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January 3, 2014

Some Political and Constitutional Questions Raised by Tim Draper’s “Six Californias” Plan to Split Up California

Cross-posted from Justia's Verdict.


Silicon Valley billionaire investor Tim Draper recently unveiled a plan to divide up California into six separate states because, in his view, "California's diverse population and economies [have] rendered the state nearly ungovernable." In the space below, I begin to identify some of the political and constitutional hurdles this proposal faces. Because the topic is vast and complicated, in today's column I can do no more than spot and preliminarily analyze some of the major issues; if and when the proposed measure successfully moves through various stages of the political process, I shall likely offer a more detailed analysis of many of these questions.

A Summary of Mr. Draper's "Six Californias" Proposal

Mr. Draper has drafted and submitted to the California Attorney General an initiative measure that would, if it qualifies for the ballot and is then enacted by the State's voters, amend the California constitution and statutes to provide for the creation of six separate states out of what currently makes up the Golden State. The six new states the measure creates are: the State of Jefferson (consisting roughly of the rural counties north of the Sacramento area all the way to the Oregon border); the State of Northern California (consisting roughly of an area from Marin and Sonoma Counties on the Pacific Coast, extending eastward through the Napa and Sacramento regions, and to the northern Sierra mountains all the way to Nevada); the State of Central California (consisting primarily of the agriculture-based Central Valley and the middle part of the Sierra mountain range); the State of Silicon Valley (consisting generally of the San Francisco-Oakland-San Jose metropolitan region, extending South to the Monterey/Carmel area); the State of West California (consisting primarily of the Los Angeles region North to the Santa Barbara area); and the state of South California (consisting generally of San Diego, Orange and Riverside Counties).

The proposed lines dividing each of the six new states are provisional; under Draper's proposal, over the next few years, any county that adjoins any of the proposed states can choose to become part of that contiguous state, provided that the counties that are provisionally in that neighboring state also agree to add such a county. On January 1, 2018, the Governor of California is to certify to Congress that California has consented to the creation of six separate states that are defined along the lines described above-subject to any modification that has occurred because some counties have successfully attempted to join contiguous proposed states-and to ask Congress to approve the creation of these six new states.

Draper's initiative also has a provision appointing the "official proponent" of the measure (presumably himself) as an "agent of the State of California" for purposes of defending the initiative measure against legal challenge (presumably in federal, as well as state, court). That provision gives the official proponent the power to "supervise" any legal defense provided by the Attorney General, and the power to hire, at public expense, outside counsel who will then be made "Special Deputy Attorney General," to defend the measure if the proponent, in his "sole determination," feels that the Attorney General is "not providing an adequate defense."

On its face, the plan sounds far-fetched; indeed, it may be tempting to treat this proposal as one of the hundreds of initiative ideas in California that never go anywhere. But to do so would be to ignore the fact that Draper has indicated that he will provide whatever resources are needed to gather the signatures to qualify the measure for the ballot. And with his money, stature, and connections, Draper is likely to be able to succeed in at least getting the measure in front of the state's voters.

What Happens After the Measure Qualifies: Political Hurdles in California

Let us assume that Mr. Draper's measure is put before the voters. It would then, of course, face political as well as legal hurdles. As a political matter, it would have to win support both in California, and in Washington DC, because the creation of new states requires, under Article IV of the federal Constitution, the consent both of the legislatures of the involved states and of Congress. As to the state electorate, while it may be true that California (like the nation and like many other states) has endured problems in self-governance over the last decade-plus, whether Californians are ready to make such a radical change is far from clear. There is, to be sure, tension between different parts of California-the communities that make up the large and densely populated metropolitan areas on or near the coast have very different demographic, economic, cultural, and political characters than do the smaller communities located in the more rural areas to the East and Far North of the State. And there are rivalries between the Bay Area/Silicon Valley region, on the one hand, and the sprawling Southern California, Los Angeles-based, region on the other.

But there are also important centripetal forces at work here, forces that might be highlighted by some of the specific state lines that Draper proposes. Even though Draper's proposal allows for some tinkering with the boundaries pursuant to each county's authority to attempt to opt in to contiguous states, his provisional lines are an important starting point that will greatly influence voters throughout the state who have to approve the measure before any tinkering might begin. (And remember that a county can move only to a contiguous state-not to any of the six it might like best-and only if the counties in the contiguous state agree, which is far from guaranteed.) Although Mr. Draper has posited publicly that all six new states would prosper (presumably more than each of these regions does today) once they are freed from the currently unworkable yoke of California government, could the Central Valley and rural Northern counties really make do without state tax revenue that comes from the coastal and Sacramento areas? Would the new states of Jefferson and Central California have nearly the money they need to educate their children, or to maintain their infrastructures? (There is only one University of California campus - the promising but still very young UC Merced - and a few Cal State campuses located in these two new proposed states). Would relatively wealthy Marin County want to subsidize the Sierra communities of Placer and Nevada counties more or less all by itself, without the help of the rest of the Bay Area or the LA or San Diego regions? Does the Bay Area really want to let go of all the entertainment resources of the LA region? And does SoCal really want to give up all of the natural, cultural and educational resources associated with the North? And so forth.

