Appendix — Halliwell v. Eu
Supreme Court brief1987
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Supreme Court, U.S.
~ FILED
7 AUG 24 1981
No. 86-1891 | josepH F. SPANIOL, JR.
IN THE
& Supreme Court of the United States
OCTOBER TERM, 1986
MICHAEL J. HALLIWELL,
Appellant,
Vv.
MARCH FONG EU, SECRETARY OF STATE
OF THE STATE OF CALIFORNIA,
Appellee,
and
THE SENATE AND ASSEMBLY
OF THE STATE OF CALIFORNIA,
Appellee-Intervenors
On Jurisdictional Transfer from the
Ninth Circuit Court of Appeals
Under 28 U.S.C. § 1631
RELATED COMPLETE CATEGORIES FROM
DISTRICT COURT CASE RECORD APPENDIX
In Propria Persona
¢ Michael J. Halliwell
2930 Colorado Avenue, #D-18
Santa Monica, California 90404
213) 829-2821
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.
PUBLISHER'S NOTE:
Original Pagination is not
continuous.
5]
a ae
;
i
FOREWORD
The methods of compilation and use
of the Index to the Case Record and the
Case Appendix- in proceedings below are
described in App. B at 73-77. This
document brings together complete cate-
gories from the Index and the Appendix
to the Case Record which are relevant
to the questions presented in Mopelless'
briefs of June 26, 1987 seeking summary
dismissal of this appeal.
The Table of Contents which follows
is designed to provide quick access to
summaries from the Index (which have
decimal page numbers, e.g., Item #014.11
is at 0.001) and to the full text from
the Appendix (which has the page numbers
assigned there, e.g., Item #014.11 is at
24). To determine the positions of the
participants on a given issue a user may
consult the summaries in the decimal-
numbered (front) section of this volume
ii
and then look up those corresponding
full texts which are most relevant, in
the succeeding section.
iii
COMPLETE CATEGORIES FROM DISTRICT COURT
CASE RECORD APPENDIX
Cate-
gory#
014 ASSEMBLY DISTRICT
POPULATION DISPARITIES
024 PRACTICAL NECESSITY OF
USING THE LEGISLATURE'S
PLANS
027 DEFECTIVE MODE OF
ENACTMENT OF THE 1983
REDISTRICTING PLANS
028 UNAUTHORIZED REVISIONS
TO THE 1982 DISTRICTS
029 UNAUTHORIZED REVISIONS
TO THE 1984 DISTRICTS
081 ABROGATION OF REFERENDUM
STAY PROVISIONS
082 VITIATION OF THE JUNE
1982 REFERENDA
087 GUARANTY CLAUSE
PROTECTION OF
POLITICAL RIGHTS
089 EROSION OF POLITICAL
LEGITIMACY
185 GUARANTY CLAUSE
IMPLICATIONS
524 THIS ACTION IS MOOT.
Pages
-001-.006
24-46
-007-.015
224-262
-016-.020
312-325
-021-.029
326-355
-030-.033
336-373
-034-.040
491-513
-041-.043
914-525
-044-.048
371-399
-049-.053
615-622
-054-.058
1617-1639
.059-.066
2836-2854
liv
525 SIMILARITY OF THE .067-.073
1983 DISTRICTS 2855-2873
527 CONTINUING EFFECTS OF
THE 1982 ELECTIONS .074-.080
PRECLUDE MOOTNESS. 2874-2898
529 AN ISSUE CAPABLE OF
REPETITION YET EVADING .081-.086
REVIEW 2899-2926
584 COMITY WITH STATE .087-.089
JUDICIAL PROCEEDINGS 3122-3127
585 DISTRICT-COURT REVIEW OF
STATE-COURT-MANDATED .090-.093
REDISTRICTING PLANS 3128-3136
613 NEED FOR JOINDER OF .094-.098
CALIFORNIA SUPREME COURT 3274-3289
631 DOCUMENTATION OF ASSEMBLY .099-.104
DISTRICT POPULATIONS 3469-3487
633 VALIDITY OF STATISTICAL -105-.111
CLAIMS BY THE ASSEMBLY 3488-3515
854 JURISDICTIONAL STATUS «112-.113
OF PLAINTIFF'S APPEALS 5384-5391
861 OCTOBER 27, 1982 APPLICA- .114-.116
TION TO JUSTICE REHNQUIST 5392-5401
864 FEBRUARY AND MARCH 1984
MOTIONS TO JUSTICE o117-.119
REHNQUIST 5433-5449
866 REFUSAL OF CLERKS TO
TRANSMIT PLAINTIFF'S ~120-.130
APPLICATIONS 5450-5561
867 APPLICATIONS TO JUSTICE
REHNQUIST IN MAY AND o431-.133
JUNE 1984 5562-5570
0.001
#014 ASSEMBLY DISTRICT
POPULATION DISPARITIES
014.11 Plaintiff contends
(24) at 1 Record 13:1-3
that the Assembly districts in A.B. 300
contain so many drafting errors that
meaningful analysis of population equality
and contiguity is very difficult.
014.21 Plaintiff contends
(24-25) at l Record 131:26-132:4
that only 1/3 of assembly districts are
within the Reinecke IV 1% tolerance; no
justifications are given for any of the
2/3 of all districts with population dis-
parities which would require explanation
under previously applied standards.
014.31 Plaintiff contends
(25) at 4 Record 70:18-71:6
that while it remains unclear what the
assembly districts are, certain population
0.002
characteristics are apparent; Assembly v.
Deukmejian orders no corrections for the
A.B. 300 districts and admits that in the
uncorrected districts the maximum popula-
tion disparity is 15%; more than half of
assembly districts exceed the dispa~ity
allowable under pendent jurisdiction over
state-law claims.
014.42 The Assembly contends
(26 at ll Record 222:26-223:3
that according to the only evidence of
record before this Court .on the question
O
f assembly district populations, the
affidavit of James Tucker filed October
26, 1982, the maximum deviation in the
California assembly districts is 3.923.
014.44 The Assembly contends
(26-27) at 5 Record 463:22-464:4
that the standard for state legislative
districts is that they be "as nearly of
0.003
egual population as practicable"; the
total range of population deviation among
California's assembly districts is 3.92%,
with the smallest being 1.98% smaller
than the ideal and the largest being
1.94% greater than the ideal.
014.46 The Assembly contends
(27) at 8 Record 9:6-13
that every Assembly district used in Nov-
ember 1982 was within 2% of the ideal
population, with the smallest district
1.98% smaller than the ideal and the
largest 1.94% larger than the ideal; the
ratio of largest to smallest district is
1.005:1, the mean deviation from the
ideal is -.05% and the median deviation
014.47 Plaintiff contends
\27-28) at 8 Record 173:8-28
’
that the Assembly claims that the ratio
0.004
of largest to smallest districtis1.005:1,
the mean deviation is -.05% and the median
deviation is -.22%; actually the relative
population disparity is understated by a
factor of eight, the mean deviation is
-LIONn+t ; 1 - and } a0 3 .
twenty times larger, and the median de-
viation is nearly five times as large as
the Assembly claims.
An n _ » — a - + ~
PL a 7G ) 7+ R Racor 1 » De
he UU ia a CA he Ss + = ws we do Wh DP de 2 DP de de GV
+hRa+ Dinintey + + yaYrr ao + = “orc merara
wes ica ) a OS oe Se SS | —_ is + Ca “Woo ae —e we ,;e CA ~
+ - ’ + > 7
€laviations from the 1a ba: ba ry + i
wu S 4QlsWViio is W— _ — 4~ Ala ta AL & & CA da — > = Aik
nal aa | ,
HHnca i ot “7 H+nAD ,ecean “* | + st7 ON
Vaart — vytlaltuue ~~ y ~ ss Ao Colin 2 , wAcl - —ai
4
Dinintes Ff lea f 4 -ac _ nn + ymAIIN+ er 5
aa So oe See Se ee ~ <=. ase © O ~~ sil’ & - ww de — CA
- +
mer MaA aie fae! maAceA “~~ + RmaAnacrKa + anteater > +<«+Fr
si =* awa ~ a ~ Westie VYsivo ea ee 6maks & ,
+hHo A - amt 1 <r ~} = ~ +e _ — ie a9 +
> ‘at=" y Ct) sn alare van
wes iS ASSe€el sj iy goes sh COMMUN TIL wWVULI es §
<
_ | - —) ~ . - NA Ly a a J te
or Q2me ur oO >; bh a oat O iw Ly 1 1D i
ows euS 1 & aw AW y 4. iia Haid vc =)
~
mean and median deviation computations
correct, and the Assembly apologizes for
its own computational error.
0.005
014.61 Plaintiff contends
(29-32) at 10 Record 202:18-204:2
‘that the Assembly's last line of defense
for its claimed population disparities is
that "interim plans are subject to less
stringent equal protection standards than
those controlling regular reapporti nment
plans"; this rationale will not support
the constitutionality of the Assembly plan
because standards for interim plans are
relaxed only to the degree required by
practical necessity and the rejected al-
ternative plans had substantially smaller
population disparities than A.B. 300.
Accord: 3 Record 343:2-24.
014.71 Plaintiff contends
(32-45) at 13 Record 149:5-155:25
that the Assembly has sought to evade
judicial enforcement of one-man-one-vote
requirements applicable to state legisla-
tive districts by making unverifiable
0.006
Claims about a poorly defined version of
the districts which has no legal status;
even if Plaintiff were to demonstrate
serious errors in the populations claimed
for districts which incorporate the Tucker
corrections seeponsate have left them-
selves an escape hatch, as they admit
their population figures are based on
"somewhat imprecise" estimates.
014.81 Plaintiff contends
(45-46) at 8 Record 530:4-11
that according to Rose Institute popula-
tion figures the smallest 1983 assembly
Gistrict is 65 AD = 275,482 and the largest
is 17 AD = 301,369; this disparity of
28,529 exceeds constitutional limitations,
and the percentage disparity is larger
than several which have been ruled uncon-
stitutional even when they involve much
smaller numbers of people.
0.007
#024 PRACTICAL NECESSITY OF USING
THE LEGISLATURE'S PLANS
024.12a The Senate contends
(224) at 3 Record 22:4-24:11
that absent a showing of arbitrary or
Capricious action on the part of a state
Supreme court, no Fourteenth Amendment
violation exists; failing a prerequisite
showing of arbitrary action by the state
court, a federal district court should
not entertain Plaintiff's suit.
024.12b Plaintiff contends
(224-227) at 3 Record 292:2-293:17
that there are several instances of arbi-
trary and capricious action of the Cali-
fornia Supreme Court which taken together
completely circumvented provisions of the
California Constitution designed to re-
strict the gerrymandering of legislative
districts; these include abrogation of
referendum stay provisions and refusal to
0.008
enforce Article XXI.
Accord: ll Record 42:3-43:20.
024.15 Plaintiff contends
(227-230) at 5 Record 226:2-227:8
that Assembly v. Deukmejian invokes com-
pelling practical necessity, not state
law, as justification for abrogating the
referendum stay provisions of the Cali-
fornia Constitution; however, when faced
with a similar situation in Arizona, the
federal district court in Klahrv. Williams
routinely upheld the right of referendum.
024.21 Plaintiff contends
(230-233) at 3 Record 213:9-215:3
that there is absolutely nothing that the
opponents of the Legislature's redistrict-
ing plans could have done which they did
not do to minimize the practical obstacles
to using different legislative districts;
even so, che California Supreme Court's
0.009
majority has clung resolutely to its
alleced "practical obstacles" which "ob-
viate any possibility of giving consider-
ation to alternate plans."
Accord: 1 Record 16:22-23.
024.27 Plaintiff contends
(233-237) at 4 Record 198:25-200:27
that in selecting the redistricting plans
supported by her own political party the
Secretary of State picked the least con-
stitutional of all the available plans;
moreover, even at the time Assembly v.
Deukmejian was handed down many of the
alternative plans were still administra-
tively feasible because they were much
less complicated than the Legislature's
plans.
Accord: 1 Record 11:9-15,
1 Record 47:3-26,
l Record 201:3-22,
2 Record 2:6-20,
GD te enn
0.010
3 Record 300:16-301:19.
024.33 Plaintiff contends
(238) at 9 Record 14:2-18:8
that not only is a direct tax on voting
unconstitutional, so is any fiscal policy
which burdens this precious right; while
the states enjoy broad latitude in many
areas, decisions of the High Court une-
quivocally recognize that federal pro-
tection for political rights is an essen-
tial ingredient of viable federalism.
4.39 Plaintiff contends
(238-243) at 7 Record 286:2-288:18
that in their search for some plausible
rationale for ignoring constitutional re-
guirements and mandating the use of bla-
tantly gerrymandered districts Chief
Justice Bird and her Brown-appointed
colleagues consumed so much time consid-
ering a frivolous challenge to referendum
0.011
petitions lodged against the Legislature's
plans that there was allegedly too little
time to implement any other districts but
the Legislature's.
Accord: -7 Record 95:17-96:28.
024.45 Plaintiff contends
(243-246) at 7 Record 289:14-291:5
that it is simply absurd to suppose that
with the resources available to it the
California Supreme Court could not have
devised redistricting plans both adminis-
tratively and constitutionally superior
to those adopted by the Legislature and
blocked by referendum petition; if the
Court believed that the voters might
actually accpet the Legislature's plans a
special election could have been held any
time up to two months before the June
primary.
0.012
024.53 Plaintiff contends
(247-250) at 5 Record 263:24-265:17
that the collaborative effort to subvert
the constitutional requirements for re-
districting began with the Legislature,
which consistently tried to minimize pub-
lic scrutiny of its plans and thereby
handicap efforts to enforce constitutional
limitations; the total result of these
partisan maneuvers, in which the Governor
personally participated and the which the
State Supreme Court implicitly sanctioned,
was delay which has made judicial review
as late and as difficult to obtain as
possible.
Accord: 1 Record 16:22-32,
3 Record 193:3-194:22,
3 Record 385:5-8, 392:23-393:12.
024.59 Plaintiff contends
(250-254) at 10 Record 139:7-141:15
that when the California Supreme Court
0.013
decided Assembly v. Deukmejian on January
28, 1982 there still was plenty of time
to program computers to use any of the
model plans which consisted largely of
whole counties, cities and census tracts;
there was even enough time for the Court
to draft its own plan if single-office
paper ballots were used for legislative
primary elections.
Accord: 3 Record 337:7-16.
024.67 Plaintiff contends
(254-257) at 4 Record 201:2-202:14
that the California Supreme Court citec
many legal reasons why the 1982 elections
must be conducted in districts reappor-
tioned according to the 1980 census, but
it did not and could not cite any legal
reason for using the Legislature's redis-
tricting plans; this aspect of the major-
ity opinion in Assembly v. Deukmejian is
supported only by the Court's "equitable
0.014
discretion.”
024.75 Plaintiff contends
(257-260) at 13 Record 9:11-10:28
that in spite of Bullock v. Carter, which
holds that financial considerations can-
not "justify an incursion on the preroga-
tives of voters," the Secretary of State
ruled out the use of constitutionally
adequate redistricting plans to save "the
extraordinarily high cost of adding staff
to cut production time" and the California
Supreme Court abrogated referendum stay
provisions to save the $12 million cost
of a special election.
024.83 Plaintiff contends
(260-262) at 13 Record 122:20-123:19
that if congressional district population
disparities cannot satisfy the strict
limitations of Article I § 2 then Plain-
tiff is entitled to post-election relief
J
0.015
unless bona fide administrative consider-
ations precluded the use of constitution-
al congressional districts for the 1982
elections; Plaintiff has documented the
availability of alternative congressional
plans with smaller population disparities
and superior compliance with all other
constitutional requirements.
ee ee
0.016
#027 DEFECTIVE MODE OF ENACTMENT OF
THE 1983 REDISTRICTING PLANS
027.11 Plaintiff contends
2 (312) at 6 Record 57:3-11
that there was no extraordinary occasion
(as required by Article IV § 3b of the
California Constitution) requiring the
Legislature to adopt redistricting legis-
lation at a special session. Adoption of
such legislation by a legislature which
has not been constitutionally elected
undermines the integrity of California's
political process.
027.15 Plaintiff contends
(312-318) at 11 Record 289:24-292:22
that the period of time from December 6,
1982 until January 3, 1983 was not an
"extraordinary occasion" requiring the
ee enactment of redistricting plans for use
in the 1984 elections. The special ses-
sion on redistricting obviously was called
0.017
to evade the mandate of the 1982 elections
wherein the Democratic Party lost control
of the Governor's Office.
Accord: 8 Record 538:4-27.
O27s40 Plaintiff contends
(318-319) at 8 Record 538:20-539:6
that because none of the challenges to
the legality of the Legislature's 1981
redistricting plans was adjudicated on
the merits due to blatant disregard of
established binding judicial procedures
by state and federal judges who owe their
careers to Jerry Brown and Alan Cranston,
illegally elected state senators and
assemblymen were able in 1983 to cement
themselves into office with new districts
tailored to maximize their advantage over
potential opponents.
627.233 Plaintiff contends
(319-321) at 11 Record 286:11-287:11
0.018
that almost immediately upon being sworn
into office members of the Legislature
elected from the districts rejected in
the June 1982 referenda, operating under
a suspension of normal rules at an ille-
gally called special session, acted with
the aid of lame-duck Governor Jerry Brown
to enact districts protected by an illegal
urgency clause from another referendum
challenge to perpetuate themselves in
office for the balance of the decade.
