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California Supreme Court Removes Question on Splitting Up State from November Ballot

The initiative could be reinstated for the 2020 election, however, if the Court concludes that its inclusion does not violate California law.

The proposed California partition plan that voters would have considered had not Proposition 9 been removed from the state's November ballot.The proposed California partition plan that voters would have considered had not Proposition 9 been removed from the state's November ballot.

Earlier today, the California Supreme Court ordered the removal of a referendum initiative from the state's November ballot, that would have allowed Californians to vote on breaking up the state into three parts. The court issued a unanimous order removing Proposition 9 from the ballot because "a substantial question has been raised regarding the proposition's validity and the 'hardships from permitting an invalid measure to remain on the ballot outweigh the harm potentially posed by delaying a proposition to a future election" (quotation marks omitted). The court will now consider challenges to the legality of the referendum question. If those challenges are rejected, it will return to the ballot in 2020. Even if it is put back on the ballot in 2020 and passes, Congress would have to agree before the plan to break up California into three states could go into effect.

Although I think the partition plan might well be a good idea, I don't have any strong view on whether Proposition 9 is a legally permissible use of California's initiative process. Perhaps the plaintiffs in this case are right to argue that breaking up the state amounts to a "revision" of the state Constitution, and not a mere "amendment," and therefore cannot be done by referendum. Even more plausible is the argument that the initiative must be structured as a constitutional amendment rather than a mere statute, as Proposition 9 is. A statutory initiative requires fewer signatures to get on the ballot than a constitutional one. It would, at the very least, be somewhat strange, if a state could be broken up through a statute alone, as opposed to an amendment (or a "revision") to the state constitution. But it is worth noting, as initiative sponsor Tim Draper does in his filing in this case, that California's current boundaries are themselves set by statute, rather than in the state constitution, and so perhaps can be amended by statute.

While the plaintiffs may well be right about the legality of Proposition 9, I am somewhat skeptical that the right way to deal with this question is to postpone any possible vote on the intiative, as opposed to considering the issue now, and then - if necessary - voiding the result of the vote in the event that the initiative is approved. If the people vote on an initiative that turns out to be unconstitutional, the only significant harm is likely to be a modest waste of time and resources (one that will be smaller still if the voters reject the initiative). If, on the other hand, the initiative was actually legal, postponing the vote on it for two years inflicts the considerably greater harm of forcing the vote to be held at a different time and under potentially very different circumstances. If it passes, implementation would be delayed by two years, which itself is a potentially significant harm.

The Court also had the option of simply deciding the case on the merits within the next few weeks, in time to remove the question from the ballot, if necessary, but also in time to keep it on, if its legality is upheld. This is, in fact what the plaintiffs challenging the initiative asked the justices to do, in a petition that notes the Court would have some five weeks to decide the case, before the August 13 deadline for sending November election materials to the printer. A month should be enough time to consider the legal issues involved. Both state and federal courts have decided comparable issues on an accelerated schedule in the past.

It is possible that I would reach a different conclusion if I studied California precedent on what qualifies as "harm" in this context, more closely. I certainly do not claim to be an expert on that subject. But, at this point, it seems to me that the court got this issue wrong. The potential harm of delaying a valid vote seems greater than any harm likely to come from holding an invalid one that courts would need to strike down after the fact, if it passes. Even more importantly, the Court likely had enough time to decide the case on the merits before the August 13 deadline, which would have avoided both the harm of postponing a vote on a valid initiative for two years, and that potentially created by passing an invalid one.

Be that as it may, Californians will not get to vote on partitioning the state until at least 2020, if ever.

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  • Soronel Haetir||

    Except I see great harm if the measure were voted on, passed and were then declared invalid. There you would have the manifest desire of at least a single-day majority told to go home and stop crying.

    I suspect that is what the courts are striving to avoid in this case.

  • PoxOnBothYourHouses||

    Though it's certainly happened before, as when California citizens enacted an anti-same-sex-marriage amendment to their constitution in 2008, only to see it subject to nullification by the AG and then ruled un-(U.S.) Constitutional by the courts.

    They got over it, and they'd get over it.

  • regexp||

    when California citizens enacted an anti-same-sex-marriage amendment to their constitution in 2008

    Prop 8 wasn't the only amendment challenged in court and later essentially thrown out. Proposition 187 comes to mind.

  • Scarecrow Repair & Chippering||

    Judges are just as political and biased as everybody else. They sure as hell aren't thinking of the poor butthurt voters.

  • California Right To Carry||

    Attica! Attica!

  • James Pollock||

    On the one hand, you also have several counties of southwestern Oregon that would like to join with several counties of Northern California to form Jefferson, a state with no major cities (and their Democratic-leaning voters) in it.

