California State Senate District Numbering: Special Election Law Should Be Amended

The issue of odd/even state senate district numbering has vexed the California political system after every decennial redistricting since the scheme began 132 years ago. Due to shifting district numbers and lines, citizens inevitably are subject to “deferrals” (having no senator until a year ending with “4”) and “accelerations” (having two senators during that period).

If a senate seat that will be elected in November 2014 becomes vacant early, current state law strangely requires use of “old” district borders in special elections held before then, even though “new” districts take effect for other senators in 2012. Absurdly, un-represented residents of the new district are deprived of an opportunity to resolve their “deferral” while residents of the old district may get to elect two senators a few months apart (or even on the same day).  

Courts have upheld this practice, but have not forbidden alternatives.  In Legislature v. Reinecke (1973), the California Supreme Court held there was no violation of the 14th Amendment Equal Protection Clause in the continuance of staggered terms in state senate elections following redistricting.
The court observed that if the California Constitution's provision concerning staggered terms were given effect, the senators in odd districts elected in 1972 were entitled to serve until 1976, and if vacancies occurred in those districts before 1976, they would be filled using the 1972 districts.  This is a longstanding principle, earlier upheld in People ex rel. Snowball v. Pendegast (1892).  However, no court apparently has required this practice.

California Elections Code sec. 10704 mandates that special elections be held in "the district in which the vacancy occurred." The Legislature ought to revise sec. 10704 to mandate that new senate district boundaries be used in all special elections on and after November Election Day in years ending “2.” Otherwise, Governor Brown should order use of new districts in special election proclamations that he issues pursuant to California Constitution, Article IV, sec. 2 (“When a vacancy occurs in the Legislature the Governor immediately shall call an election to fill the vacancy.”). These remedies would ensure that senators represent as many Californians as possible.

UPDATE (December 8, 2012): State Sen. Doug LaMalfa resigned his senate seat in September 2012 in anticipation of his victory in the vacant 1st Congressional District race in November 2012.  Consequently, a special election to determine his replacement in the "old" 4th Senate District was held on November Election Day.

The "old" 4th Senate District included all of Del Norte, Siskiyou, Shasta, Butte, Tehama, Glenn, Colusa, Sutter and Yuba counties and portions of Nevada and Placer (Rocklin, Lincoln, Loomis) counties.  The "new" 4th Senate District encompasses a much smaller geographic area: all of Tehama, Glenn, Colusa, Sutter, Yuba and Butte counties plus portions of Placer (city of Roseville) and Sacramento counties.

Siskiyou and Shasta counties, western Nevada County (Grass Valley/Nevada City) and the Lincoln/Loomis/Rocklin area of Placer County, have been transferred to the new 1st Senate District.  Consequently, voters in those areas voted for two state senators on the November 2012 ballot (the "old" 4th District and the new 1st District).  Del Norte and Trinity counties were transferred from the old 4th District to the new 2nd Senate District (but they voted in November 2012 for the special senate election in the "old" 4th District).

The city of Roseville in Placer County presently does not have representation in the state senate as it was part of the "old" 1st Senate District (which no longer exists) and is part of the "new" 4th Senate District (next election is in November 2014).  Therefore, Roseville is a "deferral" state senate jurisdiction.

Had Elections Code sec. 10704 been amended or had Governor Brown issued a special election proclamation declaring that the "new" Senate District 4 been "the district in which the vacancy occurred," then the city of Roseville would be represented in the state senate the next two years and Siskiyou and Shasta counties and the Grass Valley/Nevada City area of Nevada County would have been spared the second senate election.

California's 11th Congressional District: U.S. Rep. Jerry McNerney's Remarkable Electoral Success

California’s sprawling 11^th Congressional District (most of San Joaquin County, Brentwood, Pleasanton, Dublin, San Ramon, Danville and Morgan Hill) almost certainly will be changed significantly in the 2011 re-districting. It has proven to be among the state’s most politically volatile constituencies.

U.S. Rep. Jerry McNerney (D-Pleasanton) was the only successful general election challenger in all of California’s 173 legislative districts (federal and state) in the past decade, when he defeated seven-term Rep. Richard Pombo (R-Tracy) in 2006. McNerney barely won re-election against San Ramon attorney David Harmer (R) in 2010 (48.0% McNerney vs. 46.9% Harmer, a 2,658 vote plurality). No other incumbent than Pombo was defeated in a general election in a California congressional, state senate, or assembly race in the past decade.

