What California Voters Should Focus on When Voting on Tim Draper’s “CAL 3” Initiative

Posted in: Election Law

It is time for an update on a proposal—about which I wrote two columns (the second of which is here) last summer—that seeks to carve California up into three separate states. Last week, Silicon Valley venture capitalist Tim Draper, the driving force behind the proposal, announced that his organization had gathered more than 600,000 signatures from registered voters throughout the state’s 58 counties. That volume of signatures, if verified by the California Secretary of State, would easily exceed the number of signatures required by state law to put the measure on the statewide ballot this November. If California voters were to adopt the measure, it would then move on to be considered by the federal government; the US Constitution requires federal as well as state approval before new states are added to the union.

Given that the measure may be before California voters in a matter of months, I offer below a brief summary of the proposal, and then three key clusters of considerations the voters of California—the large majority of whom lean towards the Democratic party—should want to keep in mind.

What the Measure Would Do

The proposal, premised on a belief that “political representation of California’s diverse population and economies has rendered the state nearly ungovernable,” seeks to “(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 [California’s] legislative consent for the formation of three new states to Congress as required by the Constitution of the United States.”

The three proposed new states are: “Northern California” (consisting essentially of the San Francisco Bay Area counties and counties extending eastward of the Bay Area to the Nevada border, and everything north of the Bay Area 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, keeping all three 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.)

(Legal and Political) Considerations Voters Should Bear in Mind

Federal Law Hurdles

There remain federal legal obstacles that could easily bog down the measure and consume significant resources in court. One question under the federal Constitution is whether the people of a State can 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 ruling upholding the initiative-created Arizona Independent Redistricting Commission), but there still could be litigation over this.

Another federal question is whether new states can 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.

Yet another open question under the federal Constitution is whether 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,” are the states that would be created “States [that are] concerned?”

(Even Bigger) State Law Hurdles

Perhaps the biggest legal obstacles exist under the state, rather than the federal, constitution. In particular, there is a very strong argument that Mr. Draper’s proposal would constitute a “revision” to rather than an “amendment” of the California Constitution, and, if so, would require a more involved process than the simple gathering of signatures and placement on the statewide ballot that Mr. Draper is pursuing.

An “amendment” can appear on the ballot for voter approval if two-thirds of each house of the state 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. 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.

What changes constitute “revisions” that trigger the more legislator-driven process? The California Supreme Court says 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 whether 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.” Under both of those lenses, Mr. Draper’s proposal looks like a revision. Certainly breaking California up alters, as a quantitative matter, most every provision in the state constitution, by shrinking its effective reach. And I think dividing up the state into three states also is a “change in [the] fundamental structure . . . [of] California government.” “Structural” changes are often distinguished from changes to 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: What is of greater importance to a state’s overall structure than its geographic boundaries?

(As an aside, I note that 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—that is, before voters actually cast ballots on the measure).

(Larger Still) Justified Political Skepticism in a Blue State

As large as the legal obstacles are, the political challenges loom even larger. While it may be true that California (like the nation and like many other states) has endured problems in self-governance over the last few decades, whether Californians are ready to make such a radical change as to carve up the state is far from clear. There are, to be sure, tensions 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 less-populous but geographically expansive communities located 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. Many, many families are spread—and linked—throughout the state. Various parts of the state have deep economic ties with, and reliance on, other parts. College students from all over the state relish the ability to be treated as in-staters for purposes of admissions and tuition at all the University of California and California State University campuses. Water rights, projects, and policies (hugely important in the western half of the nation) are currently integrated throughout the state. So dividing California up into three separate full-blown states would pose very complicated economic and public policy challenges.

In this vein, one problem with the CAL3 plan is that one of the three newly envisioned states, Southern California, would have a per capita income of only $45,000 (placing it below the median of all states), whereas the two new states of Northern California and California, respectively, would have per capita incomes of $63,000 and $53,000, placing them well above the vast majority of all other states. Even though each of the three new proposed states contains a mix of coastal and inland areas, a mix of urban and rural regions, and a mix of economically thriving and economically challenged areas, one of the three new states would have a far smaller income tax basis for things like universities, K-12 schools, healthcare, infrastructure, etc.

