It’s election season, which means that voters are faced with yet another proposal to break the Golden State into several Californias. After trying (twice) and failing to break California into six pieces, billionaire venture capitalist Tim Draper is back with a new twist on the same idea.
His latest proposal – which qualified this week for the November 2018 general election – asks voters to divide California into three states. Similar fancies have failed more than 200 times since 1850. Since this proposal won’t seem to die, let’s review the fundamental constitutional defects that cripple each of its variants.
This and all similar proposals exceed the electorate’s initiative power because they are a revision to California’s Constitution. Measures that effect far-reaching changes in the state’s governmental framework can only be initiated by the state Legislature, or by calling a constitutional convention.
We expect the measure will face a pre-election legal challenge on this basis, among others. And like the failed Six Californias proposal and the aborted Calexit movement, this proposal must confront the Admissions Clause of the U.S. Constitution, which requires an existing state’s legislature to consent to the formation of a new state from its territory.
Because the California Legislature is supremely unlikely to agree to subdivision, the initiative tries to sidestep this requirement by providing that passage represents “legislative consent . . . given by the people.” False: Under California law the electorate and legislature are distinct political entities, and neither the California nor the U.S. high courts have interpreted their respective constitutions to equate a state’s legislature with its electorate in this context.
And even if Cal 3 clears that hurdle, the Admissions Clause also requires majority approval from Congress to admit new states to the union. Congress is unlikely to be interested in changing the balance of power it so jealously guards and surrendering one-seventh of the nation’s gross domestic product.
So why do these schemes persist? They all rely on the fundamental complaint that California is “ungovernable.”
Someone should tell Gov. Jerry Brown, who since 2011 has presided over the fifth largest economy in the world, a $19.3 billion budget surplus, rising job gains, and 4.2 percent unemployment (the lowest in nearly a decade).
To the extent that the state’s size compels one-size-fits-all policies, James Mayer (executive director of California Forward, a nonpartisan, nonprofit organization) has a better solution: devolve more authority to the counties and charter cities. That requires no ballot measures or constitutional changes, and it keeps California’s economic engine running at full speed.
Similarly, the legislature and electorate could use the revision procedure to devolve some of the state’s authority to three regional governments that align with Cal 3’s geographic divisions. This would be a cumbersome undertaking, but it would avoid the hurdles posed by the federal Constitution.
Cal 3 is no better or worse than any of the other previous proposals to subdivide California (or to secede). They are all equally impractical. The fact that the voters have repeatedly rejected similar plans shows that this is a solution in search of a problem – and making a third run at this, despite these well-known legal and political obstacles, shows that this is just another quixotic waste of a billionaire’s money and the voters’ attention.
And if it passes? It wouldn’t be the only time in recent history that the improbable happened in an election. The result would be either nothing, or disaster.
Nothing would happen unless the likely legal challenges fail, and the Legislature and Congress approved. If (improbably) all that happens, the new states will face severe economic strain and years of legal wrangling over resources.
Fellow Californians, we must learn to get along with each other and work together, instead of indulging this folly and retreating into ever-smaller homogenous enclaves. California is just fine as it is – a single state, undivided. Keep California together.
David A. Carrillo is executive director of the California Constitution Center at Berkeley Law, where Stephen M. Duvernay is a senior research fellow. Reach them at email@example.com and firstname.lastname@example.org.