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Julie Vandermost v. Debra Bowen

January 27, 2012

JULIE VANDERMOST, PETITIONER,
v.
DEBRA BOWEN, AS SECRETARY OF STATE, ETC.,
RESPONDENT; CITIZENS REDISTRICTING COMMISSION, INTERVENOR.



The opinion of the court was delivered by: Cantil-sakauye, C. J.

On December 9, 2011, we issued an order to show cause in this matter to consider an election-related question that must be addressed expeditiously to avoid potential disruption of the statewide primary and general elections to be held in June and November 2012. A proposed referendum (designated No. 1499), for which petition signatures have been gathered and submitted to election officials, would require the electorate to decide, at the November 2012 general election, whether to accept or reject the California state Senate district map that has been certified by the Citizens Redistricting Commission (Commission).*fn1 The Commission, a new constitutional entity recently established by the voters to draw voting district boundaries (instead of the Legislature)*fn2 in light of population changes identified in the national census undertaken at the beginning of each decade, completed its eight-month-long task in August 2011 and certified new voting district maps for not only the state Senate, but also for the state Assembly, the United States Congress, and the State Board of Equalization. The Secretary of State and county election officials have been using these four Commission-certified maps since mid-August 2011 in preparation for the upcoming June and November 2012 elections.

County election officials and the Secretary of State currently also are in the process of verifying the petitions submitted to determine whether there are sufficient valid signatures to qualify the proposed referendum for placement on the November 2012 general election ballot. If the referendum qualifies, the state Senate map certified by the Commission will automatically be stayed, presenting the question of what Senate districts should be used for the 2012 primary and general elections of the state Senate. In view of the numerous interconnected election-related events that must occur soon after the end of January 2012 in order to avoid disrupting the 2012 primary and general elections,*fn3 this action has been filed requesting this court to decide at this juncture which state Senate district map should be utilized if the proposed referendum qualifies and triggers a stay of the Commission's certified Senate district map.

Petitioner, Julie Vandermost, emphasizes the interest of referendum proponents and petition signers in insisting on an "up or down" referendum vote by the statewide electorate before the voting districts that are the subject of the proposed referendum are utilized as the basis for electing any state senators. Accordingly, she asserts, if the Commission's state Senate map is stayed by the qualification of the referendum for the November 2012 ballot, we should not order the use of the Commission's state Senate district map as an interim remedy governing the 2012 primary and general elections. Indeed, petitioner argues, we should issue an "alternative [or] peremptory writ of mandate commanding Respondent Debra Bowen, in her capacity as Secretary of State of the State of California, to . . . refrain from taking any action . . . implementing the Citizens Redistricting Commission's certified Senate map." Moreover, petitioner urges, we should establish new interim state Senate boundaries by either (1) using the state Senate district map that the Legislature created in 2001 based on the 2000 census and that has been used for the last decade; (2) using a map creating new Senate districts by using the state Assembly districts recently certified by the Commission and combining two adjacent Assembly districts to form each new Senate district (the "nesting" proposal); or (3) establishing alternate, court-drawn boundaries as described in a new so-called "model" map based on a proposal submitted by petitioner's redistricting consultant. Finally, petitioner prays for an order directing the Secretary of State to implement whatever new interim district boundaries we select for the June 5, 2012, Primary Election and the November 6, 2012, General Election.*fn4

The Secretary of State and the Commission both urge us to hold that even if the Commission's certified state Senate district map eventually is stayed by the qualification of the proposed referendum, the Commission's map nevertheless should be employed for the 2012 elections. The Secretary of State stresses the need to avoid disruption of the election planning process; both the Secretary and the Commission contest the legality of petitioner's alternative maps; and the Commission emphasizes that the state Senate redistricting map it has certified is the product of an open, deliberate, and nonpartisan process that a majority of California voters created through the exercise of the constitutional initiative power in 2008 and 2010.

As past decisions establish, if a referendum that is directed at a newly adopted redistricting map qualifies for the ballot, triggering a stay of the new redistricting map pending the electorate's vote on the referendum, this court has the responsibility of determining which voting district map should be used for the upcoming interim electoral cycle. (See, e.g., Assembly v. Deukmejian (1982) 30 Cal.3d 638, 657-658; accord, Legislature v. Reinecke (1972) 6 Cal.3d 595, 601.) In determining which map should be used for the interim elections, this court must consider (1) what maps are reasonably and practically available, and (2) the pros and cons of each potentially viable map in light of the constitutional scheme and criteria set out in recently amended article XXI of the California Constitution. If, after so analyzing each of the potential maps, the court concludes that a map other than the one currently being implemented by election officials should be used for the upcoming 2012 elections in the event the proposed referendum qualifies for the ballot, this court would direct election officials to employ a "dual track" planning process during the remainder of the signature verification process. Officials would thus be able to proceed with the current district maps if the referendum does not qualify for the ballot, but would be ready to use the alternative voting districts should the proposed referendum qualify for the ballot.

