# Appendix — Halliwell v. Eu > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0571%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 801 ## Text 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 ~ + ‘at=" y Ct) sn alare van wes iS ASSe€el sj iy goes sh COMMUN TIL wWVULI es § ; 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 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 a ee ' e 4 ca > ( Loo Cid Yy > ‘ : abaatat , a! an! - ae ee ae A MAN we Ite GO OY + = = 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 W) T ~ . j M4 S - i - | ) ) ) oY ee by ) 1 C i) O O 4 W c — G 18) & co C3 ° O TO S 7) “re & 4) rd ) “4 O \O p & v oF O QO, C ob) ie) 4J ie) nH & D A! ~ + Oo Yo - ££ & eA > © e4 S “4 ‘o) v c Ne) 44 a) S se) 4 i) ie O - oF ) > 4 -4 4 oO “4 a 4 oS o) by @) a) & 40 rH oo ok O )) Q, ue) MY Ne) Bw. w > My b ~ O 'e) Ae hy q u4 O ~ > O ™ O +) =>) > 10) 'e)) s 4J CT ie} ~) 4) 8) My 18 a) Wy r= 6 4 +) = “4 . = a 4% UO U4 +) 7 SS M4 my > oe) ©, My Ss 4) i J 4) S O v) eq O | = c - wd y4 rw Y ur a 6) WY) = 0) Ae) “4 8) -) q eb) “4 4 18) O ° QO, O a 4 N O b = ~ — 7s) oe) = OT hy ) ~ “4 Q & W) N ‘Ss or O My tt ” - O qd Q, rf co) ae) se) q 9) S 9) 6) ‘So hy rt S ”) 4) aa c- "HY oo U) id O 8) UW) = rad) - > wv 40) 3 Vv O re) “4 wh J W) v vd rs) J O Vv = G e) >) S a UW) aa uj My al r GI) S 4 o, S rz > = rb) 0) Sa wt + W a) 6) O “Wo 6 EY v O O GW dA oer Ae) = rt 6) ” Py Vv S tH S 9) “4 O = C) + aa 7. re) Q, a W”) w J y 7s 0 od) U4 O i * O O rH ie J O O ty UO ‘e)) O s) r ) 4 6) 18) 4 Lea GA 5 ‘@) 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) ry f br YW) ct ry ba. Q ct te a 3 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 > , 4 Y) 4 UV 4a {J r4 A , Y) ) r4 WY) oO | VY) ad ‘ 7 r—4 be > ) . 7 | ) m4 — ‘ + 1) 4 ad - > iw ort @) ‘ m4 iJ - ‘ 4 + 4 rq 1 ) 4 t b. 5 r4 iJ LJ r ) w") od 4 Ly 4) 4J Y) r4 m4 aa cre . 7 Deirkm VeEURT } 7 } 1 } » snr , upheld the right of referendum: It appearing to the Court that A - 7 ; —_— a J 75 } 1D eS on there were led with the Secre ‘ 197 -\ LI’rn Yr) "7 7 u7 q :7Ca - > Ar1 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0571%3A6. Public record. Not legal advice.