Law

Would a Bigger Legislature Mean a Smaller Government for California?

It's probably true that there is no magic ratio of legislators to constituents. Still, do Californians need more representation?

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There are 80 seats in the California Assembly and 40 seats in the California Senate. The last time the Golden State adjusted the size of its legislature, in 1862, there were about 400,000 people living there. Today, more than twice that number live within the city limits of San Francisco alone.

With a population of nearly 40 million, California's state legislative districts are the largest in the country. Since voters in the state send 53 representatives to the U.S. House of Representatives, the state's upper chamber is one of just two (the Texas Senate is the other) where members represent more people than does the average member of Congress.

The seemingly out-of-whack ratio of legislators to constituents has resulted in an accumulation of power by the state's executive branch and has diluted the electoral power of rural areas and political minorities, according to Michael Warnken, a California-based libertarian activist who is part of a group that's trying to get federal courts to force the state to add more seats to the state legislature. "It's impossible for the people of California to have a relationship with their state lawmakers," he says.

In turn, the expansion of executive power has given such agencies as the California Air Resources Board and the California Coastal Commission outsized authority to unilaterally write regulations that should fall within the legislature's purview.

Putting voters back in charge of the state government requires having more representatives in Sacramento, activists argue. Their lawsuit was launched by a coalition that includes the California Libertarian Party, the Marin County Green Party, a group of Native Americans, and secessionists who have sought for years to form a new state, Jefferson, out of portions of northern California and southern Oregon. Former federal judge Alex Kozinski is helping litigate the case.

The effort faces an undeniably daunting path forward, in part because courts have been generally unwilling to adjudicate questions of political representation. (The same reluctance has stymied legal efforts to restrict gerrymandering, the practice of drawing legislative districts to benefit one political party over another.) But the activists pushing for more representation in California's legislature argue that the state's current legislative framework disenfranchises minorities, including Native Americans and Hispanics—a claim that has convinced federal courts to intervene in gerrymandering cases—as well as anyone who lives outside the state's population centers.

A federal district court tossed the case in 2018, but the activists are now appealing to the U.S. Court of Appeals for the 9th Circuit, with oral arguments likely to occur later this year or in early 2020. A victory there could send the case back to the lower court for a hearing on the merits.

The state is again trying to get the case dismissed. "Even if a federal court possessed the authority to increase the number of state legislative districts in California, there are no judicially discernible and manageable standards" for deciding how many seats are appropriate, attorneys for Alex Padilla, California's secretary of state, argued in a brief filed in August.

It's probably true that there is no magic ratio of legislators to constituents, and American states are all over the board when it comes to representation. New Hampshire has a whopping 400 members in its lower chamber, one for every 3,400 residents. To match that ratio, California would need more than 11,000 seats in its state Assembly.

But there is some evidence that more representation results in more limited government. A 1999 study by economists Mark Thornton and Marc Ulrich found that "smaller legislatures result in larger constituencies, poorer representation, and higher levels of government spending per capita."

This is hardly the first attempt to radically alter the relationship between California's people and their government. Proposals for breaking up the state go back as far as 1855. In this decade, an effort backed by venture capitalist Tim Draper to split California into six separate states nearly qualified for the ballot.

Could a better remedy to California's problems be to adjust the number of lawmakers to compensate for more than a century of wild population growth? At the very least, a smaller legislator-to-constituent ratio allows for local issues to get a hearing in state politics.

"A static number of representatives and a growing population does what to our vote?" Warnken asks, rhetorically.

"It steals it."