CA Could Lose Congressional Seats if Supreme Court Changes Law to ‘One Citizen-One Vote’

Photo courtesy of Rob Crawley, flickr

Photo courtesy of Rob Crawley, flickr

While the immediate reaction to the U.S. Supreme Court taking up the “one-person, one vote case” has been liberals and minority groups saying “Oh, S***” and conservatives getting excited, the case is much more complicated than that. If the Supreme Court rules in favor of plaintiffs, it would affect two distinct (and often confused) processes. Most articles I’ve read have focused on the affect of district lines.

However, the (and perhaps most significant) effect would be on the apportionment of congressional seats among the states. As Paul Mitchell has pointed out, states with a greater percentage of undocumented immigrants or documented non-citizen residents or even more kids (California, Texas) would lose congressional seats–since they are not considered in the Census’s Citizen Voting Age Population (CVAP).

Let’s pause on the last factor. While most of the commentary has been about undocumented residents, those under 18 would also no longer count. California has the third highest percentage of residents under 18, behind DC and Utah. And, of course, DC doesn’t get House seats. Shouldn’t our kids count when education funding is being decided in Washington?

Then there is the impact on redistricting, which could create a couple of additional Republican districts in California.

For California Republicans and Democrats alike, it’s in the state’s interest on the apportionment issue. The last thing the state could afford is to get bogged down on intra-state partisan district line-drawing while our influence in the House of Representatives is ceded to smaller, less diverse states. It would be bad for our technology and film industries, as well as our ability to influence federal funding formulas that determine how much of our tax dollars come back to the Golden State.

Let’s think about the implications before we drink our Kool-Aid and jump into our partisan corners.

Scott Lay is a Higher education Lobbyist and Publisher of The Nooner

Originally published by Fox and Hounds Daily

High Court to Decide Whether Legislators Must Draw District Lines

As reported by the San Francisco Chronicle:

The U.S. Supreme Court is about to dissect an obscure constitutional provision that could prohibit independent commissions from drawing district lines for congressional elections and reassign the task to partisan state legislatures — not just in Arizona, where the case originated, but in California as well.

A broad ruling in favor of the Arizona Legislature, which challenged the redistricting commission created by state voters in 2000, also could overturn other voter-approved state laws that govern federal elections, such as California’s “top two” initiative that established open primary elections followed by runoffs between the two leading vote-getters, regardless of party.

The case is more about power than partisanship. Lining up behind Arizona’s Republican-controlled legislature is the National Conference of State Legislatures, which includes California’s Democratic-dominated state house.

On the other side, along with the Obama administration …

Click here to read the full article

Blacklisting the Boy Scouts

California judges can belong to the American Civil Liberties Union, the National Organization for Women, Veterans of Foreign Wars, the NAACP, La Raza, the Council on American-Islamic Relations, Mothers Against Drunk Driving, Alcoholics Anonymous, the Sierra Club, People for the Ethical Treatment of Animals, the NRA, and even the North American Man/Boy Love Association. But thanks to the state’s radical Supreme Court, judges will soon be barred from participation in the venerable Boy Scouts of America. Why? Because the Boy Scouts promote, among other things, heterosexuality as a norm—a view shared by a majority of Americans. Effective next January, California state judges can no longer serve as scoutmasters, assistant scoutmasters, committee chairs, or in any other volunteer positions with the BSA that requires “membership” in the organization. Judges wishing to serve as adult leaders in the BSA will soon have to abandon their First Amendment rights as a condition of employment. Legal challenges are certain.

The committee contends that its blacklisting of the BSA will “promote the integrity of the judiciary” and “enhance public confidence” in the impartiality of the judiciary. Not likely. This decision illustrates how out of touch (and intolerant) the legal establishment’s ruling elite has become. That the Boy Scouts—chartered by Congress in 1916—could be formally shunned in this manner should disturb all Americans who cherish freedom of association and a pluralistic society.

