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E-251 - Thursday, June 27, 2019

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SacTown Talks by The Nooner


  • SD05 (San Joaquin): added Stockton USD trustee Kathy Garcia (D)
  • UPDATED: AD01 (Northeast Cal.): updated analysis [Nooner Premium] (8/27/19 special primary) - more GOP candidates changes analysis, likely to go to general - 2 Reps like SD01 or a Rep and a Dem making general meaningless? 


  • SCOTUS with the MOSTUS - partisan redistricting and Census citizenship question
  • Duncan's drip-drip-drip
  • Neigh
  • Small-dollar lending
  • Budget
  • CalChannel
  • From the Desk of the Dean: CSU's $1.5B
  • Hair discrimination
  • Muni matters
  • Cakeday 

Good morning! It's another early morning to get some words in this space before the women and men in robes take the bench on First Street NW for the final day of opinions of the term. 

In the background, I'm getting my rundown of last night's debate from political expert Stephen Colbert. I have the debate on DVR, but I got my politics on last night at The Crest Theatre, where there was a performance of The Alexander Project performing "Hamilton" music. In my old career, I would have gone over to San Francisco to see the original show, but last night was outstanding for the price of the Ticketmaster fees of the original.

Anyway, this appears to be the last show of the group after a four-city tour through California, but if it pops up on a calendar near you, I highly advise it. The hip-hop show includes Broadway alumni, features outstanding singing and dancing, and is appropriate for all ages. It's an 1:15-long show and encourages the audience to cheer, take pictures, etc.

On the debate, I've heard a couple of the roundup podcasts and I've also determined that Cory Booker beats Beto O'Rourke in the Spanish final exam.

Today, we've got SCOTUS at 7am, sentence manufacturing in this space until around 11:30, and then I'm going to the Public Policy Institute of California briefing. No, I'm not just going for the free salad but rather the topic: "Career Pathways and Economic Mobility at California’s Community Colleges." The report was un-embargoed at 9pm last night but I didn't get a chance to read it yesterday with everything going on. My quick glance takes away that career-technical education can quickly move graduates into middle-class wages, but there are measurable differences among socioeconomic groups.

Let's get to the gnus. Okay, I'll put the debate on in the background as I write below and await SCOTUS decisions.



SCOTUS WITH THE MOSTUS:  Well, that was a fun Supreme Court scramble this morning. Gerrymandering is 72 pages, while Census is 92 pages, so this will obviously be somewhat cursory. The Nooner hamsters are still boning up on Constitutional Law. Fortunately, it's the area of law that interests me the most.

PARTISAN GERRYMANDERING: In a 5-4 opinion authored by Chief Justice John Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, the Court held that partisan gerrymandering is a non-justiciable political question that is not reviewable by Article III (federal) courts. Justice Kagan filed the dissent, joined by Ginsburg, Breyer, and Sotomayor. 

I'll just say it while pissing off my liberal friends--the majority has it right from my studies of the issue. The liberals make good points in the dissent, but there is no basis in the Constitution by which to find that partisan gerrymandering is not a political question. In contrast, racial gerrymandering is unconstitutional under the Fourteenth Amendment, as is one-person, one-vote (which is very different than one-voter, one-vote).

That doesn't mean that I agree with partisan gerrymandering or that there is no recourse to stop it. Indeed, California has found such recourse through the initiative process that created the California Citizens Redistricting Commission in the California state constitution. You'll read in this space often criticism of the state's initiative process and need for reforms, but in this case, Hiram Johnson had it right. Other states should follow suit with an independent commission, and many have--before and after California.

Additionally, the Court's finding that partisan gerrymandering is non-justiciable by Article III courts does not leave Congress out of the equation. Congress has the job of determining apportionment of congressional seats and while the drawing of lines has been left to the states, it would not be unconstitutional for Congress to prohibit partisan gerrymandering by those states that don't already essentially do it, like the subject ones in these cases--Maryland and North Carolina.

Meanwhile, look for gerrymandering challenges to be made with race as the basis. For the political science geeks, the words "cracking" and "packing" may come to mind. There are lots of ways to challenge based on race.

CENSUS CITIZENSHIP QUESTION: In quick summary with more below, the Court held that asking about citizenship on the decennial Census is allowable under the Constitution. However, the Court agreed with the district court that the inclusion of the question by the Department of Commerce (which oversees the Census Bureau) is subject to the Administrative Procedure Act (APA). Further, the Court held that because the issues had moved to the appellate process without a thorough explanation by the Department of Commerce of the basis for its decision to include the citizenship question for 2020. Thus, the court essentially required the district court and Department of Commerce to start over with an examination of the process used in the development of the question under the APA.