Political Hurdles in DC

But let us imagine that a majority of Californians want to carve the state up, more or less along the lines that Draper offers. What about Congressional approval? There are plenty of political hurdles there too. Indeed, there at least two axes on which one might imagine opposition in Congress-interstate federalism and partisan posturing. As to interstate federalism, some states (and their representatives in DC) might be reluctant to reduce their current relative voice in the federal government, a consequence that would result from increasing California's share in the Senate from 2% (two out of 100) to 11% (12 out of 110, because six states would mean 12 Senators under the federal Constitution's command that the "Senate shall be composed of two Senators from each State.") Getting low-population states-that currently enjoy the fact that they have equal say with more populous states in the Senate-to effectively dilute their share of congressional ownership might be difficult.

On the other hand, some members of Congress may be moved, when considering a measure like Draper's, more by political-party considerations than by the clout their state wields in DC. Under the provisional lines Draper proposes, of the 12 Senators who would come from the six Californias, we could expect four (from Silicon Valley and West California) to consistently be Democrats, and four (from Jefferson and Central California) to lean Republican, with the other four (from Northern California and South California) harder to predict. But we could have a situation in which California moves from its current position of consistently producing two Democrat and zero Republican Senators (a net plus-two for the Democratic Party) to a situation in which the Californias could produce as few as four or five Democrats and as many as seven or eight Republicans (resulting in a net minus-two or even minus-four for the Democratic Party.) If the Democrats retain control of the U.S. Senate in 2018 (when Draper's proposal would be sent to DC), or if the President in 2018 is a Democrat, then Draper's measure might face partisan opposition in the Senate or in the White House (which has the power to veto any such measure), And all of that is to say nothing about how the creation of six Californias might affect the electoral college and partisan presidential politics, an extremely complicated question in its own right.

It's hard to know how any of these forces in DC might play out. Some analysts have argued that partisan considerations, more than other factors, have driven earlier episodes in American history in which new states have been added. If that was, and remains, true (a big "if"), perhaps some of the small states (that like being overrepresented in the Senate) tend also to be Republican states (that would like to take away the Democratic Party advantage in U.S. Senators from California.) And maybe some small states might think that they will share some rural, agriculture-based attitudes with at least two and maybe three of the newly created six Californias-attitudes that tend not to be currently reflected in the two Senators whom California currently sends to DC (because these two Senators are understandably influenced more by the coastal regions of California, where voters are concentrated.) Or perhaps federal Representatives and Senators from other states will be risk-averse, and simply not want to take a chance of increasing California's clout in federal processes (especially because all of the six new Californias might, for some time, continue to be tied to each other economically and culturally). In this regard, it bears noting that no new states have been added to the United States in over 50 years, and that no new state has been created out of an existing state for more than 150 years (when West Virginia was created out of territory wholly located in Virginia.)

Several Constitutional Issues Implicated by Draper's Proposal

Since space is short, I shall simply list four kinds of constitutional questions implicated by Draper's plan; detailed analysis of these, and other, constitutional questions must await another time.

  1.  Can the people of a State validly authorize the creation of a new state by popular initiative? Article IV, Section 3, of the federal Constitution requires the "consent" of the "legislature" of each state whose territory is affected by a proposal to create new states. Can the people act directly as a "legislature" for these purposes, or do the elected folks in Sacramento have to sign on?
  2. Even if the people can constitute the "legislature" of the state for these purposes, would enactment of Draper's proposal constitute "consent" when the precise boundaries of the six new Californias are not definitively before the voters when they vote? Draper's proposal makes clear that its enactment is intended to constitute Article IV "consent" to the creation of six new states, but can that consent be effective when the voters have no way of knowing what the new states will actually look like until the county opt-in process is completed? In other words, might the power Draper's proposal gives to counties to modify the provisional state lines constitute an impermissible delegation of the state legislature's authority to consent to the actual creation of the new states?
  3. Can new states be validly created out of territories located entirely within existing states? Founding history and past practice (especially the additions of Kentucky and West Virginia) would suggest that the answer to this is clearly yes, but some scholars (most elaborately Michael Paulsen) have pointed out that Article IV's text and punctuation could easily be read to mean that while new states can be formed out of the territory formerly belonging to two or more states, a single state cannot be carved up into multiple ones.
  4. Would the part of Draper's proposal authorizing Draper as an "agent of the State of California" for purposes of defending the measure in Court survive the standing analysis in the Supreme Court's Hollingsworth v. Perry case last year, in which the Court rejected the claim of standing by official proponents of Proposition 8 (California's initiative ban on same-sex marriage) to defend that measure in federal court? And how does the authorization provision in Draper's proposal square with Article II, section 12, of the California constitution, which provides that "[n]o amendment to the Constitution . . . by the Legislature or by initiative, that names any individual to hold any office. . . may have effect."

I recognize, of course, that all of these constitutional questions are complicated, and that some might be avoided by federal courts under the so-called "political question" doctrine. But each is worthy of further exploration, and many of them might influence (or at least be cited by) members of Congress or others who are inclined against the measure. I'll write more on these constitutional questions if Draper's proposal turns out to have legs.