027.45 Plaintiff inquires of the As-
(321-322) sembly at 13 Record 307:8-11:
does the Assembly admit that when Repub-
lican analysts used the computer facility
provided to them to generate documenta-
tion for legal challenges to the Legisla-
ture's redistricting plans, access to this
facility was terminated by order of the
Speaker?
0.019
027.65 Plaintiff contends
(322-324) at 10 Record 142:28-143:26
that the 1983 redistricting plans have
been enacted and protected from repeal by
a variety of illegal means. The districts
were adopted by a legislature elected
while some districts were disenfranchised
and others double represented, a legisla-
ture acting at an illegal special session.
These districts were protected from ini-
tiative and referendum challenges by ille-
gally suspending these constitutional
provisions.
027.75 Plaintiff contends
(324-325) at 10 Record 145:27-146:26
that the Legislature's 1983 congressional
plan was enacted by means of an illegal
procedural maneuver which violated Article
IV § 8b of the California Constitution,
which requires three readings on three
separate days to enact any bill unless
0.020
this requirement is dispensed with by a
two-thirds majority.
0.021
#028 UNAUTHORIZED REVISIONS TO THE
1982 DISTRICTS
028.11 Plaintiff contends
(326) at 1 Record 192:3-11
that the’ 22 AD must have been thrown to-
gether just as the redistricting bill was
being printed; some of the partial tracts
don't even list blocks in numerical order.
This district represents a bold new ad-
vance in reapportionment thinking: pass a
thumbnail sketch of a district, then fill
in the details after the Legislature has
voted. There are 42 changes for this one
district in the Secretary of State's cor-
rections list.
028.22 The Assembly contends
(326-327) at 8 Record 308:21-26
that Plaintiff provides no evidence of
uncorrected errors in the assembly plan;
the California Supreme Court ordered use
of the Legislature's plans as corrected;
0.022 oad
see Assembly v. Deukmejian, 30 Cal.3d
638, 666, n. 22.
028.25 Plaintiff contends —
(327-328) at.4 Record 76:10-17
that Assembly plan proponents submitted a
list of 277 corrections to the California
Supreme Court one day before the oral ar-
guments on Assembly v. Deukmejian. There
is no support in the California Supreme
Court's decision for the Secretary of
State's contention that the Court intended
to adopt these corrections.
028.29 Plaintiff contends
(328-329) at 4 Record 9:24-10:9
that the population figures provided by
Mr. Remcho are for a revised version of
Assembly districts which incorporate 277
departures from the legal descriptions of
these districts. Mr. Remcho admits that
additional errors beyond these 277 have
9.023
Since been found, and these will certain-
ly affect the accuracy of the claimed
populations and may affect contiguity as
& well.
028.33 Plaintiff contends
(329-330) at 4 Record 298:23-299:8
that the majority opinion of Assembly v.
bDeukmejian makes no mention whatever of
the list of 277 corrections which Mr.
Remcho filed on the day preceding the
hearing. Since the Court referred only
to the enacting legislation, only typo-
g graphical or other textually demonstrable
errors may be corrected, as per the pro-
cedures set forth in Silver v. Brown.
028.37 Plaintiff contends
(330-334) at 8 Record 163:3-165:3
2 that apparently the Assembly gave up any
effort to prove that districts set forth
in A.B. 300 and adopted by the California
0.024
Supreme Court do satisfy population equal-
ity requirements and sought to preclude a
challenge in federal court to the validi-
& ty of the 1982 assembly elections by in-
stead using another set of districts with
277 changes hone the districts set forth
tn A.B. 300.
028.42 The Assembly contends
(334-335) at 8 Record 310:23-25
that the correction of technical errors
in the Assembly plan was both statutorily
authorized by Cal.Elections Code § 30000
and presented to and accepted by the
California Supreme Court.
028.43 Plaintiff contends at
(335-337) 10 Record 164:26-165:28
that Section 30000 of A.B. 300 cannot
& possibly authorize "technical corrections"
to the Assembly plan, as this provision
was blocked by referendum petitions in
0.025
1981 and rejected by the electorate in
1982. Moreover, § 30000 applies only to
the use for interpretative purposes of
2 maps which had been prepared by the Leg-
islature in connection with the enactment
of its redistricting plans, not to the
use for such purposes of maps concocted
after enactment.
028.47 Plaintiff contends
(337-343) at 13 Record 197:2-199:20
that while most of the A.B. 300 districts
are not so riddled with errors as 22 AD,
a different version of 85% of districts
from that embodied in the corrected ver-
sion of the 1981 assembly redistricting
approved by the Legislature and signed by
the Governor has been foisted upon the
people of California. So many changes
x) have been made that they amount to a
wholesale revision, not merely "technical
corrections."
0.026
028.51 Plaintiff contends
(343-349) at 13 Record 476:6-479:9
that neither the Assembly nor anyone else
has cited any authority for the proposi-
tion that a court of law should evaluate
the constitutionality of any version of a
redistricting plan other than that estab-
lished in law. Ever since Yick Wo v.
Hopkins (1886) any power to make "techni-
cal corrections" committed "to the unre-
strained will of a single public officer"
has been ipso facto grounds for invalida-
tion.
028.61 Plaintiff inquires of the As-
(349-351) sembly at 13 Record 295:3-17:
if any documents exist which authorize
these 38 revisions to the A.B. 300 assem-
bly districts Plaintiff hereby requests a
copy of them. If the revisions were
authorized by maps Plaintiff requests an
explanation of when the maps were prepared
0.027
and the extent to which they were relied
upon in adopting the 1982 assembly plan.
028.67 Plaintiff inquires of the
(351-352) Assembly
at 13 Record 300:12-301:9:
does the Assembly admit that the discrep-
ancies between its own corrected version
of the Assembly Plan and the text of the
enacting legislation are more numerous,
are more substantial, and involve more
people than those which the Assembly al-
leged invalidated referendum petitions
filed against A.B. 300?
028.75 Plaintiff contends
(353) at 1 Record 196:2-8
that the attitude of proponents of A.B.
301 congressional districts seems to have
been to "tough it out" and ignore any de-
fects in their bill that were not very
minor. While the Secretary of State
0.028
accepted contiguity and equalization pop-
ulation as the basis for many assembly
district corrections, no such standards
were applied to congressional districts.
028.85 Plaintiff contends
(353-354) at 10 Record 166:13-20
that the unauthorized corrections to-the
Legislature's 1981 congressional plan are
certainly less far-reaching than the
corrections to the 1981 Assembly Plan;
however, none of the Defendants has ever
contested Plaintiff's statement that many
of these congressional corrections are in
fact politically wotivated and/or contrary
to the unambiguous provisions of A.B. 301.
028.95 Plaintiff contends
(354-355) at 1 Record 199:6-14
that quite unlike the corrections process
for the two redistricting bills in which
the Assembly reapportionment committee
0.029
played the major role, the corrections
process for the Senate's redistricting
plan was quite straightforward. There
were only 5 census tracts unassigned in
the Senate's redistricting plan after the
passage of cleanup legislation.
0.030
#029 UNAUTHORIZED REVISIONS TO THE
1984 DISTRICTS
029.31 Plaintiff contends
(356-357) at 10 Record 174:17-28
that after oral arguments before the U.S.
Supreme Court in Karcher v. Daggett Demo-
cratic officials implemented a series of
unauthorized corrections to the Califcrnia
congressional plan to remedy defects
similar to those which had been criticized
by key justices in the New Jersey con-
gressional plan at issue in Karcher.
029.35 Plaintiff contends
(357-358) at 10 Record 174:3-15
that the Secretary of State has no dis-
cretion to refuse to submit portions of a
redistricting bill passed by the Legisla-
ture and signed by the Governor to county
clerks for implementation. As the Cali-
fornia Supreme Court has noted, the ques-
tions involved in district revisions may
0.031
involve difficult legal issues that only
a court can determine.
029.43 Plaintiff contends
(358-366) at 10 Record 166:25-170:26
that in many instances revisions to the
1983 congressional plan were in clear
conflict with the original legislative
intent. One particularly well-documented
instance involved 16 CD, where, to secure
the crucial 21st vote needed for passage
from Senator Mello, an amendment was
adopted to reduce the fragmentation of
Santa Cruz County. This amendment was
reversed in the "corrections" process.
029.53a Plaintiff contends
(366-368) at 12 Record 72:6-73:3
that even though this Court's order of
April 19, 1983 affirmed the obligation of
the Secretary of State to defend the use
of the contested districts, Defendant has
0.032
refused to provide any justification for
her simply ignoring the law by repeatedly
substituting her own version of various
= districts for those actually mandated by
the proper authorities.
029 .53b Defendant contends
(368-369) at 13 Record 462:26-463:7
that Plaintiff's inquiry seeking boundary
descriptions of the current congressional
districts is not relevant to the subject
matter of the pending litigation, and
his request therefore does not fall within
the scope of discoverable material.
029.53c Plaintiff inquires of Defendant
(369-370) at 13 Record 288:3-19:
Plaintiff has reason to believe that in
IMany instances the congressional districts
= Calitornia currently is using are not
those established in law. Plaintiff
hereby requests an explanation of any such
0.033
district modification; if these modifica-
tions are authorized by maps, Plaintiff
requests an explanation of when the maps
& were prepared and the extent to which the
Legislature relied upon these maps in
adopting these districts.
029.55 Plaintiff contends
(370-373) at 13 Record 574:4-575:9
that determination of which districts are
actually being used to conduct Califor-
nia's elections is obviously an essential
preliminary to a broad range of permissi-
ble lines of inquiry. Most importantly,
this bears on Pliaintiff's complaints re-
garding the Secretary of State's continu-
ing practice of operating outside the law
in her- stewardship of the elections pro-
cess to advance the interests of the Dem-
3 ocratic Party.
0.034
#081 ABROGATION OF REFERENDUM STAY
PROVISIONS
081.11 Plaintiff contends
(491) at 6 Record 135:19-136:2
that the California Supreme Court justi-
fied ites as its own plans the very
same districts which had been blocked by
referendum petition on the grounds that
it would take so long to program computers
to use any of the alternative redistrict-
ing plans available to the Court that a
separate primary election might have to
be held for district offices, at an esti-
mated cost of $12 million.
081.15 Plaintiff contends
(492-493) at 3 Record 171:12-172:28
that the 1982 elections were conducted in
the very districts blocked by referendum
petitions and rejected by the voters.
Legislators elected from these districts
were then able to pass another redistrict-
0.035
ing plan to preserve their seats, block
any new referendum challenge, and thus
perpetuate their districts indefinitely.
Accord: 1 Record 15:30-8,
.1 Record 222:22-223:6,
2 Record 5:12-27,
3 Record 387:5-8, 400:7-10.
081.2la The Assembly contends
(493) at 3 Record 241:25-242:3
that the California Supreme Court found
the principle of one person, one vote so
compelling that it held that Article II
§ 10 of the California Constitution, which
stays the effective date of a statute
subject to referendum, must give way
before it.
081.21b Plaintutf contends
(493-494) at 3 Record 338:15-339:2
that there is no support in any decision
of the U.S. Supreme Court for the position
0.036
that population shifts during the ten
years between reapportionments must be
corrected immediately even if this re-
quires gross violations of constitution-
ally prescribed political processes.
081.27 Plaintiff contends
(494-496) at 10 Record 218:21-219:18
that even if no other new districts other
than the Legislature's were available or
could have been devised, Lucas v. Colorado
General Assembly makes it clear that a
constitutionally required redistricting
may be delayed for one election to allow
a state's political processes to function.
081.33 Plaintiff contends
(496-497) at 3 Record 178:8-26
that it is true that a special election
for California's 11 million voters would
cost $12 million or $1.09 per voter. Many
Americans have laid down their lives to
0.037
defend our system of free elections. Is
the right of each voter to vote in legis-
lative elections iiiaeted according to
constitutional requirements not worth
$1.09? The chemicals in a human body are
worth more than that.
081.39 Plaintiff contends
(498-499) at 3 Record 293:18-294:4
that under the California Constitution a
plan blocked by referendum petition is
outside the scope of consideration of the
Legislature and the courts and is there-
fore of lesser status than other plans
which might be suggested. In fact, the
negative status of redistricting plans
blocked by referendum involves not only
the plans themselves but also all other
plans that are not essentially different.
081.47 Plaintiff contends
(499-501) at 3 Record 180:14-181:10
0.038
that it is precisely because legislators
have consistently flouted the public will
on redistricting that the voters amended
i Article XXI into the State Constitution.
Thus there is no factual basis for Chief
Justice Bird's assertion that "the Legis-
lature's action on redistricting is the
nearest approximation to the public will,"
however reasonable it might be regarding
most other issues except legislator's
salaries and benefits.
Accord: 1 Record 224:18-225:23.
081.55 Plaintiff contends
(501-502) at 5 Record 224:2-23
that the only part of the decision in
Assembly v. Deukmejian which Plaintiff
disputes is the equitable discretion por-
tion, which orders into effect the very
ss districts which have the least possible
status under California law. It is clear
that under powers reserved by the people
0.039
of California "unto tMakeives* tact
merely denied to the Legislature) any
definition of state reapportionment poli-
cy by the electorate takes precedence over
a contrary decision by the State Supreme
Court.
Accord: 5 Record 224:12-19.
081.65 Plaintiff contends
(503-506) at 10 Record 214:24-216:14
that the special status of political
rights reserved by the people unto then-
selves is not simply a matter of long-
established precedent. Article I g 3,
adopted by the electorate on November 5,
1974, states that "The people have the
right to instruct their representatives.”
This applies equally to positive instruc-
tions via the initiative and negative
instructions via the referendum.
0.040
081.75 Plaintiff contends
(506-511) at 5 Record 256:21-259:16
that the California Supreme Court has no
@ authority to abrogate the referendum provi-
sions of the California Constitution on the
grounds thata "mere" 5% of the electorate
should not be allowed to create a nuisance.
As the Court notes in Gravesv. Barnes, "It
will ultimately serve no one for usto ig-
nore constitutional norms in the name of
convenience and administrative inertia."
081.85 Plaintiff contends
(511-513) at 8 Record 297:17-298:14
that it is Chief Justice Bird and her
supporters on the California Supreme Court
who have restructured public decisionmak-
ing in California. By abrogating refer-
endum stay provisions the majority opinion
& in Assembly v. Deukmejian nullified the
will of the framers of the State Consti-
tution and of the people themselves.
0.041
#082 VITIATION OF THE JUNE 1982 REFERENDA
082.11 Plaintiff contends
(514-515) at 8 Record 512:4-15
that it would be a political miracle if a
legislature with an overwhelming personal
stake in preserving a scheme of legisla-
tive districting which produces essen-
tially the same political results never-
theless enacted essentially different re-
districting plans. No such miracle has
occurred, as the 1983 redistricting plans
provide districts even safer for incum-
bents than those used in 1982.
082.31 Plaintiff contends
(515-520) at 10 Record 300:21-303:6
that none of the Legislature's 1983 redis-
tricting plans comes close to being essen-
tially different from the districts which
the voters rejected in June of 1982. The
average congressional district is 90% the
same as its predecessor in A.B. 301, the
0.042
average senate district is 91% the same
as in S.B. 99, and the average assembly
district is 92% unchanged from its A.B.
300 version.
082.41 Plaintiff contends
(520-523) at 8 Record 539:8-541:4
that prompt compliance with constitutional
requirements is certainly commendable,
but there was certainly no administrative
excuse for invoking "the public health or
safety" to impose the Legisitature's plans
to redistrict itself without allowing an
opportunity to reject the new districts
by referendum and no extraordinary occa-
sion which justified a special session to
rush redistricting legislation to the
lame-duck governor.
082.61 Plaintiff contends
(523-524) at 10 Record 318:18-27
that it is precisely because there is no
0.043
basis whatsoever for supposing that the
electorate would find the new redistrict-
ing plans acceptable that the architects
of these plans protected themselves from
" wrath by enacting their own
the voters
plans with an urgency clause so that the
plans could not be subject to referendum.
082.81 Plaintiff contends
(524-525) at 13 Record 351:11-18
1982 districts was adjudicated legislators
elected from these districts enacted re-
districting plans which were 90-92% un-
changed from those resoundingly rejected
by the people. Since these districts are
to be used for the balance of the de: ie,
the impairment of political rights ls
jreater than if the people were depr ec
of effective control of thelr i litical
institutions : nly one election.
0.044
#087 GUARANTY CLAUSE PROTECTION OF
POLITICAL RIGHTS
087.11 Plaintiff contends
# (571) at 9 Record 257:23-28
that while there is substantial diversity
pinion among sitting members of the
Supreme Court on the scope of "state's
rights” in cases involving federal issues,
the Justices, from the most liberal to
,
the most conservative, all support the
ropriety of federal intervention to as-
187.19 Plaintiff contends
971-572 at 4 Record 207:12-28
,
7
a
(?
;
ajority rule cannot exist, of course,
without equality of representation. The
importance of equality in a republican
% form of government is affirmed by the U.
Supreme Court in United States v.
Cruikshank: "The equality of rights of
0.045
citizens is a principle of republicanism.
Every republican government is in duty
bound to protect all its citizens in the
& enjoyment of this principle if within its
power."
087.27 Plaintiff contends
(573-575) at 4 Record 206:11-207:11
that it is precisely because the right to
cast a meaningful vote is so fundamental
that the abrogation of the referendum
powers of the people of California is a
serious abridgement of a republican form
of government; this is all the more so
because the subject matter of the refer-
endum was central to the political process
itself. At one stroke the California
Supreme Court took from the people the
control of their state and federal legis-
= lative institutions.