As we explain, in the present case four alternative maps have been proposed for use in the 2012 elections in the event the referendum qualifies for the ballot: the three maps proposed by petitioner and the Commission's certified state Senate district map. After reviewing the pros and cons of each of these proposed alternatives in light of the constitutional scheme and criteria, we conclude, for the reasons discussed below, that the Commission's certified map is clearly the most appropriate map to be used in the 2012 state Senate elections even if the proposed referendum qualifies for the ballot.

Accordingly, after first confirming that we properly may exercise jurisdiction in this matter and that the petition presents issues sufficiently ripe for review, we conclude that if the proposed referendum qualifies for the November 2012 general election ballot and stays the Commission's certified state Senate map, the Commission's state Senate map should be used on an interim basis for the June and November 2012 elections, pending the outcome of the referendum. If the proposed referendum does not qualify for the ballot, the Commission's state Senate map will continue to be used for the 2012 election and future elections until replaced pursuant to article XXI of the state Constitution by new maps drawn by a future newly constituted Commission following the 2020 census.

I. Background, procedure, and summary of conclusions

Article XXI of the California Constitution, as amended by ballot measures approved by the electorate in November 2008 (Prop. 11, the Voters First Act) and November 2010 (Prop. 20), removes the task of redistricting from the Legislature and gives it to the newly created Citizens Redistricting Commission. (Cal. Const., art. XXI, §§ 1 & 2.) The Commission is required to adjust the boundary lines of California's state Senate, state Assembly, congressional, and State Board of Equalization voting districts "[i]n the year following the year in which the national census is taken under the direction of Congress at the beginning of each decade . . . ." (Id., art. XXI, § 1.)

The membership of the Commission selected to create new districts in light of the 2010 census was finalized in late 2010, and in the first eight months of 2011 the Commission held more than 70 business meetings and 34 public hearings in 32 cities throughout the state. The Commission produced draft statewide maps on which it sought and responded to public comment, and finally, in mid-August 2011, it approved and certified all four required maps. (We describe the Commission's structure and process and the requirements of article XXI in greater detail post, part II.) Two challenges to the Commission's certifications were initiated shortly thereafter.

First, and roughly contemporaneously with certification by the Commission, an organization designated Fairness and Accountability in Redistricting (FAIR), a Republican-funded entity,*fn5 was established. Under FAIR's sponsorship, Julie Vandermost, a registered California voter and the petitioner in this proceeding, initiated the process of attempting to qualify a referendum measure, challenging the state Senate map, for placement on the November 2012 general election ballot.*fn6 After the Attorney General prepared a title and summary of the proposed referendum for inclusion on the referendum petitions, FAIR commenced soliciting referendum petition signatures, which were due for submission by November 13, 2011. (Cal. Const., art. XXI, § 2, subd. (i).)

Second, in September 2011, while the proposed referendum petition was circulating for signatures, two petitions for writ of mandate were filed in this court challenging the Commission's state Senate and congressional district maps on numerous constitutional and statutory grounds, and seeking to bar the Secretary of State from implementing either map. (See Cal. Const., art. XXI, § 3, subd. (b)(2) (hereafter article XXI, § 3(b)(2)) [authorizing such suits].) The petition in Vandermost v. Bowen (Sept. 16, 2011, S196493), challenged the Commission's certified state Senate map; the petition in Radanovich et al. v. Bowen (Sept. 29, 2011, S196852), challenged the Commission's certified congressional map. After preliminary briefing (see Cal. Rules of Court, rule 8.487) and thorough consideration of all the issues raised by petitioners, we determined that the petitions lacked merit and denied the requested writs on October 26, 2011.*fn7

Thereafter FAIR completed the signature-gathering process and timely submitted referendum petition signatures to county election officials immediately prior to the November 13, 2011 filing deadline. On November 23, 2011, the Secretary of State confirmed that at least 504,760 "raw" (unverified) referendum petition signatures had been submitted by FAIR, and ordered county election officials to determine, by random sampling, the number of qualified signers and to certify that result to the Secretary.*fn8

On December 2, 2011, Vandermost filed the present petition,*fn9 asserting that approximately 710,000 referendum signatures have been collected, and that in view of the circumstance that 504,760 valid signatures are required to qualify the proposed referendum for the November 2012 ballot,*fn10 the referendum is "likely to qualify and stay timely implementation of the [state Senate] map" and hence she is entitled to seek "relief" under article XXI, section 3(b)(2).*fn11