To ensure their fairness, impartiality, and integrity, California’s judges and judicial officers—the largest state judiciary in the nation, numbering more than 2,100 members—are subject to a code of ethics for their conduct on and off the bench. An 11-member Commission on Judicial Performance determines violations, and judges may be subject to discipline ranging from formal admonishment to removal from the bench. Canon 2C of the code states: “A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.” On January 21, the California Supreme Court voted unanimously to eliminate an exception to Canon 2C that had permitted judges to belong to a “nonprofit youth organization,” even if it otherwise fell within the scope of the prohibition. The change was clearly focused on the Boy Scouts, which bars adult leaders who are “open or avowed homosexuals.”

“Sexual orientation” was first added to Canon 2C’s list of protected characteristics—accompanied by the “nonprofit youth organization” exclusion, branded by some the Boy Scout loophole—in 1996. LGBT activist groups immediately began a campaign against the Scouts. The state Supreme Court declined to eliminate the exception as recently as 2003, which shows how much California’s political and cultural landscape has shifted over the past decade. Fifteen years ago, the U.S. Supreme Court expressly recognized, in Boy Scouts of America v. Dale, that the organization had the constitutional right to exclude certain people on free association and expression grounds.

Last year, in an effort to end the controversy regarding its stance on gays, the national Boy Scouts organization modified its policies. Now youths may participate in scouting regardless of sexual orientation. Unfortunately, the BSA’s compromise merely signaled weakness. LGBT groups will only accept full capitulation, which the state Supreme Court’s action will hasten.

Canon 2 defines “invidious discrimination” as “arbitrary,” but by conflating the BSA’s longstanding membership policies with, say, a country club that excludes blacks, the court’s decision shows contempt for traditional views shared by most Americans. The canon’s premise is logically flawed: a judge can hold opinions, and even belong to organizations that share those opinions, without harboring animus or lacking impartiality toward litigants (or lawyers) who hold different opinions. An atheist judge is not necessarily biased against believers, and vice versa; a liberal judge is not necessarily biased against conservatives, and a tee-totaling judge not necessarily biased against drinkers, and so on. Being an adult leader in the Boy Scouts does not, in and of itself, make a judge biased against homosexuals. The court’s decision is the essence of intolerance—banishing dissent for the sake of conformity.

Since the Boy Scouts of America was founded in 1910, more than 110 million young men have participated as members. The BSA currently has more than 2.6 million youth members and more than 1 million volunteer adult leaders. Eagle Scouts have landed on the moon (Neil Armstrong), served as president of the United States (Gerald Ford), and excelled as athletes (Henry Aaron), businessmen (J. Willard Marriott, Sam Walton), and filmmakers (Steven Spielberg). Norman Rockwell, who began his prolific career as an illustrator for the Boy Scouts’ handbooks and art director for Boy’s Life magazine, is one of America’s beloved artists. The Scouts do extraordinary work with inner-city kids, providing them with skills and a sense of structure, and instilling discipline. The BSA is one of the most successful youth organizations in history.

Blacklisting this iconic organization is vindictive, mean-spirited, and profoundly insulting to generations of Americans who have participated in scouting. Traditional moral beliefs cannot be arbitrarily banished from the public square, and judges cannot be denied their constitutional rights of free association in order to serve on the bench. This unwarranted rule change—a triumph of political correctness over liberty—brings dishonor to the California judiciary.

SF Gun Case May Be Heading For Supreme Court

More than a dozen Second Amendment groups are asking the U.S. Supreme Court to take up a high-profile challenge to a San Francisco gun-control measure.

Led by the Firearms Policy Coalition, gun groups say the Ninth Circuit Court of Appeals erred in its decision to uphold San Francisco’s safe-storage law.

Under the ordinance implemented in 2007, the city “requires all residents who keep handguns in their homes for self-defense to stow them away in a lock box or disable them with a trigger lock whenever they are not physically carrying them on their persons.”

The groups referenced the 2007 case before the U.S. Supreme Court, District of Columbia vs. Heller, which upheld an individual right to “keep and bear arms” in the Second Amendment.

