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SACRAMENTO — Gov. Arnold Schwarzenegger wants to have retired judges carve up the state’s legislative districts, saying they’ll do a better job of creating competition. That’s a stretch, say election law experts. Judges, they say, are no more likely to create competitive districts than lawmakers are. Worse, they worry that judges — most of whom owe their appointments to one governor or another — will bring their own partisan preferences to the job, tainting the bench in the process. “It’s a terrible idea,” said Daniel Lowenstein, an election law expert at UCLA School of Law. “It politicizes the judiciary, and the search for the ‘more competitive districts’ is illusory.” “Just because you have judges doing the redistricting process doesn’t mean you’re going to create more competitive seats,” agrees Bruce Cain, director of the Institute of Governmental Studies at UC-Berkeley. “In many, many states, frequently the split in these three-judge panels is along party lines.” Lowenstein points out that in 1984, voters rejected an initiative calling for judges to handle the once-a-decade job of redrawing districts. But Schwarzenegger is proposing something entirely new — a change to the state constitution requiring a mid-decade redistricting plan from a panel of retired judges. If the Legislature goes along, redrawn districts would give Schwarzenegger a chance to flex his muscles at midterm: More competitive districts would let him leverage his popularity to sway Assembly and Senate races. Judicial involvement itself isn’t new. Legislative stalemates and litigation have brought the bench into two of the last four redistricting battles. In each case, a panel of court-appointed special masters approved the final map, though in both cases the maps themselves were drawn under the direction of Paul McKaskle, a University of San Francisco law professor and election law expert. The current map, drawn in 2001, escaped court scrutiny. Critics say that’s because both political parties agreed to lines that entrenched existing lawmakers. They note that none of the 153 seats up for grabs in the Congress and Legislature this fall changed parties. “The current system is rigged to benefit the interests of those in office,” Schwarzenegger said in his January State of the State address. “We must reform it.” At least some officeholders agree. “The disparity is too great,” said Senate Republican Leader Dick Ackerman, of Irvine. “Competitive seats are going to have to make those representatives more responsive to their electorate. [Now] they’re more inclined to do whatever their party leadership tells them.” Three legislators are now carrying measures that would modify the redistricting process, and there are a handful of voter initiatives circulating as well. A fourth measure linking redistricting with an extension of term limits is expected to be filed soon by Assemblyman Joe Canciamilla, D-Pittsburg. Many of the plans, like the Schwarzenegger bill carried by Assembly Republican leader Kevin McCarthy, of Bakersfield, propose putting the actual job of drawing lines into the hands of retired judges. McCarthy’s bill calls for the Judicial Council, headed by Chief Justice Ronald George, to select a panel of three special masters “at random” from a pool of interested applicants who have never held partisan office and are willing to work for free and refrain from running for partisan office for at least five years. George, who ruled on the 1991 redistricting plan that wound up before the state Supreme Court, declined to discuss the merits — or the risks — of transferring the job to the judiciary, except to express confidence in the bench’s ability to do whatever it’s asked. “I don’t want to give the impression that the court is either eager or reluctant,” said George. “We will perform whatever function is assigned to us.” But there’s already been speculation among some in Sacramento that one reason Schwarzenegger gave the courts a 9.3 percent budget increase this year — the second-largest seen by any state department — is to curry favor. “That may be the view of conspiracy theorists,” said H.D. Palmer, a spokesman for the Department of Finance. He added that this year’s court budget increases were the fruition of discussions held between Schwarzenegger, George and the Administrative Office of the Courts that began a year ago — long before the governor’s redistricting proposal. George said he met with Schwarzenegger several times to discuss the court budget but said redistricting never came up. If the task ends up falling to retired judges, “it will be just another job,” George said. The task of selecting special masters is nothing more than an administrative matter, he said — a chore he said that could have just as easily been assigned to the judicial retirement system. BATTLE LINES The last time state judges got involved, experts say, redistricting went pretty well. In the early 1990s, a court-appointed panel of special masters tapped law professor McKaskle as director and chief counsel. Sen. Ackerman said the districts McKaskle drew were so competitive that the leadership of the Assembly even passed briefly to the Republican Party. “Obviously, in my view, the system of nonpartisan redistricters I think worked,” said McKaskle. “Would it always work? That’s hard to say.” Like other redistricting experts, McKaskle points to the constraints partisan and racial concentrations place on creating districts that are both equitable and competitive. “It depends on the political segregation of a state as to how competitive the districts will be,” said Nathan Persily, a University of Pennsylvania Law School elections law specialist who has himself served as a special master in other states. “I am not so sure that merely transferring authority to judges will lead to widespread competition among most districts in California.” Some election specialists question whether anyone can do much to create competitive districts in a state hamstrung by existing requirements. Some districts are already under federal scrutiny to prevent dilution of minority representation under the federal Voting Rights Act. And state regulations require district lines to adhere as much as possible to existing municipal boundaries, although, added Cain, “that’s not to say there aren’t exceptions.” Demographics add to the challenge, with liberal Democrats concentrated in the Bay Area and conservative Republicans blanketing inland areas and parts of Southern California. “There’s only so much you can do,” said Richard Hasen, a Loyola Law School professor of election law. “San Francisco is always going to be Dem, and Orange County is always going to be Rep,” concedes Ackerman. “But you have a lot of areas around them.” Some experts say redistricting is as much about perception as results. Cain said he favors taking the job away from all public officials and giving it to a politically balanced panel of appointed citizens. Such a process “is a much better model for California,” said Cain. Leaving judges out of redistricting might be a better model for the bench, too. “Just because a plan is drawn by judges doesn’t immunize it from accusations of partisanship,” says Persily. “Most frequently it’s the case that those who lose in a redistricted [race] accuse the line-drawers.”

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