The petition seeks immediate relief,*fn12 as well as future contingent relief that would be triggered in the event the proposed referendum actually qualifies for placement on the ballot. The contingent relief sought by the petition would take effect only after county election officials and the Secretary of State finish the time-consuming, statutorily governed process needed to determine whether the proposed referendum actually is supported by the requisite number of valid signatures and hence qualifies for the ballot -- a process that may take approximately nine to 17 weeks following submission of petition signatures.*fn13 If the referendum qualifies, the Commission's certified Senate map would automatically be stayed by operation of law.*fn14 Petitioner asks that, in the event the proposed referendum qualifies for the ballot, this court should establish new interim state Senate district maps for the June and November 2012 state Senate elections by either (1) using the old state Senate map created by the Legislature in 2001; or (2) creating a new state Senate map by "nesting" two adjacent Commission-certified Assembly districts within one Senate district; or (3) establishing a different new state Senate map based on a proposal by petitioner's redistricting consultant, addressing alleged "deficiencies . . . in the Commission's Senate map."

On December 9, 2011, we denied the request for all immediate relief pending this court's eventual decision in this matter, issued an order to show cause concerning the prayer for future contingent relief, and granted a motion by the Commission to intervene. We established an extremely expedited briefing schedule, designed to permit this court to conduct oral argument by early January 2012, and file an opinion by the end of that month. We also specified additional issues for briefing, expressly reserving resolution of the threshold question of jurisdiction for our eventual written decision.*fn15

Having considered the subsequent briefing and oral argument, we conclude as follows: (1) This court has jurisdiction to entertain this writ proceeding and it is sufficiently ripe for our review. (2) In the event the referendum eventually qualifies for presentation to the voters on the November 2012 ballot, triggering a stay of the Commission's certified state Senate map by operation of law, election officials are nonetheless directed to use the boundaries set out in the Commission-certified state Senate map on an interim basis for the June 2012 primary election and November 2012 general election, pending a vote by the people on the proposed referendum at the November 2012 election.

II. California Constitution, amended article XXI and the Citizens Redistricting Commission

We first briefly describe the structure and workings of the Citizens Redistricting Commission.

Prior to 2008, redistricting in California was performed by the Legislature subject to the veto power of the Governor -- or by the courts, when the Legislature and Governor could not agree. (See, e.g., Legislature v. Reinecke (1973) 10 Cal.3d 396; Wilson v. Eu (1992) 1 Cal.4th 707.) The electorate, however, dramatically changed the process by ballot measures in 2008 and 2010. Those measures amended California Constitution, article XXI, transferring the redistricting task to a newly created Citizens Redistricting Commission. (Prop. 11, as approved by voters, Gen. Elec. (Nov. 5, 2008) (Proposition 11); Prop. 20, as approved by voters, Gen. Elec. (Nov. 2, 2010) (Proposition 20).)

A. Charge and selection of the Commission

California Constitution, article XXI, section 2 establishes the Commission and defines how it is to be constituted. The constitutional provision creates a body that excludes career politicians, reflects citizen participation at every level, and is expected to rise above partisanship. Accordingly, subdivision (b) of section 2 charges the Commission with "conduct[ing] an open and transparent process enabling full public consideration of and comment on the drawing of district lines; . . . draw[ing] district lines according to the redistricting criteria specified in this article; and . . . conduct[ing] themselves with integrity and fairness." Section 2, subdivision (c)(1) of article XXI further provides that "[t]he selection process is designed to produce a commission that is independent from legislative influence and reasonably representative of this State's diversity."

The Commission has 14 members. Five must be registered with the largest political party in California (based on voter registration), five must be registered with the second largest political party in California, and four must be individuals who are not registered with either of the two largest political parties. (Cal. Const., art. XXI, § 2, subd. (c)(2).) Commission members are ineligible to hold elective public office at the federal, state, county or city level for a period of 10 years, beginning from the date of their appointment to the Commission (id., art. XXI, § 2, subd. (c)(6)), and, for a five-year period beginning from their appointment, are ineligible to hold appointive federal, state, or local public office, or to serve as paid staff for, or as a paid consultant to, the State Board of Equalization, Congress, the Legislature, or any individual legislator, or to register as a federal, state or local lobbyist in California. (Ibid.)

Government Code section 8250 et seq., enacted by the voters in 2008 as part of Proposition 11, governs the process for selecting commissioners. Government Code section 8252*fn16 sets forth how the commissioners are to be selected. The State Auditor, an office that is independent of the legislative and executive branches (§ 8546), initiates an application process, open to all registered voters, that is designed to "promote[] a diverse and qualified applicant pool." (§ 8252, subd. (a)(1).) According to the Commission's Final Report on Redistricting, August 15, 2011 (Final Report), the State Auditor "undertook a significant outreach process throughout the state utilizing a wide variety of communications media, including mainstream and ethnic media, social media, a website, and staff assigned to respond to all telephone calls and e-mails." (Final Rep., at p. 2, available on the Commission's Web site, [as of Jan. 27, 2012].) Section 8252, subdivision (a)(2) authorizes the State Auditor to remove from the pool those applicants with a conflict of interest. Subdivisions (a)(2)(A) and (a)(2) (B) of section 8252 identify the relationships that can create a conflict of interest.