0.046
087.35 Plaintiff contends
(575-577) at 5 Record 98:4-99:4
that the most serious violation of the
= Guaranty Clause is the abrogation by the
California Supreme Court of referendum
rights reserved by the California Consti-
tution unto the people themselves. Arti-
cle IV § 4, which guarantees "to every
state in this Union a Republican Form of
Government," must at the very least mean,
the “supreme power resides in the body of
the people."
087.43 Plaintiff contends
(577-579) at 4 Record 198:8-24
that the abridgment of republican govern-
ment which has occurred in California in-
volves congressional, senate and assembly
= districts which flagrantly violate the
requirements for such districts contained
in Article XXI and which have been blocked
0.047
from enactment by referendum petition and
subsequent rejection by the voters accord-
ing to the provisions of Sections 9 and
10 of Article II.
087.51 Plaintiff contends
(579-580) at 3 Record 301:12-29
that none of the defendants has attempted
to justify the flimsy contrivances em-
ployed by the California Supreme Court to
produce "compelling practical reasons"
for ignoring alternative redistricting
plans and mandating the Legislature's re-
districting plans in spite of their num-
erous constitutional defects.
Accord: 1 Record 204:4-205:14,
3 Record 360:14-26.
087.61 Plaintiff contends
Ea (580-582) at 7 Record 111:18-112:10
that political reformers and the majority
of the electorate which they represent
0.048
have been utterly betrayed by the Cali-
fornia Supreme Court which has refused to
enforce and has actively violated its own
State Constitution. The defenders of the
integrity of California's institutions of
imenuatecie democracy therefore pro-
perly invoke the last line of defense for
the rule of law, the Guaranty Clause of
Art. IV § 4 of the U.S. Constitution.
087.71 Plaintiff contends
(582-599) at 12 Record 81:4-89:19
that any notion that the Guaranty Clause
of Article IV § 4 is a dead letter simply
because it has never been successfully in-
voked runs contrary to the explicit provi-
sions of Article III §2(1) and the affirma-
tion of Marbury v. Madison: "It cannot be
presumed that any clause in the Constitution
is intended to be without effect," and "It
is emphatically the province and duty of the
: "
judicial department to say what the law is.
0.049
#089 EROSION OF POLITICAL LEGITIMACY
089.05 Plaintiff contends
(615) at 1 Record 6:18-23
that the primary aggrieved party when
elections are not constitutionally con-
ducted is not "real parties of interest"
such as Democrats or Republicans, nor
incumbents congressmen and state legisla-
tors, but the general public, who are de-
prived of the one right of citizenship
without which defense of any and all other
rights may be impossible.
039.09 Plaintiff contends
(615-616) at 1 Record 17:10-18
that elections conducted in districts
which grossly violate state and federal
constitutions do irreparable damage to
the legitimacy of legislators elected from
them and will also do irreparable injury
to public confidence in the fairness of
political institutions.
0.050
089.21 Plaintiff contends
(616) at 1 Record 50:4-9
that the abuse of political power tends
to become more extreme as previous exam-
ples appear to validate the practices
involved. In this instance the partisan
favoritism previously shown in the sensi-
tive tasks involved in the conduct of
elections by the officials of the opposi-
tion party is readily cited as justifica-
tion for tilting the scales in the oppo-
089.27 Plaintiff contends
(616-617) at 1 Record 242:2-13
that the injury faced by Plaintiff and
other California voters is not only the
defeat of candidates who might effective-
ct
o the fabric of government itself and
the erosion of public confidence in the
0.051
fairness of the political process arising
from the use of flagrantly gerrymandered
districts.
089.29 Plaintiff contends
(617) at 1 Record 242:14-25
that the strain on our democratic insti-
tutions is more severe in times of econ-
omic distress, when many are losing faith
in the effectiveness of government. To
destroy faith in the fairness of legisla-
tive elections at such a time can have
consequences ranging from a sharp decline
in electoral participation to civil in-
Surrection which produces a backlash that
,.
threatens basic freedoms.
089.41 Plaintiff contends
(618-619) at 3 Record 299:24-300:15
that the Weimar Republic failed because
of a system of proportional representa-
tion that kept most of the seats perpetu-
0.052
ally in the hands of a group of insiders
in each of the political parties, and
this same sort of situation can arise
when a state is carved into safe Demo-
cratic and Republican districts skillful-
ly tailored for specific candidates.
089.61 Plaintiff contends
(619-621) at 3 Record 216:2-28
that Plaintiff has urgently pleaded with
the California Supreme Court to hold a
hearing on the constitutionality of the
plans which the Court ordered into effect
on its own authority. The California
Court turned a deaf ear to this and all
other pleas that it rule on the constitu-
tional merits of its own redistricting
plans.
089.81 Plaintiff contends
(621-622) at 3 Record 219:3-17
that if government of the people, by the
0.053
people, and for the people does indeed
perish in this country it is unlikely
that this will happen as a result of a
military coup against a government which
citizens consider to have been fairly
elected. It is much more likely that the
legitimacy of our elected officials will
first be destroyed by a series of actions
such as have taken place in this case.
0.054.
#185 GUARANTY CLAUSE IMPLICATIONS
185.43 Plaintiff contends
(1617-1618) at 4 Record 220:19-221:11
that in Baker v. Carr the court differen-
tiates nonjusticiability from lack of
jurisdiction: "In the instance of nonjus-
ticiability, consideration of the cause
is not wholly and immediately foreclosed;
rather, the court's inquiry necessarily
proceeds to the point of deciding whether
the duty asserted can be judicially iden-
tified and its breach judicially deter-
mined, and whether protection for the
right asserted can be judicially molded."
£35.21 Plaintiff contends
(1618-1620) at 4 Record 202:15-203:15
that in most previous Guaranty Clause
cases some peripheral aspect of state
government has been involved; where an
alleged usurpation of power has involved
control of a state government itself,
0.055
judicial misconduct has never been a
factor. Even so, there are ample prece-
.
dents, such as Chisholm v. Georgia, to
permit evaluation of the merits of the
Guaranty Clause claim presented in this
case.
ecord 203:17-205:ll
tr
Oo
th
©
|
t 4
O\
tO
Ww
e)
ct
t>
aa
that the rule of law component of a repub-
lican form of government, especially the
judicial obligation to uphold written
constitutions, is defined in Marbury v.
Madison: "the particular phraseology of
the Constitution of the United States
confirms and strengthens the principle,
supposed to be essential to all written
constitutions, that a law repugnant to
the constitution is void; and that courts,
as well as other departments are bound by
that instrument."
0.056
ae Plaintiff contends
(1624-25) at 4 Record 209:24-210:15
that in mandating the adoption of redis-
tricting plans which have been blocked by
referendum, the California Supreme Court
has violated the primary attribute of
republican government set forth in Chis-
holm v. Georgia: "One constructed on the
principle that supreme power resides in
the body of the peopie.” In ignoring the
constitutional defects of the redistrict-
ing plans which it orders into effect the
California Supreme Court has brazenly
transgressed the principles of the rule
of law set forth in Marbury v. Madison.
185.51 Plaintiff contends
(1625-29) at 8 Record 298:15-300:22
that Plaintiff's Guaranty Clause claims
rely on explicit definitions of the essen-
tial elements of republican government
contained in Chisholm Vv. Georgia, In re
0.057
Duncan and Marbury v. Madison. The fact
that all recent political rights cases
which have reached the U.S. Supreme Court
&
have been decided on 14th Amendment
rather than Guaranty Clause grounds is
Simply a reflection of the fact that a
state's institutions of representative
democracy are seldom given so crippling
a blow as has been dealt by the Califor-
nia Supreme Court.
435.61 Plaintiff contends
(1629-1634) at 10 Record 329:4-331:6
that the rejection of prior Guaranty
Clause claims which were trivial in com-
parison to those in Halliwell v. Eu does
not undermine the viability of the Guar-
anty Clause. Indeed, in dismissing a
jurisdictionally insubstantial Guaranty
& Clause claim the Supreme Court affirmed
its "everpresent duty whenever it becomes
necessary in a controversy properly sub-
0.058
mitted to enforce and uphold the applica-
ble provisions of the Constitution as to
each and every exercise of governmental
power."
185.71 Plaintiff contends
(1634-39) at 5 Record 280:27-283:21
that the last line of defense for the
rule of law is the Guaranty Clause of the
U.S. Constitution. It is of critical im-
portance that the U.S. Supreme Court
clearly draw a line that demarcates tol-
erance of political usurpation from comi-
ty and federalism. It is hardly appro-
priate to wait for an even more severe
breakdown in constitutional government
before reaffirming that the Guaranty “
Clause does indeed protect a state's
institutions of representative democracy.
0.059
#524 THIS ACTION IS MOOT.
524.12 Judge Karlton rules
(2836) at 3 Record 43:20-25 Bs
that resolution of all other matters
besides the motions brought on pursuant
to the order of May 4, 1982 is deferred
pending the Court's disposition of these
motions, as it now appears that Plaintiff
may still obtain a legally efficacious
remedy should he then prevail on the
merits of this action.
524.22 Defendant contends
(2836-37) at 7 Record 41:11-16
that Plaintiff has no live dispute with
Defendant Secretary of State now that the
1982 primary and general election has been
held; with no live issue remaining to be
resolved, Defendant submits that as a
matter of law she is entitled to judgment.
0.060
524.32 The Assembly contends
(2837-38) at 8 Record 13:14-26
that even if there were some legal basis
for invalidating the assembly reappor-
tionment plan used in 1982, the appropri-
ate remedy would be an order ensuring
that no furtaer elections be conducted
under it; because the California Legis-
lature already has taken that step, any
such order by the Court here would be an
empty gesture.
524.42a The Senate contends
(2838-39) at 7 Record 20:4-13
that Plaintiff challenges the adoption of
temporary court-ordered reapportion plans
for the 1982 elections which have been
held; since a statute reapportioning the
senate districts for the 1984 elections
is presently in effect this Court lacks
subject matter jurisdiction, as this
action is moot.
0.061
524.42b Plaintiff contends
(2839-2840) at 7 Record 336:18-337:5
that the position of the Senate before
the June primary was that "Plaintiff's
challenge of the legislative redistrict-
ing statutes is not ripe." Then the
Senate's position became, "any relief
which Plaintiff seeks clearly and une-
quivocally would disrupt California's
electoral process." Now the Senate's
position is that "This action is moot."
Thus according to the Senate there never
was a time when it need be held account-
able for the constitutionality of its _
districts.
524.51 Plaintiff contends
(2840-43) at 13 Record 221:1-223:20
that at the February 16, 1983 hearing the
Court tried in vain to pin down the Senate
on mootness. "JUDGE KARLTON: Ma'am,
answer my question. Mr. Halliwell says
0.062
that by virtue of the plan adopted by the
Senate, certain persons were, in effect,
disenfranchised; is that true? [SENATE:]
For the '82 elections? JUDGE KARLTON: Yes,
what's moot? [SENATE:] Okay, the statute
was never in effect. JUDGE KARLTON: The
guestion is, when you talk about mootness,
you are talking about whether there is a
live controversy before the Court. There
are folks sitting there, Mr. Halliwell
claims, pursuant to an unconstitutional
process. Now is that claim moot, and if
so, why? [SENATE:]j] Your Honor, I can
only repeat what I have said."
524.62 The Senate contends
(2843-45) at 13 Record 423:19-424:21
that there is no basis for reconsideration
of this Court's finding that even had
Plaintiff been able to enki constitu-
tional defects in the court-order reap-
portionment plan, prospective relief would
0.063
be unnecessary and perhaps even counter-
productive, since the court-ordered dis-
ca tricts would soon be phased out and
replaced by new districts enacted by the
Legislature.
924.82 Defendant contends
(2846-47) at 12 Record 459:21-460:8
that the need for prospective relief
regarding the congressional districts
Plaintiff seeks to challenge was effec-
tively mooted by the successful referen-
dum campaign against A.B. 301; according-
ly, there is no present case or contro-
versy raised by the complaint in this
action regarding California's congres-
* 524.83 Plaintiff contends
(2847-49) at 14 Record 53:7-54:13
that even though the 1982 elections have
indeed passed into history their consti-
0.064
tutionality is not moot. In County of
Los Angeles v. Davis the U.S. Supreme
& Court notes: "The burden of demonstrating
mootness 'is a heavy one.' See United
States v. W.T. Grant Co." The Davis
court lays down two conditions, both of
which must be satisfied in order for a
claim to become moot: "(1) it can be said
with assurance that ‘there is no reason-
able expectation’ .. . that the alleged
violation will recur, see W.T. Grant
Supra, and (2) interim relief or events
have completely and irrevocably eradicated
the effects of the alleged violation."
524.84 Judges Kennedy, Karlton
(2849-2850) and Ramirez rule
at 15 Record 201:19-202:2
& in the Order of July 9, 1985 that ail
parties appear to concede that the A.B.
301 plan is no longer in operation because
it was defeated in a referendum election
0.065
by the voters of California. Nor is the
Supreme Court plan in operation, the Leg-
islature having adopted a new plan. This
is therefore not a case of the defendant
voluntarily ceasing its conduct as the
result of the lawsuit; it was the action
of other persons, not party to the liti-
gation, which mandated the cessation of
the challenged conduct. See Iron Arrow
Honor Society v. Heckler concerning vol-
untary cessation of activities by third-
parties causing mootness.
524.85 Plaintiff contends
(2850-54) at 15 Record 251:26-253:27
that Iron Arrow provides no basis for
mootness in Halliwell v. Eu, most notably
because that opinion stresses the inde-
pendence of the University's action quite
apart from any regulatory action by De-
fendant Heckler. In Halliwell v. Eu
plaintiff has stressed from the outset
0.066
and provided frequent demonstrations of
the fact that the contested districts and
their essentially unchanged successors
were imposed by means of political collu-
sion of Democratic officials in the leg-
islative, executive and judicial branches
of government. Moreover, A.B. 301 is the
very plan adopted by the California Su-
preme Court, so when the Legislature
(both houses of which are defendants in
this lawsuit) replaced the court-ordered
plan it was simply replacing a plan which
it had originated.
0.067
#525 SIMILARITY OF THE 1983 DISTRICTS
> + op P| Plaintiff contends
(2855-56) at 3 Record 345:7-24
that according to Federal Practice and
Procedure: "Passage of new legislation
that does not satisfy the principles urged
in attacking old legislation does not
moot the attack. .. . Any other conclu-
sion would have created a superb method
for resistant legislatures to avoid Su-
preme Court review."
4 eB Plaintiff contends
(2856-59) at 7 Record 338:4-339:14
that in United States v. W.T. Grant Co.
the U.S. Supreme Court ruled: "In order
to establish mootness the defendant who
has discontinued challenged activities
must carry a heavy burden of demonstrating
that there is no reasonable gupectation
that the wrong will be repeated. Federal
Practice and Procedure notes that even
0.068
then “Injunctive or declaratory relief
may often be desirable to eliminate the
present consequences of uncertainty, or
to reduce the danger of recurrence."
Fp Pe | Plaintiff contends
(2859-2860) at 9 Record 1:2-15
that Legislature v. Deukmejian is simply
the latest episode in a continuing con-
spiracy by Democratic officials in all
branches of California government to force
upon the people of California redistrict-
ing plans which are essentially the same
as those which are the subject of Halli-
well v. Eu. Substituting redistricting
plans with minor modifications or using
different tactics to impose these plans
in no way deflects Plaintiff's challenge
to the constitutionality of the districts
at issue here.
0.069
525.71 Plaintiff contends
(2860-64) at 13 Record 21:26-23:27
that since the new congressional districts
are essentially unchanged from those in
1982 this court should follow the lead of
the U.S. Supreme Court in American Party
of Texas v. White: "Since it was a tem-
porary measure [the challenged] legisla-
tion has expired [but] the new legisla-
tion is also comparable to its predeces-
sor [and so] has not mooted this contro-
versy. . . . In view of the special nature
of election challenges in general and
this short-term measure in particular, we
proceed to evaluate appellants' claims on
the merits."
525.72 Judges Kennedy, Karlton
(2864-65) and Ramirez rule
at 15 Record 199:17-22
in the Order of July 9, 1985 that plain-
tiff in this case seeks to invalidate the
0.070
court-ordered apportionment plan used in
the 1982 congressional elections. Since
the 1982 elections have passed and a new
apportionment plan has been in effect
Since the 1984 elections it would appear
that no relief can be granted to the
Plaintiff which would redress his alleged
-injuries.
+ Pe E Plaintiff contends
(2865-68) at 15 Record 232:2-233:21
that the entire Order of July 9, 1985
ignores the most fundamental aspect of
any determination of mootness, whether the
challenged activities have in fact ceased.
The fact that the new districts perpetu-
ate and indeed aggravate the flaws of the
plan originally challenged has been docu-
mented by Plaintiff (the maximum popula-
tion disparity has been doubled from 7,000
to 14,000). Federal Practice and Pro-
cedure notes: "Passage of new legislation
0.071
that does not satisfy the principles
urged in attacking old legislation simi-
larly does not moot the attack." In Amer-
ican Party of Texas v. White the U.S.
Supreme Court ruled: "The new legislation
is also comparable to its predecessor,
[so the] recent amendments to the 1972
law have not mooted this controversy. In
view of the special nature of election
challenges in general and this short-term
measure in particular, we proceed to
evaluate appellants' claims on the merits."
saae84 Judges Kennedy, Karlton
(2868-69) and Ramirez rule
at 15 Record 201:7-12
in the Order of July 9, 1985 that in this
case, the "capable of repetition, yet
evading review" doctrine would apply if
the challenged plan were still in force,
but the election had already taken place.