“The court should grant certiorari to reaffirm key principles concerning the scope and substance of the Second Amendment,” the groups wrote in their amicus brief. “Many lower courts have taken great pains to avoid the consequences of these decisions — defying a fundamental constitutional limitation this court made explicit in Heller. … At the forefront of this resistance is the lower courts’ refusal to follow this court’s command, made in Heller and reiterated in McDonald, that Second Amendment claims are not to be judged by unrestrained judicial interest balancing.”

Gun groups point to Heller decision

Last March, a unanimous three-judge panel of the Ninth Circuit Court of Appeals upheld the local restrictions on gun ownership, finding that gun storage mandates save lives.

“The record contains ample evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun-related deaths, including suicide,” Judge Sandra Ikuta wrote in the ruling for the panel. She added that gun safes “may be readily accessed in case of an emergency.”

San Francisco wikimediaSecond Amendment groups have focused their arguments on the legal precedents, arguing that San Francisco’s regulations contradict the Heller decision, as well as McDonald vs. Chicago in 2009, which held the Second Amendment also applied to state laws.

“The Ninth Circuit’s lamentable decision in Jackson shows why it is the most overturned circuit court in the nation,” said Firearms Policy Coalition President Brandon Combs, one of the state’s leading gun rights activists. “The Supreme Court should take up this case not only to correct a clear wrong, but to stem the tide of judicial resistance in recognizing the right to keep and bear arms as fundamental Constitutional rights.”

He added, “The Second Amendment doesn’t protect second-class rights, and it’s time for courts to take the enumerated right to keep and bear arms at least as seriously as they do unenumerated rights like abortion.”

Other gun groups that have joined the Firearms Policy Coalition in filing the friend-of-the-court brief include the Second Amendment Foundation, the Calguns Foundation, Firearms Policy Foundation and California Association of Federal Firearms Licensees.

San Francisco City Attorney has “faith in the judiciary”

Six San Francisco residents, with the help of the National Rifle Association and the San Francisco Veteran Police Officers Association, first challenged the safe storage law in 2009. The case underscores the lengthy process of seeing gun-control restrictions ultimately become established law.  Long after the press conferences and publicity stunts, government attorneys struggle to defend the restrictions.

Scales of justice, wikimedia“I have complete faith in the judiciary to affirm our position that San Francisco’s gun safety laws protect the public in a manner that’s both reasonable and constitutional,” San Francisco City Attorney Dennis Herrera said in a 2013 press release on the case. “San Francisco has been a top target of the NRA for many years, and I’m proud of the efforts we’ve made to aggressively battle these legal challenges, and protect sensible gun laws that can save lives.”

As CalWatchdog.com has previously noted, the nation’s leading Second Amendment advocacy groups have begun to shift their efforts from the California Legislature to the courthouse. Since 2009, The Calguns Foundation has found great success in its legal challenges, which have targeted the implementation of concealed weapon permits and mandatory waiting periods.

A copy of the brief in the case of Espanola Jackson, et al. vs. City and County of San Francisco, et al., can be viewed at the Firearms Policy Coalition’s website.

Originally published at CalWatchdog.com

A One-Two Punch Against the Initiative Process at the Supreme Court

An Arizona case before the U.S. Supreme Court that challenges the state’s ballot initiative created redistricting commission could have such an effect on California politics that three former California governors, noted California political scientists, and a California state commission have all filed briefs in the case.

California voters also approved ballot measures that took the power to draw district lines away from the legislature and gave it to an independent commission. Proposition 11 in 2008 created the Commission to draw state legislative districts, Proposition 20 in 2010 allowed the commission to draw congressional districts. If the Arizona legislature were successful in court banning the commission more than the redistricting commissions would fall. Ultimately, the entire initiative process could be endangered.

The Arizona legislature is counting on the court to take Article 1 Section 4 of the United States Constitution at face value, that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

In other words, only the legislature itself can create district lines, lawyers for the legislature claim. Reform movements in the Grand Canyon State and the Golden State rebelled against this authority arguing that legislators have a conflict of interest in setting up legislative districts, rigging the system and drawing districts that often resemble modern art paintings all in an effort to assure sitting legislators re-elections or maintaining the ruling party in power.