Section 8252 also authorizes the State Auditor to establish an "Applicant Review Panel" to screen the applicants. (§ 8252, subd. (b).) The panel consists of three independent auditors randomly drawn from a pool comprised of "all auditors employed by the state and licensed by the California Board of Accountancy at the time of the drawing" (ibid.); one of the three must be registered with the largest political party in California, one must be registered with the second largest political party in California, and the third must not be not registered with either of those two parties. (Ibid.) Prospective panel members are to be screened for conflicts of interest under the same set of standards that are applied to applicants. (§ 8252, subd. (a)(2).) Once the panel is constituted, the State Auditor provides it with the applications of prospective commission members. (§ 8252, subd. (c).)

The panel then selects "60 of the most qualified applicants," 20 of whom must be registered with the largest political party; 20 must be registered with the second largest political party; and the final 20 must not be registered with either of those two parties. (§ 8252, subd. (d).) Selection is to be made on the basis of "relevant analytical skills, ability to be impartial, and appreciation for California's diverse demographics and geography." (Ibid.) The panel presents its pool of recommended applicants to the Secretary of the Senate and to the Chief Clerk of the Assembly, and those officers, in turn, permit the President pro Tempore of the Senate, the Minority Floor Leader of the Senate, the Speaker of the Assembly, and the Minority Floor Leader of the Assembly each to strike up to two applicants from each subpool of 20, for a total of eight strikes per subpool. (§ 8252, subd. (e).) The State Auditor then randomly draws eight names from the remaining pool of applicants: three from the subpool of applicants registered with the largest political party, three from the subpool registered with the second largest political party, and two from the remaining subpool. These eight individuals serve on the Commission. (§ 8252, subd. (f).) They, in turn, review the remaining pool of applicants and appoint a final six to complete the Commission: two are to be drawn from the subpool of those registered with the largest political party, two are to be drawn from the subpool of those registered with the second largest political party, and two are to be drawn from the remaining subpool. The six appointees must be approved by at least five affirmative votes of the original eight commissioners; those five votes must include the votes of two Commissioners registered with the largest political party, two Commissioners registered with the second largest political party, and one from a Commissioner not registered with either party. (§ 8252, subd. (g).) The six appointees are to be "chosen to ensure the commission reflects this state's diversity, including, but not limited to, racial, ethnic, geographic, and gender diversity." (Ibid.) The Commission, however, need not comply with any specific ratio or formula. (Ibid.)

B. The redistricting process

California Constitution, article XXI, section 2, subdivision (b) and related statutes establish a public redistricting process. The constitutional provision requires the Commission to "conduct an open and transparent process enabling full public consideration of and comment on the drawing of district lines." Section 8253 implements that charge, and requires the Commission to "establish and implement an open hearing process for public input and deliberation that shall be subject to public notice and promoted through a thorough outreach program to solicit broad public participation in the redistricting public review process. The hearing process shall include hearings to receive public input before the commission draws any maps, and hearings following the drawing and display of any commission maps. In addition, hearings shall be supplemented with other activities as appropriate to further increase opportunities for the public to observe and participate in the review process. The commission shall display the maps for public comment in a manner designed to achieve the widest public access reasonably possible. Public comment shall be taken for at least 14 days from the date of public display of any map." (§ 8253, subd. (a)(7).)

The Commission was sworn in during the month of January 2011, and conducted an open bidding process to hire independent counsel and experts to advise it on matters related to the federal Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) (Voting Rights Act) and technical issues. It thereafter held more than 70 business meetings and 34 public hearings in 32 cities throughout the state. (Final Rep., at p. 4.) Generally, the Commission's hearings were scheduled in the early evening hours at school or government locations in the center of a community, making it convenient for "average citizens" to participate. (Ibid.) It regularly allowed public input and comment at its business meetings as well. (Ibid.) Its educational materials were broadly distributed in English and six other languages (Spanish, Chinese, Japanese, Korean, Tagalog, and Vietnamese), and it ultimately received, in addition to oral testimony, more than 2,000 written submissions, including maps reflecting statewide, regional, or other districts. (Ibid.; see also Final Rep., at pp. 3-5 [listing representative groups providing submissions and other testimony].) The Commission's staff received "written comments, input and suggestions from more than 20,000 individuals and groups." (Id., at p. 5.) The Commission held 23 public input hearings before issuing a set of its draft maps in June of 2011. After a five-day public review period, it held 11 more public input hearings around the state to collect reactions to and comments concerning those draft maps. (Ibid.) It held 22 business meetings in Sacramento to discuss the draft maps, at which more than 276 people appeared and commented. All of the Commission's public meetings were "live-streamed," captured on video, and placed on the Commission's Web site for public viewing. All of the Commission's completed documents, and those of its staff, were posted on the Commission's Web site for public viewing as well. (Ibid.) All such materials remain archived on the Commission's Web site, (as of Jan. 27, 2012).