In such a case, the issues presented
0.072
would "persist as the [plan is] applied
in future elections" (Storer v. Brown).
As noted above, the matter at bar is not
such a case, since the plan is no longer
in operation.
34290% Plaintiff contends
(2869-2872) at 15 Record 233:23-235:11
that the cited portion of Storer rejects
this court's position that facial altera-
tion of the plan (by embodying very simi-
lar districts in new legislation) deflects
a challenge to the underlying districts:
"{[adjudication] will have the effect of
Simplifying future challenges, thus in-
creasing the likelihood that timely filed
cases can be adjudicated before an elec-
tion is held." This doctrine is squarely
applicable in the circumstances of an in-
terim redistricting plan adopted when an
election is close at hand. Moreover, even
if there were no close similarity between
0.073
the districts now in use and those orig-
inally challenged by Plaintiff, Democratic
Party of the United States V. Wisconsin
squarely rejects mootness for even a one-
election court order: "“[E]ven if the order
_ were Clearly limited to the 1980 election
year, the controversy would be properly
before us as one 'capable of repetition,
yet evading review.'"
ae Plaintiff contends
(2872-73) at 15 Record 235:13-26
that NAACP v. Richmond speaks of "effects"
and "alleged violation" which must continue
to exist to avoid mootness -- not, as this
court seeks to imply, of a requirement that
the vehicle causing aninjury must remain
unchanged: "A case becomes moot when inter-
im relief or events have eradicated the
effects of the defendant's act or omission,
and there is no reasonable expectation
that the alleged violation will recur."
0.074
#527 CONTINUING -EFFECTS OF THE 1982
ELECTIONS PRECLUDE MOOTNESS.
S47 «ee Plaintiff contends
(2874-75) at 7 Record 337:6-19
that it is possible as of February 1983
that Plaintiff might be restricted by
equitable considerations in terms of
remedies that might be allowed, but his
proposals for injunctions to require new
elections clearly involve a live contro-
versy and so are not mooted by the fact
that the contested districts were used
for the 1982 elections. Even should this
proposal be rejected, a live issue would
still remain in the potential use of re-
placement districts for any special elec-
tions that may be required in 1983 or 1984.
S2i.3a The Senate contends
(2875) at 7 Record 390:4-6
that this court should dismiss this action
with prejudice, as it is moot; this court
0.075
should no longer permit such abuse and
misuse of the judicial branch.
527.41 Plaintiff contends
(2875-2884) at 13 Record 220:22-224:27
that the Senate has been resolute in its
efforts to avoid coming to grips with the
misnumbering issue. The Senate's first
line of defense has been an attempt to
have the case declared moot even though
Plaintiff challenges the seating of the
extra senators from misnumbered districts
and even though years remain in the terms
of such senators.
527 . 32 Plaintiff contends
(2884-85) at 13 Record 475:14-476:4
that even if the 1984 districts were free
of the constitutional defects in their
predecessors the advantage of incumbency
gained from the 1982 elections precludes
any finding of mootness regarding the 1982
0.076
districts. As the Supreme Court affirms
in Stotts: "As long as the parties have a
concrete interest in the outcome of the
litigation, the case is not moot notwith-
standing the size of the dispute. Powell
v. McCormack 395 U.S. 486."
527.61 Plaintiff contends
(2886-2890) at 13 Record 120:10-122:18
that even if all of Plaintiff's proposals
for post-election relief from the uncon-
stitutionality of the 1982 congressional
districts are determined to be unduly
disruptive the constitutionality of these
districts will not be moot. For if the
1982 districts were constitutional, "“pre-
serving the cores of prior districts and
avoiding contests between incumbent rep-
resentatives" Karcher v. Daggett at 103
S.Ct. 2663 would be a valid justification
for population disparities in the 1984
districts; but this would not be so if
0.077
the 1982 districts were unconstitutional.
947672 Judges Kennedy, Karlton
(2891) and Ramirez rule
at 15 Record 199:25-200:4
in the Order of July 9, 1985 that the
Plaintiff suggests that the Court could
invalidate the 1982 election, and shorten
the terms of Members of the United States
House of Representatives who were elected
under the challenged plan. This remedy
is not available. Terms of Members of
the House are two years in duration and
therefore have already expired; there is
nothing left to "shorten."
Sateata Judges Kennedy, Karlton
(2891-92) and Ramirez rule
at 15 Record 200:6-10
in the Order of July 9, 1985 that accord-
ing to the Plaintiff, incumbents running
in subsequent elections are designated as
0.078
such on the ballot. Plaintiff seeks to
remove this designation from Members
elected in the challenged election, seek-
ing reelection. This remedy is also not
available since the 1984 elections have
already been held.
Saralt Plaintiff contends
(2892-97) at 15 Record 241:2-243:15
that the advantage of being listed as an
incumbent on the 1984 ballot helped to
preserve the designation and will do so
again in the 1986 election, so the effects
of the unconstitutional elections contin-
ue. Moreover, any ruling that the 1982
districts were unconstitutional will af-
fect any ruling on the constitutionality
of the successor districts. The U.S.
Supreme Court ruled in Karcher v. Daggett
= that modest population disparities may be
justified in order to “preserve the cores
of prior districts"; but this is so only
0.079
if the prior districts were constitution-
al.
527.7 Plaintiff contends
(2897-98) at 15 Record 268:6-13
that even if all of Plaintiff's proposals
for post-election relief from the uncon-
stitutionality of the 1982 congressional
districts are determined to be unduly
disruptive the constitutionality of these
districts will not be moot. For if the
1982 districts were constitutional, "pre-
serving the cores of prior districts and
avoiding contests between incumbent rep-
resentatives” (Karcher v. Daggett) would
be a valid justification for population
disparities in the current districts; but
this would not be so if the 1982 districts
were unconstitutional. This same question
of constitutionality of prior districts
was a crucial factor in evaluating suc-
cessor districts to those invalidated in
Karcher v. Daggett in Daggett v. Kimmel-
>
s
0.080
0.081
#529 AN ISSUE CAPABLE OF REPETITION
YET EVADING REVIEW
$29.11 Plaintiff contends
(2899) at 7 Record 337:20-338:3
that even if all injunctive relief should -
be denied a declaratory judgment would
still be appropriate because the defects
in the districts are clearly "capable of
repetition yet evading review." Indeed,
in elections cases a claim is rarely de-
clared moot simply because the election
already has been conducted.
329 +84 The Senate contends
(2900-2901) at 7 Record 387:27-388:18
that any question as to whether the Cali-
fornia Supreme Court acted with purpose-
ful discrimination, arbitrarily and ca-
priciously, or in bad faith in adopting
the 1982 districts is simply moot; the
action in Assembly v. Deukmejian concerns
and is explicitly limited to the 1982
0.082
elections only and so is not capable of
repetition yet evading review.
hs re S| Plaintiff contends
(2901-03) at 10 Record 70:4-72:3
that in Roe v. Wade the U.S. Supreme Court
ruled that issues which by their nature
must be resolved before the process of
adjudication runs its course do not become
moot if capable of repetition. Since
this court has consumed more time in the
process of adjudication than the time
taken by the elections process itself,
Wade v. Roe is clearly applicable.
Accord: 3 Record 346:2-347:24.
529.42 The Senate contends
(2903) at 6 Record 33:3-7
that Plaintiff's action is moot by virtue
of the November 2, 1982 general election,
as there will be new legislative and con-
gressional districts for the 1984 elec-
0.083
tions and this action is not "capable of
repetition, yet evading review."
949.96 The Senate contends
(2904) at 7 Record 20:14-26
that an action is not moot where the act
which causes an alleged constitutional
violation remains and controls future
elections and the question raised is
Capable of repetition, yet evading review;
however, this action iS moot, as the
California Supreme Court ordered the
redistricting plans for the 1982 elections
only and for no others.
529.61 Plaintiff contends
(2905-09) at 13 Record 23:28-25:28
that in Rosario v. Rockefeller the Supreme
Court ruled: "Although the June primary
election has been completed and the peti-
tioners will be eligible to vote in the
next scheduled New York primary, this case
0.084
is not moot, since the question the peti-
tioners raise is ‘capable of repetition,
yet evading review.' In Democratic Party
of the United States v. Wisconsin the
High Court ruled: "even if the order were
clearly limited to the 1980 election year,
the controversy would be properly before
us as one ‘capable of repetition, yet
evading review.'"
$29 ..7% Plaintiff contends
(2909) at 13 Record 566:18-28
that the adoption of an interim redis-
tricting plan for an election that is
close at hand is precisely the sort of
state action the constitutionality of
which would in most instances be diffi-
cult to adjudicate before the election is
conducted. Thus it is an issue which is
clearly "capable of repetition yet evading
review." See Roe v. Wade and United
———_
States v. W.T. Grant COs
0.085
529.74 Judges Kennedy, Karlton
(2910-2911) and Ramirez rule
at 15 Record 200:15-26
that certain controversies are of such
short duration that strict application of
the mootness doctrine would prevent them
ever from being brought to court for reso-
lution, notwithstanding the injuries they
cause. Such controversies are capable of
repetition, yet they evade judicial review
by virtue of their short duration. Con-
troversies involving elections are often
within this category.
$29.75 Plaintiff contends
(2911-2919) at 15 Record 247:21-251:24
that the very cases cited by this court
affirm that the rights involved in elec-
tions cases are so fundamental that the
usual prudential limitations on claims
which may be adjudicated do not apply.
Clearly cases involving political rights
0.086
cannot be left to be resolved by the po-
litical process. As the Fifth Circuit en
banc notes in O'Hair v. White: "When a
complaint alleges injury from a clogged
democratic process, it would be anomalous
to require the plaintiff to seek relief
from political institutions."
529.778 Plaintiff contends
(2919-2926) at 15 Record 244:2-247:20
that the possibility of repetition noted
in this court's own citation of Nebraska
Press Assn. v. Stuart on account of a
possible reversal and a new trial closely
resembles the situation in Halliwell v.
Eu, as the current congressional districts
are the subject of the ongoing Badham
litigation and they could well be replaced
by a court-ordered plan if found to be
unconstitutional.
0.087
#584 COMITY WITH STATE JUDICIAL
PROCEEDINGS
7 584.14 The Assembly contends
(3122) at 3 Record 243:8-246:7
that comity requires that this Court
defer to the California Supreme Court,
. as the U.S. Supreme Court has long recog-
nized the importance of deference to
state courts in dealing with matters of
state reapportionment; even if this Court
technically has jurisdiction, it should
stay its hand.
584.17 Plaintiff contends
(3122-3123) at 11 Record 469:23-470:11
that aggrieved parties have tried and
failed to have the constitutionality of
the contested districts adjudicated by
= California Courts. Comity therefore pro-
vides no reason for further delay in de-
ciding the constitutionality of these
districts. In Steffel v. Thompson the
0.088
U.S. Supreme Court observes: "([E]quality,
comity and federalism have little force
in the absence cf a pending state pro-
ceeding."
584.18 The Assembly contends
(3124) at 1i Record 37:6-11
that comity is not applicable here, since
we are not talking about a situation where
this Court should stay its hand to allow
the California Supreme Court to do what
it needs to do; this is clearly done.
208.34 Defendant contends
(3124-25) at 12 Record 462:17-24
that where a state court adopts a legis-
lature's redistricting plan as an emer-
gency resolution of a reapportionment
dispute, basic considerations of federal-
ism and comity require that is Sedesad
courts accord proper respect to the
decisions of the state court; law and
0.089
equity therefore require that Plaintiff's
complaint be dismissed.
584.52 Judge Karlton rules
(3125-27) at 4 Record 53:22=-54:12
that little need be said regarding the
Defendants' contention that "as a matter
of comity, abstention, equity and feder-
alism, this court should refuse to refuse
to review Plaintiff's complaint". In the
case at bar there are no pending or anti-
cipated state proceedings that will
dispose of the matters in issue, so there
is no proper basis for abstention. As
for comity and federalism, those doc-
trines do not permit this court to reject
out-of-hand a constitutional challenge
to a state court-ordered reapportionment
Po plan.
0.090
#585 DISTRICT-COURT REVIEW OF STATE-
COURT-MANDATED REDISTRICTING PLANS
585.14 The Senate contends
(3128) at 3 Record 21:18-24
that it is the equitable anda judicial
action of the California Supreme Court
which Plaintiff seeks this Court to
enjoin and naught else; this United
States District Court should not be used
as a forum to appeal decisions of the
California Supreme Ccurt, nor should
these decisions be collaterally attacked
here.
585.15 Plaintiff contends
(3128-3131) at 9 Record 6:2-7:10
that in Priesler v. Secretary of State of
Missouri the Federal District Court over-
turned the decision of the Missouri Su-
preme Court in Priesler v. Hearnes, not-
ing: "[T]his Three-Judge United States
District Court is placed in the judicial-
0.091
ly-unenviable role of reviewing a decision
of the highest court of the State of
Missouri without previous review thereof
by the Supreme Court of the United States
. . - . [However] Wesberry v. Sanders
teaches that apportionment is void when
. . . there has been inadequate consider-
ation to equality in population as between
districts in the same state."
585.18 Defendant contenus
(3131-32) at 3 Record 222:11-18
that the substance of what Plaintiff is
seeking is for this Court to review the
decision of the California Supreme Court
in its order for temporary reapportion-
ment plans for the 1982 primary and
general election; this Court should not
be used as a forum to appeal decisions
of the California Supreme Court but
should restrain itself from this pro-
ceeding on the bases of comity and ab-
0.092
stention.
585.31 Plaintiff contends
(3132-33) at 10 Record 103:12-22
that in Scott v. Germano the U.S. Supreme
Court ruled that the Federal District
Court could determine the validity of any
redistricting plan adopted by Illinois
state agencies, including its supreme
court, and that if no valid plan had been
adopted by a reasonable deadline set by
the district court, the federal court
could adopt its own reapportionment plan.
585.41 Plaintiff contends
(3133-35) at 11 Record 93:24-97:13
that while the U.S. Supreme Court has
encouraged state courts to assume respon-
sibility for redistricting when a state's
political branches of government fail to
properly discharge this responsibility
and the principle of comity requires lower
r~
0.093
deral courts to move with circumspec-
in challenging the actions of state
me courts, lower federal courts have
ejected redistricting plans approved by
state supreme court.
585.5] Plaintiff contends
W
ct?
sin?
at 11 Record 425:8-20
although Judge Karlton ruled out
rement of anti-gerrymandering stand-
for court-ordered plans since there
no reason why this court should treat
‘alifornia Supreme Court as if it
an inferior federal court," federal
are indeed of superior status in
ion to state courts under the provi-
of Article VI § 2 of the U.S. Con-
ition. This is affirmed by the Texas
co
me Court, which notes in Upham v.
wire
The Supremacy Clause makes the
of [a three-judge U.S. District]
binding on state courts."
0.094
#613 NEED FOR JOINDER OF
CALIFORNIA SUPREME COURT
613.15 Plaintiff contends
(3274-78) at 12 Record 4:20-6:26
that the interest of the California Su-
preme Court in the outcome of Halliwell
v. Eu is unique, for a finding by this
Court or by the U.S. Supreme Court that
the Guaranty Clause has been violated by
the California Supreme Court will severe-
ly damage the reputations of those Jus-
tices whose actions are thus branded as
unconstitutional. Therefore participa-
tion here by the California Court will
assure that concrete adverseness which
illuminates difficult constitutional
questions.
613.26 Defendant contends
(3278-3281) at 13 Record 543:20-545:9
that Plaintiff seeks to join as party
defendant "the California Supreme Court
0.095
as represented by Chief Justice Bird,"
put the State Court plays no role in the
allocation of population among districts,
as the federal courts have authority to
measure state reapportionment plans
against federal standards whether the
plans originate in the state legislature
Or the courts; therefore Plaintiff's
jJoinder motion should be denied.
Si2<623 Plaintiff contends
(3282-84) at 13 Record 565:13-566:16
that the Secretary of State argues that
the California Supreme Court should not
be joined as a defendant because the Cal-
ifornia Court played no role relevant to
population disparities among the contest-
ed districts. However, this court has
explicitly noted the responsibility of
the California Court in this area and de-
clined to grant injunctive relief because
"at least at this stage in the proceedings
0.096
we must give some deference to the find-
ings of the California Supreme Court."
613.41 Plaintiff contends
(3284-86) at 13 Record 567:27-568:23
that the circumstances in this case are
far different than when a state court has
ruled on the constitutionality of the
action of some other agency of state gov-
ernment. The California Supreme Court is
the logical defender of the districts
which the Court adopted as its own plan,
especially since crucial aspects of the
process by which the contested districts
were selected are known only to the Cali-
fornia Court. Thus joinder should be al-
lowed and the California Court should be
made to respond to formal inquiries.
613.54 The Assembly contends
(3286-87) at 13 Record 490:23-491:14
that Plaintiff's motion to join the Cali-
0.097
fornia Supreme Court as a defendant is
largely premised on a Guaranty Clause
£ claim already dismissed by this Court,
but Plaintiff's unhappiness with decisions
of the California Supreme Court is no
basis for permitting joinder; the Cali-
fornia Supreme Court is no more a proper
party here than this Court will be when
Mr. Halliwell takes his case to the Hague.
613.55 Plaintiff contends
(3288-89) at 13 Record 571:7-572:5
that where allegations of grave abuse of
power are involved, accountability is as
important in the judicial as in the exe-
cutive branch. Joinder of the California
Supreme Court is appropriate for the same
reason given at the Watergate hearings in
* connection with President Nixon's abuse
of power: "If there be no accountability
the next president may feel free to do as
he chooses, and next time there may be no
0.098
watchman in the night."
