Why the Measure to Split California Into Three Could be Blocked by a Court Before It Appears on the Ballot

Posted in: Constitutional Law

Now that Silicon Valley venture capitalist Tim Draper has submitted a sufficient number of signatures for his bid to split California into three separate states—Cal3, as it is called—to qualify for the November general election ballot, commentators are beginning to discuss the political and legal obstacles the measure faces—hurdles I flagged and analyzed in a number of Verdict columns, including here and here.

Among the legal stumbling blocks currently being talked about is the California Constitution’s vexing distinction that I analyzed in detail (in the two postings linked above) between so-called “amendments” to and “revisions” of the document. I continue to believe that Cal3 represents a revision that requires the legislature in Sacramento to approve before the voters can weigh in.

But the more I reflect on the legal challenges that might be made to Cal3, the more I believe that a federal constitutional problem may create similarly large obstacles for the ballot proposal.

The Federal Constitution’s Requirement of Consent by the “Legislatures” of Concerned States

I speak here of the requirement in Article IV, Section 3, of the US Constitution that before new states can be created out of existing states, there must be “Consent of the Legislatures of the States concerned.” The question is whether the people of a state can, within the meaning of the federal Constitution, act directly to constitute a “legislature” for these purposes, or whether the elected folks in Sacramento have to consent instead. (Interestingly, the state law revision/amendment issue and the federal Article IV issue both focus on the permissibility of direct action by the people in lieu of action by elected state representatives, even though they come at the question from different legal routes.) My own view, based on scholarship I have done on the text, history, and structure of the Constitution is that the people of a state should be able to consent by initiative because the word “legislature” in the Constitution should almost always be read to permit direct action by the people, but my views in this regard have been rejected by recent US Supreme Court case law. And since lower courts (both state and federal) are bound by the US Supreme Court’s reading of the US Constitution, legal challenges to Cal3 based on Article IV of the federal Constitution have legs.

The Court has had various occasions to examine the term “legislature” of the states as it appears in various places in the Constitution, and it has interpreted it in different ways. In Hawke v. Smith, in 1920, the Court prohibited the use of direct democracy (in that case the referendum device, a close cousin of the initiative) that the people of Ohio tried to employ to undo the state’s (already finalized) ratification of a federal constitutional amendment under the terms of Article V of the Constitution, which also uses the word “Legislature.” The Court in Hawke observed: “‘legislature’ … ‘was not a term of uncertain meaning when incorporated into the Constitution,’ and ‘what it meant when adopted it still means,’ namely, ‘the representative body which made the laws of the people.’” (I have written in academic scholarship that the Hawke Court reached the right result because Ohio’s ratification was already communicated to DC and could not be undone, but not because the word “legislature” should be read to forbid the use of the referendum device.)

In two other important cases from the first half of the twentieth century, Ohio ex. rel. Davis v. Hildebrant (1916) and Smiley v. Holm (1932), the Court read the word “legislature,” as it appears in Article I, Section 4, of the Constitution, more flexibly (and, to my mind, more convincingly.) Article I, Section 4 (the “Elections Clause”) provides that the “Times, Places and Manner” of administering congressional elections shall be prescribed in the first instance by the “legislature[s]” of the states, and the Court in Hildebrant and Smiley held that the term “legislature” in this part of the Constitution did not prevent the involvement of either the people directly (via the referendum) or the governor (via presentment to him for a possible veto), respectively, in legislation creating congressional districts. In these cases, the Court effectively held that “legislature” refers not a specific elected body of persons, but to the idea of a legislative process that is consistent with state law. Because, in the two cases at issue, state law authorized the referendum and gubernatorial involvement in question as part of the general legislative process, there was no problem applying that legislative process to the districting realm.

That was essentially the reasoning employed in an important ruling three years ago, in Arizona Elected Legislature v. Arizona Independent Redistricting Commission (AIRC). The case raised the question whether the US Constitution and congressional statutes permit the people of a state to adopt and implement an initiative creating an independent redistricting commission—i.e., a commission that is not controllable by the elected state legislature—to do the job of devising congressional districts. Arizona voters passed just such an initiative in 2000 (Proposition 106), and the elected Arizona legislature (acting as a body) challenged the measure, arguing primarily that Article I’s Elections Clause prevents a state from completely divesting district-drawing power from the elected state legislature. The Court rejected that claim, and (as in Hildebrant and Smiley) held that Article V’s reference to “Legislature” is different from Article I, Section 4’s reference to “Legislature.”

The AIRC Court emphasized that “[T]he meaning of the word ‘legislature,’ used several times in the federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.”

In dealing with Hawke, the Court observed that in Article V, a legislature is making an up–down ratification decision, whereas under the Elections Clause, a legislature is passing generally applicable laws to govern the process of congressional elections. Justice Ginsburg’s majority opinion was quite explicit: where the Constitution refers to a state “Legislature” in the context of a provision calling for state lawmaking (as opposed to ratification and similar functions—like picking US Senators in the 19th century under the original Constitution—that do not involve fashioning general regulatory policy), “Legislature” means state lawmaking process, and includes within its definition the people of a state undertaking direct democracy. Importantly, the Court distinguished Article V from Article I, Section 4 and distinguished (and thus preserved) Hawke rather than overruled its reasoning (as I would have preferred). The dissent would have gone farther, and essentially expanded the Hawke approach to the entire Constitution, which would mean that “legislature” always means elected representatives and can never involve direct action by the people in lieu of the elected leaders.