Pursuant to California Constitution, article XXI, section 2, subdivision (c)(5), the structure of the Commission's vote on each map mirrored the balanced process described above, under which the Commission's members were selected. An affirmative vote on each map was required to be supported by a supermajority of at least nine Commission members, including three from each subpool of members: those registered with the largest political party in California (that is, three Democrats), those registered with the second largest political party (that is, three Republicans), and three who are not registered with either major party. With regard to the state Senate map -- the subject of the proposed referendum -- the Commission's vote was 13 to 1 in favor.

C. Redistricting criteria

California Constitution, article XXI, section 2, subdivision (d) requires the Commission to "establish single-member districts for the Senate, Assembly, Congress, and State Board of Equalization pursuant to a mapping process" that complies with criteria expressly set forth in article XXI itself. It is of considerable consequence to our analysis that the constitutional provision ranks the applicable criteria by order of priority.

First, "[d]istricts shall comply with the United States Constitution. Congressional districts shall achieve population equality as nearly as is practicable, and Senatorial, Assembly, and State Board of Equalization districts shall have reasonably equal population with other districts for the same office, except where deviation is required to comply with the federal Voting Rights Act or allowable by law." (Cal. Const., art. XXI, § 2, subd. (d)(1).)

Second, "[d]istricts shall comply with the federal Voting Rights Act (42 U.S.C. Sec. 1971 and following)." (Cal. Const., art. XXI, § 2, subd. (d)(2).)

Third, "[d]istricts shall be geographically contiguous." (Cal. Const., art XXI, § 2, subd. (d)(3).)

Fourth, the Commission's maps must respect "[t]he geographic integrity of any city, county, city and county, local neighborhood, or local community of interest . . . in a manner that minimizes their division to the extent possible without violating the requirements of any of the preceding subdivisions." (Cal. Const., art. XXI, § 2, subd. (d)(4).) The Constitution defines a "community of interest" as "a contiguous population which shares common social and economic interests that should be included within a single district for purposes of its effective and fair representation." (Ibid.) "Examples of such shared interests are those common to an urban area, a rural area, an industrial area, or an agricultural area, and those common to areas in which the people share similar living standards, use the same transportation facilities, have similar work opportunities, or have access to the same media of communication relevant to the election process." (Ibid.) The term "communities of interest" expressly excludes "relationships with political parties, incumbents, or political candidates." (Ibid.)

Fifth, "[t]o the extent practicable, and where this does not conflict with the criteria above, districts shall be drawn to encourage geographical compactness such that nearby areas of population are not bypassed for more distant population." (Cal. Const., art. XXI, § 2, subd. (d)(5).)

Sixth, and finally, "[t]o the extent practicable, and where this does not conflict with the criteria above, each Senate district shall be comprised of two whole, complete, and adjacent Assembly districts, and each Board of Equalization district shall be comprised of 10 whole, complete, and adjacent Senate districts." (Cal. Const., art. XXI, § 2, subd. (d)(6) [commonly referred to as the "nesting" goal].)

Subdivision (e) of article XXI, section 2, provides that "[t]he place of residence of any incumbent or political candidate shall not be considered in the creation of a map. Districts shall not be drawn for the purpose of favoring or discriminating against an incumbent, political candidate, or political party."

Subdivision (f) of article XXI, section 2, provides that "[d]istricts for the Congress, Senate, Assembly, and State Board of Equalization shall be numbered consecutively commencing at the northern boundary of the State and ending at the southern boundary."

These criteria are derived, for the most part, from the standards developed by the special masters appointed by this court in 1973 after the Legislature failed to pass legislative and congressional redistricting bills that were acceptable to the Governor. (Legislature v. Reinecke, supra, 10 Cal.3d at pp. 400-402.) This court approved the use of these criteria in Legislature v. Reinecke, and they subsequently were added to the Constitution as article XXI when the voters approved Proposition 6 in 1980. The current version of article XXI, as amended by the voters in 2008 (Prop. 11) and again in 2010 (Prop. 20), expands upon the original criteria articulated by the special masters in 1973, based, in large part, on decisions of this court applying the criteria developed by the special masters. (See, e.g., Wilson v. Eu, supra, 1 Cal.4th 707.) Unlike former article XXI, section 2, or the judicial decisions on which that provision was based, however, the current version of article XXI, in section 2, subdivision (d), expressly ranks the criteria in order of priority, stating explicitly that a lower-ranked criterion is to be followed only when doing so does not conflict with a higher-ranked criterion or criteria.