0.099
#631 DOCUMENTATION OF ASSEMBLY DISTRICT
POPULATIONS
631.11 Plaintiff contends
(3469-3470) at 4 Record 7:28-8:16
that at the June 1l, 1982 hearing Assembly
counsel quoted Plaintiff's inclusive com-
plaint, "One district is more than 3%
underpopulated and another is 3% overpop-
ulated," in support of his contention that
the population disparities in the Assem-
bly plan were too small to violate equal
protection requirements. However, the
figures cited are minimum population dis-
parities based on assumptions that subse-
quent events have shown to be untrue, but
the Assembly treats them as maximum.
631.19 Plaintiff contends
(3470-73) at 4 Record 6:4-7:27
that the 7% assembly district population
disparity cited in footnote 21 of Assem-
bly v. Deukmejian is based on generous
0.100
assumptions regarding the intent of the
authors of A.B. 300 which never materi-
alized in the revisions that were actu-
made to the districts. Instead the
authors of A.B. 300 took advantage of ve
technical corrections process to secure
additional political advantages.
631.23 Plaintiff contends
) at 4 Record 14:16-23
Le
ro
~J
>
that if Assembly counsel can demonstrate
hat his population figures are correct
or if the figures are not correct but the
¥
yi
9
7)
4
mbly and the Secretary of State are
willing to make the corrections needed to
bring the maximum and average population
deviations down to the levels which are
ound in the Assembly's declarations,
Plaintiff will stipulate that these re-
vised districts adequately satisfy.state
.
federal population equality require-
0.101
631.31 Plaintiff contends
(3474-76) at 6 Record 21:14-22:5
that because of the unresolved complica-
tions produced by the huge number of
"technical corrections" to the Assembly
districts, verifying the population claims
of the proponents of these districts is
an impossible task without a specific
listing of all the census population units
in each district. Plaintiff has pointed
to discrepancies between assembly district
populations calculated by the Rose Insti-
tute and the official figures released by
the Assembly; tnese contradictions cannot
be resolved without population subtotals
which the Assembly refuses to provide.
631.41 Plaintiff contends
(3476-79) at 8 Record 165:6-166:24
that assembly population figures are
probably erroneous because the districts
were drawn uSing precincts to maximize
-102
in determining the political
districts. This drastical-
ry
eases the potential for error be-
1ded census
units may be par-
lost tract
ers probably cor
The Assembly's
Cc
ct
4)
ct
a
(
rh
tH:
| @
hy
49)
"
alleged by the Assembly, but the Assembly
t~
LA
CO
(0)
to
ct
(Tt
ct
ms
}~
9)
a
(D
W)
$+
0)
WY
4)
|
—"
(D
oF;
+?
D
cy
Hy
(D
Y
(D
~ AH oOnnec
SUTLLGS I =
~— — m
2 3 it QO -
~~ WV _s /! a sr
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abaatat , a! an! - ae
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+ =
= 1
Sei Mei wen gees otc rte
FOVviCces sa) 2*Vvicence
lation to be lost
analysis alleging
district population errors
valid basis
speculating that
+
0.103
assembly populations are untrustworthy.
631.61 Plaintiff contends
(3481-83) at 13 Record 479:11-480:12
that even if the California Supreme Court
had duly authorized the Secretary of State
to implement revised versions of 85% of
the assembly districts mandated by Assem-
bly v. Deukmejian the Assembly has not
provided any intelligible description of
these revised districts, much less proven
what the populations of these districts
are.
631.74 Plaintiff contends
(3483-85) at 13 Record 148:4-149:2
that the Assembly has never directly chal-
lenged the validity of Dr. T. Anthony
Quinn's figures for the A.B. 300 assembly
districts which are found in Exhibit C-2
of Plaintiff's original complaint. After
correcting typographical errors in A.B.
0.104
300 where legislative intent can be deter-
mined from the descriptions of other dis-
tricts the 10.11% population disparity
noted by Dr. Quinn is reduced only slight-
ly to 10.073.
631.75 Plaintiff contends
(3485-87) at 15 Record 268:19-29
that the Assembly submitted no census data
of any kind supporting its alleged popu-
lations and provided no subtotals which
might have allowed verification of its
figures. The Assembly's only statement
on the methods used for population compu-
tations notes that populations used for
split enumeration districts "are inher-
ently somewhat imprecise" but that these
units cannot be reunited "without upset-
ting the balance of population equality."
0.105
#633 VALIDITY OF STATISTICAL CLAIMS
BY THE ASSEMBLY
$33.31 Plaintiff contends
(3488) at 4 Record 10:26-11:8
that because the Assembly has never pro-
vided a population listing by census units
it is impossible to check the accuracy of
Mr. Remcho's population figures. However,
a check of the populations of the 35
cities which the proponents of A.B. 300
admit to ed tiiind against the language
of A.B. 300 and the Assembly's corrections
list reveals gross inaccuracies and dis-
tortions which cast grave doubt on the
reliability of the rest of Mr. Remcho's
statistical analysis.
633.21 Plaintiff contends
(3489-3490) at 4 Record 11:12-12:21
that according to the Assembly's affida-
vits, "As corrected, A.B. 300 contains
only 23 significant city splits, with 35
0.106
in all." However, there are at least 9
city splits which the Assembly does not
= acknowledge, and seven cities which are
supposedly split insignificantly have a
total population of 70,335 sliced off by
assembly district lines.
633.3: Plaintiff contends
(3490-91) at 4 Record 12:22-13:6
that whether Assembly counsel is unaware
of the number and magnitude of the city
splits provided for by his revised version
of A.B. 300 is unclear. However, the
very misleading nature of the comments on
city splits in his brief certainly under-
mines the credibility of the unverifiable
district populations which are also in-
cluded in the same February 25, 1982
ee brief.
633.33 Plaintiff contends
(3491-92) at 4 Record 13:24-14:11
0.107
that Richard Nixon's attorney probably
was sincere in the statements he made
concerning the veracity of the excerpts
of the Nixon tapes which he provided, but
history has shown that these excerpts
were grossly misleading. It is very dif-
ficult for someone in the position of
Assembly counsel to provide more reliable
information than is provided to him by
his client. Therefore Plainsiff cannot
accept as valid counsel's undocumented
assertions unless and until counsel can
persuade his client to stop stonewalling
Plaintiff's legitimate requests for
assembly district information.
633.42 Judge Karlton rules
(3492-95) at 4 Record 62:13-31
that at oral argument Plaintiff stipu-
lated that he had no "one person, one
vote" claim against the Assembly, but he_
subsequently filed papers seeking to
0.108
withdraw that stipulation on grounds
that information received at the hearing
from the Assembly does not appear to be
correct. Judge Karlton is satisfied that
the stipulation offered by Mr. Halliwell
was due to inadvertence, and since the
Assembly was not prejudiced by its offer
and subsequent withdrawal he has relieved
Plaintiff of the stipulation.
OY
ES)
LJ
Ww
(DY
The Assembly contends
(3495-96) at 8 Record 8:19-9:13
that because the 1982 election is over,
the population of the assembly districts
used in it is a matter of historical fact
ct
hat cannot genuinely be disputed; the
maximum range of variation is 3.92%, with
a ratio of largest to smallest district
of 1.005:l1, a mean deviation from the
ideal of -.05% and a median deviation of
-.22%.
———
0.109
633.61 Plaintiff contends
(3496-3502) at 8 Record 169:18-172:6
ae that even though the Assembly is now mov-
ing for a summary judgment it has never
sought to rebut any of Plaintiff's criti-
cisms of its own statistics. Instead the
Assembly has taken the position that the
accuracy of its population figures no
longer matters. However, it is univer- |
sally accepted that passage of new legis-
lation which does not eliminate previous-
ly existing constitutional flaws does not
in any way deflect a legal attack on
these continuing flaws.
633.74 Plaintiff contends
(3502-06) at 8 Record 172:9-174:12
that in Assembly v. Deukmejian proponents
& of the congressional plan submitted an
affidavit very simiiar in its lack of
documentation to the Assembly's district-
population affidavit submitted in Halli-
0.110
well v. Eu. When the Rose Institute
challenged the accuracy of congressional
population figures proponents submitted a
census population breakdown which Plain-
tiff used to show that congressional pop-
ulation disparities were 20 times larger
than proponents claimed. This is why the
Assembly has refused to supply subtotals
needed to verify its population claims.
633.86 The Assembly contends
(3506-3510) at 8 Record 310:2-311:26
that even viewed from Mr. Halliwell's
perspective, the assembly population
variances do not create a prima facie
violation of the Equal Protection Clause;
Plaintiff contends that Assembly dis-
tricts have a mean deviation from the
ideal of 0.99% and a median deviation
of 1.02%, but in Gaffney v. Cummings
mean and median deviations of 1.8% and
1.9% were found to be constitutional.
0.111
633.89 Plaintiff contends
(3510-15) at 11 Record 534:23-536:26
that it is worth noting that the same
Assembly brief which misstates the mean
deviation, median deviation and popula-
tion ratio ridicules Plaintiff's skepti-
cism about the validity of the Assembly's
population claims as being based on “not
one shred of evidence." If anything at
all was learned from the discrepancy be-
tween the transcripts of the tape record-
ings provided under sworn affidavit and
the actual recorded conversations among
the conspirators in the Watergate episode,
it is that in a conspiracy case Ro court
should trust indirect evidence when those
charged with complicity in the conspiracy
have direct evidence which they refuse to
provide.
0.112
#854 JURISDICTIONAL STATUS OF
PLAINTIFF'S APPEALS
ea 854.22 The Senate contends
(5384) at 13 Record 206:25-207:7
that pursuant to Rule 14.2 of the U.S.
Supreme Court, the appeal taken by Plain-
tiff from the order of March 27, 1984,
noticed by Plaintiff on April 16, 1984,
is subject to dismissal on the ground
that more than sixty days have elapsed
Since notice of appeal was filed; the
Senate therefore moves this Court for an
order dismissing Plaintiff's appeal with
such costs as may be just.
854.27 Plaintiff contends
(5385-88) at 13 Record 273:2-274:20
that Plaintiff's appeal from the aspects
ae of the Order of March 27, 1984 noted in
his April 16, 1984 notice of apoeal has
been greatly delayed by the process of
transcript preparation for the February
0.113
16, 1983 hearing on senate district mis-
numbering. However, this transcript is
now available and Plaintiff has been in-
formed that the Court of Appeals has been
notified and that "they will be notifying
you when your briefing schedule is due."
854.31 Plaintiff contends
(5388-5391) at 13 Record 473:5-474:21
that the Assembly asserts the notion that
a litigant has a choice between appealing
to the Ninth Circuit or to the U.S. Su-
preme Court. Plaintiff has set forth in
his notices of appeal his own opinion as
to the proper avenues for appeal for var-
ious aspects of the Order of March 27,
1984, but it now appears that the Ninth
Circuit feels that any appeal should go
to the U.S. Supreme Court, while Piain-
tiff's motion to the U.S. Supreme Court
to affirm this has been denied.
0.114
#861 OCTOBER 27, 1982 APPLICATION TO
JUSTICE REHNQUIST
861.11 Plaintiff contends
(5392-93) at 5 Record 486:7-13
that because the three-judge panel re-
versed its decision and scheduled its
first hearing after Plaintiff filed no-
tice of his intention to request an in-
junction from the Supreme Court, this re-
quest will be submitted only after that
hearing. To facilitate the emergency
consideration this request will require,
Plaintiff encloses advance copies of
materials which summarize the basis for
his proposed injunction.
861.21 Plaintiff contends
(5393) at 5 Record 254:5-16
that on October 27, 1982 Plaintiff filed
with the U.S. Supreme Court and the par-
ties to this action a document labelled
"SUMMARY OF MAJOR CLAIMS of Plaintiff in
0.115
Halliwell v. Eu -- Advance Copy -- Formal
motion to be filed after District Court
hearing on October 27, 1982."
861.31 Plaintiff contends
(5393-94) at 1l Record 241:20-27
that when Plaintiff called Francis J.
Lorson, Chief Deputy Clerk of the U.S.
Supreme Court, just before the close of
business in Washington, D.C. on Monday,
November 1, 1982, Mr. Lorson informed him
that Justice Rehnquist, acting the previ-
ous Friday on Plaintiff's written propo-
sal, had denied the request for an in-
junction to halt California's congres
Sional and state legislative elections
which Plaintiff had withdrawn at the
October 27, 1982 hearing.
861.41 Plaintiff contends
(5394-5401) at 11 Record 239:19-242:24
that since the Court had not ruled on the
0.116
motion actually presented by Plaintiff at
the October 27, 1982 hearing and since
“ordinarily an appellate court does not give
consideration to issues not raised below,"
Plaintiff soughta ruling fromthis court
on November 1, 1982 so he could appeal to the
U.S. Supreme Court. Since this court had
expressed concern that any pre-election
modificationin the electoral process "would
create sufficient confusion as to discourage
many voters fromgoing to the polls at all,"
Plaintiff modified his proposal to simply
embargo release of election returns until the
Court had decided how to validate or in-
validate results from each district.
861.52 Chief Deputy Clerk Lorson notes
(5401) at 5 Record 493:12-15
that Plaintiff's application for injunc-
tion has been presented to Justice Rehn-
quist, who has endorsed thereon the fol-
lowing: "Denied W.H.R. 10-29-82."
0.117
#864 FEBRUARY AND MARCH 1984 MOTIONS TO
JUSTICE REHNQUIST
864.21 Plaintiff contends
(5433-34) at 12 Record 37:22-38:17
that some guidance to Plaintiff as author-
ized by Haines v. Kerner is requested re-
garding the proper time frame for filing
an appeal in these circumstances. Also,
if Plaintiff complies with all court rules
regarding the content of briefs, may he file
a motion and supporting briefs regarding
those aspects of the case requiring urgent
consideration because of the elections cal-
endar under the provisions of Rule 39 al-
lowing typewritten papers rather than under
the Rule 33 format for printed documents?
864.31 Plaintiff contends
(5434-36) at 12 Record 167:19-168:14
that the District Court has not taken even
the initial steps toward an adjudication
of the merits of Plaintiff's constitu-
0.118
tional claims. Plaintiff therefore re-
quests Supreme Court action to ensure
compilation of a proper factual record,
to establish a specific time frame for
the consideration of long-pending propo-
sals for injunctive relief, and to restore
public confidence in the political even-
handedness of the judicial process.
864.41 Plaintiff contends
(5436-5440) at 12 Record 169:2-170:29
that the possibility of an adverse deci-
sion has generally been sufficient to
persuade the parties in federal lawsuits
"{to] sharpen the presentation of issues
upon which the court so largely depends
for illumination of difficult constitu-
tional questions." However, two years of
inaction by the District Court has caused
Defendants to conclude that they need not
be concerned about such a possibility,
and they have not responded to Plaintiff's
0.119
allegations and continue to withhold
essential information.
864.51 Plaintiff contends
(5441-49) at 12 Record 171:2-175:9
that the refusal of the District Court to
even consider Plaintiff's motions for in-
junctive relief relating to the 1982 elec-
tions for more than 8 montis prior to the
elections, its refusal to rule on revised
proposals for post-election relief for
nearly 15 years after the elections, and
its refusal to even allow briefing on mo-
tions for injunctive relief relating to
the 1984 elections is obviously not a
proper interim disposition in light of the
expedited consideration requirement of 28
U.S.C. § 2284.
0.120
#866 REFUSAL OF CLERKS TO TRANSMIT
PLAINTIFF'S APPLICATIONS
866.11 Plaintiff dndibanuae
(5450-51) at 12 Record 167:4-19
that on January 27, 1984 and again on
February 14, 1984 Plaintiff made applica-
tion to the Circuit Justice for the Ninth
Circuit seeking enforcement of the expe-
dited consideration requirement of 28
U.S.C. § 2284, but in both instances
deputy clerks refused to transmit these
applications to Justice Rehnquist. Be-
cause of the ongoing elections process
leading to June primaries in California
and the continuing refusal of the District
Court to act at all, corrective action to
enforce procedural requirements for state-
wide redistricting cases is now a matter
of utmost urgency.
866.17 Plaintiff contends
(5451-54) at 12 Record 189:4-190:8
0.121
that the Supreme Court has the authority
to intervene at once in Halliwell v. Eu,
a politically sensitive constitutional
challenge to California's congressional
and state legislative redistricting plans
upon which the lower court has avoided
adjudication while state elections have
come and gone and now approach again.
Misapplication of the Rules of the Supreme
Court has led to wrongful refusal of
court clerks to transmit Plaintiff's two
prior applications seeking enforcement of
procedures applicable to voting rights
cases.
866.23 Plaintiff contends
(5454-5466) at 12 Record 202:4-208:13
that thus far in the processing of Plain-
tiff's applications there appears to have
been little thought given to the effect
on the voting rights of the people of
California of a refusal to transmit to
0.122
Justice Rehnquist detailed evidence that
the rules governing statewide redistrict-
ing cases "have been practically nulli-
fied by a District Judge [and] by a con-
cert of action on the part of several
District Judges." See Los Angeles Brush
Mtg. v. James.
866.29 Plaintiff contends
(5466-5481) at 12 Record 209:2-215:29
that when Plaintiff made his first appli-
cation to Justice Rehnquist on January
27, 1984 the process leading to the
nomination and election of California's
congressional and state legislative rep-
resentatives had not yet commenced. Six
weeks later this process is well underway,
and further delay on account of refusal
by law clerks to promptly transmit the
accompanying application to Justice
Rehnquist as required by Rule 43.1 can
only compound the miscarriage of justice
0.123
already caused by delays in this case.