The court must decide if legislative power resides only with elected legislators. In the brief filed on behalf of former California governors George Deukmejian, Pete Wilson and Arnold Schwarzenegger, the definition of “legislature” is taken from Samuel Johnson’s famous 1755 dictionary to mean “[t]he power that makes laws.” The brief argues that congressional redistricting can be undertaken “by whatever lawmaking body the people of a State decide to vest with that power.”

The California Citizens Redistricting Commission brief reminds the court that in the state constitution, “All political power is inherent in the people.” Through the initiative process in California and Arizona, “both the people of the state and the elected state representatives are lawmaking bodies, both constitute the “Legislature” for purposes of the Elections Clause.”

Not just the power to redistrict is in jeopardy if the Supreme Court sides with the Arizona legislators say California political scientists at Stanford and UC Irvine in their brief. Other election reforms including California’s open primary and even direct primaries themselves may be in peril.

Take it one step further and a ruling by the Supreme Court striking down the power of initiative to supplant the legislature in redistricting just might open the door for the Supreme Court to consider a challenge to the initiative process itself.

Such a challenge is slowly working its way in the federal courts out of Colorado.

Former Colorado legislators argue in Kerr vs. Hickenlooper that the U.S. Constitution’s clause guaranteeing states a Republican form of government is violated by giving power to the people to make laws, and specifically in the Colorado instance, to vote on tax measures.

Attempting to undercut the initiative process by arguing that measures put on the ballot by the people violates the U. S. Constitution is as old as direct democracy in this country. In 1912, a telephone company in Oregon used the argument to challenge a tax imposed by voters. The court determined then, as it had in previous dealings with the Guarantee Clause going back as early as 1849, that what constitutes a Republican Form of Government is a political question.

Many legal experts thought the Colorado case would be dismissed because the issue was non-justiciable—meaning an issue over which the court cannot exercise its judicial authority. However, the Tenth Circuit Court agreed to allow the case to proceed although the defenders of the initiative are asking the Supreme Court to review that decision.

The way the people of California have chosen to govern themselves will be tested by these Supreme Court rulings dealing first with the Election Clause, and, perhaps, ultimately, the Guarantee Clause of the United States Constitution.

Joel Fox is the editor of Fox & Hounds and President of the Small Business Action Committee

Originally published on Fox and Hounds Daily

Will young CA justices use Vergara case to audition for SCOTUS?

The Volokh Conspiracy, the wonderful legal blog founded by UCLA law professor Eugene Volokh, had a provocative post about what might happen now that Gov. Jerry Brown has named three acclaimed youngish scholars to the California Supreme Court. George Washington University law professor Orin Kerr writes:

Leondra Kruger has been confirmed to a seat on the Supreme Court of California, a position to which she was nominated by Governor Jerry Brown last month. Governor Brown previously appointed Goodwin Liu (confirmed in 2011) and Tino Cuellar (confirmed in August).

These appointments make the California Supreme Court a court of national interest, in part because a Democratic President would likely consider Brown’s picks if there is a future U.S. Supreme Court vacancy on his or her watch. Brown’s picks share diversity, elite credentials, and youth. Given that prior judicial experience is a big asset for those hoping to land on a Supreme Court shortlist — it’s not required, but it’s helpful — Brown’s nominations likely expand the set of candidates to be considered if or when there is a future SCOTUS vacancy under a Democratic president in the next few Presidential election cycles.

As the picture above suggests, Kruger has already handled big cases before SCOTUS, representing the Obama administration. If Kruger, Liu and Cuellar are intrigued by this possible promotion, that seems to make it more likely that individually or together they will stake out bold new stands on major issues. There’s a pent-up desire among millions of liberals for more Warren Court-style sweeping rulings addressing perceived issues of social justice. A Democratic president, even a center-left politician, would see appointing activist judges to the high court as an easy way to please big Dem constituencies.

Brown vs. Board of Education for 21st century?

This could bode very well for the reformers behind the Vergara vs. California case.