In any event, unfortunately for Cal3 proponents, even if AIRC’s qualified embrace of direct democracy remains intact, Article IV (and its requirement of consent by the concerned “legislatures” when new states are created) falls on the Hawke/Article V side of the line, rather than the Hildebrant/Smiley/AIRC Article I, Section 4 side of the line. Again, Justice Ginsburg’s majority opinion said the meaning of “legislature” in the federal Constitution varies with the job that is called upon by any given provision. In a crucial passage, she observed that the Court has

distinguished instances in which the Constitution calls upon state legislatures to exercise a function other than lawmaking. State legislatures, we [have] pointed out, performed an ‘electoral’ function ‘in the choice of United States Senators under Article I, section 3, prior to the adoption of the Seventeenth Amendment,’ a ‘ratifying’ function for “proposed amendments to the Constitution under Article V,’ as explained in Hawke v. Smith, and a ‘consenting’ function “in relation to the acquisition of lands by the United States under Article I, section 8, paragraph 17. In contrast to those other functions, we observed, redistricting ‘involves lawmaking in its essential features and most important aspect’ (emphasis added).

What is ominous to Cal3 is Justice Ginsburg’s inclusion—on her list of “other functions” as to which popular democracy is not allowed—of the “consenting” function” in Article I, Section 8’s reference to acquisition of lands by the United States. If a state’s consent to federal acquisition of lands in Article I, Section 8 is not “lawmaking” (as Justice Ginsburg implies it is not), but rather “consenting” (akin to Article V amendment ratification) which must be done by the elected state legislature, the same is very likely true for “consent” to giving up lands to create new states. Indeed, giving lands to the feds is the closest analogy found in the Constitution to ceding lands to create new states.

One difference between Article V ratification, on the one hand, and Article IV and Article I, Section 8 “consent” to ceding state lands, on the other, is that a state ratifying an amendment likely didn’t create the amendment (which came either from Congress or a constitutional convention), but the arrangements of ceding land (either to the feds or to a new state) might have come from the concerned state itself, and involved much more legislative discretion than an up–down binary choice whether to approve a measure proposed by someone else. So one could argue that Justice Ginsburg was wrong to lump federal land acquisition alongside Article V’s amendment process. (In the same way, perhaps choosing US Senators prior to the 20th century involved a great deal of discretion, and thus differed from a “take-it-or-leave-it” ratification, but the Court lumps that in with Article V as well.)

But whether or not the Court was wrong in its treatment of federal land acquisition consent, it would seem that such treatment should apply to Article IV consent as well. And lower courts, including the California Supreme Court, are bound to follow AIRC.

The backers of Cal3 at times seem to implicitly understand this, and their website suggests that if the voters approve the measure, then the elected legislature would still have to consent as well. For example, from the FAQ section of the website in response to a question about the process that will be followed:

“Once voters say YES to Cal 3, the state legislature— if they reflect the will of the people—will recommend the Cal 3 plan to the U.S. Congress, which will decide whether or not to support the self-determination of Californians” (emphasis added).

In the same vein, the website elsewhere says:

“When Californians vote this fall to say YES to Cal 3, the statute would move to the Legislature for approval. Assuming the Legislature reflects the will of the voters, final approval is needed from the U.S. Congress” (emphasis added).

There are two huge problems with this apparent effort by Cal3 folks to salvage the measure. First, that’s not what the text of the measure—the thing on which the voters are being asked to weigh in—says. The text explicitly and forcefully says:

[By this measure t]he people, acting as the legislative body of the State of California pursuant to their reserved legislative power provided by the California Constitution, hereby . . . Provide the legislative consent for the formation of three new states to Congress as required by the United States Constitution.

In another place, the measure confirms this, saying that, upon enactment by the voters:

the [California] Government Code [would be amended to say that] the legislative consent required by Section 3 of Article IV of the United States Constitution for the creation of three (3) states within the current boundaries of the State of California, as provided by Article 3 of Chapter 1 of Division 1 of Title 1, is given by the people.

And finally, the measure says, without regard to any action the elected state legislature might or might not take, that if the measure is adopted in November of 2018, “[o]n January 1, 2019, the Governor shall transmit a copy of the certified election results enacting this Article to Congress, with a request that Congress act upon the consent of the people within twelve (12) months.”

So the measure explicitly purports to provide the consent by the “legislature” required by the federal Constitution.

Yet if I am correct that, best read, US Supreme Court case law (rightly or wrongly) forecloses the people from giving consent directly, the Cal3 initiative, even if adopted, could have no legal effect.

Cal3 supporters might believe that, even then, the measure could provide specific information to the elected legislature about what the people of the state want. Wouldn’t such an “advisory” measure still be of some utility, they might suggest?

Perhaps in theory, but the California Supreme Court has made clear that purely advisory-measure initiatives, that do not alter law but rather simply provide information to the legislature about the views of the people, are not a proper use of the initiative mechanism. For those who want background on this topic, and the seminal 1984 American Federation of Labor v. Eu case that makes state law clear in this regard, an earlier Verdict column might be helpful.

California may be wrong to ban advisory initiatives. And the distinction the California Supreme Court has recently drawn between advisory initiatives invited by the elected legislature (which are ok) and those that emanate directly from the people (which are not) may be flawed, but state constitutional law is clear: advisory measures (as Cal3 surely is, once it is shorn from its legally ineffective attempt to provide “consent” under the federal Constitution) have no place on the state ballot.

And so lawsuits to block Cal3 from the ballot should be winners. (I am aware of one such lawsuit recently filed, but it raised only the state law “revision/amendment” claim, not the federal Article IV claim.) Of course, getting a court to strike something from an upcoming ballot might be hard (since some courts might prefer to let the voters have their say and hope that no court resolution will ever be needed after the election.) But if the point of California’s ban on advisory initiatives is that these are improper modes of conveying information to the legislature, then the clear legal flaws of Cal3 (which render it advisory only, as the Cal3 website seems almost to admit) argue in favor of pre-election review.

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