III. Did this court have authority to issue an order to show cause in this original writ proceeding in the absence of a showing that the proposed referendum was "likely to qualify" for the ballot?

And does this court at this juncture have authority to determine which state Senate district map should be used in the event the referendum qualifies for the ballot and stays the operative effect of the Commission-certified state Senate map?

In considering petitioner's request for relief, we must first address the threshold question whether this court had authority to issue an order to show cause in this original writ proceeding in the absence of a showing by petitioner that the proposed referendum was "likely to qualify" for the ballot. In her preliminary opposition to the petition, filed prior to this court's consideration of the petition, the Secretary of State maintained that the petition in this proceeding was not properly filed and should be summarily denied because petitioner had not demonstrated that the underlying proposed referendum was "likely to qualify" for the ballot within the meaning of article XXI, section 3(b)(2) of the California Constitution. We will analyze this threshold question in light of the circumstances that were before this court on December 9, 2011, when we issued the order to show cause, both to explain why this court's December 9 action was authorized and appropriate, and, as importantly, to provide guidance on this procedural point for the future in the event similar circumstances arise in the course of subsequent redistricting efforts.

As we will explain, we conclude the petition's allegations adequately invoked our traditional extraordinary writ authority under article VI, section 10 of the state Constitution over a question that was, and is, ripe for our decision. For this reason, it is not necessary for this court to apply the language in article XXI, section (3)(b)(2) providing that a "registered voter . . . may file . . . a petition for a writ of mandate . . . to seek relief where a certified final map is subject to a referendum measure that is likely to qualify and stay the timely implementation of the map." (Cal. Const., art. XXI, § 3(b)(2).)

As noted above, the petition filed in this case on December 2, 2011, stated that the proponents of the referendum had submitted a total of approximately 710,000 raw (unverified) signatures in support of the referendum to local election officials throughout the state. The petition asserted that because only approximately 504,000 valid signatures were required to qualify the referendum for the ballot, the number of signatures that had been submitted established that the proposed referendum was "likely to qualify" for placement on the November 2012 ballot and thus that the petition was properly filed under the provisions of article XXI, section 3(b)(2) of the California Constitution and should be entertained and acted on by this court. Article XXI, section 3(b)(2) provides in this regard that "[a]ny registered voter . . . may file . . . a petition for a writ of mandate . . . to seek relief where a certified final map is subject to a referendum measure that is likely to qualify and stay the timely implementation of the map." (Italics added.)

As also noted above, the preliminary opposition filed by the Secretary of State took issue with the petition's contention that the number of raw signatures that had been submitted to election officials established that the proposed referendum was likely to qualify for the ballot. The preliminary opposition pointed out that in the prior separate mandate proceeding filed in this court (see ante, fn. 7 and related text), petitioner had asserted that she anticipated obtaining more than 780,000 raw signatures on the referendum petition but that petitioner instead submitted only approximately 710,000 raw signatures. The preliminary opposition, noting that a 2008 study of initiative petitions reported that initiative proponents "lose up to 40 [percent] of gross signatures in the verification check" (citing Center for Governmental Studies, Democracy by Initiative: Shaping California's Fourth Branch of Government (2d ed. 2008) p. 149), asserted that given the relatively low number of raw signatures that had been submitted, it was too soon to tell whether the proposed referendum was likely to qualify for placement on the November 2012 ballot. For this reason, the Secretary of State took the position that the petition was not properly filed and should be summarily denied.

As we have pointed out (ante, at p. 10), our order to show cause in this matter specifically reserved resolution of this threshold issue for our eventual opinion and directed the parties to brief two questions related to this issue, regarding (1) the test or standard this court should apply in determining whether a proposed referendum is "likely to qualify" within the meaning of article XXI, section 3(b)(2), and (2) whether this court's authority to entertain a petition for a writ of mandate prior to the formal qualification of a referendum petition is limited to the circumstances set forth in article XXI, section 3.*fn17

The briefs responding to the order to show cause filed by the Secretary of State and the Commission argued that in order to comply with the "likely to qualify" provision of article XXI, section 3(b)(2), a petitioner must demonstrate by "a preponderance of the evidence" that it is "more probable than not" that the referendum petition will qualify for placement on the ballot. Both briefs further contended that because the relatively low number of raw signatures submitted in support of the proposed referendum left it unclear whether there was a sufficient number of valid signatures to qualify the referendum for the ballot, petitioner failed to meet the "likely to qualify" standard. In addition, both asserted that if the petition failed to satisfy the "likely to qualify" standard set forth in article XXI, section 3(b)(2), this court lacked authority to entertain the mandate proceeding. Accordingly, both maintained that the petition should be dismissed on this basis.