866.35 Plaintiff contends
(5481-5501) at 12 Record 216:4-225:28
that surely the modest burden of retain-
ing this case record until the issue of
injunctive relief relating to the 1984
elections is decided is not excessive in
view of the special circumstances of this
case, a statewide redistricting case
filed on Feburary 19, 1982 and not yet
adjudicated by the lower court more than
two years and one full elections cycle
later.
866.41 Plaintiff contends
(5501-04) at 12 Record 226:4-227:16
that in view of the ongoing elections
process in California "it is too late in
& the day and entirely contrary to the
Spirit of the Federal Rules" for court
clerks to take further action which
0.124
prevents Plaintiff's applications to
Justice Rehnquist from being promptly
transmitted to the Justice and thereby
causes "[a] decision on the merits to be
avoided on the basis of mere technicali-
ties." See Foman v. Davis 371 U.S. at
181-182.
866.47 Plaintiff contends
(5504-5512) at 12 Record 290:4-293:29
that Rule 44.1 provides that "a writ on
injunction may be granted by any Justice
in a case where it might be granted by
the Court." Since Plaintiff's allegations
of a widespread pattern of refusal to
enforce federal statutes protecting voting
rights involve judges of the Ninth Circuit
Justice Rehnquist's familiarity with the
judges in his circuit makes it especially
appropriate that an application be direct-
ed to Justice Rehnquist.
0.125
866.53 Plaintiff contends
(5512-5520) at 12 Record 397:14-399:22
that even a cursory inspection of Plain-
tiff's submission of April 7, 1984 re-
veals that it is not any sort of applica-
tion for a stay or injunction, but a
motion to the Court to ensure than an
application to an individual Justice
which is to be submitted later will be
promptly transmitted to the Justice con-
cerned. Since Plaintiff submitted 40
copies of this motion and it was shorter
than 5 pages and it did not fall within
any of the categories where Rule 33 is
applicable there seems to be no basis for
its rejection.
866.59 Plaintiff contends
(5520-24) at 12 Record 438:6-439:8
that Mr. Lorson stated that if an appel-
lant were not satisfied with Mr. Lorson's
interpretation of Court Rules appellant
0.126
should appeal to the Clerk of the Court.
Since Plaintiff believes that Mr. Lorson's
interpretations are contrary to both the
intent and the literal meaning of the
Rules of the Court and since actions of
deputy clerks contrary to the plain terms
of these Rules have had a devastating im-
pace upon Plaintiff's ability to secure
timely consideration of his case, Plain-
tiff is making that appeai to the Court ~—
Clerk in the enclosed memorandum.
866.65 Plaintiff contends
(5524-27) at 12 Record 443:3-444:18
that Mr. Lorson told Plaintiff with great
feeling: "Do you realize what would hap-
pen if we wasted the time of the Justices
with motions like yours? We would be
fired, do you understand me? Fired!" If
clerks may actually be fired for wasting
the Justices’ time by forwarding motions
as provided by Rules 43.1 and 43.2, clerks
0.127
will inevitably err on the side of exclu-
sion, since that will ensure that the
Justices never see the meritorious mo-
tions that the clerks have wrongfully ex-
cluded. A harsh employment policy of
this sort would vitiate the liberal spirit
of the Rules themselves.
866.71 Plaintiff contends
(5527-5535) at 12 Record 444:19-448:20
that Plaintiff has provided evidence of
masSive resistance to the enforcement of
federal protection for political rights
in support of the appropriateness of a
single-Justice writ of mandamus. It is
true that all courts are more reluctant
to issue mandatory injunctions than pro-
hibitory injunctions and that the few
writs of mandamus that have been recently
issued were by the full Court, but the
plain terms of Rule 44.1, “a writ of in-
junction may be granted by a Justice ina
0.128
case where it might be granted by the
Court," do not make an exception for
mandatory injunctions.
866.77 Plaintiff contends
(5535-5540) at 12 Record 448:21-450:25
that Plaintiff included as part of his
application of March 20, 1984 a document
entitled, “Memorandum Regarding Refusal
of Court Clerks to Transnit Plaintiff's
Applications to Justice Rehnquist Pursuant
to Rule 42," but court clerks refused to
transmit this application. Plaintiff was
concerned that Ms. Downs would again in-
tercept any application containing this
same information and therefore filed a
preliminary motion to make certain that
his next application would be promptly
transmitted to Justice Rehnquist as Rule
43.1 requires.
———————— —
0.129
866.83 Plaintiff contends
(5540-44) at 12 Record 451:2-452:29
2 that court clerks have violated the plain
terms of Rule 43.1 in refusing to trans-
mit applications seeking relief from sys-
tematic violation of the political rights
of Republicans by judges of the Ninth
Circuit. Whether or not Justice Rehnquist
sees any need for intervention in Halli-
well v. Eu in the present circumstances,
court clerks certainly have no authority
to prevent Justice Rehnquist from learn-
ing of these circumstances.
866.89 Plaintiff contends
(5544-5561) at 13 Record 75:3-83:23
that a principal factor in the refusal of
clerks of the U.S. Supreme Court to trans-
mit Plaintiff-Appellant's motions of Jan-
& uary 27, February 14, March 20 and April
7, 1984 has been an insistence that an
individual Justice has no authority to
0.130
issue an extraordinary writ pursuant to
28 U.S.C. § 1651(a). However, in Leonard
v. Wolff Justice Rehnquist affirms his
@ own "obligation to act as surrogate for
the entire Court in deciding to grant or
deny extraordinary relief pursuant to 28
U.S.C. § 1651."
0.131
#867 APPLICATIONS TO JUSTICE REHNQUIST
IN MAY AND JUNE 1984
867.11 Plaintiff contends
(5562-65) at 13 Record 64:3-65:21
that the letter of Assistant Clerk Downs
states that Plaintiff's motions referred
to Justice Rehnquist on May 7, 1984 were
treated as requests for injunctive relief
and denied on this basis. However,
neither motion requested the issuance of
any injunction; they only sought to remove
obstacles to the prospective exercise of
the Court's jurisdiction over an appeal
that will be forthcoming as soon as the
court reporter completes preparation of
an essential hearing transcript.
867.21 Plaintiff contends
(5565-67) at 13 Record 203:6-21
that the treatment of two procedural mo-
tions as if they were an application for
an injunction, followed by refusal to
0.132
forward an application designed to untan-
gle the resulting confusion, leaves Hal-
liwell v. Eu in limbo, since the requests
of the Ninth Circuit and the Eastern Dis-
trict of California for jurisdictional
clarification from the Supreme Court re-
main unanswered. Plaintiff therefore
Submits a renewed request for clarifica-
tion, updated to reflect the current cir-
cumstances of the case.
867.31 Plaintiff contends
(5567-5570) at 13 Record 202:6-26
that Clerk Downs refused to transmit
Plaintiff's May 21, 1984 request for
clarification of Justice Rehnquist's
ruling of May 7, 1984 on the grounds that
"It is not the practice of Justices of
this Court to issue clarifications regard-
g ing rulings on applications to individual
Justices." But since the Mav 7 ruling
treated motions which were not a request
0.133
for an injunction as if they were, the
parties to Halliwell v. Eu, the District
Court, and the Ninth Circuit are left
s bewildered.
24
#014 ASSEMBLY DISTRICT POPULATION
DISPARITIES
014.11 Plaintiff argued on February 19,
ed 1982 at 1 Record 13:
"The Assembly districts in A.B. 300 con-
tain so many drafting errors that meaning-
ful analysis of population equality and
contiguity is very difficult.”
014.21 Plaintiff contends at 1 Record
131-132:
"[Percentage] deviations from the ideal
population are larger for assembly dis-
tricts than for senate districts. Only
1/3 of these districts are within the
[Reinecke IV 10 Cal.3d 396] 1% tolerance,
[four] districts are [more than] 2%
underpopulated .. . [or] overpopulated.
[These are illegal according to Reinecke
& IV under any circumstances.] No justifi-
cations are given for any of the 2/3 of
all districts with population disparities
r
which would require explanation under
previously applied standards."
014.31 Plaintiff contends at 4 Record
70-71:
"While it remains unclear what the Assem-
bly districts are, certain population
characteristics are apparent. For exam-
ple, the majority opinion in Assembly v.
Deukmejian (1982) 30 Cal.3d 638, 666 note
21 admits that the maximum population
disparity for uncorrected assembly dis-
tricts may be 15%. The court orders no
corrections for these districts .
Even according to the unverifiable popu-
lation claims put forward by proponents
of the assembly plan, more than half vio-
late the 1% maximum deviation from the
ideal population which is seed icable under
pendent jurisdiction over state law. No
justification is offered for any of these
deviations."
26
014.42 Assembly counsel argued at the
October 27, 1982 hearing at ll
Record 222-223:
"The only evidence of record now before
this court on the question of the Assembly
Districts is the Affidavit of James Tucker
filed yesterday which points out that the
maximum deviation in the State of Cali-
fornia Assembly districts is 3.92 percent."
014.44 The Assembly contends at 5 Record
463-464:
"The standard for reapportionments involv-
ing state representative districts such
as the Assembly is that the districts be
‘as nearly of equal population as practi-
cable.' Mahan v. Howell, 410 U.S. 315
(3972) «
"As the Exhibit to the Declaration
of James Tucker demonstrates, the popula-
tion of every Assembly district is within
2% of the ideal. The total range of
27
deviation is 3.92%, with the smallest
district (AD 56) being 1.98% smaller than
the ideal and the largest being 1.94%
greater than the ideal. Id."
014.46 The Assembly contends at 8 Record 9:
"As the percentage figures contained [at
5 Record 472-473] of the Tucker Declara-
tion show, the population of every Assembly
district used in November 1982 was within
% of the ideal. The smallest district
(AD 56) is 1.98% smaller than the ideal,
and the largest (AD 51) is 1.94% larger
than the ideal. Id. The maximum range
of variation is thus 3.92%, with a ratio
of largest to smallest district of 1.005.1.
The mean deviation from the ideal is -.05%,
and the median deviation is -.22%."
& 014.47 Plaintiff contends at 8 Record
173:
"At [8 Record 9] lines 11-13 of its Points
28
and Authorities the Assembly claims that
the ratio of largest to smallest district
is 1.005:1, the mean deviation is -.05%
and the median deviation is -.22%3 ....
The [actual] ratio between [largest and
smallest claimed Assembly district] popu-
lations is 1.040:1, not 1.005:1; thus the
relative population disparity is under-
stated by a factor of eight. The mean
deviation from the ideal for the popula-
tions alleged [by the Assembly] is 0.993%,
not -.05%; thus the Assembly is off by a
factor of twenty in this calculation
. When the median is properly calculated
according to size of deviation it is
1.02%, or nearly five times as large [as
claimed by the Assembly]."
014.48 The Assembly contends at 8 Record
310-311:
"Plaintiff argues that percentage devia-
tions from the ideal are larger than those
29
stated at [8 Record 9] of the Assembly's
Memorandum in support of its motion. With-
out commenting on or conceding the accur-
acy of the numbers derived by Mr. Halli-
well, we note that even his figures do
not amount to a prima facie case of con-
stitutional violation. Plaintiff cOntends
that the Assembly districts have a mean
deviation from the ideal of 0.99% anda
median deviation of 1.02%. .. .
"Mr. Halliwell also challenges
the Assembly's ratio of largest to smali-
est district, claiming correctly that the
ratio is 1.04 to 1. A computational error
resulted in the 1.005:l1 ratio set out at
[8 Record 9] of the Assembly's Memorandum
in support of its motion for summary judg-
ment. The Assembly apologizes to the
Court and the Plaintiff for the error."
014.61 Plaintiff contends at 10 Record
202-204:
30
"The Assembly's last line of defense for
its claimed population disparities is that
"interim plans are subject to less string-
ent equal protection standards than those
controlling regular reapportionment plans.
See Reynolds v. Sims, supra, 377 U.S. at
585." 8 Record 12. This rationale will
not support the constitutionality of the
Assembly plan because standards for in-
terim plans are relaxed only to the degree
required by practical necessity. In Upham
& Clifford v. Seamon (1982) 456 U.S. 37,
44 the U.S. Supreme Court notes:
‘It is true that we have auth-
orized District Courts to order
or to permit elections to be held
pursuant to apportionment plans
that do not in all respects meas-
ure up to the legal requirements,
even constitutional requirements.
See, e.g., Bullock v. Weiser, 404
U.S. 1063, 92 S.Ct. 750, 30 L.Ed.
31
2d 752 (1972); Whitcomb v. Chavis,
396 U.S. 1055, 91 S.Ct. 1858, 29
L.Ed.2d 363 (1970). Necessity
has been the motivating factor in
these situations.'
There was no necessity for the California
Supreme Court to adopt an assembly plan
with population disparities as large as
those in A.B. 300, since at least three
alternate plans with smaller population
disparities had been provided to the
Legislature before the Legislature enacted
its own plan: Halliwell Assembly Plan #1,
Minority Assembly Plan #1, and Minority
Assembly Plan #2. All of these plans
were filed with the California Supreme
Court in Assembly v. Deukmejian. See
9 Record 297-364. Dr. Halliwell's assem-
bly plan had a maximum population dispar-
ity (between 59 AD = 298,763 and 22 AD =
292,690) of 6,073, see 1 Record 268,
whereas the Assembly claims a maximum
32
population disparity (between 51 AD =
301,601 and 56 AD = 290,005) of 11,596,
see 8 Record 46. Plaintiff's assembly
plan was also superior to A.B. 300 in com-
pliance with all other constitutional cri-
teria. See 1 Record 97-189. Furthermore,
as late as April 14, 1982 it would have
been possible to reduce the population
disparity in the Assembly's plan and im-
prove compliance with all other constitu-
tional requirements by means of Plain-
tiff's revisions based on whole precinct
Swaps. See 2 Record 66-170."
014.71 Plaintiff argued on June 9, 1984
at 13 Record 149-155:
"The Assembly has sought to evade judicial
enforcement of one-man-one-vote require-
ments applicable to state legislative
districts by making unverifiable claims
about a poorly defined version of the
districts which has no legal status.
33
"The defense provided by the As-
sembly against allegations that the 1982
assembly plan violates one person, one
vote requirements has been to divert at-
tention from the districts adopted in
Assembly v. Deukmejian to another set of
districts which allecedly comply with
population equality standardcs. The Assem-
bly has taken care to present the crucial
premises which supposedly justify this
substitution in its rebuttal of May 23,
1983 [at 8 Record 304-312] so that Plain-
tiff would have no opportunity to call
the court's attention to the Assembly's
sleight-of-hand tricks.
"This subterfuge might have been
noticed by this court if the Assembly had
filed with this court a complete copy of
the brief supporting its technical cor-
rections which it filed with the Califor-
nia Supreme Court; but the crucial first
two pages of the California Supreme Court
34
brief were excised from that document
before it was given to this court. These
two pages are provided [at 13 Record 175-
176].
"These missing two pages demon-
strate that (1) these corrections were
submitted as a ‘supplemental appendix' a
week after the final deadline for submis-
Sions by the parties; (2) these correc-
tions were not completed til long after
the legislation had been passed and were
not based on maps on which the Legisla-
ture may have relied in adopting A.B. 300;
and (3) the corrections are different
from those used by Republican analysts
when they calculated the maximum popula-
tion disparity which is cited in Assembly
v. Deukmejian. For reasons which will be
explained below, these constitute the
reasons why neither the Legislature nor
the California Supreme Court has author-
ized the revised version of the assembly
35
districts which the Assembly is trying to
defend.
"The Assembly's May 23, 1983 re-
ply to Plaintiff's opposition to summary
judgment declares: 'The corrections of
technical errors were both statutority
authorized, see Cal.Elec.Code § 30000, and
presented to and accepted by the Califor-
nia Supreme Court ... .' 8 Record 310.
However:
1) The fact that these ‘technical correc-
tions' are included in a supplemental
appendix filed more than a week after
the December 31, 1981 submissions dead-
line makes it unlikely that the Cali-
fornia court took any greater cogni-
zance of it than this court did of
Plaintiff's ‘Supplemental Memorandum
on Standing,' which was also filed out
of season.
2) A.B. 300 (including § 30000) was signed
by Governor Brown on September 17,
36
1981. Since proceedings in Assembly
v. Deukmejian were initiated in Octo-
ber of 1981 and the Quinn declarations
being rebutted in the Assembly's sub-
mission of January 8, 1982 were filed
in November and December of 1981, it
is obvious that the maps which alleg-
edly authorized the Tucker corrections
were not maps which had been prepared
by the Legislature in connection with
the enactment of A.B. 300 in September
1981 but were still in preparation
months later; as the Assembly notes in
the deleted pages 1 and 2 of its sub-
mission of January 8, 1982,
"The declaration of T. Anthony
Quinn purports to authenticate a
computer printout obtained from
the Secretary of State. ...
"The printout obtained by real
parties was a preliminary list of
corrections. Had real parties
37
inquired, they would have learned
that the corrections were being
made on maps, as provided for in
& A.B. 300, and that the printout
they obtained was not a final list
of corrections, but simply a work-
ing document forwarded to the
Secretary of State for her comment
and review. As the third declar-
ation of James R. Tucker (filed
herewith) states, final maps as
well as a final list of correc-
tions have now been provided to
the Secretary of State.'