Yet the largest and likely insurmountable hurdles relate to factors not internal to California, but rather to California’s place in the national political structure. Let’s start with congressional approval. There at least two axes on which one might imagine opposition in Congress—interstate federalism and partisan advantage. As to interstate federalism, some states (and their representatives in DC) might be reluctant to reduce their current relative voice in the federal government (especially in the Senate), a consequence that would result from increasing California’s share in the Senate from 2% (2 out of 100) to 6% (6 out of 104, because three states new states would mean replacing California’s two existing senators with six new ones pursuant to 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 clout might be difficult.

Perhaps some members of Congress, when considering a measure like Draper’s, may be moved more by political-party considerations than by the influence their states wield in DC. Indeed, 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 (and today it does seem that political party is often the single most important factor in predicting political behavior), we need focus carefully on the partisan consequences of Mr. Draper’s current plan.

Under the lines CAL3 proposes, of the six senators who would come from the three new Californias, four senators (the two each from “California” and “Northern California”) would almost certainly be Democrats, and the partisan identity of the other two (from “Southern California”) would be harder to predict. The counties that make up “Southern California” lean Republican (and collectively voted for Mitt Romney over Barack Obama in 2012), but did favor liberal Democratic Senate candidate (now Senator) Kamala Harris over a more conservative (yet also Democratic—under California’s “top two” primary system, the general election sometimes features two Democrats) opponent Loretta Sanchez in the most recent US Senate election in California. (But query whether Republicans would have put up someone more competitive had they known they were competing only in the “Southern California” counties; since Harris had so much support in the “Northern California” and “California” counties, it was hard to recruit plausible Republican opponents against Harris in a statewide race in what is currently California.

So the Senate implications are hard to predict. It is possible that the adoption of Mr. Draper’s CAL3 idea would (generally and for the foreseeable future) lead to the election of four Democratic and two Republican senators, preserving California’s current +2 (2-0) edge for Democrats in the Senate. If that were the case, neither Dems nor Republicans (assuming they were focused mostly on partisan considerations) may have reason to oppose the measure.

But the implications that are easier to predict, and that would likely pose a deal breaker among Democrats, both in California (a heavily Democratic state) and in DC (to the extent Democratic support in DC were needed), arise with respect to presidential elections. Right now, Democrats can count on California to deliver a 55-0 electoral college bloc in their favor. (Remember that virtually all states—quite rationally—deliver their entire electoral college allotment in winner-take-all way to a single candidate. For analysis of a recent legal challenge to this regime, look here.). And the newly created states of “Northern California” and “California”—containing the Bay Area, and Los Angeles, respectively—could continue to be counted on to deliver for Democratic candidates their 39 or so (combined) electors.

But—and this is the crucial point—because the newly created “Southern California” state could easily vote for a Republican presidential candidate (as noted above, Mitt Romney beat Barack Obama in 2012 in this region) and give its 20 or so electors to a Republican, then Democrats would run a serious risk moving from a 55-0 advantage in California to something like 39-20 (a total of 59, because the creation of two additional states would increase the electoral college denominator by four, and every state gets two electors on account of having two senators), a net advantage of only 19, considerably less than half of the 55-electoral-vote edge the Dems currently enjoy.

Even if Democrats could hope to win “Southern California” from time to time, Democrat party loyalists —both in California and in DC—should be very reluctant to run the risk that inheres in Mr. Draper’s proposal. There is very little upside, and considerable downside, presented by CAL3 for Democrats when it comes to presidential elections. And risk aversion looms large in these matters, which helps explain why no new states have been added to the United States in over 50 years, and 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.)

So until we move closer to a National Popular Vote model (about which I have written extensively, e.g., and recently here, under which every vote counts the same regardless of where state lines are drawn) I think Mr. Draper’s plan—given the current electoral and partisan landscape—will and should have a tough time winning over rational Democrats, who dominate California elections.