In her reply, petitioner disagreed with the proposed interpretation of the "likely to qualify" language, arguing that in light of the provision's purpose, the phrase "likely to qualify" should not be interpreted to mean that a petition for writ of mandate may be filed only when it can be shown that it is "more probable than not" that a proposed referendum will qualify for placement on the ballot, but instead that such a petition may be filed on a lesser showing. (The reply did not specify or quantify the lesser showing that petitioner believes is contemplated by the "likely to qualify" language.) In addition, the reply maintained that, in any event, the number of raw signatures that had been submitted in support of the proposed referendum was sufficient to establish that it was more probable than not that the referendum would qualify. Finally, the reply asserted that, apart from article XXI, section 3(b)(2), this court possesses authority under article VI, section 10 of the Constitution -- establishing this court's original jurisdiction "in proceedings for extraordinary relief" -- to entertain the petition for a writ of mandate in this case because the petition presented a matter of great public importance that had to be resolved promptly in light of the impending 2012 electoral cycle.

For the reasons discussed below, we conclude that there is no need for this court to decide the meaning of the term "likely to qualify" as used in article XXI, section 3(b)(2) or to determine whether the "likely to qualify" standard of section 3(b)(2) was satisfied at the time the petition in this case was filed or is satisfied at the present time. As we explain, in light of the statewide importance of the issue presented by the petition and the need for an expeditious judicial resolution of this matter, this court had authority, under article VI, section 10 of the California Constitution, to issue an order to show cause in this original writ proceeding at the time the petition was filed and also possesses the authority at the present time to determine, through the exercise of its original writ jurisdiction, what state Senate district map should be used as an interim measure if the proposed referendum qualifies.*fn18 The sentence of article XXI, section 3(b)(2) in question -- containing the "likely to qualify" language -- was not intended, and cannot reasonably be interpreted, to limit or restrict this court's authority under article VI, section 10 to determine that such an original writ proceeding is appropriately ripe for adjudication and resolution at an earlier point in time. As the facts of this case illustrate, in light of the great public interest and exigencies of the electoral process, this court may need to assume jurisdiction and act expeditiously when such a petition is filed if the court is to retain the ability to render a meaningful decision that can be realistically implemented. This is so even under circumstances in which it cannot reasonably be predicted whether the proposed referendum is likely to qualify for the ballot. Nothing in the background or purpose of article XXI, section 3(b)(2) suggests that the provision was intended to deprive this court of its fundamental and long-standing constitutional authority to accept such a filing and to act in such a setting when the court determines that it is appropriate and prudent to do so.

In analyzing this issue, it is important to recognize at the outset that it is firmly established that this court possesses "jurisdiction," in the fundamental sense, to entertain a petition for an original writ of mandate that is directed to the Secretary of State and concerns her official duties related to the electoral process, and to grant appropriate relief in such a proceeding. Article VI, section 10 of the California Constitution explicitly provides in this regard that this court possesses "original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition," and this court has long exercised such original extraordinary writ jurisdiction with respect to public officials' exercise of their official conduct. (See, e.g., Hollman v. Warren, supra, 32 Cal.2d at pp. 354-357; see generally People ex rel. S.F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533, 537-538 [discussing 1966 state constitutional amendment that "deliberately broadened the constitutional language relating to jurisdiction in extraordinary writ proceedings"].) In past cases, this court has repeatedly exercised authority to entertain and decide petitions for original writs of mandate related to the referendum, initiative, and redistricting process in circumstances in which an expeditious ruling was necessary to the orderly functioning of the electoral system. (See, e.g., Senate v. Jones (1999) 21 Cal.4th 1142; Wilson v. Eu (1991) 54 Cal.3d 546; Wilson v. Eu, supra, 1 Cal.4th 707; Assembly v. Deukmejian, supra, 30 Cal.3d 638; Legislature v. Reinecke, supra, 10 Cal.3d 396; Silver v. Brown (1965) 63 Cal.2d 270.)

