SLO County redistricting lawsuit turns Constitution on its head

February 9, 2022

By MICHAEL NOLAN

After reading the pleadings filed by both sides in the pending case (SLO County Citizens for Good Government, Inc. v. County of San Luis Obispo) which seeks to overturn the ordinance redistricting the San Luis Obispo County Board of Supervisors, I was surprised that nobody cited Article II, Section 6(a) of the California State Constitution.

This provision, first adopted in 1972, states: “All judicial, school, county, and city offices, including the Superintendent of Public Instruction, shall be nonpartisan.” This is more than just a general statement of policy because Section 26 of Article I, the California Declaration of Rights, says “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”

Read together, these two provisions prohibit the Legislature from injecting partisan politics into non-partisan offices such as the Board of Supervisors. And the redistricting statute, Elections code Section 21501(b) expressly states, in part, that the board “shall adopt supervisorial district boundaries that comply with . . . the California Constitution, . . .”.

But the complaint alleges that the Legislature, by other language in Elections Code Section 21501(d), which states: “The board shall not adopt supervisorial district boundaries for the purpose of favoring or discriminating against a political party,” requires the board consider the partisan impact on political parties in redistricting a non-partisan office. They further allege that although the SLO County Counsel advised the board that the statute permitted the board to consider such a partisan political impact, the board majority refused to do so.

These arguments ignore Article II section 6(a) and essentially turns that provision on its head. The circular reasoning is apparent because it allows the Legislature to require partisan political party matters to be considered in the decision of a non-partisan board to redraw districts for an office which the Constitution requires to be non-partisan.

A more rational and constitutional interpretation of the statute is that it was only intended to support non-partisanship by prohibiting boards of supervisors to consider the impact of new districts on political parties.

It is true that the courts have ruled that the First Amendment prohibits the Legislature from enacting laws restricting political parties from endorsing and supporting candidates for non-partisan offices. However, nothing in those decisions allows the Legislature to require the consideration of partisan political party matters into the redistricting of elected non-partisan offices.

If the Legislature has that power, then it has the power to make the State Constitution’s requirement to distinguish partisan offices from non-partisan offices no more than a distinction without a difference. This would directly affect the state judiciary and every local office.

How could any legitimate “Citizen for Good Government” be in favor of that?

Judge Rita C. Federman listened earlier today to arguments of the parties concerning a temporary injunction. One of the elements required is for the plaintiffs to have a reasonable likelihood of success at trial. From my analysis I conclude, in the words of Eliza Doolittle: “Not bloody likely.”