"Quick," huh? To understand why it's so complicated, check out this breakdown of the vote on the opinion:

Census Breakdown

That is the sort of mind-f*** given to a Con Law student by the evil professor in the Socratic method. "Mr. Lay, how did Justice Kavanaugh weigh in on this case?" 

Practically, it means that it is more unlikely than not that the citizenship question will not be on the 2020 Census. However, CNN is patently wrong with the headline "Supreme Court blocks 2020 census citizenship question in setback for Trump admin." 

The Court said that the explanation has to be given more thoroughly than just an appellate brief. Yes, a trial on the facts will likely make it not practical to have a final decision before the Census forms need to be finalized. That said, the Department of Commerce has not stated what its "drop dead" date is for developing the forms for an April 1 count, and the Census Bureau has great latitude under statute in the process, although the Bureau has said that July 1, 2019 is the date.

A complicating factor is a case out of Maryland. This gets all TV drama. A Maryland federal district court judge ruled that the citizenship question was already at the Supreme Court Level. However, new evidence that from the hard drive of deceased GOP redistricting strategist Thomas Hofeller that indicated a motivation for the citizenship question was to suppress Hispanic voters led the Fourth Circuit to remand the case back to the district court to consider the new evidence. Obviously, that will take time.

However, the District Court in Maryland may now wait for the cases the Supreme Court remanded back to the New York District Court today before proceeding, since if Department of Commerce provides a satisfactory explanation under the Administrative Procedure Act separate from the hard drive evidence, the Maryland case would be moot. Are you following the bouncing ball?

It's 90% likely that there will not be a citizenship question on the 2020 ballot, but that's a fungible practical consideration rather than a legal one. There is no legal barrier to a citizenship question on the Census in 2020 or beyond. Today was an Administrative Law decision rather than a Constitutional Law one. (I inappropriately use capitals because those are still law school classes to me.)

I'll be reading the cases more thoroughly late this afternoon, but that's the best I can digest right now.

DUNCAN'S DRIP-DRIP-DRIP: In the SDUT, Jeff McDonald reports that Congressman Duncan Hunter has been accused of groping a Capitol Hill staffer. McDonald writes:

"Rory Riley Topping, a former House Committee on Veterans Affairs employee who now works as a consultant in Washington D.C., told the Russian television network RT on Wednesday that the incident occurred at a National Republican Congressional Committee event in 2014.

“Duncan Hunter clearly appeared intoxicated and he came up to me and said he wanted to speak to me about Agent Orange, which was an issue the committee was dealing with at the time,” Riley Topping told the interviewer.

“I in response said, ‘I’m happy to reach out to your staff and follow up on that,’ and he leaned into me very closely and said, ‘No, I want to talk to you’,” she added. “And I felt very uncomfortable and tried to back up and he reached around and put his hand on my behind and said, ‘Let me give you my cell phone number.’ I immediately kind of backed up and pushed him away.”


“I am aware of the story,” Hunter spokesman Michael Harrison wrote in an email. “The office does not have any comment on this at this time.” 

We'll just leave it at that.

NEIGH: In the Times, John Cherwa reports that Governor Newsom signed Bill Dodd's SB 469, which gives the California Horse Racing Board the authority to quickly suspend racing on tracks under certain circumstances.

The bill got lots of aye votes from 🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎🐎.

The bill was allegedly "fast-tracked." Fast-tracked was the charter school transparency and accountability bill in January. SB 469 was approved the day after the Santa Anita season closed for the summer. Just sayin'. 

I'm not going to conclude it was the $13,500 Santa Anita gave Assembly G.O. chair Adam Gray's "ballot measure" committee as several labor unions also wanted to make sure the bill didn't pass until after the racing season.

SMALL-DOLLAR LENDING: Senate Banking and Financial Institutions approved AB 539 (Limón and Grayson) on a 6-0-1 vote late yesterday, although a couple of members (Caballero, Dahle) gave the oft-used legislative jargon of "I'm voting for this bill today but...". The non-voting member was Ben Hueso (D-Logan Heights), and the Target Book's Rob Pyers provides a "completely unrelated" tweet.