McNerney’s victory in 2006 was improbable, but his win in 2010 was astounding. Last November, McNerney was the only Democrat who won a "Whitman-Fiorina" congressional or state legislative district. Republican gubernatorial candidate Meg Whitman defeated Democrat Jerry Brown by two percentage points in the 11^th Congressional district (48.9% Whitman vs. 46.7% Brown). McNerney was the only Democrat who prevailed in the 59 federal and legislative districts that favored Whitman (19 Congress, 13 state senate, 27 assembly). Carly Fiorina, the Republican senatorial nominee, defeated Sen. Barbara Boxer by nearly seven percentage points in CD-11 (50.7% Fiorina vs. 43.8% Boxer).

McNerney's percentage in CD-11 in 2010 (48.0%) was higher than Brown's (46.7%) or Boxer's (43.8%). This was his victory. There were no "top-of-the-ticket coattails" for him to ride on.

Brown and Boxer won in the other 33 congressional districts won by a Democratic congressional candidate. Boxer even won in the two other San Joaquin Valley districts represented by Democrats, despite the Delta water pumping controversy. She defeated Fiorina in the 18^th congressional district, stretching from central Stockton to Merced County (represented by Dennis Cardoza, 47.9% Boxer vs. 44.5% Fiorina) and in the 20^th congressional district, including Kings County and portions of Fresno and Kern counties (represented by Jim Costa, 48.3% Boxer vs. 43.5% Fiorina).

The only Republican congressional candidate who won in a “Democratic” district in 2010 was Dan Lungren in CD-3 (Rio Vista and Sacramento, Amador, Calaveras and Alpine counties). Jerry Brown barely defeated Meg Whitman in CD-3 (47.6% Brown vs. 47.4% Whitman, a 725-vote plurality for Brown), but Carly Fiorina handily defeated Barbara Boxer in CD-3 (Fiorina 52.9% vs. Boxer 40.7%). So, in other words, all congressional districts that elected Republican U.S. Representatives voted for Fiorina, Dan Lungren was the only Republican to win a “Brown for Governor” congressional district and Jerry McNerney was the only Democrat to win a “Whitman for Governor” or “Carly Fiorina for U.S. Senator” congressional district.

In 2008, CD-11 voted Barack Obama 53.8% vs. John McCain 44.5% in the presidential race as McNerney defeated Republican Dean Andal, 55.3% vs. 44.7%. In 2006 in CD-11, Republican Gov. Arnold Schwarznegger trounced Democratic State Treasurer Phil Angelides, 65.3% vs. 31.1%, while Sen. Dianne Feinstein prevailed over Republican Richard "Dick" Mountjoy, 55.4% vs. 40.3%. Riding on a national Democratic trend, McNerney defeated Pombo 53.3% vs. 46.7% in that election. While “top of the ticket” Democrats won CD-11 in 2006 (Feinstein) and 2008 (Obama), McNerney prevailed in 2010 despite losses by Brown and Boxer in his district. McNerney in 2010 won despite an anti-Democratic trend in his district and national antipathy towards his party.

McNerney’s political success also is remarkable because most CD-11 communities are “bellwether cities” in statewide elections, full of independent-minded voters (considered “fickle” by partisans). As “bellwether city” voters decide, so goes California. Tracy, for example, voted closer to the statewide result in the 2010 gubernatorial election than any other California city. Dublin was no. 27.

Senator Boxer’s loss of CD-11 in 2010 was in contrast to her victory there six years earlier. In 2004, Boxer defeated former Secretary of State Bill Jones (R), 50.2% vs. 46.6%. She lost 6.4 percentage points in 2010 compared with 2004. Her narrow victory in 2004 demonstrated that it was possible for a Democrat to win in CD-11, even as Republican President George W. Bush defeated Democratic Sen. John Kerry in the presidential race there, 53.9% vs. 45.3%. [In 2004, Boxer won in all congressional districts that elected Democrats to the House and in three congressional districts that elected Republicans: CD-11 (Pombo), CD-26 (Dreier) and CD-45 (Bono).] Boxer’s success in 2004 in CD-11 helped to persuade McNerney to re-challenge Pombo in 2006. Although Pombo strongly defeated McNerney in 2004, 61.3% vs. 38.7%, McNerney rose 14.6 percentage points to oust Pombo in 2006.