    Ultimately, the Oregon pioneers who drew lines in the Oregon Territory and said "this should be the state outline" got it wrong... they should have drawn the borders of Oregon from the California border to the south to the Canadian border to the north, from the Pacific Ocean to the crest of the Cascade mountains. Western Oregon and western Washington have more in common with each other than either has with the eastern half of their states, and the population out in the eastern halves of the state keep getting outvoted in statewide elections by the city-dwellers in the west.

    Oh, yeah, this is about California. The big challenge there is how the lines are drawn... they could be drawn to produce 4 more Democratic Senators, or 4 more Republican Senators, assuming Congress would approve either one.

  • santamonica811||

    It would take an supreme effort in line-drawing, to come up with 3 states where Republicans got 4 of the 6 senators. I would think it would be impossible, if each state had roughly the same population...it's just a deep-blue state right now. If one wanted to split up Alabama (for example) into 3 parts, Democrats would have a similarly difficult/impossible task of dividing so that they ended up with a 4:2 Senator advantage.

  • James Pollock||

    You may be under-estimating the capabilities of modern computer-assisted gerrymandering.

  • MatthewSlyfield||

    "modern computer-assisted gerrymandering."

    The comment above and the one to which it was a reply are about Senators, which are elected state wide, not by district. You also have the problem that you can't gerrymander state boundaries the way House districts do.

  • James Pollock||

    Pay atttention.
    California, as a single state, gets 2 senators, and both are Democrats. This is because Democrats have an edge in registered voters in California.
    But, if you split California into 3 states, then the three states combined get six senators. Now, depending on who draws the lines dividing the former monolithic California into the three substates, you might draw the lines such that all three states still have majorities of registered Democrats,or you could draw the new states such that one or even two of them were majority Republican. Thus, depending on how EXACTLY the state was divided you could hand either party 4 more Senators. Meanwhile, the population of the states doesn't change by dividing them into smaller states... the same number of people live there and so the House representation doesn't change much. (of course, later on, it might, again depending on whether the sub states are drawn so as to be majority Democrats or majority Republicans, giving the state parties control over drawing the House districts.

  • James Pollock||

    In the current Congress, there's approximately zero possibility that they decide that California should have 4 more Senators, either way, because neither party wants to give the other party those extra Senators. The only way it would work is if the control of the Congress went to a supermajority of one party, AND the citizens of California decided they wanted to split up in a way that favored that supermajority party. Since California as is has majority Democrats, that's likely the only way things would go... Democrats in California draw the new state boundaries so they're all majority Democrat, and then there would also have to be a Democratic supermajority in Congress to push it through at the federal level.

  • perlchpr||

    It's possible to make it balance pretty easily, though.

    Split CA into 3 states adds 2 states, and 4 senators total.

    If one of those new states is R affiliated, and one of them is D affiliated, then the overall balance of the Senate doesn't change.

    I expect the biggest objection would come over the Electoral College. As it is now, CA EC votes are basically a D lock. If Jefferson goes R, then that's some positive integer worth of EC votes that are no longer D guaranteed.

  • tekcoyote||

    I'm for it with one caveat: all the new California states still have the same two senators and 53 representatives among them since they're still only representing the same number of people. They get to duke out what parties they represent.

    It's a pretty transparent ploy to increase their representation in the EC. Why not let Rhode Island divide itself into 6 new states? Alabama into 14?

  • James Pollock||

    "It's a pretty transparent ploy to increase their representation in the EC."

    Sure, in the sense that they're underrepresented now. The however many hundred thousand residents of Wyoming have 2 senators. The 40 million Californians have 2 senators. Break California into ten states, giving them 20 senators, and they STILL aren't even close to the Wyoming level.
    And Californian Republicans aren't represented at all. They get 0 senators. Break the state into smaller sections, and the Republicans get a chance of electing representatives AND senators.

    The biggest long-term benefit of breaking into smaller states is that gerrymandering becomes MUCH more difficult with smaller chunks of population and territory to work with. They can redraw Congressional districts with much greater effect if they have the entire state of California to work with, than if they just had 8 counties. Break it up into small enough states, and gerrymandering goes away completely because each one is its own district. (Of course, this creates a good many other problems.)

  • Stephen Lathrop||

    James Pollock, as a former resident of Halfway, OR, I understand the differences you describe. But I question whether you take your operative principle far enough. Consider this carve-out of contiguous eastern Oregon Counties: Gilliam; Wheeler; Grant; Lake; Harney. Combined, they offer a generous 26,091 square miles, all just begging for fair and equal representation on the list of states.

