VI. OTHER CONSIDERATIONS

A. "Political Fairness" and Incumbent Status

Briefs presented to us have raised the issue of "political fairness," i.e., the drawing of district lines so as not to advantage one political party or the other. While it has been understood and accepted that we would not employ partisan data in the drawing of district lines, it has been suggested that after drawing district boundaries we should apply a political test reviewing the proposed districts in terms of their current partisan registration or a previous statewide election.

We have not done so, for three reasons. First, we note that our instructions from the Supreme Court make no reference to evaluating districts in terms of partisan political criteria, such as determining the "safeness" or "competitiveness" of a particular district. Indeed, the court has made clear that redistricting involves "peculiarly political questions that are not appropriate

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for the court to decide." (Silver v. Brown (1965) 63 Cal. 2d 280.) We agree. We are here, not as a matter of choice, but because the court -- confronted by an impasse between the Legislature and the Governor -- has instructed us to recommend a districting plan.

Second, even if we had wished to do so, time constraints under which we have been required to operate would have precluded the development of a political litmus test in which we would have confidence. The days of analysis required to conduct such a test and to make adjustments would have made it impossible to meet an already difficult deadline.

Finally, the various "fairness" tests suggested to us, which are based on past political history, offer incomplete and often conflicting guidelines as to future electoral behavior. We conclude that the complexity and dramatically changing demographic and social environment of California preclude the use of simple formulae. Instead, an analysis of "political fairness" in California in the 1990's will include recognition of the duplication and "deadwood" in the registration rolls; the change in the composition of two-party registration (i.e., the relative decline in the share of registered Democrats) and the resulting change in the nature of the vote-registration ratio(67); the increase in third-party and decline-to-state registrants, now well over 10 percent of the total; the critical decline in voter

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participation; the vastly different vote-registration ratios of incumbents compared with contestants in open districts; the impact of candidate personality, policy issues, and campaign finance; the potential political mobilization of millions of unregistered citizens and the prospect of citizenship for large numbers of permanent resident aliens; and, last but not least, term limits.

We leave this analysis to others better able and more highly motivated to do so, underscoring again that we did not use political data in the drawing of district lines.

Nor have we drawn boundaries on the basis of their impact on incumbents. In 1973, in responding to the contention that the Masters should have accepted the existing relationship between incumbents and their constituencies as an additional criterion, the Supreme Court stated:

"We agree that there are values in maintaining such relationships and also in making it possible for competent incumbents to seek reelection without being placed in unduly disadvantageous positions. We agree with the Masters, however, that these values should not be pursued by designing district boundaries to promote the reelection of incumbents. Except in those relatively rare cases where population shifts are so extensive that it would be difficult or impossible for particular incumbents to be reelected even under a proincumbent districting plan, incumbent-neutral districting will not preclude each incumbent from seeking reelection in a new district that will contain a substantial part of his former constituency. Moreover,

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each incumbent will retain the advantage of running as a sitting congressman or state legislator, as the case may be. To go further and to give incumbents the additional advantage of districting designed to preserve the status quo would be unfair both to nonincumbent candidates and to the electors of the new districts who wished to support such candidates." (Reinecke IV, supra, 10 Cal 3d. at 402).

In 1973, the Masters had observed that there would be instances in which it would be necessary for some incumbents "to change their residences if they wish to seek reelection in the areas encompassed within their former districts." (Id, at p. 446.) Unquestionably, this will also be true in 1992, under this or any other plan. We note, however, that there is no longer a durational residence requirement within a district as a condition of candidacy for state legislative office and, indeed, that members of congress need only reside within the state. Moreover, while some plans submitted to us were criticized because they often placed two or more incumbent legislators in the same district, none of the information presented to us by any participant included the residential status of existing office-holders. Thus, we have no way of knowing to what degree our plans have this effect. This plan, then, is "incumbent neutral."

B. Final Disposition of Materials

A request has been received from the University of California Institute of Governmental Studies in Berkeley that its facilities

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be used as a depository of all material lodged with the Masters, with the understanding that the materials received will be safely stored, catalogued and made available for public and scholarly use. It is recommended, when the judgment in this action becomes final, that pertinent materials that have been lodged with the Masters be released to the Institute of Governmental Studies for storing and use as requested, upon the conditions noted. We note that the court approved a similar recommendation in 1973.

Respectfully submitted November 29, 1991

/s/ George A. Brown
George A. Brown, Presiding Master
 
/s/ Rafael H. Galceran
Rafael H. Galceran, Special Master
 
/s/ Thomas Kongsgaard
Thomas Kongsgaard, Special Master