BUDGET: Ben Adler tweets "A minor #cabudget nugget: the clean drinking water legislation will no longer be a trailer bill. It’ll move forward next week as an amended standalone urgency bill authored by Sen. Bill Monning, coauthored by Asms. Eduardo Garcia and Richard Bloom."

Basically not cooked for today's budget signing. 

CAL CHANNEL: It's been in the wings for awhile, but the Capitol Morning Report includes this morning that the California Channel plans to shut down in October. The channel is funded by cable companies, which now see that since voters adopted Proposition 54 requiring audio/visual hearings to be available within 24 hours make the channel no longer necessary. What this also means is that in order to see any live coverage (for now), you will need to get your butt to the building or subscribe to the premium Capitol channels package, which appears to be only available for Comcast Business.

Even before Proposition 54, the cable companies wanted an exit strategy from the California Channel. Like C-SPAN, it was an olive branch to the Legislature in earlier days of cable before other there were so many other avenues to content. With satellite, high-speed internet allowing custom packages, telecoms delivering content in bundles, and satellite, the cable companies are wondering why they should foot the bill (even though it's funded through a fee on customer bills). 

The Legislature needs to step up and find a way to create live streaming of at least floor sessions. The cameras are there (as well as in committee rooms), so it's really just the connectivity and bandwidth to provide it. But it would be inexcusable to just suggest that posting floor sessions that can last as long as eight hours online and expect interested citizens to find the needle in the haystack for a particular bill. Gibran, let's get Assembly Rules Committee chair Ken Cooley (D-Rancho Cordova) on the pod to talk this and the Annex project. 

FROM THE DESK OF THE DEAN: George Skelton pens for the Los Angeles Times that he doesn't believe the California State University's claim that it's opaque $1.5 billion reserve is nothing "nefarious." Skelton writes:

"Howle’s latest discovery was reported last week when she alleged that giant CSU had hoarded a $1.5-billion surplus, hiding it from legislators and students while hiking tuition and poor-mouthing the state for more money.

CSU also built parking garages with student fees that really didn’t provide much more parking for students, the auditor found.

The CSU chancellor’s office, she wrote in her report, “has failed to fully disclose financial resources that it holds in outside accounts….

“As of June 30, 2018, CSU had accumulated a surplus of more than $1.5 billion, which consisted primarily of unspent tuition revenue. During the same decade that this surplus was growing, the annual tuition for students … nearly doubled. And the state increased annual appropriations to CSU as a result of additional voter-approved taxes.”

Anyway, I'm a big fan of CSU Chancellor Tim White, who attended a California Community College, a CSU, and received is Ph.D. from UC. He epitomizes the Master Plan for Higher Education. But, I've been on the "wrong side" of the State Auditor before and had to spin, knowing the findings were largely truthful. Skelton continues:

"Howle, who has a staff of 125 auditors, says: “We’ve been doing this for a long time. Our job is disclosing facts and the truth.”

There’s no reason to believe she hasn’t disclosed it again. CSU should listen up."

HAIR DISCRIMINATION: In the LAT, Alexa Díaz writes up Senator Holly Mitchell's SB 186, which would prohibit employment discrimination based on hairstyles historically associated by race. The bill is flying through the process. Do not mess with Holly. Do not mess with Holly's hair. 

MUNI MATTERS and CAKEDAY after the jump...


Probolsky Research



SACTOWN: For CapRadio, Bob Moffitt reports that Sacramento's homeless population has increased by at least 19% to nearly 5,600. "Sacramento Steps Forward and Sacramento State worked on the study and say this effort is a more thorough count of the population compared to one completed in 2017." 

LA-LA LAND - HOMELESS: For the LAT, Emily Alpert Reyes and Benjamin Oreskes write that Los Angeles wants more money from the state to tackle homelessness--a lot more:

"At a news conference Wednesday, City Councilman Mitch O’Farrell urged the state to match the $1.2-billion bond measure that L.A. voters approved in 2016 to build homeless housing, contending that the additional money could be pulled from the state’s reserves.

That funding would be on top of whatever L.A. gets out of the $650 million already being allocated to cities and counties by the state, which was approved just weeks ago. O’Farrell said the money could be used to double the 10,000 units that the city had aimed to build with the help of its bond measure, Proposition HHH."  

#CAKEDAY: Happy birthday to Rob Charles, Larry Doyle, and former Assemblymember Matthew Harper!




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