    There, they could take their place as the 41st largest state in the nation. Indeed, the smallest of those five counties, Gilliam, is larger than either Rhode Island or Delaware. Their total area is larger than that of Rhode Island, Delaware, Connecticut, and New Jersey—combined. So who could question on point of area their just claim to statehood?

    But that's not the best part. The best part is the combined population—just 25,554 people—less than 1 person per square mile. Perhaps there are other similar assemblages possible in rural America. But you mentioned Oregon, and I suggest that there, in Eastern Oregon, is one of the best opportunities possible to redress America's crushing majoritarian oppression of tiny rural populations.

    So think of a catchy name for this great new state, and get busy with the politics.

  • James Pollock||

    Two things:

    First, for most of my adult life, I lived in Washington County. Second, while I'm in Oregon because my daughter is getting married this month, I've spent much of the last year in North Carolina, and I'm planning to return after the Oh-My-GOD-It's-too-freakin'-HOT period.

    Oh, yeah, and while I'm not a member of a political party, I'm way, way, WAY more not a Republican than I am not a Democrat.

    So no. In my hypothetical redistricting, the eastern halves of both Oregon and Washington revert to U.S. Territories. Or maybe the Warm Springs and Yakama reservations get a LOT bigger.

  • RoyMo||

    You leave five counties cut off there including Pendleton, Baker City, Hermiston, and Le Grande. We could play this game all day and there is some legitimate point to breaking up states.

    Split Idaho and combine Eastern Oregon with Idaho south of Riggins and Eastern Washington with North Idaho. You get two states with at least two congressional seats this way. This way you are adding only one state while not creating ridiculous imbalances in the House. Then you can balance California splitting in two.

  • Stephen Lathrop||

    RoyMo, don't monkey-wrench the deal. I had big plans for those cut-off counties.

    But it's always fun to try to go over the top, only to meet someone serious coming the other way.

    By the way, if you want to split Idaho, you do it south and east of Boise, not at Riggins. Got to keep the historic communities of interest together after the split.

  • James Pollock||

    You redraw the US map to suit your imaginary preferences, and I'll stick to mine.

  • MatthewSlyfield||

    "But that's not the best part. The best part is the combined population—just 25,554 people—less than 1 person per square mile."

    So on par with Alaska (1.3/sq mile) for population density.

  • Stephen Lathrop||

    Sure, but much more advantageous than Alaska politically, because it's 2 more right-wing senators, a rep, and electoral votes, for less than 4% of Alaska's population. Keep your eye on the ball Slyfield. The aim is to lock in minority rule nationally, by inventing promising new-state gerrymanders.

  • apedad||

    "But it is worth noting, as initiative sponsor Tim Draper does in his filing in this case, that California's current boundaries are themselves set by statute, rather than in the state constitution, and so perhaps can be amended by statute."

    Actually it looks like the California Constitution sets the boundary: http://www. defendruralamerica.com/ files/CAConstitution1849.pdf

    The Boundary of the State of California shall be as follows :
    Commencing at this point of intersection of 42d degree of north latitude with the 120th degree of longitude west from Greenwich, and running south on the line of said 120th degree of west longitude until it intersects the 39th degree of north latitude; thence running in a straight line in a south easterly direction to the River Colorado, at a point where it intersects the 35th degree of north latitude; thence down the middle of the channel of said river, to the boundary line between the United States and Mexico, as established by the Treaty of May 30th, 1848; thence running west and along said boundary line to the Pacific Ocean, and extending therein three English miles; thence running in a northwesterly direction, and following the direction of the Pacific Coast to the 42d degree of north latitude, thence on the line of said 42d degree of north latitude to the place of beginning. Also all the islands, harbors, and bays, along adjacent to the Pacific Coast.

  • tkamenick||

    I came on to ask this, glad somebody looked into it! I wonder how many states have their borders set in their constitutions? Wisconsin's aren't.

  • Jerry B.||

    Wish there was more in the article about the plaintiff in the case, the Planning and Conservation League. Their website carries little about the "Three Californias" initiative except links to some editorials in opposition. Wonder if they're fronting for someone else, and who that might be.

  • Milhouse||

    Even if it is put back on the ballot in 2020 and passes, Congress would have to agree before the plan to break up California into three states could go into effect.

    Not just Congress. The CA legislature would have to agree, and there is no way it would ever diminish its power by doing so.

    Putting it to a referendum achieves nothing, since splitting the state is a matter of federal law, not state law, and federal law doesn't recognize referendums. If Washington and Sacramento want to split the state they can, and if they don't want to they won't; either way the people have no direct say in the matter, no right to be consulted.