Republicans have won all four gubernatorial elections in CD-11 in the past decade. In addition to Whitman's defeat of Brown there in 2010, Schwarzenegger won CD-11 in 2003 and 2006 and Bill Simon (R) defeated Gov. Gray Davis (D) in 2002 (Simon 50.5% vs. Davis 40.9%).

McNerney's Wins More Impressive Than Tauscher's In 1990s

McNerney's victories in 2006 and 2010 were more impressive than Ellen Tauscher's wins in the 10th Congressional District in the 1990s because she was aided by "coattails" from Democratic presidential and gubernatorial candidates at the top of the ticket who won in her district. In the 1996 presidential race, CD-10 voted 48.2% Bill Clinton (D) - 42.6% Bob Dole (R) - 6.2% Ross Perot (Reform). Tauscher (D) narrowly unseated two-term Rep. Bill Baker (R) that election, no doubt aided by Clinton's 5.6 percentage point advantage. CD-10 voted 56.0% Gray Davis (D) - 41.3% Dan Lungren (R) in the 1998 gubernatorial election. In the 2000 presidential contest, CD-10 favored Al Gore (D) over George W. Bush (R) [Gore 52.1%, Bush 44.8%, Nader 3.1%]. With Gray Davis and Al Gore decisively winning CD-10 in 1998 and 2000, Tauscher won both of those elections comfortably. With Democratic gubernatorial nominees losing CD-11, McNerney had no such help in 2006 and 2010.

State Senate Districts - 2010 Election - Two Republican Districts "Crossed Over"

In 2010, 38 of the 40 state senate districts voted for the gubernatorial and U.S. Senate nominees of the parties that won the state senate seat in the most recent election. In other words, these districts elected Democratic state senators and voted "Brown-Boxer" or elected Republican senators and voted "Whitman-Fiorina." None of the districts that elected Democratic state senators voted for Whitman or Fiorina. However, among the 15 districts that elected Republican state senators, SD-12 (Cannella) and SD-15 (Blakeslee) crossed party lines and favored both Brown for Governor and Boxer for U.S. Senate.

State Assembly Districts - 2010 Election - One Republican District for Brown; Two Democratic Districts for Fiorina

Three Assembly districts were "crossovers" in the 2010 elections for governor and U.S. Senate. All three were "Brown-Fiorina" districts: AD-5, AD-10 and AD-30.

In November 2010, 52 Assembly districts elected Democratic assembly members; 28 districts elected Republican assembly members. A total of 53 Assembly districts supported Brown for Governor (all of the districts that elected Democratic assembly members plus AD-30, which elected Republican David Valadao). Twenty-seven Assembly districts favored Whitman. The only "crossover" Assembly district in the gubernatorial election was AD-30.

In the U.S. Senate election, 50 Assembly districts supported Boxer and 30 Assembly districts favored Fiorina. Two districts that elected Democrats to the Assembly supported Fiorina for U.S. Senate: AD-5 (Pan) and AD-10 (Huber). All districts that elected Republican assembly members voted for Fiorina.

Final Analysis: McNerney Is Only Democratic Federal or State Legislator Who Represents "Whitman-Fiorina" District

Congressman Jerry McNerney is the only Democrat who represents a "Whitman-Fiorina" district. Of the 111 federal and state legislative districts now represented by Democrats, only McNerney's district favored Whitman for governor. McNerney is one of the three Democratic federal and state legislators whose districts supported Fiorina for U.S. senator [along with AD-5
(Pan) and AD-10 (Huber)].

Of the 62 federal and state legislative districts currently represented by Republicans, four crossed over and voted for Brown for governor [CD-3 (Rep. Lungren), SD-12 (Sen. Cannella), SD-15 (Sen. Blakeslee), AD-30 (Assemb. Valadao]. Sixty of the 62 legislative districts represented by Republicans voted for Fiorina for U.S. Senate; the two "crossover" districts that voted for Boxer for U.S. Senate were SD-12 and SD-15.