But according to g§ 30000,
‘Any maps describing the boun-
Garies of the districts, as con-
tained in this division, which
have been prepared by the Legis-
& lature or a committee of the Leg-
islature in connection with the
enactment of this division may be
3)
38
deposited with the Secretary of
State in order to illustrate the
boundary lines set forth in this
Givision.' Emphasis added.
§ 30000 does not authorize post-enact-
ment corrections contrary to the lan-
guage of the bill, as Assembly has
repeatedly tried to suggest.
The fact that the corrections which
are the basis for the Quinn population
figures are different from those con-
tained in the third Tucker declaration,
in the January 8, 1982 submission to
the California Supreme Court, is docu-
mented with respect to key districts
[at 13 Record 194-196, in] the accom-
panying declaration of Michael J. Hal-
liwell. Therefore when the Assembly
cites (at 8 Record 310) the concession
noted in footnote 21 of Assembly v.
Deukmejian, that ‘the corrected dis-
tricts are probably within 7 percent
39
of absolute equality,’ it is citing a
concession based on figures for a ver-
sion of the assembly districts which
have never been implemented, i.e.,
Quinn's assumptions based on a set of
corrections the Assemb characterizes
in the two deleted pages as ‘a prelim-
inary list.'
"While the 7% maximum population
disparity cited in Assembly v. Deukmejian
is clearly inapplicable to districts em-
bodying the Tucker corrections, it is not
possible to calculate the true population
disparity in this version of the districts
because of the obscure form in which the
Tucker corrections are set forth and the
failure of the Assembly to provide the
maps which allegedly authorize these cor-
rections. Even with the necessary maps
it would be a formidable task to mesh
Tucker's corrections with the legal des-
criptions of the 1982 assembly districts
40
which are available to the public; indeed,
as Plaintiff noted at 1 Record 100-101
and 8 Record 165, errors of omission and
double counting resulted when key maps
were withheld from the Assembly's staff.
This is why Plaintiff has requested sup-
porting documentation for the Assembly's
purported population figures before at-
tempting to provide a specific refutation
of them.
"On June 14, 1982 Plaintiff called
attention to discrepancies between the
Assembly populations attested to in the
Quinn affidavit and those alleged by the
Assembly and the need for subtotals for
divided tracts to determine the true pop-
ulations of these districts. See 4 Record
6-9. Aiso, in his May 9, 1983 opposition
to the Assembly's motion for summary judg-
ment Plaintiff noted that ‘unless the
Assembly is willing to provide a printout
showing how it arrives at the populations
41
it uses for split census tracts it is
impossible to evaluate the accuracy of
the Assembly's data base.' 8 Record 155.
But in its rebuttal the Assembly tries to
create the impression that it has provi-
ded to Plaintiff the population data which
he seeks or at least that the maps showing
corrections to the 1982 districts and
populations moved between districts in
the corrections process are available to
the general public:
‘Plaintiff now has in his pos-
session all Latopmacion concethane
the actval population used in
California's 1982 Assembly elec-
tions. Declaration of Joseph
Remcho, Paragraph 4. These ma-
terials were provided despite
Plaintiff's continuing failure to
submit discovery bemaeete pursu-
ant to the Federal Rules of Civil
Procedure. Additional materials
42
that plaintiff claims to need are
public records that plaintiff for
his own reasons chooses not to
purchase or otherwise obtain.' 8
Record 309.
Plaintiff has been provided with no popu-
lation data except the undocumented and
unverifiable district populations in the
Tucker declaration; and there is no public
source for the information which the As-
sembly has refused to provide.
"In its December 31, 1981 brief
filed with the California Supreme Court
the Assembly had admitted, ‘Some of the
corrections, however, involve geographic
areas too small to appear clearly on the
maps furnished to the Secretary of State.'
Id. at 43. Thus it would be difficult
for plaintiff to analyze these changes
using the smaller-scale census maps
available to the general public. In the
same brief the Assembly had conceded:
43
‘In other cases, the errors resulted from
inaccurate or illegible maps and print-
outs prepared by the Census Bureau. There
were 74 errors of this type, constituting
26.33 of the total.' Id. at 41. Plain-
tiff has previously complained (at 8 Re-
cord 164) of the difficult problems facing
anyone attempting to analyze the revised
version of the Assembly plan using census
maps and raw population data.
"It is clear from the above that
the Assembly realizes that its withhold-
ing of the details of its own population
computations makes an accurate independent
analysis of its districts impossible.
"Even though Plaintiff has been
prevented from compiling his own figures
for assembly district populations by the
Assembly's refusal to provide data essen-
tial for this anaiysis, he has been able
to point out flaws and deliberate distor-
tions in the ponulation data which the
44
Assembly has submitted. For example, in
his opposition to summary judgment (at 8
@ Record 173) Plaintiff pointed out that
the mean deviation from the ideal popula-
tion was .05%, while the true value was
almost 20 times larger. In its rebuttal
(at 8 Record 310) the Assembly notes:
"Plaintiff contends that the Assembly
districts have a mean deviation from the
ideal of 0.99%'; the Assembly explicitly
declines to comment on or concede the ac-
curacy of Plaintiff's method of computa-
tion. However, on December 31, 1981 the
Assembly had admitted in its brief to the
California Supreme Court that 'The aver-
age absolute variance from the ideal As-
sembly district in A.B. 390 is .99%.' Id.
at 58-59. It is plain that the Assembly
ae was aware of the proper method for com-
puting the average deviation and that its
twentyfold understatement of this statis-
tic to this court therefore was deliberate.
45
"Even if Plaintiff were somehow
able to compute populations for assembly
districts which incorporate the Tucker
corrections and were to find serious er-
rors in the Tucker population figures,
proponents have left themselves an escape
hatch which would preclude action against
them under the penalty for perjury provi-
Sions of their supporting affidavits. Dr.
Cain admits (at 8 Record 39) that popula-
tion figures for some districts involve
estimates which ‘are inherently somewhat
imprecise' and that census populations
cannot be used in place of these estimates
‘without upsetting the balance of popula-
tion equality.'"
014.81 Plaintiff contends at 8 Record 530:
"The three smallest [1983] assembly dis-
trict populations, according to the Rose
Institute, are 65 AD = 275,482, 50 AD =
285,186, and 58 AD = 287,907. The three
46
largest populations are 71 AD = 304,011,
51 AD = 301,650, and 17 AD = 301,369. The
assembly district population disparity of
28,529 exceeds constitutional limitations,
and the percentage disparity is larger
than several which have been ruled uncon-
stitutional even when they involve much
"
smaller numbers of people.
224
rj
24 PRACTICAL NECESSITY OF USING THE
LEGISLATURE'S PLANS
024.12a The Senate contends at 3 Record
a, 4€43
"Plaintiff cannot [satisfy the standard
set forth in] Wood v. Conneaut Lake Park
Inc. (1967) 386 F.2d 121, 124-125 [which
"Absent a showing of arbitrary or
capricious action on the part of
the state supreme court, no Four-
teenth Amendment violation exists.
Failing a prerequisite showing of
arbitrary action by the state
court, the district court was
without original jurisdiction to
entertain [Plaintiff's] suit.
024.12b Plaintiff replies to the Senate
at 3 Record 292-293:
"There are several instances of arbitrary
and capricious action on the part of the
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226
Since the supporters of Article XXI swift-
ly gathered 2% times the number of valid
Signatures needed to block the contested
districts by referendum petition. Because
of this successful petition drive it was
necessary for the watoxity af the Cali-
fornia High Court to also scuttle the re-
ferendum provisions of the California Con-
stitution in order to put the Legisla-
ans into effect.
Ww)
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te
This action is absolutely contrary to the
uniformly accepted interpretation...
of clear and unambiguous language in the
State Constitution, according to which
the referendum reserves certain powers
unto the people themselves. This power
has been invoked to preclude not only A.B.
301, S.B. 99 and A.B. 300 but any redis-
tricting plans not essentially different
from those contained in these bills until
and unless the people vote to approve
them, and these powers reserved unto the
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upheld the right of referendum:
It appearing to the Court that
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‘ 197 -\ LI’rn Yr) "7 7 u7 q :7Ca - >
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a Ci at S twtaanma - - =
Lature, state OL ALASONG, LELSt
. Y~ J = 4 " ¢ at; 5 " + _—
endum petitions against Chapterl,
T | + | .
. = ch+ 1c +1 ~ rot
LWwe! ty-elgnt WS iLASLa.ULe , - ae oe
Crnacia?l Crnacainn hearing the cia
Yh we eB OcCoVvotL si veas 1A2 wis Bee Ce
nr) fijreo ry Ft aa] 1Ffiad slant rae aft
natures A J 4u4 ibn b aed L@ectors wus
~~) + + ho 7 me )
eral election to be held in 1968,
229
proved by a majority of the votes
cast thereon at the 1968 General
Election and upon proclamation of
the Governor of Arizona; and good
cause appearing therefore,
"It is ordered, adjudged, and
decreed: ..
"That the Decree entered here-
in on February 2, 1966, Klahr v.
Goddard, D.C., 230 F.Supp. 537,
and the First and Second supple-
mental Decrees entered herein on
March 14, 1966, 254 F.Supp. 997
and December 5, 1966, 289 F.Supp.
827, respectively, redistricting
the Congressional districts of
Arizona and reapportioning both
Houses of the Arizona Legislature
shall apply to and govern primary,
general, and special elections
which may be held hereafter until
the legislative authority of the
230
State of Arizona shall have adop-
ted different, valid, and effec-
tive plans for redistricting and
reapportionment, or until the
further order of the Court." Id.
at 829."
024.21 Plaintiff contends at 3 Record
he ‘practical considerations' which are
the lynchpin of the Supreme Court's deci-
sion are contrivances of those who seek
to subvert constitutional safeguards
against partisan gerrymandering. This
‘run-out-the-clock' strategy was recog-
nized from the outset by those who sought
to preserve the public interest in fairly
apportioned legislative districts. Plain-
tiff, the Rose Institute, the minority
party and Hispanics seeking greater leg-
islative representation all presented
fully documented redistricting plans to
231
the Legislature before any of the official
plans were unveiled. This did not prevent
the Legislature from ignoring these plans,
asserting that the various public interest
objectives embodied in these plans were
impossible to achieve, and stalling until
the very end of the legislative session
before passing their own plans.
"Within 48 hours of the release
of each of the Legislature's redistricting
plans the Rose Institute was able to ana-
lyze enough of each plan to demonstrate
that it flagrantly violated constitutional
requirements. This did not prevent the
Supreme Court from ruling that it was too
soon to consider the constitutionality of
the Legislature's redistricting plans un-
til the day it handed down its decision
and announced that it was too late.
"The Secretary of State had avail-
able plans that were more practical in
every way than those devised by the Legis-
)
232
tw
lature, but this did not prevent her from
ordering county registrars tc implement
the Legislature's plans on the grounds of
practical necessity. Proponents of alter-
nate redistricting plans further simpli-
fied them to keep them administratively
feasible long after the registrars started
gearing up' to use the Legislature's
plans; *he Supreme Court resolutely re-
fused to consider evidence of their feasi-
bility. When it in fact became too late
to change redistricting plans before the
June 1982 elections the Secretary of State
was provided with thoroughly documented,
cross-referenced and illustrated revisions
of the Legislature's plans that would have
removed most of their constitutional de-
fects. These revisions could have been
implemented without delaying the June
primary, but the Secretary of State cir-
cumvented a proposed temporary restraining
order that would have kept these options
233
open by issuing instructions to the county
refistrars that foreclosed any changes in
legislative district boundaries. This
action was taken by the Secretary of State
between the time she was informed of the
proposed temporary restraining order and
the time when the hearing on this propos-
al was scheduled.
"There is absolutely nothing that
the opponents of the Legislature's redis-
tricting plans could have done which they
did not do to minimize the practical ob-
stacles to using different lecislative
districts. Even so, the Supreme Court's
jority has clung resolutely to its al-
leged ‘practical obstacles' which ‘'obvi-
tion to alternate plans.'
024.27 Plaintiff contends at 4 Record
198-200:
"The vehicle for this political usurpation
» a FP
4JI2
was th iecision in Assembly v eukmejlian
YVAnd — = UC Lo st ii 4141 FAD — iJ LY Ve VC UALLIC ici
- — * — =
fy > \ 2n ~~ 2A £32 m o _* x
(1982) 30 Cal.3d 638. This action was
necessary number of registered voters.
The cause of action was the fact that
Signers of the petitions were asked to
inscribe their address when last regis-
tered to vote rather than their current
resident address. This challenge was
utterly frivolous because 1) only a small
percentage of the population had moved
during the year since the 1980 presiden-
tial elections, when registrations were
last purged, and many of these had re-
registered at their new addresses; 2) the
re-registration requirement exists only
to ensure that voters will be properly
qualified for district and local elec-
tions; where in the state a voter resides
.
is inconsequential in relation to a state-
bho
LJ
uw
wide issue; 3) the form of the petitions
with regard to the signer's address was
identical to that used for every initia-
tive or referendum petition in recent
years. The Supreme Court nevertheless
consumed 4% months before rejecting this
challenge to the validity of the referen-
dum petitions. This delay, together with
the fact that proponents of the contested
districts waited until the last legal
moment before approving them in the Leg-
islature, left only one day before the
‘must know' deadline for legislative dis-
trict boundaries which had been established
by the Secretary of State.
"In these circumstances the Cali-
fornia Supreme Court ruled that there was
no time to consider any of the alternative
redistricting plans which had been submit-
ted to the Court and that the only feasi-
ble means for conducting the 1982 legis-
lative elections were the very districts
236
which had been blocked by referendum pe-
titions. Yet according to the unambiguous
wording of the California Constitution,
the meaning of which is not disputed by
Assembly v. Deukmejian or any other deci-
Sion of the California Supreme Court, the
people reserve ‘unto themselves' the de-
cision on enactment of any proposed legis-
lation which has been stayed by referen-
dum petition. Until the electorate has
voted on such legislation neither it nor
anything even similar may take effect.
"The only justification offered
by the Court for the alleged feasibility
monopoly of the districts which had been
blocked by referendum was the computer
programming for the contested districts
which the Secretary of State had ordered
county registrars to undertake while the
Court was considering the validity of the
petitions filed against these districts.
The Secretary of State has no legal
237
authority to order such preparations. The
Secretary of State's justification for
this action was that any delay in elec-
tions preparations would incur 'the extra-
Ordinary cost of adding staff to cut pro-
Guction time. In selecting the redis-
tricting plans supported by her own polit-
ical party the Secretary of State picked
the least constitutional of all the avail-
able plans; moreover, even at the time
the Court's decision was handed down many
of the alternative plans were still admin-
istratively feasible because they were
much less complicated than the plans pro-
posed by the Legislature. Even had the
alternative plans been equally complicated
and therefore required the same amount of
computer programming any of them could
still have been used if the Court had been
willing to incur the cost of $1.09 per
voter that would have been necessary for a
special election for legislative contests."
238
024.33 Plaintiff contends at 9 Record
14-18:
"Not only is a direct tax on voting uncon-
stitutional, so is any fiscal policy which
burdens this precious right. [Supporting
405 U.S. 134, 148-149 and Dunn v. Blum-
stein (1972) 405 U.S. 330, 366 at 9 Record
14.)
"In short, while the prevailing
philosophy of the High Court accords broad
latitude to the states in many areas, its
decisions unequivocally recognize that
federal protection for political rights
is an essential ingredient of viable fed-
eralism. [Supporting quotations from
Kusper v. Pontikes (1973) 414 U.S. 51,
56-59 and Cousins v. Wigoda (1975) 419 U.
S. 477, 487 at 9 Record 15-18.]"
024.39 Plaintiff contends at 7 Record
286-288:
239
"The majority opinion of Chief Justice
Bird and her Brown-appointed colleagues
disregards a number of key facts in their
search for some plausible rationale for
ignoring constitutional requirements and
mandating the use of blatantly partisan
gerrymanders of California's congression-
al and state legislative districts:
1) Only five months remained before
the June primary because the Legisla-
ture used up the entire 1981 session
of the Legislature in devising redis-
tricting plans and the State Supreme
Court took 4% more months in deciding
to reject a challenge to the validity
of referendum petitions filed against
these plans. In a 1982 special ses-
sion when partisan advantage could be
gained by speed rather than delay, the
Legislature devised three ‘essentially
different' eediatricting plans in less
than three weeks. The challenge to
240
the validity of referendum petitions
was utterly frivolous, as the peti-
tions complied with every requirement
that had been applied to prior peti-
tions and contained 2% times the re-
quired number of validated signatures.
When the Reinecke I Court considered
the previously unadjudicated issue of
the powers of the state reapportion-
ment commission it took less than %
as long to reach a decision. As the
Assembly has noted (1 Record 207-208) :
"The urgency of these matters
is best illustrated by the speed
with which the Court moved in
Reinecke I [6 Cal.3d 602]. The
docket shows that the petition was
filed on December 15, 1971. The
alternative writ was issued on
December 20, 1971. And the case
was decided on January 18, 1972,
in an order effective immediately?”
241
2) The two to four months of computer
programming was ordered without sta-
tutory authority by Democratic Secre-
tary of State March Fong Eu. The Sec-
retary of State needed ‘some way" to
conduct the 1982 elections and so se-
lected districts whose use was pro-
scribed under Article II §§ 9-10 and
Article XXI of the California Consti-
tution in preference to numerous re-
districting plans (5 Record 297-362)
which were vastly superior in consti-
tutional compliance and administrative
feasibility.
