantially change[s] our preexisting government framework,” makes “a fundamental change in our preexisting governmental plan,” or “involves a change in [the] fundamental structure . . . [of] California government.” The court has, in more than one case, given a standard hypothetical example of such a change: a measure that would “vest all judicial power in the Legislature.” Such an alteration in the respective powers of the judicial and legislative branches, says the court, would profoundly change the “scheme” of government so as to be a revision.

Perhaps the seminal California Supreme Court case on the revision/amendment line is Raven v. Deukmejian, a 1990 ruling and the most instance in which the court held a measure to be a revision. In the Raven case, the justices examined an initiative measure that obligated the courts of California, as they decided cases, to construe a set of state constitutional rights of criminal defendants to afford no more protection than that provided for by the United States Constitution. The California court found that this provision wrested significant power from the California Supreme Court to give independent meaning to a host of state constitutional liberties and provisions, in essence, making California jurists simply puppets of the U.S. Supreme Court’s justices, the principal expositor of the U.S. Constitution: “[The measure] in practical effect, vests a critical portion of state judicial power in the United States Supreme Court, [which constitutes] a fundamental change in our preexisting plan of government.”

The Raven court distinguished earlier cases in which it had rejected claims that initiative measures were revisions rather than amendments—including a case involving a measure that directed state courts to construe the state constitutional ban on “cruel and unusual punishments” to be no broader than the federal Eighth Amendment’s prohibition. Those earlier cases, the court said, involved “isolated provisions,” did not concern “far reaching, fundamental changes in our governmental plan,” and did not amount to “a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution.”

Raven should be considered alongside the 2009 ruling (almost two decades later) in Strauss v. Horton, the California Supreme Court’s most recent detailed examination of the revision/amendment distinction. In Strauss, the court overwhelmingly rejected the argument that California’s initiative ban on same-sex marriage (Proposition 8) was a revision and therefore was improperly presented to the voters by a signature gathering alone. The court held that, as important as equal protection and due process principles are, a denial of marriage eligibility and marriage equality does not constitute a fundamental change in the California government plan or framework. (Proposition 8 has since died in California for other reasons.)

On which side of the line does the three-Californias proposal fall? Certainly breaking California up alters, as a quantitative matter, most every provision in the constitution, by shrinking its effective reach. And I think dividing up the state into three states also ought to be considered a “change in [the] fundamental structure . . . [of] California government.” For starters, when the Raven court’s justices (and earlier decisions) talk about “revisions,” they almost always do so in terms of changes to the “plan,” “scheme,” or “structure” of government. “Plans,” “schemes,” and “structures,” in constitutional law, are generally terms of art that refer to the division of authority between, and the relationship among, different government entities. These “structural” provisions and themes are often distinguished from the “rights” aspects of a constitution, which concern the relationship between all institutions of government, on the one hand, and private individuals (or groups of individuals), on the other. Divvying up a state certainly could affect individual rights, but such a division is first and foremost a matter of structure: structure is literally all about the edifice, about how something is put together, about constituent parts and elements, and how they do—or don’t—fit together to form a whole.

And as to whether dividing up a state into three pieces is a major, pervasive change in (rather than an isolated alteration to) its essential structure, we might ask: What is of greater importance to a state than its geographic boundaries? As the national debate about a wall along the Mexican border rages, we are reminded that even in a digital age, physical space and physical lines matter immensely to the course of peoples’ lives, and the legal regimes under which they live.

Assuming Mr. Draper intends to fund the signature-raising drive with substantial money such that (notwithstanding the very low chances of ultimate success) surpassing the signature threshold is plausible, it would be nice if there were a way to get the California Supreme Court to weigh in on this revision/amendment question before things get very far along (certainly before voters actually cast ballots on the measure).

In a subsequent column, I will explore why the three-Californias idea is a political non-starter, but would be more plausible if we changed the way we elected presidents to a national popular vote.

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