  • Bob from Ohio||

    "The CA legislature would have to agree, and there is no way it would ever diminish its power by doing so."

    I think that a voter initiative if properly drafted would operate as a legislative consent. [I seem to recollect a case to that effect though I could be mistaken.] The people are supreme to their creature the legislature.

  • James Pollock||

    "I think that a voter initiative if properly drafted would operate as a legislative consent"

    I don't, but I do think it could command legislative consent.
    I don't know about California's referendum system, but in Oregon, there'd have to be a separate vote on specifically that question, though. So you'd have two companion ballot measures... one authorizing the split, and one commanding the legislature to pursue it.

  • madam margaret||

    In America we have freedom up to the point where we try to change anything

  • Stephen Lathrop||

    A good point. But if you judge by practice, we seem not much to use our freedom to leave anything alone—no matter how well it works.

  • apedad||

    That's a feature not a bug.

  • Stephen Lathrop||

    apedad, sometimes a feature. Sometimes a bug. Two cases in point for the latter.

    Two of Americas great and once-venerable corporations: Hewlett-Packard in electronics, and Morrison-Knudsen in heavy construction. Sad tales, both of them.

    Thriving, innovative, vibrant corporations, built from the ground up by proprietor/founders—then remodeled for no particular reason by B-School types—managers with no insight to value what was already working. Result, a downward spiral for both companies.

    Sometimes what gets called creative destruction, turns out to be just plain old destruction. Problem is, for a rootless professional manager, there isn't much glory just tweaking the little stuff on an already-successful operation. So look out. Whatever is good will get targeted for change. That's a model with a lot of needless risk built in.

  • Krayt||

    Not a big fan of constitution-level changes at the hands of a simple majority, especially splitting, leaving, or joining something, as it's the height of arrogance for 51% to think they can drag the other 49% along into a different political system. Those others retain the rights of their current state, and should be protected as such.

  • Krayt||

    This silliness came up in Brexit, where it was idiotic for a bare majority to rip them out...excepting for it was a simple majority that put them in.

  • RPGuy16||

    If we are going to divide California into 3 states then we should simultaneously merge Rhode Island in to Connecticut and Delaware into NJ or Maryland. With modern transportation there's no point in having such tiny states.

  • Paul McKaskle||

    The "harm" of letting a potentially seriously flawed measure going forward is that both sides would likely spend huge amounts of money to get it passed only to find out after the election that it was unconstitutional (state constitution, that is). I would think it likely that the Court had substantial doubts about it but, for some reason, wasn't willing to grapple with this issue at this time. A problem of evidence?? Maybe the Court was, in fact, divided on the issue but unable to form a four person majority (the Court has seven justices) for any particular resolution. But, the voters ability to have a say is delayed to 2020 at minimum.

  • Barry Gold||

    I find the court's reasoning fairly strong. Somin's suggestion that the initiative is an "amendment" and therefore needs to meet the higher number of signatures to go on the ballot, I would find compelling.

    Draper's counter argument, that the boundaries of California are set by statute seems weak. Our boundaries are set by a _federal_ statute, not by California's own legislature. How could it be otherwise? Imagine if AZ decided to change its boundaries to include all of Lake Tahoe rather than only half. Or if CA decided to change its boundaries to include Phoenix... I would think the US Congress might have something to say about that.

    And beside boundaries, there's the fact that splitting CA into 3 states _does_ amount to a massive change, which should be done by amendment even if it were a valid use of the initiative amendment process.

  • Barry Gold||

    The whole thing doesn't really make sense to me. Draper's initiative would divide the Central Valley in half, the northern part in "Northern California", the southern part in "Southern California".

    And Draper is a conservative. His previous plan almost made sense in that respect: it would have divide CA into 6 states: 4 with a Republican majority, 2 with a Democratic majority. That one was an Initiative Constitutional Amendment, and he wasn't able to collect enough signatures for it.

    The Cal-3 initiative would create three states. Two of them -- "Northern California" and "California" -- would be solidly Democratic.The third -- "Southern California" -- would be a swing state where the Democrats would have a slight edge.

    I don't see that getting through the current Congress. Do you?

  • James Pollock||

    "I don't see that getting through the current Congress. Do you?"

    I don't see much of anything getting through the current Congress. They've decided again that nothing can be voted on unless a majority of Republicans support it, and you can't get a majority of Republicans in favor of anything except tax cuts and increasing spending, and those already passed.

    Maybe the next Congress will have different misleadership... or even different letters after the names of the leaders.

  • rsteinmetz||

    One advantage of splitting up California is that the abominable 9 circuit could be divided since one of the major rational objections is splitting California between two circuits.

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