3) In spite of the advantage of two
to four months of implementation the
Legislature's redistricting plans
still posed more administrative prob-
lems than the alternative redistrict-
ing plans devised by the Rose Insti-
tute and others because the districts
in the alternative plans were consti-
242
tuted of whole counties, cities and
census tracts.
4) Because the Thomas Brothers publish
a road atlas which shows census tract
boundaries for all the counties that
are divided in the model plans which
were available to the California Su-
preme Court and the Court was informed
of this fact by proponents of these
model plans, it should have been ob-
vious that anyone who can locate his
own residence on a map woulc have no
difficulty in determining his district
residence if the Court had honored
Article II §§ 9-10 and Article XxI
and adopted any of these model plans
for interim use. On the other hand
the vast number of split tracts, block
groups and even split blocks in the
Legislature's redistricting plans and
the fact that the Legislature provided
no legible maps for its districts
243
created a severe district identifica-
tion problem that was in no way ame-
liorated by the computer programming
in which the majority opinion placed
such reliance.
5) The decisions of the United States
Supreme Court most certainly do not
hold that any practical alternative
may be considered for adoption as a
court-ordered plan regardless of con-
stitutional considerations. In Car-
rington v. Rash (1965) 380 U.S. 89,
96 the Court explicitly ruled: 'We
deal here with matters close to the
clore of our constitutional system .
States may not casually [abridge
voting rights] because of some remote
administrative benefit to the State.'"
024.45 Plaintiff contends at 7 Record
289=<291:
"{I]t is simply absurd to suppose that
244
with the resources available to it the
California Supreme Court could not have
devised redistricting plans both adminis-
tratively and constitutionally superior
to those adopted by the Legislature and
blocked by referendum petition. In less
than one month Plaintiff by himself, with-
out any tools but census maps and a hand
ilculator, developed the package of re-
(- : a £
sions (2 Reccrd 66-288) which accompa-
ied his April 3, 1982 proposal for a tem-
porary restraining order. The maps which
were filed along with these proposed dis-
ricts are more detailed than those pro-
islature for their dis-
tricts, and the legal descriptions are
nore precise than those in the redistrict-
ing bills passed by the Legislature.
It is equally ridiculous to sup-
pose that because the Court couid not do
the thorough job done in devising the
court-ordered districts adopted in 1974
245
9)
ae
fu
5
C
))
O
+
a)
t
ke
it should therefore wash it
(t
a
()
en)
k-
be
rh
O
Hy
|
responsibility for upholding
t-
c
nia State Constitution. Of course
would have taken the Court less time to
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alternative districts designated by the
Court could have been used for congres-
sional and state legislative primaries
held on June 8, 1982 with campaigns con-
ducted according to ground rules used for
special elections. It is true that it
would have cost $12 million to hold a
246
pre-primary special election, but any
doubts as to the proper balance between
"serious impact on the state treasury'
and constitutionally conducted elections
have been definitively resolved by the
United States Supreme Court in Bullock v.
Carter (1972) 405 U.S. 134, 148-149:
"Viewing the myriad govern-
mental functions supported from
general revenues, it is difficult
to single out any of a higher or-
der than the conduct of elections
at all levels to bring forth those
persons desired by their fellow
citizens to govern. Without mak-
ing light of the state's interest
in husbanding its revenues, we
fail to see such an element of
necessity in the state's present
means of financing primaries as to
justify the resulting incursion on
the prerogatives of voters.'"
247
024.53 Plaintiff contends at 5 Record
263-265:
"The time constraints under which the
California Supreme Court operated were
largely of the Court's own making, since
the Court took nearly 4% months from when
redistricting bills were all finally
passed (on the last day of the legislative
session) until it handed down its decision
(on a frivolous challenge to the referen-
dum petitions) at the end of January 1982.
That the Supreme Court could have acted
in a much shorter time is best illustrated
by a quotation (p. 33) from the Assembly's
petition favoring the use of its redis-
tricting plan for the 1982 elections:
"The urgency of these matters
is best illustrated by the speed
with which the Court moved in
Reinecke (I). The docket shows
that the petition was filed on
December 15, 1971. The alterna-
248
tive writ was issued on December
20, 1971. And the case was decid-
ed on January 18, 1972, in an
order effective immediately.'
The Court was assisted by the Rose Insti-
tute and others in various ways which
would have expedited its development of
its own redistricting plans, but the Court
continued its passive approach to the case
in spite of all such assistance.
"The collaborative effort to sub-
vert the constitutional requirements for
redistricting began with the Legislature,
which consistently tried to minimize public
scrutiny of its redistricting and thereby
handicap efforts to enforce constitution-
al requirements. See 1 Record 100-104.
"The total result of these parti-
San redistricting maneuvers, inwhich even
the Governor personally participated and
which the State Supreme Court implicitly
Sanctioned, was delay which has made
249
judicial review as late and difficult to
obtain as possible. In Ely v. Klahr (1971)
403 U.S. 108, 120 Justice Douglas warned
against the possibility of a ‘run-out-the-
clock' strategy:
'A valid apportionment plan will
seemingly mean the defeat of sev-
eral incumbents... .
", . - The hearings on such a
plan will doubtless be long drawn
out and extensive. The prize is
great, for if the present incum-
bents can prolong matters, the 1972
election may come and go with the
existing invalid 1970 plan in
effect.'
Justice Douglas probably never conceived
of the possibility that a legislature
Operating in spectacularly open bad faith
would be able to enlist the cooperation
of a state supreme court in evading con-
stitutional requirements; but Plaintiff
250
has alleged that appointees of Governor
Brown, who constituted the majority of
the California Supreme Court which ordered
into effect the Legislature's redistrict-
ing pians, did so for transparent politi-
cal motives. See 1 Record 228-231."
024.59 Plaintiff contends at 10 Record
139-141:
"Instead of making a good-faith effort to
comply with constitutional requirements,
the Legislature, the Secretary of State
and the Chief Justice and other Jerry
Brown-appointed members of the California
Supreme Court conspired to force the use
of the Legislature's redistricting plans
on the grounds of practical necessity.
(1) After keeping their redistricting
plans secret for as long as possible, (2)
proponents of the Legislature's plans
mounted a frivolous challenge to the
validity of the referendum petitions filed
against these plans. (3) While the Cali-
fornia Supreme Court consumed 4% months
in reaching a decision on this frivolous
challenge, (4) the Secretary of State
ordered the county clerks to program com-
puters to implement the Legislature's
>
Mirnyi
The Secretary of State had no
authority to order such computer program-
ming -- especially since the districts
she ordered implemented had been blocked
by referendum petitions with 2%; times the
necessary number of valid signatures;
moreover, the d.stricts obviously were
flagrantly in violation of the geographic
integrity requirements of Article XXI and
were so horrendously complicated that
(according to Assistant Chief Deputy Reg-
istrar of Los Angeles County Richard Siler)
they placed ‘absolutely critical’ strains
on the processes of election administra-
tion. Furthermore, at the time the Secre-
252
tary of State ordered the computer pro-
gramming for the Legislature's redistrict-
ing plans she could have chosen to begin
implementing several alternate plans which
already had been presented to the Legis-
lature and which were superior in consti-
tutional compliance, legal status and ad-
ministrative feasibility. See 5 Record
297-364, 384-388.
"When the California Supreme Court
decided Assembly v. Deukmejian on January
28, 1982 there still was plenty of time
to program computers to use any of the
model plans which consisted largely of
whole counties, cities and census tracts;
there was even enough time for the Court
to draft its own plan if single-office
paper ballots were used for the 1982 con-
gressional and state legislative primary
elections. However, the California Su-
preme Court resolutely refused to consider
evidence submitted to it concerning the
253
unconstitutionality of the Legislature's
plans and the feasibility of alternate
plans. Instead it invoked the illegal
preprogramming ordered by the Secretary
of State as a ‘compelling reason' why the
Legislature's plans must be used for the
1982 elections. The California Supreme
Court refused to make any modifications
to improve constitutional compliance in
the Legislature's plans. Undoing the mis-
numbering of senate districts would have
required only a stroke of a pen, but this
also would have undone a major buiit-in
advantage for the Democratic Party.
"Even if there had been a real
administrative advantage in using the Leg-
islature's redistricting plans, adminis-
trative efficiency is no valid excuse for
impairing, much less abrogating, vital
political rights. [Quotation at 10 Record
141 from Gould v. Grubb (1975) 14 Cal.3d
661, 675 ruling out similar ‘administra-
254
tive efficiency’ interests as a basis for
"
infringement upon political rights].
024.67 Plaintiff contends at 4 Record
201-202:
"What has happened as a result of Assembly
v. Deukmejian is a plain and unambiguous
usurpation of power. The California Su-
preme Court did not and could not question
the clear meaning of the restrictions
against legislative gerrymandering in
Article XXI; the Court simply refused to
enforce them. Above and beyond the in-
trinsic constitutional defects of the Leg-
islature's redistricting plans is the fact
that all three plans have been duly and
resoundingly rejected by the voters of
California; the validity of this action
must be and is recognized by the Califor-
nia Supreme Court. The Court cited many
legal reasons why the 1982 elections must
be conducted in districts reapportioned
255
according to the 1980 census, but it did
not and could not cite any legal reason
for using the Legislature's redistricting
plans; this aspect of the majority opinion
in Assembly v. Deukmejian is supported
only by the Court's ‘equitable discretion.'
The ‘compelling practical necessity' cited
by the Court as the rationale for its or-
dering into effect the Legislature's plans
arises from three circumstances: 1) the
Legislature waited until the last legal
moment before sending its redistricting
plans to the Governor for his signature.
2) The Legislature then consumed an addi-
tional 4% months with a frivolous chal-
lenge to the validity of the referendum
petitions filed against each of their
redistricting plans. 3) While the Legis-
lature was running out the clock the Sec-
retary of State ordered county registrars
to make advance preparations to use the
Legislature's redistricting plans so that
256
by the time the Court ruled it was ‘too
late to consider use' of any of the alter-
native redistricting plans.
"That the controlling majority of
the California Supreme Court (all of whom
were appointed by Governor Jerry Brown)
could have been innocent pawns of the
'run-out-the-clock' strategy used to force
adoption of three highly partisan and bla-
tantly unconstitutional redistric*ing
plans strains credulity. However, if such
had been the case the Court should at
least answered the pleas for reconsidera-
tion or otherwise clarified its reasoning.
The resolution of this case must depend
on the legal validity of what the Court
has done, not speculation about underlying
motives; but the obvious possibility of
shared political motivation tantamount to
collusion is relevant to this case because
expedited consideration is essential to
restoring public confidence in the integ-
257
rity of the political process in Califor-
nia."
024.75 Plaintiff summarizes "Severe Vio-
lations of Established Constitu-
tional Norms in the Adoption of
the 1982 Congressional Districts"
at 13 Record 9-10:
"(1) Deliberate manipulation of legisla-
tive, judicial and administrative proces-
ses to force the use of the contested dis-
tricts. (a) The State Legislature delayed
enactment of its redistricting plans un-
til the very end of the legislative ses-
sion and kept the plans secret until
enactment in order to hinder challenges
to the constitutionality of these dis-
tricts. The plans were signed by the
Governor without publicity in the dead of
night in order to hamper a referendum
challenge to the use of these districts
in the coming elections. (b) The Califor-
258
nia Supreme Court stalled for 4 months,
then ruled that the districts blocked by
id referendum petitions and challenged
nstitutional must be used for the
lections since there was no time to
nt any of the alternative redis-
plans (see 5 Record 297-364, 384-
tted to the Legislature and to
Deliberate abuse of its equit-
>retion by the California Supreme
to secure partisan advan-
ilyzed at 3 Record 162-220, 5
60-266, 7 Record 285-299, and 10
6-140. The refusal of any of
ints to respond to Plaintiff's
$ regarding deliberate obstruc-
istice by the California Supreme
this Court's refusal to allow
the California Supreme Court
—"
y inappropriate to accord
to the actions of the Cali-
rt in adopting the contested
259
districts. (c) Violations of due process
of law in the implementation of the con-
tested districts by the Secretary of State
are analyzed at 1 Record 189-203 and 10
Record 147-163. At no point in these pro-
ceedings has Defendant responded to Plain-
tiff's allegations regarding her own il-
legal manipulation of the elections pro-
cess to secure advantages for Democratic
candidates.
"(2) Abridgement of Political
Rights in Order to Avoid the Cost of Con-
~
stitutionally Conducted Elections. In
Bullock v. Carter (1972) 405 U.S. 134,
147-148 the U.S. Supreme Court ruled:
"{I]t is difficult to single out any [gov-
ernmental function] of a higher order
than the conduct of elections. .. . With-
out making sight of the state's interest
in husbanding its revenues, we fail to
see [how financial considerations can]
justify [an] incursion on the preroga-
260
tives of voters.' Nevertheless the Sec-
cretary of State ruled out the use of
constitutionally adequate redistricting
plans to save 'the extraordinarily high
cost of adding staff to cut production
time’ (2 Record 15), and the California
Supreme Court eliminated the constitu-
tionally required statewide vote before
use of districts challenged by referendum
petition to save the $12 million cost of
a special election (see Assembly v. Deuk-
mejian (1982) 30 Cal.3d 638, 658)."
024.83 Plaintiff argued on May 26, 1984
at 13 Record 122-123:
"Unless the 1982 congressional districts
are found to be constitutional, their use
must be justified by proving administra-
tive necessity.
"The constitutionality of the con-
tested congressional districts is the most
important factor in determining whether
261
the California Supreme Court abused its
equitable discretion in ordering the use
of these districts for the 1982 elections.
If the population disparities in these
districts cannot satisfy the strict popu-
lation equality requirements of Article I
§ 2 then Plaintiff is entitled to post-
election relief unless bona fide adminis-
trative considerations precluded the use
of constitutional congressional districts
for the 1982 elections.
"Thus unless the 1982 districts
are found to be constitutional Defendant
bears the burden of proving that the use
of the Burton Plan was actually compelled
by administrative necessity. Plaintiff
has documented the fact that alternative
redistricting plans with smaller popula-
tion disparities and superior compliance
with all other constitutional requirements
were available at the time when the Sec-
retary of State ordered county registrars
262
to begin computer pre-programming for the
districts in the Buton Plan. Plaintiff
has demonstrated that alternative plans
consisting of compact groupings of whole
counties, cities and census tracts could
still have been used for the 1982 elec-
tions at the time the Burton Plan was
adopted by the California Supreme Court
Since they did not require the extensive
computer programming needed for the hor-
rendously fragmented components of the
Burton Plan."
312
#027 DEFECTIVE MODE OF ENACTMENT OF THE
1983 REDISTRICTING PLANS
027.11 Plaintiff argued on December 10,
1982 at 6 Record 57:
"If indeed an extraordinary occasion
exists (as required by Article IV Section
3b of the California Constitution) re-
quiring the Legislature to adopt redis-
tricting legislation at a special session
such necessity must give way before Plain-
tiff's showing of the extraordinary dam-
age that such an action would inflict on
the integrity of California's political
process. This damage would arise because
the Legislature which has been called into
special sessicn and which immediately
voted to abolish established legislative
procedures has not been constitutionally
elected."
O27425 Plaintiff contends at ll Record
289-292:
313
"(The order of February 8, 1983 notes]:
"Plaintiff requests this Court to enjoin
the Legislature of the State of California
from adopting redistricting plans for use
in the 1984 elections before the Governor
-elect is sworn into office on January 3,
1983." (7 Record 525.)
"The basis for this request is
the clearly illegal nature of the special
session on redistricting. Article IV §
3(b) of the California Constitution pro-
vides:
‘On extraordinary occasions
the Governor by proclamation may
cause the Legislature to assemble
in special session. When so as-
sembled it has power to legislate
Only on subjects specified in the
proclamation but may provide for
expenses and other matters inci-
dental to the session.’
"As the Order of February 8
314
appears to recognize, the period of time
from December 6, 1982 until January 3,
1983 is not an ‘extraordinary occasion'
requiring the enactment of redistricting
plans for use in the 1984 elections.
The special sessicn on redistricting ob-
viously was called to evade the mandate
of the 1982 elections wherein the Demo-
cratic Party lost control of the Gover-
nor's Office. It cannot have been the
intent of the people of California in
adopting Article IV § 3(b) to allow
their authority to be thus circumvented.
Moreover, Article II § 1 of the Califor-
nia Constitution declares, ‘All politi-
cal power is inherent in the people.'
Lame-duck officeholders who have been
rejected by the people should not be
permitted to usurp the rightful functions
of those selected by the people to govern
them on account of a nonexistent extra-
ordinary occasion. Furthermore, Article
315
I § 3 of the California Constitution af-
firms: ‘The people have the right to
instruct their representatives.' The
demonstrable purpose of the special ses-
sion on redistricting was to evade the
instructions given by the people in the
redistricting referenda of June 1982.
“Given the stark clarity of the
state law in question, Davis v. Mann
(1964) 377 U.S. 678,690 was clearly ap-
plicable to the circumstances:
"Where the federal court's
jurisdiction is properly invoked
and the relevant state consti-
tutional and statutory provi-
Sions are plain and unambiguous
there is no necessity for the
federal court to abstain pending
determination of state law ques-
tions in a state court... .'
"Since all the actions of a de
facto legislature are generally accepted
-_——_ —_—
316
as valid even if that legislature is
later found not to have been constitu-
tionally constituted, the refusal of
this panel to adjudicate plaintiff's
challenge to the legality of Governor
Brown's proclamation of a special ses-
sion on redistricting until after that
session had enacted redistricting legis-
lation may well have inflicted an ir-
reparable injur
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