The trial court judge, Rolf Treu, likened state laws that funnel the worst teachers to the schools with the most troubled students to segregated schools that existed in the South before the 1954 Brown vs. Board of Education ruling, one of the most monumental in U.S. Supreme Court history. The state is now appealing Treu’s finding that teacher protection laws are unconstitutional because of their negative effect on minority students, and the case is close to certain to end up before the California Supreme Court.

If I were a CTA or CFT lawyer, this dynamic would worry me a lot — especially after reading the Vergara editorial in the most influential journal of liberal opinion, the New York Times:

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

This article was originally published by CalWatchdog.com

What will it take to wake up an apathetic CA … prisoner release?

As the U.S. budget exploded with the twin trillion dollar TARP and Stimulus bills, Cash for Clunkers and $440 billion in losses at Fannie and Freddie, the voting public responded with the Tea Party movement that swept through America in 2009 and 2010. During the 2010 election cycle, while the nation was electing 80 (of 435) new representatives, California voters paid no heed, returning 96% of incumbents to office – a record that would have made the old Soviet Politburo proud.

This same West Coast voter apathy has allowed a $26 billion budget deficit to remain unresolved for years. Rather than solve the fiscal spending crisis, Governor Brown has proposed tax hikes to close the gap, while protecting the all powerful labor unions in California, whose pension, pay and healthcare tabs have placed many California cities in near bankruptcy. California voters have responded with typical apathy to the Brown tax hike proposal paying little attention and raising no alarm. The same cannot be said for the United States Supreme Court which ruled 5-4 in Brown vs. Plata that California must release up to 46,000 inmates from California prisons citing deplorable conditions which caused “needless suffering and death” and “amounted to cruel and unusual punishment”. Will Californians remain apathetic when tens of thousands of convicted felons are released to the streets and neighborhoods of their communities?

That conditions in California prisons are deplorable cannot be debated. The state’s prisons, which were built to hold 80,000 inmates, hold 143,335 inmates today, according to Matthew Cate, secretary of California’s Department of Corrections and Rehabilitation.

Supreme Court Justice Anthony M. Kennedy, a Sacramento native, spoke of suicidal prisoners being held in “telephone booth-sized cages without toilets” and others, sick and in pain, who died before being seen by a doctor. As many as “200 prisoners may live in a gymnasium, and as many as 54 may share a single toilet,” he said.

Justice Anton Scalia, delivering his own dissent, said the majority had affirmed “what is perhaps the most radical injunction issued by a court in our nation’s history.” He added, “Terrible things are sure to happen as a consequence of this outrageous order.”

Los Angeles County Dist. Atty. Steve Cooley agreed, stating, “Citizens will pay a real price as crime victims, as thousands of convicted felons will be on the streets with minimal supervision.”

How long can Californians remained apathetic to their political and fiscal problems? In 1999, California pols wasted the $25 billion “tobacco settlement” to pay for its current spending instead of “health care through 2025” as was planned. After recalling Gray Davis for running a $30 billion deficit in 2003, they paid scant attention as politicians built another deficit hole that the Legislative Analysts Office reports will be “$20 billion per year for years to come”.

If such fiscal insanity could not stir the California electorate, as it did Tea Party members across America, the release of 46,000 convicted felons may awaken a sleeping giant. California’s 23 million registered voters cleaned up their streets and neighborhood with a no-nonsense “three strikes” policy that put repeat offenders behind bars while creating the nation’s largest prison population. Releasing 46,000 felons, 30% of its inmates, to its relatively safe communities and neighborhoods will undoubtedly cause a spike in crime that may finally gain their attention.

But California voters, if they awaken at all, will quickly learn that they may be too late. City employee pensions, pay and healthcare have also been allowed to spike during the spending binge, resulting in city deficits and lay-offs of police, fire, and probation officers. At the very time when they are most needed, their cities will be forced to lay off these critical employees.

Will California voters remain apathetic, or will this epical Supreme Court decision trigger California’s own Tea Party movement?

About the author: Robert J Cri sti ano PhD is the Real Estate Professional in Residence at Chapman University in Orange, CA, a senior Fellow at the Pacific Research Institute in San Francisco, CA and President of the international investment firm, L88