Accordingly, we disagree with the Secretary of State's and the Commission's argument and analysis regarding this court's alleged lack of authority to issue an order to show cause in this writ proceeding in light of the petition's asserted failure to establish that the proposed referendum was likely to qualify for the ballot. Properly analyzed, the issue does not implicate this court's fundamental jurisdiction over petitioner's mandate action. Rather, the issue presents a question of the "justiciability" of petitioner's claim, and, more specifically, whether the action is "ripe" for adjudication under the "ripeness" doctrine that constitutes one aspect of justiciability. As this court explained in Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170: "The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy. On the other hand, the requirement should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question. [Citations.]" (Italics added.) As the Court of Appeal observed in California Water & Tel. Co. v. Los Angeles (1967) 253 Cal.App.2d 16, 22, "[a] controversy is 'ripe' when it has reached . . . the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made."

In past cases this court has repeatedly held that this court may appropriately exercise its jurisdiction over a petition for an original writ of mandate when "the issues presented are of great public importance and must be resolved promptly." (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845; see, e.g., Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 808; see generally 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 146, pp. 1043-1046.) We have frequently found challenges ripe for the invocation and exercise of our original writ jurisdiction under this standard in cases involving significant legal issues affecting the electoral process, when a speedy resolution of the underlying controversy is necessary to avoid a disruption of an upcoming election. (See, e.g., Wilson v. Eu, supra, 54 Cal.3d at pp. 472-473; Assembly v. Deukmejian, supra, 30 Cal.3d at p. 646; Thompson v. Mellon (1973) 9 Cal.3d 96, 98; Legislature v. Reinecke (1972) 6 Cal.3d 595, 598; Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 570, fn. 1; Silver v. Brown, supra, 63 Cal.2d at pp. 277-278; Perry v. Jordan (1949) 34 Cal.2d 87, 90-91.)

In this case, the legal issue posed by the petition plainly presented a question of significant statewide public importance. The petition noted that a referendum petition, challenging the state Senate redistricting map that had been certified by the Commission and that was currently being implemented by election officials throughout the state, had been circulated for signatures and had been timely filed with election officials with a number of raw signatures that was greater than the number of verified signatures required for qualification. The petition also pointed out that if the proposed referendum proves to have a sufficient number of verified signatures to qualify for placement on the November 2012 ballot, the existing Commission-certified state Senate map would, as a matter of law, automatically be stayed pending the electorate's November 2012 vote on the referendum measure. (See Cal. Const., art. II, § 10, subd. (a); Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 654-657, and cases cited [construing the cited constitutional provision to mean that a "duly qualified referendum" stays implementation of the challenged electoral maps].) And the petition further explained that if the existing state Senate map is stayed by qualification of the proposed referendum, this court would bear the direct responsibility of deciding which state Senate districts are to be used by election officials for the interim June 2012 primary election and November 2012 general election. (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 657-658.) Thus, there is no question that the legal issue presented by the petition -- what state Senate districts should be used for those elections in the event the proposed referendum qualifies for the ballot -- is clearly an issue of sufficient statewide public importance to warrant this court's exercise of its original writ jurisdiction.

At the time the petition was filed, however, the proposed referendum had not yet qualified for the ballot (indeed, at the time of filing this opinion, it still has not qualified), and the question raised by the informal opposition to the petition was whether the matter was sufficiently ripe to render it appropriate for this court to issue an order to show cause, establish a briefing schedule, and proceed to adjudicate the matter, or whether the petition was premature.

As we will explain (see, post, at pp. 29-32), both on December 2, 2011 (when the petition for writ of mandate was filed in this court), and on December 9, 2011 (when this court considered whether to issue an order of show cause), it was apparent (1) that it was a close question whether a sufficient number of valid signatures had been filed to qualify the proposed referendum for placement on the November 2012 ballot, and (2) that the ultimate resolution of that question might not be determined until early March 2012. As we also will explain, however, under the circumstances shown by the petition, our timely intervention was critical because of practical impediments faced by election officials preparing for the 2012 election cycle.

Under the applicable California statutes (Elec. Code, § 9030 et seq.), when, as in this case, the proponents of a referendum filed with election officials petitions containing a number of raw signatures greater than the number of valid signatures required for qualification, local election officials were required to conduct a random sampling of the raw signatures to make an initial determination of the percentage of raw signatures that would be found to be valid signatures.*fn19 Here, the last day for counties to complete random sampling was January 10, 2012. (Elec. Code, § 9030, subds. (d), (e).) Thereafter, based on the county certificates, the Secretary of State was required to determine the statewide result of the random sampling by January 18, 2012. Under the governing statutory provisions, if the random sampling projected a number of total valid signatures that was less than 95 percent of the required number of valid signatures, the petition would fail without any further count. If the projection of valid signatures was 110 percent or more of the required number, the petition would qualify without any further count. If the projection of valid signatures was between 95 and 110 percent, the Secretary of State would notify counties that a full count of all submitted signatures would be required to verify the number of valid signatures that had been submitted. (Elec. Code, §§ 9030, subds. (f) & (g), 9031, subd. ...


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